ZAMBIA OPEN UNIVERSITY

ADMINISTRATIVE LAW I

LL231 ASSIGNMENT 1

BANJI KALENGA
21811816
0977335663

September 2019
1. INTRODUCTION
This essay is written in response to the assignment question: Discuss what administrative law

is and how it is different from constitutional law.

In responding to this question, this essay shall first explain what administrative law is, state

its key components and then endeavor to differentiate it from constitutional law.

2.0 ADMINISTRATIVE LAW

Administrative law is a branch of public law which owes its development mostly to the

welfare activities of countries, industrialization, urbanization, technological development.

These factors led to mass settlements that required the provision of services by the

governments to the people in a regulated manner.1

According to Kenneth Culp Davis, administrative law is the law concerning the powers and

procedures of administrative agencies, including especially the law governing judicial review

of administrative action. Sir Ivor Jennings described administrative law as that which

determines the powers and duties of administrative authorities. A.V. Dicey defined

administrative law as:

1. A portion of a nation’s legal system that determines the legal status and liabilities of all

state officials.

2. Defines the rights and liabilities of private individuals in their dealings with public

officials.

3. Specifies the procedure by which those rights are enforced.2

Based on the three above definitions, we can define administrative law as a branch of public

law that deals with the composition and powers of organs of public administration, confers
1
Harlow, C., & Rawlings, R. (2009). Law and administration(3rd ed.). Cambridge, UK: Cambridge University
Press. pp. 49-92
2
Yohannes, A., & Michael, D.G. (2011). Introduction to administrative law. Retrieved from:
https://www.abyssinialaw.com/about-us/item/166-introduction-to-administrative-law

2
limits of power to those organs, specifies procedures used in exercising those powers and

provides control of those bodies through judicial and other means. Administrative law is the

one that governments utilize in their day to day affairs of running the state. Administrative

law aims at keeping the powers of government within their legal bounds, protects citizens

against abuse by public bodies and to compel them to perform their duties.

2.1 ADMINISTRATIVE AUTHORITIES

Public bodies or authorities include individuals or bodies of individuals appointed by

Ministers or acts of parliament. Their powers are derived from parliament and they

perform duties for the general public.3 Examples of administrative authorities are

ministers, public corporations, boards established under parliamentary acts, local

government authorities and tribunals.

Public bodies are conferred with powers under the law. No power granted to a public

body is absolute and uncontrolled. Parliament enacts laws that regulate duties and

make provisions for the appointment of public authorities to perform duties according

to the objectives of the relevant act of parliament. Public bodies are expected to be

guided by principles of administrative law and those established by the courts in

various rulings. In fulfilling the objectives of the applicable acts, public bodies are

expected to observe the law and if they do not, courts can declare any decision as null

and void.4

2.1 THE ROLE OF COURTS

Judicial control of administrative actions is based on the doctrine of the rule of law

principles that prevent the arbitrary use of power and guarding against discretionary
3
Barnett, H. (2013). Constitutional and administrative law. (10th ed.). New York, USA: Routledge. p.566
4
Harlow, C., & Rawlings, R. (2009). Law and administration(3rd ed.). Cambridge, UK: Cambridge University
Press. pp. 163-167.

3
 use of power. Under this doctrine, all administrative actions should be carried out

according to the law.

In common law jurisdictions, law normally creates administrative procedures in the

legislature but these procedures are implemented and enforced by the judiciary.

Furthermore, in such countries, courts have come up also with their own procedures

regarding agencies which are based on the constitution of a particular country or the

principles of the common law.

Judicial review is a type of court proceeding in which a judge reviews the lawfulness

of a decision or action made by a public body. It is the remedy under administrative

law that people turn to when they feel unfairly treated by administrative authorities.5

2.1.1 JUDICIAL REVIEW

Judicial Review is done by the High Court and it is a process of reviewing acts done

by public authorities or a review of a court or a tribunal decision. Such review can be

done with respect to the procedural issues and in relation to whether the decision was

correct according to the law.

There are three possible grounds for bringing judicial review proceedings:

1) Illegality - The public body is not allowed to abuse its powers. Therefore if the

decision is illegal, made outside of powers of a public body, then the right to

apply for judicial review arises. Such a decision is called ultra vires. Such an

abuse is e.g. when the public body simply make illegal decision which is outside

5
Harlow, C., & Rawlings, R. (2009). Law and administration(3rd ed.). Cambridge, UK: Cambridge University
Press. p. 100.

4
 their powers, they may sometimes misinterpret the law which may have

considerable consequences, they may error on fact or they abuse their discretion.6

2) Irrationality – If the decision is irrational and unreasonable it will give rise to

application for a judicial review. The decision must be so unreasonable that no

normal person would have made it. It is very difficult to prove this ground. The

courts often quash the decision if it infringes person’s fundamental rights and if

the decision is unreasonable.7

3) Procedural impropriety - Proportional impropriety arises if a public body does not

follow procedural requirements which it is obliged to follow, and if the body acts

in a way which does not follow common law rules of natural justice as it has an

obligation to act fairly (e.g. the right to be heard or the rules on impartiality).

There is an exception to the rule; a public body does not have to act fairly if e.g.

national security is endangered.

However, these three grounds are not strict compartments and accordingly more than

one ground might overlap in challenging certain facts.

The court has the discretion to award the remedies where it finds the public body

liable. Remedy may be affected if there was undue delay or other improprieties from

the side of the Claimant. The court may award damages, declarations, injunctions,

quashing order (which quashes the decision), prohibited order (which will prevent the

public body from acting ultra vires again) or mandatory order (which will impose an

obligation upon the public body to perform its legal obligations).8

6
Bradley, A.W., Ewing,K.D., & Knight, C.J.S. (2015). Constitutional and administrative law. (16th ed.). Harlow,
UK: Pearson. p. 632
7
Bradley, A.W., Ewing,K.D., & Knight, C.J.S. (2015). Constitutional and administrative law. (16th ed.). Harlow,
UK: Pearson. p. 643
8
Bradley, A.W., Ewing,K.D., & Knight, C.J.S. (2015). Constitutional and administrative law. (16th ed.). Harlow,
UK: Pearson. p. 650

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3.0 DISTINGUISHING ADMINISTRATIVE AND CONSTITUTIONAL LAW

Constitutional law is the body of public law that defines the role, powers and structures of the

various entities within the state namely the executive, the legislature and the judiciary as well

as the basic rights of citizens.

The differences between constitutional and administrative law are illustrated in the table

below9:

CONSTITUTIONAL LAW ADMINISTRATIVE LAW

Constitutional law deals with the study of the Administrative law is subordinate to

constitution which is the supreme law of the constitutional law. If constitutional were to

land be regarded as a genus then administrative

law would be a species of it.

Constitutional law mainly deals with various Administrative law deals with the organs of

organs of a state. the state in motion. Constitutional law even

sometimes gets referred to as static law

which administrative law is considered as

law in motion.
Constitutional law deals with the structure of Administrative law is concerned with the

the state. functions of the state.

Constitutional law touches all the branches of Administrative law doesn’t deal with all

law and gives guidelines with regard to the branches of law, rather it details with the

general principal relating to organisation and powers and functions of administrative

powers of organs of the state, and their authorities.

relations between citizens and towards the

9
Shahzad, I. Differences between constitutional & administrative law. Retrieved from:
https://www.academia.edu/36820658/Differences_between_Constitutional_and_Administrative_Law

6
state.
Constitutional law gives guidelines about the Administrative law does not deal with the

international relations. international law. It deals exclusively with

the powers and functions of administrative

authorities.

Constitutional law deals with the general Administrative law deals with the powers

principal of state pertaining to all branches. and functions of administrative authorities,

including services, public departments, local

authorities and other statutory bodies

exercising administrative powers, quasi

judicial powers, etc.

Constitutional law demarcates the Administrative law is concerned with the

constitutional status of ministers and public organisation of the services or the working of

servants. the various government departments.

Constitutional law imposes certain negative .The administrators have to follow

duties on administrators, if they are found constitutional law first and next the

violating the fundamental rights of the administrative law.

citizens and also imposes certain positive

duties on administrators like implementation

of social welfare schemes.

The constitutional laws have complete The administrators should perform their

control on the administrative law and functions with utmost obedience to

administrators of the country. constitutional law. Administrative law is just

a subordinate to constitutional law.

The constitution is the only source of law in Acts of parliament are the primary source of

constitutional law. law in administrative law. Other sources

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 include Statutory Instruments and by-laws.

4.0 CONCLUSION

Administrative law as a branch of public law that deals with the composition, procedures,

powers, duties rights and liabilities of the various organs of government that are involved in

administering public policies. These policies are either laid out in acts of parliament or

developed by executive authorities and contained in statutory instruments or by-laws. The

conduct of administrative authorities may be subjected to judicial review in the High Court

by parties that believe the bodies may have acted outside the law, in an irrational manner or

without following their procedures.

Administrative law obtains its authority from constitutional law but differs from

constitutional as it is concerned with the day to day operation of government.

BIBLIOGRAPHY

1. Harlow, C., & Rawlings, R. (2009). Law and administration(3rd ed.). Cambridge, UK:

Cambridge University Press.

2. Yohannes, A., & Michael, D.G. (2011). Introduction to administrative law. Retrieved

from: https://www.abyssinialaw.com/about-us/item/166-introduction-to-

administrative-law.

3. Barnett, H. (2013). Constitutional and administrative law. (10th ed.). New York,

USA: Routledge.

8
4. Bradley, A.W., Ewing,K.D., & Knight, C.J.S. (2015). Constitutional and

administrative law. (16th ed.). Harlow, UK: Pearson.

5. Shahzad, I. Differences between constitutional & administrative law. Retrieved from:

https://www.academia.edu/36820658/Differences_between_Constitutional_and_Admi

nistrative_Law