The common-law system originated in England in the Middle Ages. In the 17th century relations between the courts and the executive developed into a constitutional struggle between the Stuart kings and the judges over the judges' right to decide questions affecting the royal power and even to pronounce an independent judgment in cases in which the king had an interest. In the constitutional conflict that took place a generation later, the judges and the lawyers made common cause with Parliament against Charles I, and eventually the independence of the judges was established. Henceforth there was to be one system of law to which all would owe obedience. As a result, the executive possessed no inherent powers other than those subject to the rule of law inasmuch as legislation now had to emanate from the crown in Parliament. In addition, the judges were expected to protect the subject against the executive. A more intangible consequence was the belief that “government” and “law” were often thought to be opposed to one another.
These developments established the principle that the executive should never interfere with the judiciary in the exercise of its functions. This was, indeed, almost the only strict application in England of the doctrine of the separation of powers. On the other hand, it was regarded as right and proper that the judiciary should interfere with the executive whenever a minister or a department was shown to have acted illegally.
The common-law system has been extensively modified in the course of the 20th century. Until recently it did not correspond to the realities of the situation in Britain because, prior to the Crown Proceedings Act, 1947, it was not possible to sue ministers and their departments in tort; government ministers in Britain are considered ministers of the crown, and an ancient legal doctrine holds that “the king can do no wrong”. Moreover, the development of state-provided social services has been accompanied by the creation of a large number of administrative tribunals to determine disputes between a government department and a citizen. They provide a method of administrative adjudication far cheaper, more informal, and more rapid than that offered by the courts; the members are persons possessing special knowledge and experience of the subject dealt with; they do not have to follow the strict and complex rules of evidence that prevail in the courts; and it is possible to introduce new social standards and moral considerations to guide their decisions.
In the United States the courts review administration much more comprehensively than in Britain. Nevertheless, much adjudication is now performed by public authorities other than the courts of law. The movement toward administrative tribunals began with the Interstate Commerce Act (1887), establishing the Interstate Commerce Commission to regulate railways and other carriers. This law introduced a new type of federal agency, outside the framework of the executive departments and largely independent of the president.
In France the separation of powers was given a place of honour in the Declaration of the Rights of Man and of the Citizen (1789). In the French view, however, if a court were permitted to review an administrative act or decision, it would contravene the separation of powers as much as if the executive could override the decision of a court. Just as an appeal from a court lies to a higher court, the reasoning goes, so an appeal from an administrative authority should lie to a higher administrative authority. Only thus would the true separation of powers be observed.
Herein lies the explanation of administrative law as a system of law separate from the body of law administered in the courts. A law of August 1790 declared that the judiciary was distinct from and would always remain separated from the executive. It forbade judges, on pain of dismissal, to interfere in any way with the work of administrative bodies. In October 1790 a second law stated that under no circumstances should claims to annul acts of administrative bodies fall within the jurisdiction of the courts. Such claims should be brought before the king as head of the general administration.
Several other countries have followed France in establishing councils of state. Among them are Italy, Greece, Belgium, Spain, Turkey, Portugal, and Egypt.
The third system for ensuring administrative legality, called the Procuracy, was founded in Russia by Peter the Great in 1722, who intended it to be the “eye of the tsar”.
The Procuracy was abolished in November 1917 but revived in 1922. The Soviet constitution charged the procurator general with the general duty of supervising the observance of the law by all ministries and institutions subordinate to them as well as by individual officials and citizens. The procurator general was appointed by the Supreme Soviet for five years. He appointed subordinate procurators at all administrative levels, from union republic to district and town.
The functions actually performed by the procurator underwent many fluctuations and vicissitudes after 1922. Finally, the position of the Procuracy was laid down in a union law of May 24, 1955, and in a decree of the Presidium of the Supreme Soviet made on April 7, 1956.
The procurator was not the president of a court or a tribunal but rather a watchdog of legality. His organization comprised a department for general supervision; a bureau of investigation for the supervision of preliminary inquiries in criminal matters; a department for the supervision of investigations carried out by the KGB (Committee for State Security); departments to supervise criminal and civil proceedings in the courts; a department to supervise prisons, compulsory labour centres, and the like; and departments for statistics, administration, and research.
Since the Procuracy was not a court, it could not make a binding decision. This point was emphasized by Article 58 of the 1977 constitution, giving citizens the right to take complaints against administrative actions to the courts. The normal procedure (apart from cases of dereliction involving a criminal prosecution) was for the procurator to protest against any illegality that he detected or that was brought to his notice or to initiate disciplinary action against an erring official.
The ombudsman is a part of the system of administrative law for scrutinizing the work of the executive. He is the appointee not of the executive but of the legislature. The ombudsman enjoys a large measure of independence and personal responsibility and is primarily a guardian of correct behaviour. His function is to safeguard the interests of citizens by ensuring administration according to law, discovering instances of maladministration, and eliminating defects in administration. Methods of enforcement include bringing pressure to bear on the responsible authority, publicizing a refusal to rectify injustice or a defective administrative practice, bringing the matter to the attention of the legislature, and instigating a criminal prosecution or disciplinary action.
Дата: 2019-02-02, просмотров: 28.