Administratie Laws

8/11/2019 Administratie Laws

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1 Complete Notes of Constitutional & Administrative Laws

5TH SEMESTER

TO BE STUDIED DURING THE SEMESTER

FOLLOWING CONSTITUTIONAL AND ADMINISTRATIVE LAWS ARE BEINGGOVERNED IN PAKISTAN:

AFTER MID-TERM:

1) Legal System of Pakistan

2) Constitut ional Law Preamble, Fundamental Rights & Principles of Policy

3) Historical Growth and Development of Administrative

4) Factors Responsible for growth of Administrative Law

5) Administrative Action / Delegated Legislation

6) Judicial Review of Administrative Action in Pakistan

7) Law of Writs

8) Rule of Law

9) Separation of Powers

10) Public Interest Litigation

12) Ombudsman

AFTER MID-TERM:

11) Principles of Natural Justice

Audi Alterm Partem

Nemo Judex In Causa Sua Justice not be done but seems to bedone

OR

Nemo Debet Esse Judex In Propria Cause, Judges should be abovesuspicion

Orders must be speaking


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Land Solid part of the earths surface

Population Total number of any group of living things

Government System by which a State is governed

Sovereignty Supreme Ruler

o Sovereignty composed of three parts:

Legislature Makes the law (Parliament)Executive Implement the law (Bearcats)Judiciary Interprets the law and can also make laws as well in

terms as they explain the law. Judiciary is there forinterpret the law.

Judic ial Review:Judicial Review means review by courts of administrative actions with the review toensuring their legality. Review is different from appeal. In appeal, the appellateauthority can go into the merits of decision of the authority appealed against but in

review the reviewing authority does not go into the merits of decisions. In judicial reviewof administrative actions, the courts only inquire whether the authority has decidedaccording to law. Judicial review undertakes scrutiny (close investigation) ofadministrative actions on the touch stone (yard stick, dark schist (layered crystallinerock) or jasper used for testing alloys by marking it with them) of doctrine (a principle ofreligious or political belief, set of such principles) of ultravires (beyond ones legal powerof authority). The device authorities are given powers by statute (written law passed bya legislative body) and such power must be exercised within the limits of the powersdriven by such statute.

As long as authority acts within the ambit of the powers given to it, no court can

interfere. The constitution (body of fundamental principles by which a State or otherbody is governed) of Pakistan 1973 provides judicial review of administrative actions inarticles 199 (writ petition) by the High Court and articles 188 & 184 by the SupremeCourt (highest judicial court in a State etc.). Article 184 is restricted to violation offundamental rights and article 185 is restricted to right of appeal and article 188 dealswith review with supreme courts. So article 199 is the main provision of the judicialreview of administrative actions. Article 212 is available against decisions of tribunals(board appointed to adjudicate in some matter, court of justice). Whereas article 199 isavailable against any advice authority and not only for the violation of fundamentalrights.

Writ:Writ (form of written command to act or not act in some way) is an ultimate remedy(means of counteracting or removing anything undesirable) when all the effectivealternative remedies have been availed.

Writ is check of superior judiciary on judiciary, executive and on legislative.


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Kinds of Writ in Judicial Review

Following are the types of writ petitions:

1) Mandamus2) Habeas Corpus

3) Prohibition4) Certiorari5) Quo Warranto

1)

When someone is required to do something by law and he is not doing that.

MANDAMUSIt is the check of superior judiciary on legislatures and executives.

When someone is required not to do something by law and he is doing that.

Mandamus is sought for direction to the subordinate court/tribunal or governmentofficer to perform mandatory duties correctly. Writ of mandamus is most popular writ,which is issued against the arbitrary/illegal acts of government officials includingpolice officers, municipal bodies etc. This writ is given to a lower-level court or agovernment officer to mandate that proper laws are followed. Mandamus might begiven if an official is not using his position appropriately or if a court is not followingthe laws of the state or country. This writ (also called the writ of mandate) ensuresthat the government and the individuals in charge are performing their functionsproperly.

2) PROHIBITIONIt is check of Superior judiciary on subordinate judiciary. When subordinate court ortribunal are working illegal or without jurisdiction and during their proceeding in case

a writ of prohibition take place. Writ of prohibition is made to prevent court ortribunal from doing something which it has no powers to do. It is an order directingan inferior in a court to refrain from continuing with a proceeding therein on theground that the proceedings without jurisdictions or contrary to the laws of land.

3) CERTIORARIWhen a matter has been decided or concluded by the lower judiciary or tribunal(board appointed to adjudicate in some matter, court of justice) illegally without

jurisdictions (Administration of justice, a legal or other authority) or in excess orjurisdiction the writ of Certiorari can be evoked by the aggrieved party (having agrievance, suffering from an imprison/deny of legal right). At this time this writ will be

evoked.

4)

It is check of judiciary on legislature, executive and private persons. So HabeasCorpus is collection of two words. Habeas means unlawful detention (to detainsomeone without his will) and Corpus means living human beings (not a dead body).

HABEAS CORPUS(Writ requiring a person to be brought before a judge or into court, especially toinvestigate the lawfulness of his or her detention, illegal detention).


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Like the example of Bhatta (Bricks factory) labour. Writ of Habeas Corpus is inevoked when a living person is detained by someone. Habeas Corpus isprerogative (right or privilege exclusive to an individual or class) for securing theliberty of the subject, by affording (to present) an affective means of immediaterelease from unlawful detention whether in prison or private custody. By the courtscommand the production of the subject and inquiries (presentation) into the cause of

detention and if there is no legal justification, the person is set at liberty. This is whythis writ is called the great writ of liberty.

5) QUO WARRANTO(By what/which authority)

Quo means under which and warranto means authority permission. So it is a checkof judiciary on judiciary, legislature and executive. It is writ of inquiry about holdingany office doing any work issuing any order. So it is writ of inquiry.

RULE OF LAW

1) INTRODUCTIONRule of law is one of the unique characteristic of the English Constitution. Thisdoctrine is accepted in the Constitution of USA and also in the Constitution ofPakistan. The entire basis of Administrative Law is the doctrine of rule of law. NoConstitution of any country can function and no nation can march along the truedemocratic way of life without a true and continuous realization of the importance ofthe rule of law and judicial review of legislative and executive actions.

2)

ACCORDING TO BLACKS LAW DICTIONARY

MEANING OF RULE OF LAW

The rule of law means the supremacy of law which provides that decisionsshould be made by the application of known principles of laws without theintervention of discretion in their application.

3)

ACCORDING TO WADE

DEFINITION OF RULE OF LAW

A rule of law requires that Government should be subject to the law rather thanlaw subject to Government.

ACCORDING TO LORD HEWARTThe rule of law means the supremacy of law as distinguished from merearbitrariness or some alternative mode which is not law of determining ordisposing of the rights of individuals.

4)The concept of rule of law is of old origin. Its roots can be traced in Magna Carta1215, in which it has been said, No free man shall be taken or imprisoned ordisseised or exiled of in any way destroyed, nor will we go or send for him, exceptunder a lawful judgment of his peers and by the law of land. However, Sir Edward

HISTORICAL BACKGROUND OF RULE OF LAW


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Coke, C. J. is said to be the real originator of this concept. In a battle against king,he maintained successfully that the king should be under God and law and heestablished the supremacy of a law against the executive. Later on the Diceydeveloped the theory of Coke in his classic book. The law and Constitutionpublished in the year 1885.

5) BASIS OF RULE OF LAWThe term rule of law is derived from the French phrase la principle de legalitewhich means principle of legality which refers to a Government based on principlesof law and not of men. In this sense the concept of la principle de legalitewasopposed to arbitrary powers.

6)

Supremacy of law

DICEY EXPOSITION OF RULE OF LAW

According to Dicey, the doctrine rule of law means three things, namely:

Equality before law

Predominance of legal spirit

i) SUPREMACY OF LAWBy explaining the first principle Dicey states that rule of law means the absolutesupremacy or predominance of regular law as opposed to the influence ofarbitrary power or wide discretionary power. It excludes the existence ofarbitrariness, or prerogative or even wide discretionary authority on the part ofthe Government. According to him the Englishmen are ruled by the law alone, aman can be punished for a breach of law, executive has no authority to put aman behind the bars arbitrarily. In other words, according to this doctrine, noman can be arrested, punished or be lawfully made to suffer in body of goodsexcept by due process of law and for a breach of law established in the ordinarylegal manner before the ordinary Court of the land.

ii ) EQUALITY BEFORE LAWDicey states that no man is above law but that every man, whatsoever his rank orcondition, is subject to the ordinary law of the realm and amenable to the

jurisdiction of ordinary tribunals. What is law-legal rights and obligation for me-must hold equality as such for all citizens? This means that whatever the statusof a person, he must submit to the ordinary law and ordinary Courts of thecountry. There are no separate Courts for the trial of Government servants inEngland, likewise there is no separate law by which the servants of theGovernment can be trialed. All citizen of the states are ruled under the samelaw. The violation of a particular law gives the same punishment to an ordinaryman as well as to a wealthy man. The high Government officials and theordinary men, both are produced before the same Court. Moreover, no personcan plead immunity from the obedience to the law of England.

iii)Dicey states that the general principles of the Constitution are the result of

judicial decisions determining the rights of private persons in particular cases

PREDOMINANCE OF LEGAL SPIRIT (JUDICIAL DECISIONS)


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brought before the Courts. This refers to the important part played by Englishjudges in safeguarding the rights and liberties of the Englishman.

7)

i) He ignored the principles and immunities enjoyed by the Crown under the maximthe King can do no wrong.

CRITICISM ON DICEY THEORYThe critical examination of the three characteristic of the rule of law as pointed byDicey shows that the rule of law is not to be found in England in the form in which he

presented it. There were many violations in the rule of law even in the time of Diceyand in recent times the tendency is to deviate from the strict rule of law.

ii) He ignored the growth of administrative tribunals.

iii) He misunderstands and misconstrued the real nature of the French System.

8) MODERN CONCEPT OF RULE OF LAWDiceys concept of rule of law was not accepted fully at anytime. In modern times,

the doctrine of rule of law has given the following meanings:

i) Law and orderii) Fixed rules for everyoneiii) Elimination of discretioniv) Due process of law and fairnessv) Natural law or observance of principlesvi) Preference of judge and ordinary Courts, tribunal

9) DEVELOPMENT OF CONCEPT OF RULE OF LAW IN DIFFERENT COUNTRIES

i) RULE OF LAW IN PAKISTANRule of law has been embodied in the Constitution of Pakistan 1973. The principleequality before law or equal protection of law has been incorporated in its Articles2A, 3, 3A, 4, 8, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,37, 175(3), 184(3), 199, 209.

ii ) RULE OF LAW IN AMERICAAmendment 5th and 14th of American Constitution deal with the process clause.According to which the life and liberty of a person are not subject to uncontrolledpowers of the Government.

ii i) RULE OF LAW IN GREAT BRITAINIn great Britain, rule of law in the recent days is based on the following ideas:

i) Accordance with lawii) Fundamental Rightsiii) Governmental Obligations

10) RULE OF LAW AND INTERNATIONAL MOVEMENTS:Many international movements have been run to promote the concept of rule oflaw. These movements are as under:


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i) European Convention on Human Rights (1950)ii) Universal Declaration of Human Rights (1948)iii) Delhi Declaration 1959iv) Movement of rule of law under the UN International Commission 1959

11) CONCLUSION

To conclude I can say that rule of law implies the supremacy of law. No personcan be punished unless and until it is definitely proved that he has violated somelaw of the country. There can be no arbitrary punishment of any individual. Noman is above the law. Every man, whatever his rank or condition is subject tothe ordinary law of the country. What is law for the one is also law for another.

NATURAL JUSTICE & ITS EXCEPTIONS / EXCLUSIONS

1) INTRODUCTIONNatural Justice is an important concept in Administrative Law. It is not possible todefine precisely and scientifically the expression Natural Justice. The principles of

Natural Justice or Fundamental Rules of Procedure or Administrative Action areneither fixed nor prescribed in any code. They are better known than described andeasier proclaimed than defined.

2) MEANING OF NATURAL JUSTICENatural Justice has meant many things to many writers, lawyers and systems of law.It has many colors and shades and many forms. It is known as substantial justice,fundamental justice, universal justice or fair play in action.

3)

DEFINITION OF NATURAL JUSTICE

The term of Natural Justice expresses the close relationship between thecommon law and moral principles describing what is right and what is wrong.

ACCORDINIG TO DE-SMITH

It is justice that is simple and elementary, as distinct from justice that is complexsophisticated and technical.

4)

ACCORDINIG TO MEGORY

PRINCIPLES / NORMS OF NATURAL JUSTICE

i) Nemo debet esse judex in propr ia causa:No man shall be a judge in his owncause or the deciding authority must be impartial and without bias and

The traditional English Law recognizes two principles of Natural Justice:

ii) Audi Alteram Partem:Hear the other side or both side must be heard or no manshould be condemned unheard or that there must be fairness on the part of thedeciding authority.

However, due to repaid development and growth of Constitutional Law as well asAdministrative Law, a third principle of Natural Justice has also been evolved.


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iii) Speaking Orders or Reasoned Decisioned: All orders should be supported byreasons.

1)a) General; The first principle of Natural Justice consists of the rule against bias

or interest and biased on three maxims: (i)No man shall be a judge in his

own cause. (ii) Justice should not only be done but manifestly andundoubtedly be seen to be done and (iii)Judges like Caesars wife should beabove suspicion. (iv)Judge should be disinterested but not interested.

BAIS OR INTEREST

b) Meaning; According to the dictionary anything which tends or may beregarded as tending to cause such a person to decide a case otherwise thanon evidence must be held to the blased. In other words, a predisposition todecide for or against one party without proper regard to the true merits of thedispute is bias.

In Franklin V. Minister of Town & Country Planning, Lord Thankerton definesbias as under:

My Lords, I could wish that the use of the word bias should be confined toits proper sphere. Its proper significance in my opinion id denote a departurefrom the standard of even-handed justice which the law requires from thosewho occupy judicial office or those who are commonly regarded as holding aquasi-judicial office, such as an arbitrator.

c) Principle explained;The first requirement of Natural Justice is that the judgeshould be impartial and neutral and must be free from bias. He is supposedto be indifferent to the parties to the controversy. He cannot act as judge of acause in which he himself has some interest either pecuniary or otherwise as

it affords the strongest proof against neutrality. He must be in a position toact judiciary and to decide the matter objectively. If the judge is subject tobias in favour or or against either party to the dispute or is in a position that abias can be assumed, he is disqualified to act as a judge and the proceedingswill be vitiated. It is a well-settled principle of law that justice, should not onlybe done but manifestly and undoubtedly be seen to be done. Justice cannever be seen to be done if a man acts as a judge in his own cause or ishimself interested in its outcome. This principle applies not only to judicialproceedings but also to quasi-judicialas well as administrative proceedings.

d) Types of Bias. Bias is of three types:i) Pecuniary bias

ii) Personal biasiii) Official bias or bias as to subject-matter

i) Pecuniary bias. It is well settled that as regards pecuniary interest theleast pecuniary interest in the subject-matter of the litigation will disqualifyany person from acting as a judge, Griffith and Street rightly state that apecuniary interest, however slight will disqualify even though it is notproved that the decision is in any way affected (emphasis supplied). In it


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is stated, There is a presumption that any financial interest, howeversmall, in the matter in dispute disqualifies a person from adjudicating.

In Dr. Bonham, a Director of Cambridge University was fined by theCollege of Physicians for practicing in the city of London without thelicence of the College. The statute under which the College actedprovided that the fines should go half to the King and half to the College.The claim was disallowed by Coke, C. J. as the College had a financialinterest in its own judgment and was a judge in its own cause.

Dimes v. Grand Junction Cannal is considered to be the classic exampleof the application of the rule against pecuniary interest. In this case, thesuits were decreed by Vice Chancellor and the appeals against thosedecrees were filed in the court of Lord Chancellor Cottenham. Theappeals were dismissed by him and decrees were confirmed in favour of acanal company in which he was a substantial share-holders. The Houseof Lords agreed with the Vice Chancellor and affirmed the decrees onmerits. In fact, Lord Cottenhams decision was not in any way affected by

his interest as a shareholder and yet the House of Lords quashed thedecision of Lord Cottenham. Lord Campbell observed:

No one can suppose that Lord Cottonham could be, in the remotestdegree, influenced by the interest that he had in this concern but myLords, it is of the last importance that the maxim, that no one is to be a

judge in his own cause, should be held sacred. And it will have amost salutary influence on (inferior) tribunals when it is known that thisHigh Court of last resort, in a case in which the Lord Chancellor ofEngland had an interest, considered that his decree was on theaccount a decree not according to law and was set aside. This will bea lesson to all inferior tribunals to take case not only that in their

decrees they are not influenced by their personal interest but to avoidthe appearance of laboring under such an influence.

ii) Personal bias. The second type of bias is personal one. A number ofcircumstances may give rise to personal bias. Here a judge may be arelative, friend or pusiness associate of party. He may have somepersonal grudge, enmity or grievance or professional rivalry against him.In view of these factors there is every likely-hood that the judge may bebiased towards one party or prejudiced towards the other.

Thus, where the Chairman of the Bench was a friend of the wifes family,who had instituted matrimonial proceedings against her husband and the

wife had told the husband that the Chairman would decide the case in herfavour, the Division Court quashed the order. Similarly, a Magistrate whowas beaten by the accused was held disqualified from hearing a case filedagainst an accused. Again a decision was set aside on the ground thatthe Chairman was the husband of an executive officer of a body whichwas a party before the tribunal. In the same way, a Magistrate cannotconvict his own employees for breach of contract on the basis of acomplaint filed by his bailiff.


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The above principle is accepted in India also. In one case, a managerconducted an inquiry against a workman for the allegation that he had beatenthe manager. It was held that the inquiry was vitiated. In another case, theirexisted political rivalry between M and the Minister, who had cancelled thelicence of M. A criminal case was also filed by the Minister against M. It washeld that there was personal bias against M and the Minister was disqualified

from taking any action against M.

e) Test; Real likely-hood of bias. A discussed above, a pecuniary interest,however small it may be, disqualified a person from acting as a judge. Butthat is not the position in case of personal bias or bias as to subject-matter. Here the test is whether there is a real likely-hood of bias in the

judge.

2)a) Meaning.Audi Alteram Partem means hear the other side or no man should

be condemned undheard or both sides must be heard before passing anyorder.

AUDI ALTERAM PARTEM

b) Principle explained. The second fundamental principle of natural justice isAudi Alteram Partem i.e. no man should be condemned unheard or both thesides must be heard before passing any order. De-Smith says, noproposition can be more clearly established than that a man cannot incur theloss of liberty or property for an offence by a judicial proceeding until he hashad a fair opportunity of answering the case against him. A party is not tosuffer in person or in pursue without an opportunity of being heard. This isthe first principle of civilized jurisprudence and is accepted by laws of Menand God. In short before an order is passed against any person, reasonableopportunity of being heard must be given to him. Generally, this maxim

includes two elements: (i) Notice and (ii) Hearingi) Notice. Before any action is taken, the affected party must be given a

notice to show cause against the proposed action and seek hisexplanation. It is a sine quo non of the right of fair hearing. Any orderpassed without giving notice is against the principles of natural justice andis void ab initio.

ii) Hearing. The second requirement of audi alteram partem maxim is thatthe person concerned must be given an opportunity of being heard beforeany adverse action is taken against him.

One office and the decision was given by another officer, the Court upheld

the order since the officer who had passed the order had taken full not ofall the objections put forward by the petitioners.

3)

a) General.Though the rules of natural justice, namely, nemo judex in causasuaand audi alteram partem,have now a definite meaning and connotationin law and their content and implications are well understood and firmlyestablished, they are nonetheless not statutory rules. Each of these rulesyields to and changes with the exigencies of different situations. They do notapply in the same manner to situations which are not alike. These rules are

EXCLUSION / EXCEPTION OF NATURAL JUSTICE


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not cast in a rigid mould nor can they be put in a legal strait-jacket. They arenot immutable but flexible. These rules can be adopted and modified bystatutes and statutory rules and also by the constitution of the Tribunal whichhas to decide a particular matter and the rules by which such Tribunal isgoverned. There are situations which demand the exclusion of the rules ofnatural justice by reason of diverse of factors like time, place, the

apprehended danger and so on. In the following cases, the principles ofnatural justice may be excluded:

b) Circumstances.

1) Statutory exclusion. The principles of natural justice operate only inareas not covered by any law validly made. In other words they do notsupplant the law but supplement it. Therefore, even where the statute issilent about the observance of the principles of natural justice, suchstatutory silence is taken to imply compliance with the principles of natural

justice. But it a statutory provision either specifically or by necessaryimplication of any or all the principles of natural justice then the Court

cannot ignore the mandate of the Legislature or the statutory authority andread into the concerned provision the principles of natural justice.

Administrative tribunal (.e.g. Regional Transport Authority), unlike judicialbodies, not bound to permit appearance of parties by lawyers or grantcertified copies of order passed. Circumstances under which High Courtwould in exercise of writ jurisdiction, control action of administrativetribunal.

One thing should not, however, be forgotten. In Indo-Pakistan, Parliamentis not supreme and therefore, a law made by the Parliament or aLegislature should stand the test of Constitutional provisions. In these

circumstances, even if there is no provision of observance or compliancewith the principles of natural justice, Courts may read natural justice with aview to sustain the law as constitutional.

2) Legislative Acts. Legislative action, plenary or subordinate, is also notsubject to the rules of natural justice. Thus, before enacting a lawimposing tax, fixing price etc. it is not necessary to issue notice and affordhearing.

A legislative action, for instance, price fixing, is a direction of a generalcharacter, not directed against particular person or individual manufactureror trader. It is conceived in the interests of the general consumer public.It is the right of the citizens to obtain essential articles at fair prices. It isalso the duty of the State to provide them to the citizens by compelling andobliging the manufacturers, producers and traders to supply and sellessential commodities at such prices. There is no question of invokingprinciples of natural justice in such cases.

Situations, may however, arise where the Legislature may itself provide fornotice and hearing, for example, levying a municipal rate. The legislaturemay also direct the subordinate Legislative authority to make such inquiryas it thinks fit before making legislation. Again when an owner of theproperty or goods is compelled to sell his property or goods to the


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Government or its nominee and the price to be paid is directed by thelegislature to be determined according to the guidelines laid down by it,the act of such determination of price may be said of a quasi-judicialnature. The determination of price in such a situation may acquire quasi-

judicial character.

3) Necessity. One more exception to the rule that no man shall be a judgein his own cause is the doctrine of necessity. An adjudicator who issubject to disqualification on the ground of bias or interest may have toadjudicate a claim if there is no other person competent or authorized todecide or quorum cannot be formed without his presence. In such cases,the principle of Natural Justice would have to give way to necessity forotherwise there would be no means of deciding the matter and themachinery of justice or administration would break down.

The doctrine of necessity applies not only to judicial matters but also toquasi-judicialas well as administrative matters.

4) Confidential Inquiries. Again, the observance of the principles of natural

justice may be dispensed with where the enquiry is of a confidential natureand disclosure of information may defeat the object of the statute. Thus,no opportunity of being heard can be given to an Additional Judge of aHigh Court before his name is dropped from being confirmed. Similarly,before including a name of any person in a surveillance register, no noticeis required to be given to the person concerned. A principle of judicialinquiry, whether fundamental or not, is only a means to an end. If it canbe shown in nay particular class of case that the observance of a principleof this sort does not serve the ends of justice, it must be dismissed,otherwise it would become the master instead of the servant of justice.

5) Preventive Action. Natural justice may be excluded if its effect would beto stultify the action sought to be taken or would defeat and paralyze theadministration of the law. Where an obligation to give notice andopportunity to be heard would obstruct the taking of prompt action,especially action of preventive or remedial nature, right of prior notice andopportunity to be heard my be excluded by implication. Audi alterampartem rule is intended to inject justice into the law and it cannot beapplied to defeat the ends of justice or to make the law lifeless, absurd,stultifying, self-defeating or plainly contrary to the common sense of thesituation! Therefore, if importing the right to be heard has the effect ofparalyzing the administrative process or the need for promptitude or theurgency of the situation, so demands, natural justice may be excluded.

In exceptional cases and emergency situations, interim measures may betaken to avoid the mischief of the passportee becoming an escapeebefore the hearing begins. Bolt the stables after the horse has beenstolen is not a command of Natural Justice. National security,sovereignty, public order and public interest must be of such a highdegree as to offer a great threat.

The right to be heard cannot be presumed when in the circumstances ofthe case here is paramount need for secrecy or when a decision will have


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to be taken in emergency or when promptness of action is called for wheredelay would defeat the very purpose or where it is expected that theperson affected would take an obstructive attitude.

6) Emergency. In exceptional cases of urgency and emergency whereprompt and preventive action is required to be taken, the principles ofnatural justice need not be complied with. Thus, where a dangerousbuilding is required to be demolished immediately to save human lives orwhere a banking company is required to be wound up in the interest ofdepositors or where a dangerous and desperate person is required to beextended or detained or where a passport is required to be impounded inpublic interest, pre-decisional hearing is not necessary. However,immediacy does not exclude duty to act fairly because even an emergentsituation can co-exist with the canons of natural justice. The only effect ofurgency on the application of the principle of fair hearing would be that thewidth, form and duration of the hearing would be tailored to the situationand reduced to the reasonable minimum so that it does not delay anddefeat the purpose of the contemplated action.

7) Other cases. There may also be cases wherein nothing unfair can beinferred by not affording an opportunity to present or meet a case .In such cases, it may not be necessary that an action can be taken onlyafter issuing notice or affording hearing. Thus, where the party haswaived, notice by conduct or has not submitted any reply to the showcause notice or due to vast majority of examinees adopting unfair meanson a large scale, it is not practicable to hold an enquiry or where thestatements have been recorded in absence of the delinquent but theyhave been made available to him or where in all probability, the witnessesmay not come forward to depose at the regular enquiry etc. that the

principles of natural justice need not be complied with. Natural justiceshould not destroy administrative order by interesting on the impossible.

DELEGATED LEGISLATION

1) INTRODUCTIONWith the growth of the administrative process in the 20thcentury, administrative rulemaking or delegated legislation has assumed tremendous proportions andimportance. Today the bulk of the law which governs people comes not from thelegislature but from the chambers of administrators. The fact is that the directlegislation of parliament is not complete unless it is read with the help of rules and

regulations framed there under, otherwise by itself it become misleading.

2) MEANING OF DELEGATED LEGISLATIONThe meaning of the expression delegated legislation may be given as under:

When the function of legislation is entrusted to organs other than the legislature bythe legislature itself, the legislation made by such organ is called DelegatedLegislation .


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3) DEFINITION OF DELEGATED LEGISLATION

i) GENERAL DEFINITIONDelegated legislation is an expression which covers a multitude of confusion. Itis an excuse for the legislatures, a shield for the administrators and a provocationto the constitutional jurists.

ii ) ACCORDING TO SALMONDDelegated legislation defined by Salmond as That which proceeds from anyauthority other than the sovereign power and is therefore dependent for itscontinued existence and validity on some superior supreme authority .

iii)

a) Exercise by a subordinate agency of the legislative power delegated to it bythe legislature or

ACCORDING TO JAIN AND JAINAccording to Jain and Jain the term delegated legislation is used in two senses.It may mean:

b) The subsidiary rule themselves which are made by the subordinate authority

in pursuance of the power conferred on it by the legislature.

4)

The traditional theory which postulates separation of powers was exposed to anenormous strain when the legislatures started delegating legislative power to theexecutive in a large quantity, irrespective of whether the constitutional pursuitsapprove it or not, delegation of legislative power has become the need of the day.

JUSTIFICATION FOR THE GROWTH OF DELEGATED LEGISLATION

5) REASONS FOR GROWTH OF DELEGATED LEGISLATION OR REASONS FOR

Many factors are responsible for the rapid growth of delegated legislation orinevitable delegated power in every modern democratic state which are discussedas follows:

i)

THE INEVITABLE DELEGATED POWERS OF THE EXECUTIVE ORGAN

PRESSURE UPON PARLIAMENTARY TIME

The legislative activity of the state has increased in response to the increase ofits functions and responsibilities. The legislature is preoccupied with moreimportant policy matters and rarely finds time to discuss matters of detail. Ittherefore, formulates the legislative policy and gives power to the executive tomake subordinate legislation for the purpose of implementing the policy.

ii ) TECHNICALITY OF THE SUBJECT MATTERSometimes the subject matter on which legislation is required is so technical innature that the legislature, being himself a common man, cannot be expected toappreciate and legislate on the same, and the assistance of experts may berequired. Members of Parliament may be the best politicians but they are notexperts to deal with highly technical matters which are required to be handled byexperts. Here the legislative power may be conferred on experts to deal withtechnical problems e.g. gas, atomic energy, drugs, electricity etc.


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iii) THE NEED OF FLEXIBILITY

A statutory provision cannot be amended except by an amendment passed inaccordance with the legislative procedure. This takes time. It may however, benecessary to make changes in the application of a provision in the light ofexperience. It is, therefore, convenient if the matter is left to be provided throughsubordinate legislation. Delegated legislation requires less formal procedure andcan be a good device for flexibility.

iv) STATE OF EMERGENCY

In times of emergency, the Government may have to take quick action. All itsfuture actions cannot be anticipated in advance and hence provisions cannot bemade by the legislature to meet all enforceable contingencies. It is safer toempower the executive to lay down rules in accordance with which it would useits emergency powers. Thus delegated legislation showed substantial growthduring the times of 2nd World War and during the proclamations of emergency.

v) EXPERIMENT

The practice of delegated legislation enables the executive to do experiment.This methods permits rapid utilization of experience and implementation ofnecessary changes in application of the provisions in the light of such experiencee.g. in road traffic matter, an experiment may be conducted and in the light of itsapplication necessary changes could be made. If the changed rules andregulations are found to be satisfactory, they can be implemented successfully.On the other hand if they are found to be defective, the defects can be curedimmediately.

vi)

6) FUNCTIONS WHICH CAN BE DELEGATED (OR CLASSIFICATION OF

COMPLEXITY OF MODERN ADMINISTRATION

The complexity of modern administration and the expansion of the functions of

the state to the economic and social sphere have rendered its necessary toresort to new form of legislation and to give wide powers to various authorities onsuitable occasions. In a country like Pakistan where control and regulation overprivate trade, business or property may be required to be imposed, it isnecessary that the administration should be given ample power to implementsuch policy so that the immediate action can be taken. By resorting to traditionallegislative process, the entire object may be frustrated by vested interests andthe goal may not be achieved at all.

i)

DELEGATED LEGISLATION):

POWER TO BRING AN ACT INTO OPERATION

Usually the Act provides that it shall come into force on such date as the FederalGovernment may by notification in the official gazette, appoint. Such power isgiven because the Government has better knowledge of the practical exigenciesof bringing the law, the executive is bound to bring into force.


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ii ) CONDITIONAL LEGISLATION

The legislature makes the law but leaves it to the executive to bring the Act intooperation when conditions demanding such operation are obtained. Theexecutive has to decide whether such conditions obtain and when it is satisfiedthat they do, it should issue a notification bringing the law into operation. This iscalled Conditional Legislation .

iii) POWER TO APPLY AN ACT TO A GIVEN TERRITORY

Power may be given to the executive to apply an Act or any Act which may be inforce some territory to the territory under its administrative control. The executivemay restrict and make modification in the original legislation to suit theexigencies of the territory under its control.

iv) POWER TO EXEMPT FROM AND EXTEND THE SCOPE OF AN ACT

This power is of two kinds. One is where the legislature declares that the Act willapply for a particular duration but gives power to the executive to extend its lifeby a notification.

The other is where the legislature makes the Act applicable to specified objectsbut empower the executive to extend it application to similar other objects orexempt any of these from its application.

v) POWER TO FILL IN DETAILS

This is the most common type of delegated legislation. The legislature passesthe skeleton and empowers the executive to provide the flesh and bones throughsubordinate legislation. The enabling clause usually says that the Federal or theProvincial Government may makes rules to carry out the purpose of the Act.

vi)

7)

POWER TO REMOVE DIFFICULTIES

Many Acts contained provisions for conferring such extensive power of delegatedlegislation on the executive. The purpose of a such provision is to enable theexecutive to remove difficulties in the implementation of the Act and effectuate itspurpose and policy.

i)

FUNCTION WHICH CANNOT BE DELEGATED

ESSENTIAL LEGISLATIVE FUNCTION

Essential legislative functions cannot be delegated by the legislature to theexecutive.

ii ) REPEAL OF LAWPower to repeal a law essentially a legislative function and thereforedelegation of power to the executive to repeal a law excessive delegation andin ultra vires.

Administratie Laws

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Transcript of Administratie Laws