Understanding Administrative law in context of Nepal

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Administrative Law is the law related with the administrative functions of the Administrative Agencies (the Government and its Departments). The Law involves the study of the following broad topics:
  • Check abuse of administrative power
  • Ensuring citizens an impartial determination of their disputes by officials
  • Protect citizens from unauthorized encroachment on their rights and interests
  • Make those who exercise public power be accountable to people
Rule of Law is one of the most fundamental aspects of modern legal systems. Simply said, the rule says, 'howsoever high you may be; the Law is above you'. It specifies that the Law is supreme and that no human being is higher than the authority of Law.

A V Dicey stated three principles to the term 'Rule of Law'.
1. Supremacy of Law :- Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power.
2. Equality before Law:- There must be equality before law or equal subjection of all people without any discrimination.
3. Predominance of Legal spirit :- The rights are a result of court judgements rather than from being enshrined in the Constitution. The Constitution is a consequence (and not the source) of the rights of the individuals. Thus, Courts are the guarantors of the liberty. Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document. Mere incorporation in a written
constitution is of no use in the absence of effective remedies of protection and enforcement.
From the  Preamble of Constitution of Nepal itself says that includes the rule of law.  Article  18(1) speaks about Right to equality  which speaks that All citizens shall be equal before law. No person shall be
denied the equal protection of law. (2) No discrimination shall be made in the application of general laws on grounds of origin, religion, race, caste, tribe, sex, physical condition, condition of health, marital status, pregnancy, economic condition, language or region, ideology or on similar other grounds.
(3) The State shall not discriminate citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideology or on similar other grounds.
Article 50(1) speaks that 50. Directive principles:(1) The political objective of the State shall be to establish a public welfare system of governance, by establishing a just system in all aspects of the national life through the rule of law…..

Separation of Power

Montesquieu's separation of powers

In Nepal Seperation of power in Constitution of Nepal
Part 7 Federal Executive,
Part 8 Federal Legislature
Part 11 Judiciary.

Checks and balances

In Constitution of Nepal Part-20 Interrelations between Federation, State and Local Level.

Delegated legislation is law made by an executive authority under powers given to them by primary legislation (such as Parliament) in order to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature's authority. It is also known as 'secondary legislation' or 'subordinate legislation'. Delegated legislation is governmental: it consists mainly of Orders in Council and instruments of various names (e.g. orders, regulations, rules, directions, and schemes) made by ministers.
Need for delegated legislation
·         Lack of parliamentary time
·         Passed quickly
·         Use tactical, technical knowledge
·         Emergency usage
·         Flexibility to revoke and amend
·         Future needs can be met
Delegated Legislation may also be declared invalid on the following grounds:  
A.    Violation of the Constitution.
B.     Violation of the Enabling Act.
C. Violation of Principles of Natural Justice when the Statute itself provides of such requirement.

Discretionary powers exercised by administrative and legal authorities are permissive, and not binding.  These powers are granted to these officials by statute or delegation.  Discretionary powers do not impose an obligation on a decision-maker to exercise them or to exercise them in a particular manner. Administrative agencies must exercise discretionary powers in accordance to legal requirements.  Discretionary power must be used reasonably, impartially and avoiding oppression or unnecessary injury. Administrative agencies are provided with discretionary power to ascertain place and time to hear and decide matters that come before it.  Agencies have the power to prosecute or enforce matters through civil or criminal process.

Principles of natural justice
Two core points in the concept of principles of natural justice
  1. Nemo Judea incausa sua:- No one shall be a judge in his own case, or the rule against bias. The judge should be impartial and neutral and must be free from any kind of bias. General Code (Muliki Ain) 2020 Court proceeding no. 30
(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental Bias;
2.      Audi alteram partem - Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.
i) Notice ii) Opportunity to hear iii) Opportunity for legal representation iv) Opportunity to cross Examine

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