Powers OF Conseil D’ Etat

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POWERS OF CONSEIL D’ ETAT

BY

S J TUBRAZY

Since efficient administration is not compatible with a disregard for the rights and prime liberties of the common man, the conseil claims and exercises direct authority over all members of the administration, including the Ministers, in respect of their administrative acts and has power to set them at naught by declaring them to be ultra vires. It is not subservient to Government and can call even, the Ministers to account as peremptorily as any ordinary citizen.

 The French view is that a Minister must be satisfied as to the correctness of the orders passed by him and that if he is so satisfied he must as Minister have to produce reasonable grounds upon which his satisfaction is based before any competent authority calling into question such orders and once he is possessed of such grounds he is automatically bound in duty to disclose them to the Conseil d’Etat, if so required. In other words, the mere subjective satisfaction of the Executive would not be enough, as in countries following the British system of law, to preclude the jurisdiction of the Conseil. The mere satisfaction of the administrator would not tie the hands of the Conseil nor can its jurisdiction be ousted on the plea of “reasons of state”. All executive actions must be justified before it not merely in cause but also in effect.

 In short, every executive action must be supported by some reason and further that reason must also be true as a fact. Thus the Conseil has jurisdiction to inquire why a passport was not issued to a certain person, why certain persons were not taken up for appointment to a civil service, or even as to why a certain alien’s property had been confiscated. It is through the instrumentality of this power that the Conseil prevents official injustice. The Conseil has thus aptly been described by Hamson as “the pledge of the possibility of administrative justice”. The French citizen is at liberty to arraign the executive officers of the Government and even the ministers for their administrative acts to bring such acts to the test of reason. The Conseil, it will thus be seen, while belonging as it does wholly and entirely to the Executive, sharing their inner­most secrets, framing their policies and lines of action, acting as their advisers and consultants, is yet, at the instance of the citizen, in its other function, the impartial and uncommitted judge of the executive action under challenge and admirably enough exercises both these apparently opposite and contra­dictory functions.

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