31 January 2012 Written by  Aberham Yohannes and Desta G/michael

Separation of Powers as a Limitation on Administrative Law

Nature and Meaning of the Principle

The doctrine of separation of powers means that none of the government, i.e., the legislative, executive and judicial should ever exercise the powers of the other. It means that the three departments of government are to be separated and distinct.  They are to be independent of one another, and each can exercise only one type of authority, legislative, executive or judicial.

According to some writers on the topic, like Wade and Philips, this doctrine of separation of powers means that the same person can not compose more than one of the three departments of the government. One department should not control and interfere with the acts of the other two departments, and one department should not discharge the functions of the other two departments.

Thus, according to them, the theory of separation of powers signifies three formulations of structural classification of governmental powers.

A) The same person should not form part of more than one of the three organs of the government; for example, ministers should not sit in parliament.

B) One organ of the government should not interfere with any other organs of the government. For example, the executive should not interfere in the administration of justice by the courts.

C) One organ of the government should not exercise the functions assigned to any other organ. For example, the executive branch cannot legislate laws, and as well it cannot adjudicate cases.

Given the division of powers, it should also be noted that the authorities of the three organs or departments of the government are interrelated. They are to a large extent dependent upon another. Ministers are politically responsible to parliament, and legally responsible to courts. Complete separation is found to be not possible. A complete separation of powers, in the sense of a distribution of the three functions of government among three sets of organs, with no overlapping or co- ordination, would bring government to a stand still. Similarly, some writers described this situation as:

“Had the doctrine of separation of powers been followed rigidly in any country, the development of modern administrative agencies would have been impossibility.”

The division of governmental powers into legislative, executive and judicial is not an exact classification. It is abstract and general and it is not true only theory, but it is also impossible in actual practice to make complete separation. There are many powers which may be assigned to one department, or delegated to a commission, or agency created for the purpose of administering a law, while they are inherent powers of the other departments. Thus, the true meaning of the theory of separation of powers, as it has been modified by practice, is that the whole power of two or more departments shall not and should not be lodged in the same hand, and that each department shall have and exercise such inherent powers as shall protect it in its performance of its major as well as minor duties.

2.2.2 The Principle of Separation of Powers as a Limitation on Administrative Law

Even though the principle of separation of powers mainly draws a line between legislative, executive and judicial functions of government, administrative law runs, to some extent, contrary to this principle. It could be concluded that, it violates the principle of separation of powers. This could be clearly manifested with little examination of powers of administrative agencies, or the executive. According to the principle of separation of powers, the power and function of this branch of government is limited to the execution or enforcement of laws.

However, in order to ensure efficient and effective enforcement of laws, it has become a compulsive necessity to delegate the executive and administrative agencies with additional legislative and judicial powers (functions). Administrative agencies are given the power and function of writing regulations or rules that have the force of law. For instance, the council of ministers, through a power delegated to it by the house of people’s representatives, may issue regulations. Similarly, specific administrate agencies can issue directives in accordance with the power granted to them by the house of people’s the representatives.

Delegation of legislative powers by the legislature is clearly against the principle of separation of powers. However, it is justified on practical grounds. The lack of time and expertise in the legislature to provide laws necessary to solve a certain social or economic problem practically makes the legislature compelled to transfer some of its legislative powers to the administrative agencies. Delegation is also justified on the ground that it makes the administration effective and efficient. Agencies could not attain their purposes for which they are established unless other wise they have wider power, mainly rulemaking powers.

Agencies also share some of the judicial powers which traditionally belong to the ordinary courts. They can decide matters affecting individual rights and freedoms. Reversing a license, imposing administrative penalty, with holding benefits (e.g. pension), etc. all could properly be called as judicial functions. Most of the judicial functions of the agencies are usually exercised through organs within or outside that agency, which enjoy, relatively, little independence. These agencies are the administrative courts. Administrative courts give decision after hearing the argument of parties by applying the law to the facts. Such function normally belongs only to courts. Giving judicial power to agencies clearly violates the principle of the separation of powers. Still the justifications are practical necessities, which are more or less similar to that of the above justification with regard to granting legislative functions. Some matters, by nature, are technical and require detail expertise. This expertise is found in the specific administrative agencies, not the courts. Moreover, the trial process in the courts is lengthy, costly and rigid due to the complex procedural rules of the litigation. By comparison, a certain matter may be easily decided by an agency or an administrative court with the least cost to the parties and even to the decision-making process. Once again, practical necessities have prevailed over the principle of separation of powers.

We have seen how administrative law could be considered as a violation of separation of powers. This fact, even though, accepted due to practical necessities, serves as a limitation on the scope of the administrative law.  Granting legislative and judicial powers to agencies is an exception, or it may be said a ‘necessary evil’. This leads to the conclusion that such powers should be given and exercised narrowly i.e. only when it becomes a compulsive necessity to do so.  Agencies should not be delegated on areas primary left to the legislature. Essential legislative functions should not be delegated to agencies. Delegation of legislative powers should be limited only to the technical or detailed matters necessary to fill the gap in the law issued by the legislature. In this way, the principle serves to check the legislature not to delegate wider powers.

In a similar fashion, ordinary judicial powers should not be given to administrative agencies or administrative courts. It should be limited only to matters which are technical by nature and require expertise of the administration. Generally, the principle of separation of powers imposes limitation on the extent of legislative and judicial power of agencies.

In addition to this, the principle mainly serves as a limitation on the scope of administrative law, by making courts not to question the substance of administrative action, but only its legality. As far as a decision is taken by an agency, which is within its confines of power, courts should refrain themselves from reviewing that decision. Administrative action that is not beyond the limits of powers conferred on the decision maker is not the proper sphere for courts to intervene. If they intervene, it will be a violation of the principle of separation of powers since they are, in effect, encroaching the power of the executive.

Last modified on Wednesday, 02 May 2012 13:05