An analysis on Administrative law and Constitutional law: Similarities and Differences

A long time the similarity between constitutional law and administrative law had led to confusion between both because the latter was, until very recently, treated as an appendage of or annexure to the former. One of the reasons therefor is that the two were fused for a long time because English scholars such as Austin and Maitland hesitated to see administrative law as a body of law distinct from constitutional law.

Also A.V. Dicey’s denial of the existence of administrative law in the UK in his exposition on the rule of law worsened the non-recognition of administrative law as an autonomous course of study.  Moreover,                  this blurred relationship between administrative law and constitutional law was not helped by the fact that the UK operates an unwritten constitution.

Thus, it was usual for textbooks on constitutional law and administrative law to contain much of constitutional law and little of administrative law. However, with the recognition of administrative law as an independent course of study, the situation has since improved as we now find books that are exclusively devoted to administrative law and, more importantly, administrative law is no longer tied to the apron string of constitutional law.

Characteristics of Administrative Law

There are certain characteristics which stand administrative law out. Some of them are itemized below:

(a)    Administrative law is the law that regulates the activities of administrative agencies;

(b)   It deals with the power of agencies to exercise legislative, executive, judicial and quasi-judicial functions and the procedures for so doing;

(c)    It concerns itself with providing remedies for persons who are victimized by administrative misuse or abuse of power;

(d)   Administrative law acts as government image-maker. This is because the rules, regulations, byelaws, policies, etc, that administrative agencies make and implement are either to the benefit or detriment of most people on daily basis. It is important to note that the only contact such people may have with governmental institutions are through the medium of administrative agencies;

(e)    It relates to the delegation of power and delegated legislation.

Characteristics of Constitutional Law

In contradistinction to administrative law, constitutional law is the branch of  public law that relates to, as the name implies, the constitution. The Constitution is the supreme document enacted to be a working document for governance. Some of its features are as follows:

(a)        Constitutional law regulates the relationship amongst the three arms of government, that is, the legislature, the executive and the judiciary;

(b)        It distributes governmental power amongst the three arms;

(c)        It codifies and protects the fundamental rights of citizens;

(d)        It operates at the level of generality. Most people cannot really understand what it means to have      a constitution because they do not really have any contact with it often.

 

 

Similarities between Administrative Law and Constitutional Law

Administrative law and constitutional law are of common public law ancestry. They are both about power and accountability – power of legislation and the accountability of those vested with the authority of enactment and enforcement. Administrative law and constitutional law border on the distribution and exercise of power within the State, and the relationship between the State and the individual.¹²

Also, both operate with statutes, case-law, principles, rules, maxims. Similarly, the implementation of both administrative law and constitutional law is made possible by the same governmental/administrative structures. ¹³ They differ from private law courses such as contract, trust, land law, etc, to the extent that the latter relate to relationships between private individuals.

Contrasts between Administrative Law and Constitutional Law

Nonetheless, some differences are still identifiable between the two.  Constitutional law is the law relating to the Constitution of a State, distribution of powers amongst the arms of government, and human rights for its citizens. In the Nigerian context, the course of study would include the study of powers of the Federation, Fundamental Objectives and Directive Principles of State Policy, Citizenship, Fundamental Rights provisions, Law-making Procedures, Revenue Allocation, and the powers of the three arms of government. The constitution is the organic law of the State and, adapting Kelsen’s jurisprudential approach to law, it appropriates to the Grundnorm in the hierarchy of norms in the country. The functions of the Constitution have been aptly captured by Sir Udo Udoma in the case of Nafiu Rabiu v. State(1980)1 LRLR at 128 as follows: “The function of the constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve.”

Similarly, Alex Carrol said that:

Constitutional law deals with the legal foundations of the institutional hierarchy through which the State is governed. It concentrates in particular on the rules, both legal and conventional, which explain and regulate the composition, powers, immunities, procedures of, and relationship between, those institutions….

So, what features typical of constitution can we extract from the above? They are provided below:

(a)  Constitution is the organic, supreme law or the grundnorm of a State;

(b) All laws inconsistent with it are to the extent of their inconsistency void;

(c)  It regulates power distribution amongst the three arms of government;

(d) It governs the relationship between citizens on the one hand and governmental agents on the other, and amongst governmental organs inter se;

(e)  It stipulates the rights and duties of citizens; and

(f)  It constitutes a code of governance in the hands of government officials.

On the other hand, administrative law is law relating to the power and the exercise of such power of an administrative agency and which controls the exercise of governmental powers through judicial reviews. In the words of Stanley De Smith & Rodney Brazier:

Administrative law is the branch of public law dealing with the actual operation of government, administrative process. When the constitutional process has resulted in a duly elected government which has determined its policies and enacted any necessary primary legislation, the administrative process begins. It concerns the day-to-day administration of the country at central and local levels and putting into practice constitutionally decided policies.”¹⁶

From all that we have said so far, we can deduce that administrative law is about so many things including the following:

(a)   Administrative law relates to the power and procedures of administrative agencies and the     remedies         available to persons who may be aggrieved by the conduct of these agencies;

(b)   It concerns the organization, functions, powers or authority of governmental agencies;

(c)   Delegation of powers and delegated legislation;

(d)   Exercise of power and discretion in public administration;

(e)   It regulates the relationship amongst   administrative agencies, and the relationship between their               employees and the public; and

(f)   Administrative adjudication

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