Though lowest in the hierarchy of laws, administrative acts may nevertheless regulate citizens
in a very detailed manner.  They may take the form of regulations of general application or
decisions of specific application.  In the same way laws serve to elaborate upon the
principles within a constitution, administrative acts elaborate upon the provisions of a law.
Modern legislatures are not equipped to specify all the details necessary to implement a law,
and frequently these details are left to the executive branch to define through administrative
acts.  It is not uncommon for the text of a regulation to exceed the length of the law upon
which it is ultimately based.  In most modern constitutional democracies, administrative acts
define literally hundreds of details that affect the daily lives of citizens.

For example, a law may state the general principle that all persons owning a truck must pay
a certain amount of tax per year on the truck, and the associated regulation will then define
when, where, and how the tax is to be paid.   The regulation might also define how a person
is to seek a refund of tax in cases where he or she has paid too much by mistake.  A specific
government decision then might be rendered on whether the person qualifies for a refund in a
specific year.  Consequently, truck owners will each year be required to follow the specific
details of the regulation to ensure they pay their proper taxes and receive any refund due,
and in some cases, they will be required to seek an administrative decision based on the
regulation.

For citizens to comply with an administrative act, they must first be made aware of its
existence and content.  It is therefore incumbent upon governments to publish all
administrative acts that are intended to have the force of law.  Typically, constitutions
provide that all unpublished acts are denied the force of law.  Such a provision is in harmony
with the prohibition against secret laws generally prevailing in today’s constitutional
democracies.

In addition to the requirement that all administrative acts be published, a constitution should
ensure that citizens be guaranteed the right to challenge this act.  Otherwise, the executive
branch would be granted a right over citizens that denied their right to seek redress against
the government.  Regardless of the system of government, modern constitutional
democracies (for example, Germany and the United States) ensure that the executive power
to issue administrative acts is limited by the citizens’ right to seek redress.

For instance in the above tax example, citizens of a constitutional democracy should only be
legally required to pay taxes pursuant to a regulation that has been published and is legally
valid.  Citizens should be guaranteed the right to challenge the application of all unpublished
or legally invalid regulations.  Similarly, administrative decisions which are based on
unpublished regulations or lack a legal basis should be subject to challenge.


In many constitutional democracies, the specific method for challenging administrative acts is
included in the  administrative procedure code.  This code defines how regulations and
decisions may be challenged.  Administrative codes can even require that all regulations be
published in draft form so that the public is allowed to comment on all regulations before
they are finalized.  This additional level of transparency ensures that government officials
receive input from private professionals and NGOs specializing in the area of regulation.
With this input they are able to draft final regulations that are more detailed, acceptable to
the interested parties, and understandable to the general public.

While the administrative law may define the procedure for challenging administrative acts, it
is generally accepted that the fundamental right of citizens to challenge administrative acts
has constitutional origins.  Thus, in the absence of an administrative procedure code, citizens
should nevertheless have the right to challenge administrative acts.

If this right is not included in the constitution, other fundamental rights may be jeopardized or
lost.  For instance in the tax example, if tax authorities have the right to collect penalties or
confiscate property on the basis of a secret regulation or decision which is not based on a
law or valid regulation, a citizen’s right to private property disappears.  Without knowledge
of the law, citizens cannot be expected to follow the law and cannot verify that government
officials are following the law.  Without the right to challenge the actions of government
officials, citizens lose their individual right to protest government mistakes.  In these
circumstances, citizens become wholly dependent upon the state for protection of their
interests.  Thus, individual rights are no longer present.

In a constitutional democracy, confiscating property or imposing fines under these
circumstances amounts to taking of property without due process.  If this type of procedure
is tolerated, the right to private property is therefore abrogated, and the executive power is
permitted to violate the individual rights of citizens.   This type of practice compromises the
foundation of constitutional democracy and creates a favorable environment for centralized,
corrupt authoritarian governments.   With unchecked authority, executive authorities are free
to seek bribes for favorable rulings because citizens have no effective means of challenging
their authority.  Over time, this practice leads to the rule of individuals and the destruction of
the “rule of law.”  Thus, such concentration of power in the executive branch is by definition
against the fundamental principles of a constitutional democracy.

If a constitution is to serve its purpose of enumerating the basic rights of citizens, it must also
define structures that secure enforcement of these basic rights.  The power to challenge
administrative decisions is at the core of this important concept.  Failure to establish the
basis for challenging administrative decisions within a constitution is therefore a fundamental
concern.  If a constitution does not guarantee citizens this essential power, it is likely to be
simply a matter of time before the executive branch of government begins to, intentionally or
otherwise, infringe upon a variety of other fundamental rights, and when these infringements
go without redress, the very basis of the constitutional democracy is called into question.

Submitted by Scott Carlson
accapp/qakapp
Rr. “Donika Kastrioti” Vila 6
Tirana, Albania
Phone: 355-42-40672
Fax: 355-42-40673
E-mail: [email protected]