ADMINISTRATIVE
AGENCIES
~~~~~
Mian Ali Haider
L.L.B., L.L.M (Cum Laude) U.K.
INTRODUCTION
• Administrative law involves a challenge to the exercise of power
by the executive government. For this reason, it is necessary to
look at the composition and powers of executive government, and
at how they exercise their powers when they take action or make
decisions
• In practical terms executive government interferes in our lines and
their actions affect our lives in many ways.
• When we venture on a certain business, we have to acquire a
relevant permit and license before commencing our business.
• Even after we comply with such requirement, a government
inspector sent by the relevant agency enters into our premise
without court warrant and can conduct investigation
• The food and other household provisions we buy are subject to
regulations
• Administrative agencies make individual decisions affecting
citizens‘ lives and they set general policies affecting an entire
economy through they are usually headed by officials who are
neither elected nor directly accountable to the public.
• Under this unit we will have a deeper look at the nature,
purpose, scope and nature of power of the administrative
agencies. The growth of the administrative law to large extent
may be identified with the proliferation of administrative
agencies, not only in number but also in power and function .
– Define administrative agency and identify ways in which a definition
of agency affects the scope of the administrative law.
– Identify the reasons for creating administrative agencies.
– Distinguish executive agencies from independent agencies.
– Examine the mechanisms used to enforce a law by administrative
agencies.
– Differentiate executive, legislative and judicial power of agencies.
– Reason out why administrative law is closely related to administrative
agencies.
BASICS OF
ADMINISTRATIVE LAW
Agencies Defined
• Creations of the legislature
• Authorized to carry out specific duties:
– Issue rules and regulations
– Adjudicate claims and disputes
– Enforce and administer machinery of
government
Two Types of Agencies
• Executive
– May not act independently of executive
– Head serves at pleasure of executive
• Independent
– May act independently
– Head appointed by executive and serves for
fixed term
Charles Evans
Hughes
_____________
Chief Justice,
United States
Supreme Court
1930 – 1941
Source: http://www.supremecourthistory.org/02_history/subs_timeline/images_chiefs/011.html
“Whatever the cause of the failure to give
appropriate public notice of the change in
the sections, with the result that the persons
affected, the prosecuting authorities, and the
courts, were alike ignorant of the alteration,
the fact is that the attack in this respect was
upon a provision which did not exist.”
Source: Panama Refining Co. v. Ryan, 293 U.S. 388, 412-13 (1935)
Source: http://www.supremecourthistory.org/02_history/subs_history/02_c11.html
1946
Administrative
Procedure Act
1936
Federal Register
Act
NATURE OF AGENCIES
• There is hardly any function of modern government that does not
involve, in some way, an administrative agency.
• The 20th century has witnessed an unprecedented proliferation of
agencies with varying size, structure, functions and powers
charged with the task of day – to- day governing.
• Their existence and growth have been the typical characteristics of
the modern administrative state (welfare state.) For this reason,
they have been responsible for the expansion and development of
administrative law greatly influencing its content, scope and
future.
• In the broadest sense, administrative law does not involve the
study of how those parts of our system that is neither legislature
nor courts make decisions
• It is concerned with the study of the procedures, powers and
control mechanisms of the administrative agencies. For this
reason, the complex web of the administrative process of agencies
constitutes an essential aspect of administrative law.
• Administrative agencies have become a major part of every
system of government in the world. In Ethiopia, for instance, they
are the primary tools through which local, states and the federal
government performs regulatory functions.
• The vast increase of agencies in number and power has been
observed by a U.S. Supreme Court judge who makes the
following remarks:
• “ The rise of administrative bodies probably has been the most
significant legal trend of the last century and perhaps more
values today are affected by their decisions than by those of all
the courts . . . They have become a veritable fourth branch of
government.”
MEANING OF
ADMINISTRATIVE AGENCY
• Defining an administrative agency is not an easy task.
• Agencies come in a huge array of sizes and shape.
• This is coupled with their wide ranging and complex functions
and their power to legislate and adjudicate, in addition, to their
normal executive powers, makes it challenging and difficult to
precisely provide a precise and concise definition covering all
these aspects of the administrative process.
• Agencies may be defined as governmental entities, although
they affect the rights and duties of persons are neither courts nor
legislatures.
• For one thing it is true that agencies are not located within the
legislative or judicial organ of the government. Although they
are within the executive branch, most of them are not mainly
accountable to the executive branch
• The term executive branch of government is used either to refer
to the president (e.g. in U.S.), or the prime minister and the
council of ministers (e.g. Pakistan).
• This definition lacks some precision. A government entity
outside of the judiciary or the legislature does not necessarily
qualify as an administrative agency.
• The American Administrative Procedure Act adopts this and
defines agency as any U.S. governmental authority that does not
include Congress, the courts, the government of the district of
Columbia, the government of any territory or possession, courts
martial, or military authority
– In this definition, the reference to ―authority‖ signifies a restriction on the
scope of government entities that may be properly called as agency.
– Authority refers to a power to make a binding decision. Therefore, only
entities with such power constitute an agency.
– In a similar fashion, Black‘s Law dictionary defines agency as a
governmental body with the authority to implement and administer
particular legislation
• A more detailed definition of an administrative agency is
given in the New York Administrative Procedure Act, which
reads:
• “An agency is any department, board, bureau, commission,
division, office, council, committee or officer of the state or a
public benefit corporation or public authority at least one of
whose members is appointed by the governor, authorized by
law to make rules or to make final decisions in adjudicatory
proceedings but shall not include the governor, agencies in
the legislative and judicial branches, agencies created by
interest compact or international agreement, the division of
the military and naval affairs to the extent it exercise its
responsibility for military and naval affairs, the division of
state police, the identification and intelligence units of the
division of criminal justice services, the state insurance fund,
the unemployment insurance appeals board.”
• Generally speaking, we may identify two important elements in
distinguishing whether a certain government entity is an
administrative agency or not.
– Firstly, the nomenclature may be indicative of the status of an
entity as an agency. Most agencies have names like
department, authority, commission, bureau, board etc;…
– Secondly, the government entity should be empowered to
legislate (through delegation), or adjudicate individual cases,
in addition to its merely executive functions. Generally, an
entity is an agency if it has authority to take a binding action.
• Even though the above two elements are fulfilled, it is also
important to check whether there is any express exclusion from
the above definition. You can clearly see in the New York
Administrative Procedure Act that some entities are excluded
expressly by the legislature.
CLASSIFICATION OF
ADMINISTRATIVE AGENCIES
• Agencies are created with varying size, structure, functions and
powers.
• Some of them may be established with broader powers; in charge
of regulating a certain sector of the economy.
• This is typically the case with ministries, which are headed by a
high-level government minister.
• Ministries not only enforce a government program or policy, but
they also supervise and overview other lower agencies that are
accountable to them.
• Others are comparatively small in structure and are charged with
a very specific task of implementing a certain portion of
government policy or programme.
• With the exception of few, almost all agencies are under the direct
control and supervision, in their day to today implementation of
government task law, or policy assigned to them by the enabling
act.
• The remaining very small agencies function independently
outside the direct control of the executive branch and they are
accountable to the legislature. Agencies are classified or
categorized based on such mode of accountability.
• Accordingly, those agencies directly accountable to the executive
branch are known as executive agencies, where those accountable
to parliament are called independent agencies.
• In Pakistan, executive agencies are usually accountable to a
certain ministry, or council of ministries, or the prime minister.
• Even though the enabling act may subject an agency to the
control of another ministry, it has also to be noted that they are
ultimately accountable to either the council of ministers, or to the
prime minister
MODE OF CREATING AN
AGENCY
• In Pakistan, whether it is at the Federal or state level,
agencies are creatures of the legislature.
• They do not spring up on their own, and courts or the
council of ministers cannot create them. The constitution
expressly requires the establishment of some independent
agencies.
• They do not have i.e. material and legal existence unless
the house of people‘s representatives enacts a specific law
for their establishment.
• Hence, agencies that are in function so far those that a
legislature has given them the authority to function. The
authority may be exceptionally broad or incredibly narrow
• It may be said that agencies are created in two ways:
• One is through the constitution, and the second is through act of
parliament.
• However, one important point that should be emphasized. Is that
the independent agencies, which have a constitutional basis, still
require an enabling act of the parliament for their legal existence.
• The only difference between the two modes of creating an agency
is that when the constitution requires the establishment of some
agencies the house of people‘s representatives has a duty to
promulgate the enabling act for that specific agency.
• When an agency is created only through the enabling act, in the
absence of constitutional duty from the parliament, its existence is
totally dependent on the will or option of the parliament.
REASONS FOR THE
CREATION OF AGENCIES
• Agencies are created and assigned specific tasks by the
legislature.
• They carry out the tasks making decisions of various sorts
and supervising the procedure by which the decisions are
carried out.
• There are many reasons why administrative agencies might
be needed. Almost every governmental agency has been
created because of a recognized problem in society, and
from the belief that an agency may be able to help in
solving the problems.
• Next slide will elaborate the main reasons for the creation
of the administrative agencies
PROVIDING SPECIFICITY
• The legislative branch of government cannot legislate in
sufficient detail to cover all aspects of many problems.
• The house of the people‘s representatives cannot possibly
legislate in minute detail and, as a consequence, it uses
more and more general language in stating its regulatory
aims and purposes.
– For instance, the house of people‘s representatives cannot enact a
tax law that covers every possible issue that might arise.
• Therefore, it delegates to the council of ministers and
ministry of revenue, FBR the power to make rules and
regulations to fill in the gaps, and create the necessary
detail to make tax laws workable. In many areas, the
agency has to develop detailed rules and regulations to
carryout the legislative policy.
PROVIDING PROTECTION
• Many government agencies exist to protect the public,
especially from the business community.
• Business has often failed to regulate itself, and the lack
of self- regulation has often been contrary to the public
interest.
• For instance, the Environmental Protection Agency is
created to regulate environmental pollution.
• In the absence of such agency, business could not
voluntarily refrain from polluting the environment. The
same can be said with respect to quality of private higher
education and unjustified and unreasonable increase in
the price of essential goods.
PROVIDING SERVICES
• Many agencies are created simply out of necessity.
• If we are to have roads, the NHA is necessary.
• Welfare programs require government personnel to
administer them.
• Social security programs necessitate that there should be
a federal agency to determine eligibility and pay
benefits.
• The Social Security Authority is established to process
pension payment and to determine entitlement to such
benefit. The mere existence of most government
programs automatically creates new agencies or expands
the function of the existing ones
STRUCTURE AND ORGANIZATION
• The structure and internal organization of an administrative
agency may greatly vary depending on the government policy and
the programme it is expected to accomplish.
• Some of them may have different departments enjoying a
substantial portion of power given to the agency by the enabling
act.
• Still there will be lower organs labeled usually as sections with
the specific tasks of the day-to-day governing. Usually, the
arrangement of the internal organization will take so many factors
into considerations, like budget implication.
• However, the main objective of the form of structure is aimed at
ensuring efficiency and effectiveness in administration
PURPOSE OF ADMINISTRATIVE
AGENCIES
• Administrative agencies are established by the legislator to perform
specific tasks assigned to them by law.
• What they actually do is to enforce a specific law. They are usually
charged with the day-to-day details of governing. The agencies
carry out their tasks by making decisions of various sorts and
supervising the procedures by which the decisions are carried out.
• The function of administrative agencies is closely related to the
reasons for their creation. A certain administrative agency comes
into existence when the legislator creates an agency for either of
those reasons.
• The agency, by making use of its expertise and giving close
attention to detail and technical matters, takes the necessary
administrative action, which may be legislative or judicial in order
to enforce the law.