SYLLABUS MID TERM ADMIN LAW

ADMINISTRATIVE LAW
Definition of Administrative Law
Administrative law deals with the legal control of government and related administrative powers. In other
words, we can define administrative law as the body of rules and regulations and orders and decisions
created by administrative agencies of government.
Nature and Scopes of Administrative Law
 Administrative law determines the organization, powers and duties of administrative authorities.
 The emphasis of Administrative Law is on procedures for formal judgment based on the principles of
Natural Justice and for rule making.
 Administrative law also determines the nature and scope of the powers deliberated to the government
official by the specific legislation.
 Through legislation, the Parliament delegate specific powers as well as duties to government officials
to enable them to act on behalf of the government.
The concept of Administrative Law is founded on the following principles:
a) Power is conferred on the administration by law
b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.
c) There should be reasonable restrictions on exercise of such powers depending on the situation.
Sir Ivorj Ennings define:
“Administrative law is the law relating to the administration. It determines the organization, powers and
duties of the administrative authorities.”
SCHWARTZ divides administrative law into three parts:
1. The powers vested in administrative agencies
2. The requirements imposed by law upon the exercise of those powers
3. Remedies available against unlawful administrative actions
The scope and contents of administrative law can be divided into four aspects
1. Composition and the powers of administrative authorities.
2. Methods of control of powers of administrative authorities
3. Procedure to be followed by these authorities in exercising their powers
4. Remedies available to a person through judicial and other means in case of violation of his rights
by these administrative authorities
RULE OF LAW
Definition of Rule of Law
The term “Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the principle of legality)
which refers to a government based on principles of law and not of men.We can say that: The rule of law is a
product of centuries of struggle of the people for the recognition of their inherent rights.
The most famous exposition of the concept of rule of law has been laid down by A.V. Dicey who identifies
three principles which together establish the rule of law:
1. The absolute supremacy as opposed to the influence of arbitrary power.
2. Equality before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary courts; and
3. The law is a consequence of the rights of individuals as defined and enforced by the courts in other
words predominance of legal spirts
Basic Standards of the Rule of Law
 Due process of law
o Law is Supreme, above everything and everyone. Nobody is above the law.
o All things should be done according to law and not according to whim.
 Natural Justice
o No person should be made to suffer except for a distinct breach of law.
o Absence of arbitrary power being heart and soul of rule of law.
 o Equality before law and equal protection of law.
 Discretionary power
o Discretionary power should be exercised within reasonable limits set by law.
o Adequate safeguard against executive abuse of powers.
 Judiciary & Judicial review
o Independent and impartial Judiciary.
o Fair and Just Procedure.
o Speedy Trial
Extra material
Professor Fuller, the fount of much modern thought on the rule of law, identifies eight principles as critical
to law:
(1) Generality,
(2) Publicity,
(3) Prospectively,
(4) Clarity,
(5) Consistency,
(6) Stability,
(7) Capacity to be performed, and
(8) Compliance by officials.
Professor Raz also isolates
(1) The independence and impartiality of the judiciary,
(2) Accessibility of courts, and
(3) Confined discretion of crime-preventing authorities.
PRINCIPLE OF NATURAL JUSTICE
Definition of Natural Justice
It can be defined as: “principles, procedures, or treatment felt instinctively to be morally right and fair.”
RULES OF PRINCIPLE OF NATURAL JUSTICE
English legal system doctrine that protects against arbitrary exercise of power by ensuring fair play. Natural
justice is based on three fundamental rules:
(1) Audi alteram partem (Latin for, hear the other side):
No accused, or a person directly affected by a decision, shall be condemned unless given full chance to prepare
and submit his or her case and rebuttal to the opposing party's arguments
(2) Nemo judex in causa sua (Latin for, no man a judge in his own case):
The rule against bias flows from following two principles:
a) No one should be a judge in his own cause
b) Justice should not only be done but manifestly and undoubtedly be seen to be done.
Thus a judge should not only be impartial but should be in a position to apply his mind objectively to the
dispute before him.
DOCTRINE OF BIAS
Personal Bias:
Personal bias arises from a certain relationship equation between the deciding authority and the parties
which incline him unfavorably or otherwise on the side of one of the parties before him.
Baidyanath mahapatra v State of Orissa, AIR1989 SCC664,
The Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the
chairman of the tribunal was also a member of the review committee which had recommended premature
retirement.
Pecuniary Bias:
In judicial approach common and decisive on the point that any financial interest, howsoever small it may be,
would vitiate administrative action. The disqualification will not be avoided by non-participation of the biased
member in the proceedings if he was present when the decision was reached.
Jeejeebhoy v collector AIR 1965 SC 1096
The chief justice reconstituted the bench when it was found that one of the members of the bench was a
member of the cooperative society for which the land had been acquired. The Madras High Court also quashed
the decision of the decision of the collector who in capacity as the chairman of the Regional Transport
Authority had granted a permit in favor of a cooperative society of which he was also a chairman.
Official Bias:
The problem of official bias is something which is biasedness in the administrative process, and if not
effectively checked, it may negate the very concept of fairness in administrative proceedings.
Hari K. Gawali v Dy. Commr. of Police.
In this case, an externment order was challenged on the ground that since the police department which initiated
the proceedings and the department which heard and decided the case were the same , the element of
departmental bias vitiated administrative action. The court rejected the challenge on the ground that so long
as the two separate officers, though they were affiliated to the same department, there was no bias.
(3) Speaking order (Reasoned Decisions):
 Speaking Orders It is an order speaking for itself and giving reasons.
 Lord Denning says, the giving of reasons is one of the fundamentals of good administration.
SEPARATION OF POWER & CHECK AND BALANCES
Separation of Powers
Origin
 The term “Trias Politica" or "Separation of Powers" was coined by de Montesquieu, 18th century French
social and political philosopher.
 His publication,Spirit of the Laws, is considered one of the great works in political theory & jurisprudence,
 Under his model, the political authority of the state is divided into legislative, executive & judicial powers.
 He asserted that, to most effectively promote liberty, 3 powers must be separate & acting independently.
Basic Concepts
 Separation of powers, refers to the division of government responsibilities into distinct branches to
limit any one branch from exercising the core functions of another.
 The intent is to prevent the concentration of power and provide for checks and balances.
The traditional characterizations of the powers of the branches of government are:
 Legislative Branch
The legislative branch is responsible for enacting the laws of the state and appropriating the money
necessary to operate the government.
 Executive Branch
The executive branch is responsible for implementing and administering the public policy enacted and
funded by the legislative branch.
 Judicial Branch
The judicial branch is responsible for interpreting the constitution and laws and applying their
interpretations to controversies brought before it.
CHECK & BALANCES
Executive check on Legislative:
Execution of each bill passed by legislature is due responsibility & discretion of state executive i.e President,
Governor. Any bill having flaws may be rejected by executive
Judiciary checks on Legislative & executive:
Sou moto actions & judicial review is the supreme power of judiciary which has a check on policy and laws
made by Legislature & Judiciary
Legislative & executive Judiciary checks:
The Constitution of Islamic Republic of Pakistan under Article 176 envisages that the number of Judges of
the Supreme Court of Pakistan shall be determined by an Act of Parliament. The Chief Justice of Pakistan and
each of other judges of the Supreme Court shall be appointed by the President in accordance with Article
175A, inserted through 18th and 19th Constitutional amendments. Hence there is a check on judiciary
working.
Secondly, Article 45 of the 1973 Pakistani Constitution, pertaining to President's power to grant pardon etc,
states: "The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute
any sentence passed by any court, tribunal or other authority."
GOOD LUCK Remember me in Prayers
M. IHSAN
(MPA, LL.B, Research Advisor & consultant)