Administrative and Environmental Law Review is a journal published by the Faculty of Law,
P-ISSN: 2723-2484 E-ISSN: 2745-9330
Judicial Oversight on Administrative Decisions in Afghanistan
Najibullah Faiez
Takhar University, Afghanistan [email protected]
Article’s Information Abstract
Keywords:
Administrative Acts; Administrative Decisions; Citizens Rights; Discretion;
Judicial Oversight.
DOI :
https://doi.org/10.25041/aelr.v3i2.2775
Abstract
Public authorities have taken administrative decisions. Here in Afghanistan, administrative laws are unwritten and lack proper mechanisms for judicial oversight due to the instability of four decades of war. This article, titled “Judicial Oversight on Administrative Decisions in Afghanistan”, tries to study administrative decisions in Afghanistan and seeks to provide a special mechanism for judicial oversight of administrative decisions. The article has answered the question: what are administrative decisions and its judicial oversight? It is a qualitative research conducted through the desk review method and has used an interview with academics specialists in Administrative law. This article also studied other countries' solutions for their judicial oversight. The result of the research is judicial oversight on administrative decisions in Afghanistan does not have an appropriate mechanism and Afghanistan cannot create an administrative court like France's model. Afghanistan needs to reform judicial power to solve the administrative dispute excellently.
Enacting Administrative Procedural law for administrative divan is an urgent task for Afghanistan. This law must abridge the investigation procedure, lower court expenses and increase the court accessibility to citizens to amplify the rule of law.
Submitted: Oct 29, 2022; Reviewed: Dec 01, 2022; Accepted: Dec 06, 2022
A. Introduction
Administrative law controls different aspects of our life, the administrative authorities control society through their decisions. Administrative decisions are an exciting topic of administrative law, but because of four decades of war and instabilities in Afghanistan, Administrative law did not improve. Therefore, administrative law has not been written in Afghanistan, and there is no unified code for Administrative affairs. Afghanistan has different statutes and regulations as sources of administrative law. In 2018 Afghanistan regulated Afghanistan Procedural Law for the first time.1
For judicial oversight on administrative decisions, Afghanistan lacks appropriate mechanisms. Afghanistan Procedural Law is the first and most crucial step to codifying administrative regulations. However, Afghanistan Constitution (2004) Article 51 Paragraphs (1) said: “Any person suffering undue harm by government action is entitled to compensation, which he can claim by appealing to court”.2 Besides this problem, Afghanistan does not have an administrative court or particular judicial procedure to solve administrative disputes.3
Most Afghanistan people are illiterate and do not understand their legal rights. When authorities make an administrative decision, they indeed infringe on individual rights. On the other hand, the exertion of government sovereignty is the heart of public law, meaning the administrative decision is taken by public authorities and public officers imposed on individuals. So, all the administrative actions are unilateral, known as administrative decisions and the government takes its decision unilaterally as a public authority. It does not need the consent of individuals for the implementation of that decision. For this reason, the decisions are called irrevocable decisions.
In recent years, the government of Afghanistan has endorsed the Afghanistan Procedural Law for the first time and defined administrative acts. Administrative decisions are part of this law which needs more focus for further interpretation, and the specific judicial oversight on the administrative decision is not determined clearly in Afghanistan's legal documents. This article answers these questions: What are administrative decisions and its judicial oversight? And how should the public officers decide not to harm citizens' rights? This article analyzes the administrative decisions based on Afghanistan's legal documents. It has a comparative overview of judicial oversight on administrative decisions in French, the U.K., the U.S.A, Germany, Sweden, Russia, Italy and New Zeeland.
The research method of this article is qualitative. According to Haron R., legal research differs from other scientific research and law is not pure science. The author has relied on legal documents and interviews as primary sources and books or articles as secondary resources in this field. Based on research methodology, content analysis is a suitable method for social sciences. As you know, the law is a critical branch of social science and administrative law is an essential branch of public law and part of social sciences. Therefore, content analysis is the best method in the administrative law research area. The research has done the comparative content analysis of legal documents in Afghanistan law and regulation and other countries.
Comparative administrative law has been described as relatively young and less advanced.4
1 Faiez, N. Administrative Law Principles in Afghanistan’s Administrative Law: A Step toward Good Public Administration, Ijsrm.Human, 2020; Vol. 15 (2): 311-324.
2 Afghanistan Constitution (2004).Title 818 Afghanistan.
3 Aziz, et al. Max Plank Manual on Administrative Law in Afghanistan, Kabul. Max Plank Institute (2012). p.33.
4 Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, 62, (2013). P. 3.
The research was conducted through desk review and primary data collection through interviews. The desk review was conducted through administrative law books, academic articles, and other academic resources related to Administrative law in general, particularly the case of Afghanistan. The article combines a theoretical study of Administrative decisions and practices in other countries and an empirical study of administrative decisions in Afghanistan's legal framework, particularly in Afghanistan's Procedural law. Expert interviews included:
academics, judges, legal scholars and professionals.
The novelty of this research is helpful for public authorities with the competence of decision-making or policy-making in the governments. Public officers must analyze administrative decisions, be careful of the citizens’ rights and support the rule of law in their decision-making. This article has dealt with the following topics: Definition of an Administrative Decision, Kind of Administrative Decisions, Terms and qualifications of Administrative decisions and judicial review of administrative decisions in Afghanistan and the abovementioned countries.
B. Discussion
Mannori and Sordi have shown that the idea of administrative power and law is a distinctly modern phenomenon, the concept developed in France first and later Germany during the nineteenth century and not developing into a cohesive area of law in the English-speaking world until the twentieth century.5
Several forces have contributed to administrative law institutions and structures being transplanted and borrowed from one jurisdiction to another. Colonization led to the spread of French, English and Dutch systems of administrative law throughout Africa and Asia. Other countries deliberately sought out systems of administrative law on which to model their reforms. For example, John Ohnesorge has examined the derivation of German administrative law institutions in East Asia throughout the late nineteenth and twentieth centuries.6 His analysis shows that Japan and China borrowed heavily from German and later US administrative law, establishing separate administrative courts with an emphasis on overseeing independent regulatory bodies, and spreading this tradition throughout the region through colonization.7 Esin Örücü has similarly surveyed the influence of French administrative law in Turkey. There are also more recent examples of deliberate borrowing of foreign best-practice models in administrative law. For example, the Swedish institution of the Ombudsman has spread rapidly throughout the world, with over 120 countries establishing some form of office.8
The U.S.A. enacted the Administrative Procedural act in 1946.9 American legal studies in the last few decades have been primarily concerned with judicial review and fundamental rights, courts and administrative agencies with welfare, labor, health law, environmental protection, and immigration issues not far behind.10
5Ibid, also Aziz, et al. Max Plank Manual on Administrative Law in Afghanistan, Kabul. Max Plank Institute (2012). P28.
6 Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, (2013). P.17.
7 Ibid
8 Ibid,
9 Aziz, et al. Max Plank Manual on Administrative Law in Afghanistan, Kabul. Max Plank Institute (2012). P.32
10 Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, (2013). P.8.
One of the central ideals of modern constitutionalism that has expanded worldwide is the notion that governments should be subject to the law and that their actions should be limited.
Written constitutions require some mechanisms for resolving disputes about their meaning and determining the limits of the powers they bestow on various government bodies. Ran Hirschl′s research has shown that most constitutions passed since World War II include provisions that establish a relatively independent judiciary armed with authority to review organizational practices, administrative decrees and laws enacted by legislatures and to declare these unconstitutional because they conflict with fundamental principles protected by the constitution. In other words, modern constitutions generally establish at least a limited version of judicial review of administrative action over constitutional questions. Thus, the fundamental administrative law notion that government power is controlled has spread through the global constitutionalization trend.11
In Afghanistan, King Amanullah Khan adopted Afghanistan’s First Constitution in (1923).
The separation of powers was mentioned in that constitution and judicial power had the right to hear claims against the government based on that Constitution (1923). In addition, administrative justice was provided by the provincial council and state council, which is called the duality judiciary system, this mechanism has been copied from France, but it is different in some parts. Article 42 of the Constitution (1923) states the administrative council has the right to investigate a violation of citizens’ rights by public officers. Mostly public officers were punished by those councils.12 King Mohammad Zahir Shah endorsed the third Constitution in 1964 and changed the last mechanism to a one judiciary system. After King Zhahir Shah, Afghanistan faced instability until a new constitution was adopted in 2004. Due to the aftermath of the Bon Conference,13 Afghanistan’s Constitution (2004) reapproved the oneness judiciary system, Article 120 and Article 121 clarified that as follows:
Article 120 Duty to Decide: The authority of the judicial organ is to attend to all lawsuits in which real individuals or incorporeal including the state stand before it as plaintiff or defendant and in its presence is expressed in accordance with provisions of the law.
Article 121 Judicial Review: The Supreme Court upon request of the Government or the Courts can review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law.14
The Afghanistan judicial system consists of three judicial bodies: the Supreme Court, the Court of Appeal, and the Court of First Instance. The Supreme Court consists of nine members appointed by the President and elected by the National Assembly. The Supreme Court heads the judiciary as the supreme judicial body.15
The Afghanistan Constitution (2004) indirectly provides judicial oversight on administrative decisions, but there is no precise, excellent and fast mechanism to solve the administrative dispute. Furthermore, judges are not experts on administrative cases and use the civil procedure for trial. This article tries to suggest an appropriate mechanism for the short and long term.16
11 Ibid, P.20.
12Aziz, et al. Max Plank Manual on Administrative Law in Afghanistan, Kabul. Max Plank Institute (2012). P33
13 The country had faced more than three decade war and instability, Afghanistan experienced several regimes.
14 Afghanistan Constitution (2004).Title 818 Afghanistan, Art 210 and 121.
15 Yusufzada, S. , Xia, Z. and Xia, Z. Public Administration in Afghanistan: Challenges and Way Forward. Open Journal of Social Sciences, NO 7, 142-160(2019). doi: 10.4236/jss.2019.76012.
16 Mukhlis, Massoud, Judicial Control on Administrative Acts in Afghanistan, Kabul, Islamic Azad University, Faculty of Law, P.84,
Administrative law doctrines divide the government acts from a different perspectives. For instance, based on aim, they divided: into administrative and political acts. Based on content, they divided judiciary, legislative, and executive acts. In subjective division, they divided sovereignty acts and incumbency acts based on procedural, and they divided: administrative decisions (Unilateral Act) than Administrative contracts (Bilateral Acts), the last division has gotten from Civil Islamic Jurisprudence. Enacting of Afghanistan Procedural law legalized administrative decisions and protected individual rights in administrations. The article dealt with unilateral acts, administrative decisions, and judicial oversight in Afghanistan.
1. Administrative Decisions
The only topic covered in this article is administrative decisions. The government can enforce decisions unilaterally without citizens' consent in public law. As the principle in administrative law, public authorities make their decisions within the legal framework and are not allowed to act ultra vires.17 They do not need the prior agreement of individuals and the public authorities have the right to create rights and obligations for citizens in their decisions.18 Decisions and actions, which governments take, are called administrative acts. Public contracts are also part of administrative acts, but this article will not deal with that.
2. Definition of Administrative Decisions and its Characteristics
Afghanistan Procedural Law in Article 3 Paragraph (3) defines administrative decision as a unilateral action taken by public administration in a particular case to enforce public authority and has a legal effect. According to Afghanistan Legal Procedure Law Administrative decision is a unilateral action and will be taken by the authorities, or the public administration is taken by itself. Based on the above definition, Administrative decision has the following Characteristics:
a. It is a unilateral action.
b. The action has been taken by public administration, not remote administration, if it is a remote administration delivering public service that must be under the direct supervision of governments.
c. The action has been taken in a particular case.
d. The decision must have legal effects.
3. Terms and Qualifications of Administrative Decisions
Administrative law doctrine has discussed the below conditions for administrative decision:
a. The administrative decision has been taken by a person in authority; the person should be a public authority.19
b. The public authority had the competency to make the decision.
c. The decision had taken based on a legal document and has legitimacy.
d. The decision must be written and has an accurate date.
17 Concise Oxford Dictionary of Politics meant ultra vires like this: Literally, ‘beyond powers’. Ultra vires has two meanings:
(1) substantive ultra vires where a decision has been reached outside the powers conferred on the decision taker; and (2) procedural ultra vires where the prescribed procedures have not been properly complied with. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making.
18 Faiez, N. Judicial Oversight in Afghanistan. Kabul, Kabul University Faculty of law, (2017). P22.
19 Public authority means person who works in government or works as public service officer, head, dean, chancellor, deputy minister, minister even president of the country.
When we peruse the Afghanistan law, especially Afghanistan Procedure Law endorsed by President Mohammad Ashraf Ghani on 4th April 2018, it clarified some substantive and procedural conditions for administrative decisions in Article 27 and Article 30. We will look into substantive conditions first based on Article 30, followed by a further discussion on procedural conditions.
Article 30 clarified the substantive condition of administrative decision as below:
a. The public authority decision must have been taken according to law and statute.
b. The public authority has decided on the limit of their competency.
c. The decision must not violate civil rights and administrative principles like legitimacy, discrimination avoidance, fairness, neutrality, and meritocracy.
d. The public administration must not make an inapplicable decision.20
Besides the above-mentioned substantive condition, Article 27 of the Afghanistan Procedure Law emphasized procedural conditions as follows:
a. The decision must be written and sealed by public authority signature.
b. The decision should have the following points:
1) Nation emblem or symbol (In Dari language Nishan meili).
2) The accurate date of the decision.
3) Name and Address of public administration which takes the decision.
4) Direction about how to execute.
5) The reasons that the decision has taken mainly legal reasons and justification.
6) In the emergency case, the public authority can apply the decision verbally without its signature and formal record.21
When the decision has been taken based on the conditions above and the terms, that decision has validity and public administration must apply that. Article 34 of Afghanistan Procedure Law states that the decision taken by public administration has validity until nullification or relinquishment. The relinquishment happens when the public administration knows its decision is illegal. The decision on relinquishment can either be legally retrospective or prospective.22
4. Types of Administrative Decisions in Afghanistan Legal Formworks
In Afghanistan, there is no single legal document that clarifies administrative decisions.
Article 79 Afghanistan Constitution (2004) has given the right to regulate legal documents to the executive branch:
Paragraph (1) in cases of the recess of the House of Representatives (Wolesi Jirga), the government can adopt legislation in an emergency on matters other than those related to budget and financial affairs.
Paragraph (2) the legislative decrees become laws after the President signs them.
Paragraph (3) states that the legislative decrees should be submitted to the National Assembly in thirty days, beginning from the first session of the National Assembly.
Paragraph (4) In case of rejection by the National Assembly, the legislations become void.
20Administrative procedure Law (2018). Title 1298 Afghanistan.
21Ibid.
22 Ibid.
Article 3 Paragraph (3) Afghanistan Procedure Law defines administrative statutes or regulations (In Dari language Muqarate Idari) as the principles and regulations enacted formally by public administration and has legal effects. For instance, the resolution of the cabinet, statute (In Dari language Asas Namah), administrative directive (In Dari language Tarzul Amal), bills (In Dari language lavāyeh), enactments of public administration, instructions and similar documents. When the executive branch has the right to regulate legal documents or legislation, the public administration can decide on citizens' rights.
Presidential Decrees:
Based on Article 3 Paragraph (3) of the Law on Processing of Legislative Documents (LPLD), presidential decrees are a collection of binding regulations which are processed according to Article 79 of the Constitution (2004). In recent years President Muhammad Ashraf Ghani endorsed many legislative decrees in a different areas, even though it is the job of legislation power according to the separation of power theory (Kohistani, 2014: 129). Many legal and political scholars criticize this action and think it is dangerous for citizens’ rights when the president of a country does legislative power duties. However, Supporters of President Ghani argue that MPs are not present in their work and the parliament does not have a high capacity to pass the bills on time. Furthermore, the legislative process takes time while the government urgently needs legal documents. Hence the constitution has given this right to the executive power.
Regulation:
According to Article 3 Paragraph (3) of Law on Processing of Legislative Documents (LPLD), regulation is a collection of binding rules enacted to implement national policy better, better implementing of law and managing ministries and administrations affairs. In other words, the regulation is an enactment of the ministries council under the president's direction.
Statute (In Dari language Asas Namah) or charter:
Based on Article 3 Paragraph (12) of the Law on Processing of Legislative Documents (LPLD), the charter is a collection of binding rules enacted by the government to establish an organization or authority of academic organizations, administrations, companies and public commissions.
Bill:
Article 3 Paragraph (13) of Law on Processing of Legislative Documents (LPLD) states as a collection of rules which directs how the executions of ministries are to be done in a specific area and it is the competency of a minister to approve a bill. The bill should not be against the upper law.
Administrative directive (In Dari language Tarzul Amal):
Article 3 Paragraph (14) of Law on Processing of Legislative Documents (LPLD) is defined as the collection of rules which is enacted to facilitate the executions of a public administration; it is the authority of a head to approve that in administration and the administrative directive should not be against the upper law.
License:
A license is also an administrative decision issued by an authority to a person or persons for allowing an affair. Examples are driving licenses, licenses for constructing a building, licenses for extracting a mine, etc.23
Warning:
The warning could be an administrative decision, a binding administrative direction that obliges someone to work according to legal documents.
Certificate:
A certificate is a document that certifies a person has graduated from a program; it is also an administrative decision.
Visa:
An official endorsement on a passport or other document is required to secure an alien's admission to a country.
Passport:
A document that indicates permission granted by a sovereign to its citizen to travel to foreign countries and return and requests foreign governments to allow that citizen to pass freely and safely.
Authorities with the competency to make an administrative decision are the president, cabinet (council of ministers), commissioners, members of academics councils, members of cities councils, members of municipalities councils and members of administrative councils.
5. Revocation of Administrative Decisions:
When an administrative decision is revoked, it means the legal effect of that decision is canceled, and the administrative decision will revoke under the following condition:
a. Implementation of an administrative decision.
b. Expiration of validity,
c. Impossibility of implementing.
d. Fulfillment of revocation’s condition.
e. Disappearing of objective.
f. Force majeure
g. Termination of administrative decisions by administration.
Revocation is a legal administrative act that ends the legal effect of a particular administrative decision. Article (3) paragraph (28) defined revocation as the act of ending the validity of some or all parts of a legal document that is currently binding. It is the administration’s discretion to change the provision of a legal document since the situation constantly changes; hence, the administration must accommodate the new developments.
When an administration has taken a regulatory decision, the authority cannot breach that decision. The legal document is binding on the administration. The same procedure is needed whenever the administration wants to revoke past decisions. If a decision creates restitution for individuals, the administration tries not to infringe on their rights. If the decision does not create restitution to individuals' rights, the administration can change any time it wants.
23 Ibid.
6. Judicial Oversight on Administrative Decisions
Administrative law's vital aim is to secure the rule of law and protect freedom by ensuring that agencies follow acceptable and neutral decisional procedures, act within the bounds of the statutory authority delegated by the legislature, and respect privacy rights.24 Judicial oversight judgments are valid on many levels. They inform potential litigants of the progress of a potential claim.25 They provide a fair account of the outcome to litigants and facilitate transparency around the exercise of judicial power.
Encyclopedia of Britannica (2010) defined judicial review as the power of a country's courts to examine the actions of the government's legislative, executive, and administrative arms and determine whether such actions are consistent with the constitution. The judicial movement towards more stringent review was aimed at "more effective" protection for the rights of citizens.26 There are two fundamental reasons for courts to review the administrative policymaking process. First, the administrative process may help the judges understand what the government or agency has done. In particular, the courts require that reasons accompany rules or adjudications so they can judge if the underlying policy is in accord with the legislative text. They act as guardians of the will of the legislature. Second, they monitor the administrative process not to help them decide cases but to ensure that the policymaker is accountable to the public.
Hereafter the article will discuss Afghanistan's judicial oversight of administrative decisions rather than the other countries' judicial oversight of administrative decisions. Article (51) Afghanistan constitution (2004) has given the right to compensation to Afghan citizens:
“Any person suffering undue harm by government action is entitled to compensation, which he can claim by appealing to court”.
Despite the above provision, Afghanistan citizens still suffer due to lacking an administrative court or administrative tribunal with judicial power to solve administrative disputes. At the same time, proving or corroborating the existence of harm is difficult because there is no particular jurisdiction for the court.27 Nevertheless, it does not mean that the judicial power does not hear administrative cases, yet all cases are referred to the public law divan.28 It is treated like a civil case.29 Besides that, Afghanistan's judicial power does not have a professional judge for administrative cases. Another problem for adjudging administrative cases is lacking procedural law.30 For example, when an administrative case is filed in court, it takes at least one year to solve. Therefore, judicial oversight of administrative decisions needs a particular mechanism. Although Afghanistan Procedure Law Article (47) paragraph (2) mentioned quasi judiciary agency, this organ's decision is also not final as the litigant can claim to public law divan.31
24Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, 62, (2013). P.23
25 Daniel Hoadley, Joe Tomlinson, Editha Nemsic & Cassandra Somers-Joce How Public is Public Law? The Current State of Open Access to Administrative Court Judgments, Judicial Review, 27:2, 95-98, DOI: 10.1080/10854681.2022.2111966(2022)
26 Jordao, E. & Rose-Ackerman,S. Judicial Review Of Executive Policymaking In Advanced Democracies: Beyond Rights Review, 66 Admin. L. Rev. (2014). 1 P.20.
27 Aziz, et al. Max Plank Manual on Administrative Law in Afghanistan, Kabul. Max Plank Institute, (2012). P. 120.
28 Division
29 Mukhlis, Massoud, Judicial Control on Administrative Acts in Afghanistan, Kabul, Islamic Azad University, Faculty of Law, P.120.
30 Ibid, P115.
31 Administrative procedure Law (2018). Title 1298 Afghanistan.
In a democratic society, administrative regulation is regulated by administrative law,32 but in Afghanistan, democracy does not grow very well. People do not respect the law, and the government does not have sovereignty over the whole territory, further compounded by the war that leads to increased breaches of the law. Besides all these problems, administrative law is not improved to control authorities while making administrative decisions.
Boughey (2013) believes that administrative law defines the structural position of administrative agencies within the governmental system, specifies the decisional procedures those agencies must follow, and determines the availability and scope of review of their actions by the Independent judiciary.33 There is not a special unified judicial oversight in other countries. But, there are two main methods in France and U.K. that other counties have copied from them.
France has a three-tiered system of administrative courts in the Conseil d'Etat. With Conseil d'Etat's approval, constitutional rights issues can be referred to the Conseil Constitutional. The Conseil d'Etat remains the main forum for the review of agency action, with two important exceptions. First, in recent cases, the Conseil Constitutional has interpreted the Environmental Charter in the French Constitution to require the public's participation in policymaking. Then, the Cour de Cassation, the highest civil court, reviews agency adjudications in antitrust and financial regulations.34
French courts typically conduct intensive judicial reviews in the areas they claim jurisdiction over. Both structural and content-related factors contribute to this “dosing justification”. Access to the Administrative Court is straightforward. In France and many of its former colonies, administrative and civil courts remained utterly separate. This leads to a double decree that requires that the judicial and executive powers remain separate, prevents judges from interfering in the work of the executive branch, advises the government, and arbitrates disputes over executive power.
Scandinavian countries have the office of the Ombudsman, the main body for resolving administrative disputes, but separate administrative courts also play a role. This institution has its modern origins in Sweden, where the Office of the Judiciary Ombudsman (Parliamentary Ombudsman) was established in 1809 to provide a simple and effective mechanism to protect citizens from arbitrary government decisions. The Ombudsman's Office is created by and reports to Parliament to allow the legislative branch to oversee the executive branch. Like the French Consulate, the Swedish Ombudsman also reflects the separation of powers that Montesquieu was aiming for.37
The concept of an independent official overseeing the public sector is not new. There are examples of such officials throughout history (e.g., courts in the Roman Republic and Diwan- al-Mazalim in the Roman Republic). However, the concept of an independent official overseeing the modern public sector ombudsman (and the term itself) is inextricably linked with the organization's development in Sweden during the 18th century.38
32 Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly 62, (2013). P 2.
33 Ibid
34 Ibid P10.
37See: http://www.jo.se
38 W. John Hopkins, Ombudsman, Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL], August 2016
findable at:
https://oxcon.ouplaw.com/search?sfam=&q=Ombudsman+W.+John+Hopkins&prd=MPECCOL&searchBtn=Search
However, unlike the French Consulate, the Swedish Ombudsman is not part of the administration but part of the legislative oversight of the executive branch. The ombudsman's exact role and powers vary by jurisdiction, but generally, they can directly investigate complaints from the public and initiate investigations into suspected mismanagement.
The Swedish Ombudsman can take the matter to court and act as a public prosecutor if it determines that the government's actions violated the law. Alternatively, the Ombudsman can recommend disciplinary action, report to Parliament, or suggest improving administrative procedures and structures. These two continental institutions contrasted with the standard law system of administrative law, which was heavily influenced by Dicey's interpretation of the rule of law. Dicey warned against a separate administrative law, arguing that French administrative law was “based on ideas foreign to English law”. He argued that the rule of law required the
“common court” jurisdiction to apply the “common law” to “everyone, regardless of rank or position”, including ministers and bureaucrats. Thus, in England, as in many former colonies, the General Court is the final arbiter of the legality of administrative acts. Despite Dicey's warnings, England began to develop its administrative law in the early twentieth century, and statutory courts became more common. These courts should be in areas of specialization such as B. Ensuring a more efficient judiciary than courts in social security and taxation decision- making. English law now has several mechanisms to treat court members as judges and ensure their independence and impartiality. The High Court, the apex of the UK court system, was also established in 2007 as the “Court of Supreme Records”, strengthening the court's legal status.
Their decisions are not subject to the same degree of judicial review as executive-branch decisions.39
In the United States, most administrative law action focuses on the Administrative Procedure Act of 1946 (APA).40 The purpose of the Administrative Procedure Act was to limit and control agency action, not inaction. The Administrative Procedure Act (APA) was adopted for the purpose, quite clearly expressed in its legislative history, of disfavoring agency action- burdening agency action and not inaction.41
The Administrative Procedure Act (APA)also allows agencies to appoint “administrative judges” to decide matters. Administrative judges are usually embedded in the authorities reviewing decisions. The Administrative Procedure Act (APA) offers several safeguards that allow administrative judges to enjoy some degree of independence. However, their decisions are subject to review by relevant authorities and may be overturned for legal or political reasons.
The rule has sparked much debate over the place of administrative judges in the strict tripartite structure of the U.S. government, particularly whether administrative judges exercise U.S.
jurisdiction. However, the Supreme Court's lengthy powers allow Congress to delegate seemingly judicial functions to “legislative courts” and executive branches, including judging administrative decisions. Article III Court. These unique institutional arrangements under U.S.
administrative law directly result from historical developments in the bureaucracy and early Supreme Court decisions.42
39 Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, 62, (2013). P 10.
40 Ibid.
41 Cass R. Sunstein, Alan B. Morrison, Kenneth W. Starr & Richard K. Willard, "Judicial Review of Administrative Action in a Conservative Era," 39 Administrative Law Review 353 (1987), P.385.
42 Ibid.
The landmark Administrative Procedure Act (APA) was the new regulatory national document. Enacted in 1946, the APA established the fundamental relationship between regulators and the people they regulate: governments on the one hand and individuals, firms, and corporations on the other.43
German administrative law draws on many sources, such as the general administrative procedure law, the general civil procedure code and rules of procedure for administrative courts supplemented by the courts, and special laws regulating specific areas of decision-making. I'm here. Administrative matters are decided by a system of administrative courts and tribunals headed by the Federal Administrative Court. However, particular areas of administrative decision-making, such as labor law, tax, and social security, have separate federal courts and litigation rules.
In Canada, judicial review of the content of administrative regulations is minimal. Review is only possible for constitutional reasons, including violations of the Charter of Rights and Freedoms. The judicial scrutiny of administrative justice has gone from being very intrusive to polite and subtle. In recent decades, the Supreme Court of Canada has exhibited a nuanced understanding of how courts can oversee the executive branch without overstepping its powers and its position in democratic structures.44
The EU relies on national administrative and legal systems when setting up supervisory mechanisms. French law was particularly influential in the early stages of the development of EU administrative law. This is reflected in the language of Article 263 of the Treaty on the Functioning of the European Union (TFEU). Article 263 of the TFEU provides four grounds for the CJEU to review the legality of her EU institution's conduct. Violation of mandatory procedural requirements. Acts that violate legal norms regarding contracts or their application and abuse of power. However, in formulating these reasons and general principles of European administrative law, the ECJ has been influenced by principles of administrative law in other European countries, particularly in recent years. For example, German law has contributed to adopting the principle of proportionality in EU administrative law, and English law has contributed to developing procedural rights and guarantees.45
The impact of Scandinavian administrative law on EU law is evident in the ECJ's recognition of transparency as a principle of European administrative law and in establishing the European Ombudsman. The European Ombudsman investigates complaints of mismanagement in EU institutions, including independent bodies, and has developed a non- binding European Code of Good Management Practices, adopted by the Council in 2001. The Code is based on the national laws of the various EU Member States and the decisions of the CJEU and ECtHR, in particular Article 41 of the Charter of Fundamental Rights of Europe, which guarantees the right to a fair public administration.46
Italy has its system of administrative courts, culminating in the Consiglio di Stato. This agency is responsible for most jurisprudence dealing with judicial review of executive branch policy decisions. A substantial review of the enactment of administrative legislation is sporadic.
Therefore, we are focusing on reviewing administrative jurisdiction. Recent developments in case law demonstrate the tension that arises when courts postpone policy decisions resulting from a series of judgments. Italian public law began with rigorous scrutiny and moved towards
43 Shepherd,G.B. Fierce Compromise: The Administrative Procedure Act Emerges From New Deal Politics, 90 Nw. U.L. Rev.
1557, (1996). P.2.
44 Jordao, E. & Rose-Ackerman,Sjudicial Review Of Executive Policymaking In Advanced Democracies: Beyond Rights Review, 66 Admin. L. Rev. 1, (2014), P.7.
45 Janina Boughey. Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, 62, (2013) P. 17.
46 Ibid P.18.
respecting decisions where expertise applies to the policy. Ultimately, the court returned to a period of disrespectful scrutiny.47
First, it is impossible to judge unconstitutionality. The making of Italian administrative regulations is effectively exempt from substantive judicial review. Some authors refer to this area as “no man's land” (terra di nessuno).
Russia has its procurement for judicial supervision. The government office ensures administrative legality in the legal system of the former Soviet Union (Soviet law). The Constitution of the Soviet Union gave the Prosecutor General (Russian: generalny prokuror) responsibility for overseeing compliance with the law by all ministries and subordinate government agencies, as well as individual officials and citizens. Although prosecutors were not heads of courts or tribunals, they were ostensibly guardians of legality, tasked with ensuring strict observance of the constitution and laws by all government officials and citizens. The KGB Organizations of the Public Prosecutor's Office, affiliated with agencies such as the Prosecutor's Office, were keen to enforce the communist regime's orders.48
Several New Zealand decisions indicate that the New Zealand Bill of Rights Act 1990 had the same effect. In many cases, courts have found that statutory rights take precedence over considerations in administrative decision-making and that failure to consider them constitutes a verifiable error of law. Human rights are thus an additional basis on which courts can override administrative decisions only if the government does not give due consideration. This respects government decision-makers more than the South African approach, which requires administrative action to maintain rights based on more objective criteria.49
Efforts to balance the tensions between judicial oversight, executive discretion, and delegation of legislative power are an ongoing concern for many, if not all, administrative law systems. The development of various principles of administrative law is a compromise between empowering the courts to be the supreme authority of law and allowing discretion of delegated administrative decision-makers as legislators desire. It can be seen as an attempt to find a good balance.50
In addition to broadening the grounds on which decisions are invalid, human rights law generally requires courts to impose higher standards of scrutiny on government actions than they otherwise would. The most common way to achieve this is to adopt proportionality as a principle of administrative law. This principle is part of German administrative law (not constitutional) but is now the standard way of deciding constitutional issues worldwide.
The proportionality principle is one of the main contributions of German law to EU administrative law and has been called “perhaps the most important principle of Community law”. The adoption of proportionality in English law is an example of how the Human Rights Act 1998 (UK) (HRA) has expanded administrative law in this way, well beyond its traditional scope, causing Lord Cooke to remark that ′the common law of England is becoming gradually less English. Before adopting the Human Rights Act (HRA), courts applied the deferential Wednesbury unreasonableness test to determine the legality of administrative decisions: a decision had to be so unreasonable that no reasonable decision-maker would have made it.
47Jordao, E. & Rose-Ackerman,S. Judicial Review Of Executive Policymaking In Advanced Democracies: Beyond Rights Review, 66 Admin. L. Rev. 1, (2014). P.17.
48 Findable at: https://www.britannica.com/topic/procuracy#info-article-history
49 Janina Boughey Administrative Law: The Next Frontier For Comparative Law. International and Comparative Law Quarterly, 62, (2013). P. 27.
50 Jordao, E. & Rose-Ackerman,S. Judicial Review Of Executive Policymaking In Advanced Democracies: Beyond Rights Review, 66 Admin. L. Rev. 1, (2014). P.47.
Proportionality was thought to be based on foreign, civil law principles incapable of transplantation into English law. In essence, the proportionality test allows for a ′somewhat greater′ intensity of judicial review, requiring that limits placed on rights by administrators go no further than necessary to accomplish justifiable legislative objectives. In other words, English courts have accepted that protecting human rights requires a more intrusive standard of review than Wednesbury provided, thereby expanding the scope of judicial review.
As clearly discussed before, the Constitution of Afghanistan (2004) has given the right to claim against the government. If the act of the administration harms an Afghan citizen, they can claim to the court after an administrative investigation, something like the quasi-judicial review.
The litigant can claim to the Public Law Divan the procedure for administrative justice is vague.
The Public Law Divan uses Civil Procedure Law for administrative justice.51 Afghanistan recognizes equality, proportionality, legitimate expectation, and neutrality principles in Administrative Procedural Law (2018). Still, the interpretation and implementation of those principles are unclear because no administrative court can consider them. Most countries have created administrative courts for judicial oversight, administrative, procedural law, and administrative court procedure law.52 Moreover, those countries have hired expert judges in administrative courts, and lengthy abbreviated procedures reduced court expenses and facilitated court access to all citizens.53
Administrative decisions are an essential part of the administrative law in every country, and judicial oversight of administrative decisions is a characteristic of a democratic state. Each country has selected a specific method of judicial oversight. Afghanistan follows the U.K.
model, a “mono judicial system” where the administrative court is not separated; all civil, criminal, and administrative cases are brought before the ordinary court Article 122 Constitution of Afghanistan (2004) prohibits the French model of judicial supervision. The U.K. nevertheless has created a quasi-judicial review and judicial review process on administrative decisions under the judicial power made a specific procedure for administrative cases and did not allow public authorities to infringe on citizens' rights.
Four decades of war, administrative corruption and lack of an appropriate mechanism for judicial oversight of administrative decisions are significant obstacles to the rule of law in Afghanistan. They have infringed on the individual right by administrations.
C. Conclusion 1. Closing
The rule-making process is the most obvious place to look for the intersection of policymaking and judicial review. An administrative decision is a unilateral act of executive power made by an administrative agency and gives legal effect to natural persons. The classification of administrative decisions shows that there are two types of effects of administrative decisions; one is general, and the other is personal. These decisions represent political/political choices, but ministers make them, officials of independent agencies or senior civil servants, and not directly by the legislature. Administrative decisions with general effect are like presidential and legislative decrees, regulations, statutes, administrative directives and enactments. On the other hand, administrative decisions affecting individuals include licenses, certificates, citizenship, visa, warning, etc. These documents are legal; the executive branches take them as administrative decisions according to their legal competency. Afghanistan's law
51 Mukhlis, Massoud, Judicial Control on Administrative Acts in Afghanistan, Kabul, Islamic Azad University, Faculty of Law.
52 Hadavand, M. et al Administrative Procedure in Administrative law: Comparative study. Tehran, Khursandi, (2012). P.78.
53 Hadavand, M. et al Administrative Procedure in Administrative law: Comparative study. Tehran, Khursandi, (2012). P.78.
on the Processing of Legislative Documents (LPLD) mentioned the characteristics of those legal documents.
Administrative law plays the crucial role of controlling executive power. The organizational arrangements designed to bring administrative accountability vary significantly between jurisdictions. The main difference lies in the position of administrative law bodies in the structure of government: administrative courts and French courts are part of the executive;
Sweden's ombudsman reports to the legislature, and normal law states give ultimate authority over the legality of government action in the ordinary courts but have separate arrangements for agencies to review administrative action at lower levels. Judicial oversight on administrative decisions in Afghanistan does not have an appropriate mechanism and Afghanistan cannot create an administrative court like France model, therefore; the author believes Afghanistan needs to reform judicial power to solve the administrative dispute excellently.
2. Suggestion
a. Afghanistan must create a unique administrative divan for administrative cases under the judicial power’s organizational chart.
b. Enacting Administrative Procedure law for administrative divan is an urgent task for Afghanistan. This law must abridge the investigation procedure, lower court expenses and increase the court accessibility to citizens to amplify the rule of law.
Acknowledgments
I thank the interviewees for their time and valuable input for this article. I want to acknowledge and in particular, Prof. M. Hashim Rajabi for his tireless efforts and patience in the process of research. I would also like to thank Prof. Muhammad Alam Aram, head of the Public Law Department at Takhar University. Nonetheless, the responsibility for any shortcomings in the paper is mine.
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