Administrative Law and Democracy
True democracy states that the executive government would be accountable to the people. The various aspect of accountability and the role of administrative law in ensuring accountability in government administration have been discussed above. The term accountability is uniformly applicable to all branches of government: parliamentary, judicial and executive accountability. Even though administrative law is concerned with executive accountability, for a true democracy to flourish, accountability should be manifested in all branches of government. For instance, the executive branch is accountable to parliament. It is an idea which is fundamental to the operation of responsible government. Accountability is accountability to parliament and, and the parliament is the place within which the idea of public scrutiny must find its fulfilment. However, unless parliament strongly challenges the executive and takes appropriate measures, members of parliament themselves should be held accountable to the people for their failure to act according to the interest of the public.
Another meeting point of administrative law and democracy is the principle of rule of law. Administrative law is rooted in the principle of rule of law. Rule of law, in turn nourishes democracy. Every truly democratic system of government rests upon the rule of law, and no system is truly democratic if it does not. There are at least two principles that are most important for a constitutional government. The first is that the government should be subject to the rule of law. The government should mostly and particularly comply with the basic laws establishing its constitutional structure. The second is that the government should be democratic. These two principles can overlap. For example, a democratic system, particularly one involving representative democracy, requires for its proper working that certain civil liberties be recognized, protected and applied, including rights to freedom of speech, freedom of assembly and freedom of association. However, the recognition and protection of these rights necessarily require that elected governments should comply with the laws, including the common law, that protect those rights. Consequently, within a government characterized by representative type of constitutional structure, the rule of law reinforces the democratic principle.
The two principles can also be in conflict. A conflict occurs when the rule of law is inconsistent with the democratic will. Historically, such conflicts were resolved at common law by judicial review. Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which the executive action is prevented from exceeding the powers and functions assigned to the executive by the law and the interests of the individual are protected accordingly. In order for a government to be both democratic and subject to the rule of law, the government must be accountable, to the electorate and the courts. But, unless the scope of judicial review is properly limited so as to be in harmony with the principle of separation of powers, it may encroach upon the values of democracy.
The conflict between democracy and administrative law is also reflected in the challenge to justify the democratic basis of administrative agencies and administrative decision-making. Administrative agencies make individual decisions affecting citizens’ lives and also set general policies affecting an entire economy, though are usually headed by officials who are neither elected nor otherwise directly accountable to the public. A fundamental challenge in both positive and prescriptive scholarship has been to analyze and different administrative decision-making from the standpoint of democracy. This challenge is particularly pronounced in constitutional systems such as that of United States’ in which political party control can be divided between the legislature and the executive branch, each seeking to influence administrative outcomes. Much work in administrative law aims either to justify administrative procedures in democratic terms, or to analyze empirically how those procedures impact on democratic values.
A common way of reconciling unelected administrators’ decision-making with democracy is to consider administrators as mere implementers of decisions made through a democratic legislative process. This is sometimes called the ‘transmission belt’ model of administrative law. Administrators, under this model, are viewed as the necessary instruments used to implement the will of the democratically-controlled legislature. Legislation serves as the ‘transmission belt’ to the agency, both in transferring democratic legitimacy to administrative actions and in constraining those actions so that they advance legislative goals.