The Innovative Law Academy

The Academy in which we are not only teaching subjects of LLB and law, Even providing Lectures of Communication
Skills as well.

LLB Notes Part 3

According to HEC Law Syllabus

Best For Punjab Uni exam, BZU Uni, ISUB Uni, Quaid e azam Uni, CSS Exam, PMS, Judicial Services
Exam & Other all universities exams,

ADMINISTRATIVE LAW & SERVICES LAW

Lecturer: Mobushar Iqbal Chohan

Advocate High Court

LL.B, LL.M, MSC, DIPL Communication Skill.

Office: Fatima & Iqbal Law Chamber Lahore

YouTube/Law and Communication skills

Facebook/Innovative law academy

Mobile: 0300-0096491
Subscribe My YouTube Channel to gain more knowledge about Law, (LL.B) ( judiciary) and
other informative lectures.

Address: Contact
Lower mall around Chauburji Oppo: Butt sweet 0300-0096491
Hajvari Tower Basement 10-B Lahore.
“I am very thankful to my almighty ALLAH for giving me such a courage, success and honor. I am also
very thankful to all the students who appreciated my work and received them warmly. In these
notes the law has been elaborated with the help of landmark judgments which is delivered by the
Hon’ble Courts and has been written for the examination point of view and i hope that these notes
will also be received warmly by the students and may led to the success in the examination as well
as in their profession.

The below-given notes prepared for the students of the LLB. The subject is very technical, and i have
taken every step to ensure that these notes may fulfill the need of the students, but there may be
some shortcomings or flaws in it, so every suggestion for the improvement of these notes will be
warmly welcome.”

I Am Very Thankful To You All

Your Well Wisher

Lecturer: Mobushar Iqbal

ADVOCATE HIGH COURT

LLB. LLM. Msc. Dipl communication skills

CELL NO: 0300-0096491

OFFICE : F ATIMA & IQBAL LAW CHAMBER LAHORE

INNOVATIVE LAW ACADEMY LAHORE

Address: Lower mall around Chauburji Oppo: Butt sweet Hajvari Tower Basement 10-B Lahore
Q. 1: judicial review
detail in landmark cases of Marbury V Madison(1803) and McCullochV Maryland (1819).

1) Preface
In the administrative law, judicial review is the ability of a court to examine and decide if

a statute or treaty violates the provisions of existing law of the Constitution. It is the power

of the Supreme Court to declare all the unlawful acts of the administrative authorities’

unconstitutional, acts which are in the opinion of the court is contrary to the constitution.

2) Definition of Judicial review

Judicial review is the power of Supreme Court which is used to determine constitutional

validity of a legislative act, treaty or other law makings of sub-ordinate authorities.

3) Origin of judicial review

The power of judicial review was exercise by the court for the first time in 1803, in the following

case . Leading case of Marbury vs madison 1803.

1. Facts of the case

1) Marbury was appointed as a justice of peace, in the district of Colombia by

President Adam, on the last day of his office, but the commission didn’t be delivered

to him

2) The next president and his secretary Madison refused to deliver the commission of

Marbury

3) Marbury petitioned a writ in Supreme court under the judiciary act of 1798

2. Decision of the case

It is written by Justice Marshall that Marbury, definitely, had a right to his commission.

But, more importantly, the Judiciary Act of 1789 was unconstitutional. In Marshall's

opinion, Congress could not give powers to the Supreme Court to issue an order granting

Marbury’s commission. Therefore, the Supreme Court could not force Jefferson and

Madison to appoint Marbury, because it did not have the power to do so

3. Brief arguments of chief justice marshal
1. The constitution is the supreme law of the land and the judges are bound to give value

to it

2. When courts are called to give value to a statute passed by congress if it is against the

interest of country ,court must give value to the latter statute

3. The powers of the legislatures are defined and limited therefore, legislature should

not breach their limits because constitution is written

4) Kinds of judicial review

Following are the kinds of judicial review. Details are as under.

1. Specific statutory review

Under specific statutory review, the Supreme Court deals with specific laws such as

labour law, rent law, property laws etc.

2. General statutory review

Under general statutory review, the Supreme Court deals with general laws of the land

such suit for damages, declaration, injunctions etc.

3. Non-Statutory review
Under non-statutory review, the Supreme Court does not deal under the provision of

statute. It only takes judicial review for remedies.

5) Application of judicial review

Following are the application of judicial review

1) Judicial review apply on federal and state law

2) It also apply to constitution of the state

3) It also applies on the treaties made by the federal

4) It also applies on orders issued by the federal and the state of executive authorities

6) Reason for judicial review

Following are the reason for the exercise of powers of judicial review

1) To keep the authorities and the president within the limits of their powers
2) To increase the authority of Federal government

3) To defend the right of the property

4) To defend civil liberties and rights

7) Important cases of judicial review

Following are the important cases of judicial review

1) In McCollum vs. Maryland , the supreme court declared the state law,

unconstitional in which tax was imposed on the circulating notes of the bank

2) In 1952 the supreme court declared unconstitutional another law passed by the

congress, and gave authority to federal government to take over steel mill of the

state

8) Criticism on judicial review

The excessive use of powers of judicial review has raised the criticism on it

1. Supreme court’s sovereignty

The critics fight that the Supreme Court has expended its authority by using this power

and due to this it has become more powerful in legislation

2. Domination of judiciary
The power of judicial review of the supreme court to invalidate any law passed by the

congress , indirectly is the rejection of the mandate of the people

3. One man domination

There is no power above courts that can control their decisions, or correct their errors.

There is no authority that can remove judges from office for any errors or lower their

salaries, and in many cases their power is superior to that of the legislature

4. Social progress
The usage of power of judicial review of the supreme on constitutional questions, often

jam the wheel of social progress and becomes the reason of unwanted delay in official

administration

5. Stress only on legal aspects

The judges pay more stress on legal aspect and not relies upon social aspects of life such
as economic etc. while declaring law unconstitutional

9) Preclude Remarks
the judicial power of the Supreme Court has not made the Supreme Court the father of the

constitution but it has vested in the final authority of legislation. Courts by this authority can

interfere with the acts and policies of other two organs of the government
Q. 2: Discuss the composition, role and effectiveness of ombudsman in detail

1. Preface
Ombudsman is also known as Mohtasib. Federal ombudsman examines complaints from

people who feel they have been unfairly treated by certain public bodies, for example,

government departments, local authorities, and publicly funded third level education bodies.

Ombudsman provides a free public service which is open and accountable. Ombudsman’s job

is to examine complaints in a fair and impartial way and rectify these complaints.

2. Definition of Federal Ombudsman

Ombudsman is an official who receives complaints about government, investigates and

rectifies them in accordance with law.

3. Establishment of ombudsman office in Pakistan

In 1983, the office of federal ombudsman was established in Pakistan by General Zia-Ul-Haq

through president order l. it has started functioning on 08 August 1983, and now it is an

integral part of Constitution of Pakistan 1973. Headquarter of federal ombudsman office is at

Islamabad and other branches are exist in all over the Pakistan.

4. Terms and conditions of appointment of Ombudsman

Following are the terms and conditions of appointment of ombudsman

1. Appointment of ombudsman
Federal ombudsman is always appointed by the president of Islamic Republic of Pakistan as

mentioned under constitution 1973.

2. Removal of ombudsman
Federal ombudsman is always removed by the president of Islamic Republic of Pakistan, on

the basis of misconduct, physical or mental incapacity, or due to some other reasonable

grounds.

3. Tenure of office

Federal ombudsman is appointed for the period of four years only and his appointment is

not extendable at any cost

4. Salary and allowances

Federal ombudsman’s salary and other all allowances are determined by the president of

Pakistan.

5. Office of profit
Federal ombudsman cannot hold any office of profit within the Pakistan during the period of

his office or cannot be appointed in any other department for salary.

5. Role of Ombudsman
Following are the roles of federal ombudsman. Details are as under.

1. Determination of causes of corruption

Federal ombudsman determines the causes of corruption and makes necessary

arrangements to root out such causes for administration of justice in all over the country.

2. Rectification of Maladministration
Federal ombudsman investigates and rectifies the maladministration, so that remedies may

be provided to the citizens against violations of their rights.

3. Accountability of administration
Federal ombudsman is responsible for the accountability of administration so that

administration may be impeached against their actions which are out of their jurisdiction.

4. Awarding of Compensation
Federal ombudsman has an authority to award compensation to those citizens who have

suffered damages as a result of violation of their rights by maladministration.

5. Improvement of Relationships between administration and

citizens

Federal ombudsman plays vital role in order to create friendly relationship between the

administration and citizens for better administration of public affairs of the state.

6. Improvement of Administrative process and procedures

Federal Ombudsman improves administrative process and procedures so that administrative

authority cannot misuse of administrative powers in order to save citizens from misuse of

administrative powers.

7. Checking of Misuse of Discretionary Powers

And checking of discretionary powers saves people from negative effects of misuse of

discretionary powers.

6. Powers of Ombudsman
Following are the powers of ombudsman. Details are as under.

1. Summoning powers
The Ombudsman has summoning powers and he can send summons to accused and

witnesses, compelling the production of documents, and evidences relevant to cases.

2. Examination of witness
The ombudsman has power to examine the witness in order to find reasonable evidences

relevant to case

3. Appointment of representative
The ombudsman has an authority to appoint his representative to find the facts by

inspecting the books of accounts or other documents for administration of justice.

4. Establishment of inspection team

The ombudsman has an authority to establish an inspection team to find the facts by

inspecting the books of accounts or other documents for administration of justice.

5. Transfer of case
The ombudsman has an authority to transfer of case to the concerned authority for

appropriate actions for the better administration of justice.

7. Effect of removal of ombudsman

Following are the effects of removal of ombudsman.

1. Cannot hold an office of profit

2. Cannot become a member of Parliament

3. Cannot become a member of Provincial Assembly

4. Cannot become a member of local body

8. Preclude Remarks
ombudsman is an important department of

government to grab administrative corruption and maladministration. Ombudsman is

responsible to investigation and rectifies all kinds of grievances of the citizens of the state. In

short institution of ombudsman is public safety value against maladministration

Q. 3:Office of Ombudsman

1- PREFACE
an independent institution, established under law, to provide speedy relief to the general public in
case they have suffered from any 'maladministration' at the hands of any Government Agency.

2- OBJECT OF OFFICE OF OMBUDSMAN

I. To provide protection of the rights of the people

II. To ensure adherence to the rule of law

III. To diagnose issues

IV. To redress complaints and

V. To rectify any injustice done to a person through maladministration and suppressing corrupt
practices.

3- RELEVANT LAW
 The Punjab office of the Ombudsman act 1997

 Office of Wafaqi Muhtasib (Ombudsman) 1983

4- ESTABLISHMENT OF OFFICE OF OMBUDSMAN U/S 3

There shall be an ombudsman, for the province of Punjab who shall be appointed by the
government

5- QUALIFICATION OF OMBUDMAN OF PUNJAB U/S 3

I. Person who is, or has been or is qualified to be a judge of the High Court, or

II. Person of known integrity.

III. The Ombudsman shall perform his functions and exercise his powers

a. Fairly

b. Honestly

c. Diligently and

d. Independently of the Executive and

e. All executive authorities aid of the Ombudsman.

6- TENURE OF OMBUDSMAN U/S 4
I. 4 years

II. No extension

III. No re appointment allowed

IV. Exception

Sitting judge of high Court

7- OMBUDSMAN NOT TO HOLD ANY OTHER OFFICE OF PROFIT U/S 5

OMBUDSMAN NOT TO HOLD ANY OTHER OFFICE OF Profit or any other ………………………………

8- DEFINITION OF MALADMINISTRATION
'Maladministration' includes

(i) a decision, process, recommendation

I. Contrary to law

II. Perverse, arbitrary or unreasonable

III. Unjust, biased, oppressive, or discriminatory; or

IV. Is based on irrelevant grounds; or

V. Involves the exercise of powers or the failure or refusal to do so, for corrupt or improper
motives, such as

a. Bribery

b. Jobbery

c. Favoritism

d. Nepotism

(ii) Neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the

administration or discharge of duties and responsibilities.

9- PROCEDURE BEFORE OMBUDSMAN

I. Complaint

II. Investigation / enquiry

III. Recommendation
10- WHO CAN LODGE COMPLIAN
I. Any person aggrieved by maladministration.

II. reference by the Government or the Provincial Assembly

III. or on a motion by the Supreme Court or the High Court

11- PROCEDRE OF LODGING COMPLAINT

A complaint written in English or Urdu may be lodged with the Head Office or any of the Regional
offices on Form 'A'

If a complaint is not lodged on Form 'A', it shall be accompanied by a solemn affirmation that:

a. the allegations contained in the complaint are correct and true to the best of knowledge and
belief of the complainant;

b. previously no complaint on the subject was filed at the Head Office or any of the Regional
Offices;

c. no suit, appeal, petition or any other judicial proceedings in connection with the subject
matter of the complaint is pending before any Court, Tribunal or Board; and

d. a representation to a competent authority of the Agency in respect of the allegations

contained in the complaint was made, but either no reply thereto was given within a
reasonable

12- COMPLAINTS WHICH CANNOT BE FILED IN THE MOHTASIB

(OMBUDSMAN)
a. Matter sub- Judice

b. Matter relating to External affairs of Pakistan

c. Defence & strategic issue

d. Issues regarding arm forces

13- PROCEDURE & EVIDENCE U/S 10

a. No anonymous or pseudonymous complaints shall be entertained.

b. A complaint shall be made not later than three months from the day of greivance

c. Ombudsman may conduct any investigation pursuant to a complaint which is not within
time if he considers that there are special circumstances which make it proper for him to do
so.

d. Notice to concerned authority

 e. Ombudsman may proceed if no response to the notice BY AUTHORITY within thirty days

f. Every investigation shall be conducted informally

g. A person shall be entitled to appear in person or be represented before the Ombudsman.

14- RECOMMENDATIONS FOR IMPLEMENTATION U/S 11

Ombudsman may recommend as follow

(a) To consider the matter further;

(b) To modify or cancel the decision, process, recommendation, act or omission;

(c) To explain more fully the act or decision in question;

(d) To take disciplinary action against any public servant of any Agency under the
relevant laws applicable to him;

(e) To dispose of the matter or case within a specified time; and

(f) To take any other steps specified by the Ombudsman.

15- AGENCY TO INFORM ABOUT ACTION IN RESPONSE OF

RECOMMENDATION

16- PRECLUDE REMARKS

Q. 4: LOCUS-STANDI

1. PREFACE:

The concept of aggrieved person or party which form basis for LOCUS-STANDI is of utmost
importance in administration of justice.

The aforesaid concept enables the person having grievance to stand before Courts of Law or other
forums, vested with Judicial Powers or Quasi-Judicial functions to invoke the mechanism for seeking
remedy or redressal.

Aggrieved Person/party means where the rights or interests of person are adversely affected by any
other order passed by Judicial, Quasi-Judicial or any administrative authority.

An objection to non-grievance of a party would seriously affect the Locus Standi and may result to
put an end before adjudication.

2. TWOFOLD CONCEPTS OF AGGREVIED PERSON:

1st Concept:

When the legal rights (in personam or in rem), of a person are denied, violated, encroached upon,
usurped, or extinguished by a public functionary, or an administrative agency, that person shall be
called as the “Aggrieved person.”

2nd Concept:

When a person’s legal rights are adversely affected, by an order, directive, policy, rule, law, or
decision of an administrative officer, or an administrative agency, or by a judgment or order of an
inferior court; then that person shall be called as an “Aggrieved person.”

3. MEANING OF TERMS
  Aggrieved Party

The aforesaid term corresponds to those persons suffering by legal grievance either by way of
imprisonment or denial of legal rights, remedy.

 Locus Standi

It is a Latin term which means legal standing before a court.

4. AGGRIEVED PERSON DEFINED:

i) General Definitions:

a) A person can said to be aggrieved when he has a particular or special interest in

the subject matter supposed to be wrongly decided.

b) A person who has a grievance because an order has been made which
prejudicially affects his interest.

EXAMPLES: Judgment of a Court, decision of an inquiry, a departmental decision with regards to

the terms and conditions of service of a Civil Servant, etc.

c) A person who’s rights or interest is adversely affected.

d) A person against whom a decision has been pronounced which has wrongly
deprived him of something or wrongfully refused him from something, or
wrongfully affected his title to something.

EXAMPLE: Claim to land or property; claim to a post or public office.

ii) Case Law Definition:

MOHAMMAD. SAAD SHIBILI

V/S

COMMISSIONER/APPELLATE ELECTION AUTHORITY

(1985 CLC 2190)

“Person aggrieved must be a man who had suffered a legal grievance, person against whom decision
has been pronounced which had wrongfully deprived him of something or wrongly refused him
something or wrongly affected his title to something.”

5. INSTANCES WHEN LEGAL GRIEVANCE ARISES:

Following are the some instances which raise the legal grievance to person or party.

a) Legal rights are adversely affected.

b) Denial of legal rights.

c) Denial of remedy.

d) Person having interest in subject matter supposed “Wrongly decided.”

e) Person loses or gains any advantage.

f) Person having right in performance, of statutory duty.

6. INTERPRETATION OF WORD PERSON:

Person does not mean here a natural or physical person only. But the word person possessed
exhaustive interpretation that it include legal person as well. A company, association, NGO etc can
be aggrieved person when there legal rights are affected, denied by any decision.
7. TERM AGGRIEVED PERSON IS EXHAUSTIVE IN NATURE:

The term aggrieved person has not defined specifically and it signifies a person aggrieved only when
his right or interest has been injured by order, legislation or illegal encroachment

The aforesaid term is exhaustive in nature and shall be construed exhaustively as held in Tehrik-e-
Anmal party’s case

Reported in PLD 1985 AJK 95

8. PERSON HAVING RIGHT IN PERFORMANMCE OF STATUTORY DUTY

CAN BE AGGRIEVED:

MUHAMMAD NAWAZ SHARIF

V/S

FEDERATION OF PAKISTAN

(1994 CLC 2318)

“Person could not be held to be aggrieved person unless he had a right in performance of statutory
function by a person performing function in connection with the affair of Federal/Provincial
government in respect of any right which he may have in relation to the performance of said
function.”

9. PERSONAL INTEREST & GRIEVANCE OF A PERSON:

Even though personal interest is not a legal right in strict juristic sense but personal interest in
performance of a legal duty which if performed not in the manner of prescribed by law would result
in loss of personal benefit or advantage also render grievance to part or person.

MIAN FAZAL DIN’S CASE

(PLD 1969 SC 223)

“It is clear that right considered sufficient for maintaining of proceedings and not required in strict
juristic sense but it is sufficient if applicant discloses ha had personal interest in performance of legal
duty which if not performed or performed in a manner not permitted by law would result in the loss
of some personal benefit or advantage or curtailment of privilege or liberty or franchise.”

10. EXPRESSION AGGRIEVED PERSON SHALL BE CONSTRUED IN

CONTEXT & FACTS OF EACH CASE:

The determination of fact whether a person is aggrieved person or not shall be construed in context
& facts of each case.

The grievance of a person is determined by court on the factual situation & keeps in view, is that
personam suffering with any loss, denial of rights either directly or indirectly.

11. CONSTITUTIONAL PETITION CAN BE FILED ONLY BY AGGRIEVED

PERSON:

Constitutional petition can only be filed by aggrieved person under Article 199 and relief granted
must be in relation to grievance of the person and not to the grievance of any third party/person.

 Aggrieved person can invoke the jurisdiction of the High Court in case of the following
writs:

a) Writ of Mandamus.

b) Writ of Prohibition.

c) Writ of Certiorari.

ASSOCIATED CEMENT COMPANIES LIMITED

V/S

PAKISTAN & OTHERS

(PLD 1978 SC 151)

“Writ petition can be maintained by a person provided he be an aggrieved person & in order to be
an aggrieved person imperative for party to show any of his propriety or personal rights recognized
by law ,to be invaded or denied.”

PLD 1978 QUETTTA 131

“Action under clause (1)(a) of Article 199 of Constitution of Pakistan 1973 can be taken only on
motion of aggrieved person.”

12. OTHER ASPECTS:

a) Only an aggrieved person has the right to invoke the jurisdiction of a Court in order to
seek a remedy for his grievance.

b) UBI JUS IBI REMEDIUM: According to this maxim, remedies are only available to him who
has a grievance recognized by law.

c) The aggrieved person has to go to a Court of Law within a certain time limit; otherwise
his grievance would not be entertained by a Court.

d) The grievance has to be presented before a Court following certain procedures, fulfilling
certain conditions. The grievances are usually presented in the form of suits, appeals,
revisions, reviews, writs, applications etc which have to be drafted in accordance with
the rules of pleadings; and Court fee has to be paid upon them.

e) The Courts are also empowered to act suo motu, with regards to the grievances of the
aggrieved persons.

f) The grievance has to be established before a Court of law by the aggrieved person
through evidence.

13. Preclude
Q. 5: NATURAL JUSTICE “Jus Naturalia”

1. PREFACE:
“Jus Naturalia” a fervent (being having or showing deep sincere feeling) expression largely used by
Roman Jurists in their philosophical speculations and very significance of it can be observed it is
playing it role from first day of the emergence of legal thought up to the present age.

Natural justice is an important concept of administrative law and hard to define it precisely and
scientifically. Concept of Natural Justice has great application and effect in the field of administrative
law and ignorance of it would lead to void or void ability of action.

Natural Justice is known better than described and easily proclaimed than defined.

2. CONCEPT OF NATURAL JUSTICE:

Concept of Natural Justice though highly attractive and potential but vague and ambiguous also
confused, unwarranted and encroach on the field of ethics. Apart from codes or enacted law.
Natural Law formulates a concept of Natural Justice which is universal, divine and based on reason.
Most appropriately speaking, Natural Justice is in fact absolute justice as FRIEDMAN points this out
and which differs from justice defined by legal system or legal justice.

3. JURISTS OBSERVATIONS REGARDING NATURAL JUSTICE:

i) De Smith’s Observation:

Term natural justice expresses the close relationship between common law and moral principles
describing what is right and wrong.

ii) Megary. J’s View:

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

iii) John Rawl’s Conception:

Justice is fairness which is a fundamental character which constitutes a well-ordered society.

4. HISTORICAL BACKGROUND:

Concept of Natural Law and Justice is very much ancient and owned different names. Aristotle (384-
320 B.C) declares law is either Universal (Natural) or Special (Enacted by Human Beings). Justinian
(483-527 A.D) called it “Jus Naturalia” and it is known differently from time to time as Jus Divinium
(Divine Law), Lex Aeterna (External Law) Jus Qentium (Universal).

5. CONTRIBUTIONS OF NATURAL LAW AND JUSTICE:

The concepts of natural justice grow with the growth of natural law and it made invaluable
contribution in development of positive law.

Origin of Jus Gentium in Romans, Emergence of Equity in England based on Natural Justice.

Natural Justice and Natural Rights also influenced the drafting of the Constitution of U.S.A.

6. ROLE OF NATURAL JUSTICE IN ADMIN LAW:

Concept of Natural Justice plays a very significant role in administrative system. The concept of
Natural Justice corresponds to absolute justice, based on reasons and fairness. So, application of
Natural Justice enhances the realm of social justice and renders efficiency to Administrative Organs
to provide social justice which is real virtue.
7. CORPUS OF NATURAL JUSTICE:

The corpus of natural justice based following principles:-

a) Audi Alterm Partem:

(No person shall be condemn unheard)

That the parties involved in a dispute be given adequate notice, and adequate opportunity, of being
heard; and of putting forth their defence; before a final judgment/decision/order is made, regarding
their dispute. It is the principle of “Audi Alterm Partem”.

b) Bias/Nemo Debet esse Judex in Propria Causa:

(No man shall be a judge in his own cause)

The second principle, or ingredient of natural justice is that the adjudication (the judge) shall be a
person who is impartial and unbiased, when giving a final judgment/decision/order, will regards to
the dispute, in between the parties, appearing before him.

However, due to rapid development and growth of Constitution Law as well as Administrative Law, a
third principle of natural justice has also been evolved.

c) Speaking Orders/Reasoned Decisions:

All orders should be supported by reasons.

8. AUDI ALTERM PARTEM:

i) Meaning:
Means “hear the other side” or no man should be condemned unheard or both the parties must be
heard before passing any orders.

ii) Explanation:

The fundamental principle of natural justice that no man should be condemned unheard or both the
sides must be heard before passing any order.

As “De Smith” remarks:-

“No proposition (suggestion) can be more clearly established than that a man cannot incur
(maintain) the loss of liberty or property for an offence by judicial proceeding until he has had a fair
opportunity of answering the case against him”.

A party is not to suffer in person or in purse without an opportunity of being heard.

iii) Principle Of Civilized Jurisprudence:

This is the principle of civilized jurisprudence and is accepted by laws of Men and “God”. In short,
when an order is passed against any person, reasonable opportunity of being heard must afford to
parties.

iv) Elements of Maxims:

The maxim includes the following elements:

(a) Notice

(b) Hearing

v) Implication Of Principle:

The principle implies that no person is to be condemned, punished, or deprived of property, in any
Judicial or Quasi-Judicial proceeding unless he has had an opportunity of being heard.

vi) Application Of Maxim:

The maxim applies to judicial as well as administrative forums and bodies.

 vii) Scope:

The maxim of Audi Alterm Partem is not confined to proceedings before the Courts of law only but
extends to all proceedings (by whomsoever) held, which may affect the person, or property, or other
rights of the parties concerned in the dispute. The maxim also applies to proceedings relating to
imposition, payment, and recovery of various types of taxes.

viii) Various Forms In Which Parties Are Given Opportunity:

The various forms in which parties concerned are given an opportunity of being heard are:

a) Notice.

b) Show Cause.

c) Explanation.

d) Summons.

e) Reply.

f) Para wise Comments.

g) Written Statement.

h) Oral and Documentary Evidence.

ix) Examples:

a) Incase of Inquiry proceedings:

However, an administrative authority is not bound to apply the principle of natural justice in
situations where it has neither to ascertain facts objectively, nor it has to act judicially.

b) Implementation of rules:

c) In case of transfer, promotion etc:

x) Some Precidents on the Principle

a) PLD 1967 Kar 295:

An order passes without notice to a party is void, and is nullity in the eyes of law. Any subsequent
orders based on such a void order are also a nullity in the eye of law.

b) 1992 ALD 89:

An order passed in violation of the principle of natural justice that nobody should be condemned
unheard would be illegal and without jurisdiction.

c) 1993 CLC 1768:

The principle of Audi Alterm Partem is to be read in every statute unless; the requirements of notice
had expressly been excluded by the statute itself.

Xi) Note:

In applying the principle of Audi Alterm Partem, an actual opportunity should be given to the person
concerned to show cause as to why certain orders determined to him should not be passed against
him. A mere notice to show cause, not followed by an actual opportunity to do so would defeat the
principle of Audi Alterm Partem.

9. NATURAL JUSTICE APPLICABLE TO ADMINISTRATIVE ACTIONS:

Natural justice (its principles) is applicable to all range of Administrative Actions, Judicial Actions and
Quasi-Judicial Actions.
 LEADING CASE:

BREEN

v/s

AMALAGATED ENGINEERING UNION

(1971) 1 All E R 1148

Lord Denning’s Observation:

“It is now well settled that a statutory body which is entrusted by statute with discretion, must act
fairly. It does not matter whether its function are described as Judicial, Quasi-Judicial or as
Administrative”.

Lord Morris’s View:

“I think, take the pride in what has been done in recent time and particularly in the field of
Administrative Law by invoking and applying these principles which are broadly classified under
designation of Natural Justice. I affirm that Administrative Law and action is but one area in which
principles are to be adopted”.

10. NATURAL JUSTICE MUST BE FOLLOWED EVEN NO SPECIFIC

PROVISION IS MADE IN STATUTE:

MANEKA GANDHI CASE

(1978) 1 SCC 248

“it is well established rule that even when there is no specific provision in statute or rules made there
under for showing cause against an individual which effect the rights of an individual the duty to
afford opportunity of hearing is implied from the nature of the function performed by authority which
has power to take primitive or damaging actions”.
So, when even no specific provision with regard to observance of Natural Justice is being made in
the statute but when authority exercising power under statute, authority will follow the principle of
Natural Justice.

11. CONSEQUENCES OF BREACH OF NATURAL JUSTICE BY THE

AUTHORITY EXERCISING POWER UNDER STATUTE:

The effective breach of Natural Justice is dependent over circumstances of each case.

i) Possible Consequences:

Where an authority does not follow or commit the breach of Natural Justice while exercising power
under statute. His order in consequence of said exercise can be either:

 Void (Nullity in the eye of law)

 Void able (can be annulled at option of

aggrieved party)

a) When order is void:

PLD 1962 SC 384

“It is universally accepted principle that where right of hearing is not excluded. The failure to give
said opportunity could not be condoned. This would make all exercise ineffective and nullity in the
eye of law”.

b) When order of authority is void able:

where breach can be condonable or curable.

12. EXCLUSION OF NATURAL JUSTICE:

 a) Statutory Exclusion.

b) Legislative Acts.

c) Necessity

d) Admitted or Undisputed Facts.

e) Confidential Inquires.

f) Preventive Actions.

g) Emergency.

h) Other cases.

13. Preclude
Q. 6: DELEGATED LEGISLATION

1. PREFACE:

Subordinate legislation is the name given to that entire body of law which consists of rules, orders,
regulations, framed and promulgated by the Government itself, or by some administrative authority,
or by means of bye-laws framed by subordinate law making bodies such as municipalities and other
statutory bodies in pursuance of powers conferred upon them by an act of the legislature.

Ideally speaking legislative powers are only vested in legislature/parliament. But, now state has been
entered in all available fields of human activities and assigned with duty to devise social, economic
and political policy which is expressed by legislature. So, parent “Acts” formulated/enacted by
parliament usually contain provisions which enable the executive to make bye-laws to carry out the
aforesaid policy devised by legislature/parliament.

This is known as “Delegated Legislation.”

2. TERM DELEGATED LEGISLATION DEFINED:

i) General Definition:

Delegated legislation is an act of legislative body which contemplates the sending away, transfer of
authority to enact bye-laws to executive branch which is administrative agency to carry out the
policy envaised by legislative branch in parent Act.

ii) Neil Hawke’s definition:

Delegated legislation is a process by which different types of laws are made under the authority and
within the terms of an Act of Parliament.

Accordingly, the “Act” delegates this law making function to administrative agency such as
appropriate minister or a local authority.

iii) Salmond’s definition

Subordinate legislation is that which proceeds from any authority, other than the sovereign power
and is therefore dependant for its continued existence, and validity, on some superior, or supreme
authority.

3. “WORK LOAD PHILOSOPHY” FORM BASIS OF DELEGATED

LEGISLATION:

According to aforesaid philosophy,

“Modern legislation has such a load of work that it is practically impossible to legislate in detail.”

So, legislative is forced to delegate their trust and authority to executive which has to carry out the
laws.

4. DELEGATED LEGISLATION & SEPERATION OF POWERS:

Separation of powers contemplates a demarcation in the functioning spheres of every organ of the
state.

The concept of delegated legislation offends the doctrine of Separation of power that legislative
functions are devolved over Executive by consent of legislature.

But, as we know that there is no strict application of Separation of Power exists in Pakistan
constitution or in any other system of world.

There is an interwoven point in doctrine of Separation of Power; where organs of state overlaps to
each other and delegated legislation its justification from that point because organs of state cannot
work in isolation.

5. DELEGATED LEGISLATION IS SUBORDINATE LEGISLATION:

The law making power vested in parliament and delegation of power to formulate rules can be given
by legislature to executive and in consequence of said transfer of authority, the rules, bye-laws made
by executive are a kind of subordinate legislature.

6. PURPOSE AND OBJECTIVE:

(a) To release pressure upon the legislature.

(b) To make the laws more technical and minute in detail, as they are made in
consultation with experts, and technocrats.

(c) Delegated legislation is more quick, and easier to amend, discard, repeal etc.

(d) They are beneficial in times of emergency.

(e) Subordinate legislation meets the demands of a complex modern society, and the
smooth running of the government machinery.

7. RULES: REGARDING DELEGATED LEGISLATION:

(a) Subordinate legislation in order to be valid must be intra vires the statue which
authorized its making.

(b) Subordinate legislation is always prospective and not retrospective, unless it is

authorized by the penal statute.

(c) A statute passed by the legislature comes into force from the date of its passing, but
delegated legislation becomes valid from the date of its publication in the official
gazette, or the date on which it is decided and announced by the body, or authority
making it.

(d) If a legislative statute is repealed all the bye-laws and rules, regulations etc made
under it are also presumed to be repealed, unless there is a saving clause in the
repealing law, preserving the old bye-laws, rules, and regulations.

(e) The delegatedly made law must not violate any provision of the Constitution.

(f) The statute under which the delegated legislation is permitted must not itself be
unconstitutional.
8. WHO CAN BE VESTED WITH DELEGATED POWER TO LEGISLATE:

(a) Any administrative agency.

(b) Executive branch.

(c) Governmental department.

(d) Statutory bodies.

(e) Local authorities.

(f) Minister concern.

9. FACTORS RESPONSIBLE FOR THE GROWTH OF DELEGATED

LEGISLATION:

Following are the factors which increases the growth of delegated legislation very rapidly.

(a) Concept of state has been changed:

Concept of state departs from its traditional concept of police state which has only to secure law and
order and defend the country. Now, state become welfare state which results that state entered in
all available fields of human activities and state has to perform innumerable functions which directly
deals with public even in sphere of their private life. This leads to a rapid growth in concept of
delegated legislation. Empowering the administrative is executive branch of state to carry out its
function.

(b) Growth of legislative activity:

The immense growth of legislative activities in particular in matter of social and economic spheres.
This makes necessary for parliament to delegate the legislation to Executive or other law-making
(subordinate) bodies.

(c) Growth of administrative tasks:

Growth of administrative tasks and with it’s a vast new complex of relations between public
authorities and citizen also a factor which cause the rapid growth of delegated legislation.

(d) Need to balance between public authorities and citizens:

There is quick increase in governmental functions or duties of public authorities especially with
relation to economic and social aspects of life which creates contracts and conflicts with citizen.

For the purpose to tackle the above mentioned situation adjustment in legal responsibilities of
public authorities and governmental departments are required.

So, for effect adjustments and functioning of public authorities leads to growth of delegated
legislation.

(e) Civilization become very complex:

In modern times, civilization become very complex and laws must be enacted in detail. This need
also increase the requirement of delegated legislation.

(f) Parliament cannot foresee all the future contingencies:

Parliament is unable to foresee all future contingencies or circumstances, situation which can arise.
So, legislature now only designs the policy and left its details to be formulated by Executive to cope
with all forth coming situations not envaised by parliament to avoid any dead lock in legal system.
This all become possible due to increase in delegated legislation.

(g) Can take preventive measures:

10. FORMS OF DELEGATED LEGISLATION:

 (a) Conditional legislation.

(b) Supplementary legislation.

(c) Subordinate legislation.

11. DELEGATEE CANNOT FURTHER DELEGATE:

“Delegatus non potest delegare.”

It is a settled principle of law that a delegatee cannot further delegate the authority unless expressly
empowered to do so.

 Sub-delegated can be made where delegatee is expressly advised:

12. LIMITS OF DELEGATION OF LEGISLATIVE POWERS:

(a) Delegation of primary legislative functions cannot be made:

The primary duty to legislate has to be discharged by legislature itself and cannot delegate its
primary or essential legislative functions to an outside authority.

(b) Delegatee cannot further sub-delegate:

(c) Power to repeal a law cannot be delegated:

(d) Power to modify/alter the policy of legislation cannot be delegated:

(e) Power to make exemption from operation of any statute cannot be delegated:

(f) Retrospective effect cannot be given to delegated legislation:

13. CONTROL OVER DELEGATED LEGISLATION:

(a) Judicial review

(b) Parliamentary scrutiny and ratification

(c) Ultra vires

14. JUDICIAL REVIEW ON DELEGATED LEGISLATION:

Judicial Review is an effective control over delegated legislation especially in PAKISTAN.

i) Judicial Review defined:

Means employed by judicial organ of state to ensure legality, rationality and propriety in
administrative actions as well legislative actions, thereby guaranteeing the adherence to
constitutional law and rule of law and also secure the limits exists between different organs of state
not being transgressed.

ii) Basis of Judicial Review:

Art. # 8 of 73’s Constitution.

iii) Grounds for Judicial Review:

a) Violation of Art # 8 of 73’s Constitution.

b) Unconstitutionality of “Parent Act”.

c) Un-reasonableness.

d) Mala fide.

e) Rights of individuals are injured.

f) Against the norms of natural justice.

15. PARLIAMENTARY SCRUTINY AND RATIFICATION:

In England, there is an effective control over delegated legislation by way of parliamentary scrutiny
and ratification.

There is “Selects and Standing Committee” in England which scrutinize the draft of rules formulated
in consequence of delegated legislation and after this parliament afford ratification.

i) Position in Pakistan:

Position in Pakistan, practically speaking is different than from England. There is no effective control
of parliament over delegated legislation exists in Pakistan. Even there is mechanism that delegated
legislation be ratified by parliament but such never happens in practice.

16. ULTRA VIRES OF DELEGATED LEGISLATION:

This is also an effective control over delegated legislation. The manifestation of such control is most
prominent in “United Kingdom”. Because there exists a concept of supremacy of parliamentary
sovereignty exists.

So, where there is no judicial review available the only remedu is ULTRAVIRES.

i) Meaning of Ultra Vires:

 Whether a said action of administration, legislative body or any organ of state,

authority is within its prescribed limits or not. If not, it would be ultra vires.

 It means beyond powers, and is opposite of the term “Intra Vires”, which
means within powers.
  Whenever any person or body of persons, exercising statutory authority, acts
beyond the powers conferred upon him, or them, by the statute or law, such
an act becomes Ultra Vires.

ii) Kinds of Ultra Vires:

a) Substantive Ultra Vires:

When an administrative agency, or inferior Court has exceeded or abused the legal limits of the
substantive powers governing its functions.

 EXAMPLES:

i) The police have the power to investigate a case under Cr.P.C. but have no
power to torture a person. Hence such acts of the police would be known as
Ultra-Vires acts.

ii) If a person is terminated from service without holding an inquiry, his

termination would be considered to be Ultra Vires.

iii) If a Civil Judge III class hears a case and passes a decree beyond his
pecuniary jurisdiction, his act would be called as Ultra-Vires.

iv) If a department, organization, or public servant enters into a contract,

acquires land or grants, cancels a licence, or a contact without obtaining
prior permission, or adopting prescribed procedure, his aforesaid act would
be termed as Ultra-Vires.

v) LDA during its anti-encroachment campaign damages a person’s property,

then it would be an Ultra-Vires.

b) Procedural Ultra vires:

 When an administrative officer, administrative agency, or inferior court

fails to comply with certain procedural requirements prescribed by parent
act, or by the general law, it is known as the procedural Ultra Vires.

 While framing rules, bye laws, regulations etc the parent act, or the
enabling statute may require the delegatee to observe a prescribed
 procedure, such as holding of consultation with particular bodies, or,
publication of draft rules or bye-laws, and placing them before the
parliament etc. it is compulsory/obligatory upon the delegatee to comply
with the procedural requirements and to exercise power in the manner
indicated by the legislation.

 EXAMPLES:

i) Giving of notice prior to tax recovery is always a part of the

procedure; its non-compliance would make the procedure Ultra-
Vires.

ii) An advertisement in the newspaper is always given inviting bids

for a tender. If it is not given the entire procedure that would
follow would become Ultra-Vires.

iii) Deciding a case without giving the defendant opportunity of filing

written statement, or Para wise comments.

iv) Deciding a case without recording any evidence, merely on the

averments of the pleadings.

iii) Doctrine of Ultra Vires also applicable to Pakistan:

But it merged in judicial review.

 Civil courts possess ultimate jurisdiction. They can check the act of
Administrative Agencies whether it is with in the mandate or limits
prescribed by its authority or not.
17. EXAMPLES OF DELEGATED LEGISLATION:

a) The Lahore Development Authority Act, 1973.

b) The WAPDA Act, 1958.

c) The RAILWAYS Act,

d) The Securities and Exchange Commission of Pakistan, Act of, 1997.

e) The Punjab University.

f) The Central Board of Revenue.

g) PASSCO.

h) W.A.S.A.

i) T.E.P.A.

j) P.L.A.

k) Rules of Pay, Pension, Leave, Appointment etc of various departments and

organizations.

l) The Traffic rules.

18. PRECLUDE REMARKS:

Q. 7: Administrative law

1) PREFACE

2) MEANINGS:

 Administrative law

3) DEFINITIONS OF ADMINITRATIVE LAW:

Ivor Jenning:

“Administrative law is the law relating to the administration. It determines the organization, powers
and duties of the administrative authorities.”

Dicey:

Dicey defines the administrative law as denoting that portion of the national legal system which
determines the legal status and liabilities of all state officials, which defines the rights and liabilities
of private individuals in their dealings with public officials, and which specifies the procedure by
which those rights and liabilities are enforced.

Wade:

According to Wade administrative law is “the law relating to the control of governmental power.”

4) ADMINISTRATIVE LAW HOW CREATED.

Administrative agencies are created by law and equipped with powers to carry out public policies,
drawn up within government and approved by the parliament.

5) PURPOSE OF ADMINISTRATIVE LAW.

The primary purpose of administrative law is to keep the powers of government within their legal
bounds, so as to protect the citizen against their abuse.

6) NATURE AND SCOPE OF ADMINISTRATIVE LAW.

i. It deals with composition and the powers of administrative authorities.

ii. It fixes the limits of powers of such administrative authorities.

iii. It prescribe the procedure to be followed by these authorities in exercising such powers.

iv. It controls these administrative authorities through judicial and other means.

v. Remedies, which are available to, aggrieved persons when these authorities abuse those
powers.

7) REASONS FOR THE GROWTH OF ADMINISTRATIVE LAW.

Following factors are responsible for the growth and development of administrative authorities.

i. Radical change in the philosophy as to the role-played by the state.

ii. Inadequacy of judicial system.

 iii. Avoidance of technicalities by the administrative authorities.

iv. Take preventive measures.

v. Enforcement of preventive measures.

vi. Inadequacy of legislative process.

vii. No particular procedure for deciding case.

viii. Manned by experts.

ix. Scope for experimentation in administrative process.

9) PRECLUDE REMARKS.
Q. 8:

A- BASIC PRINCIPLES OF ADMINISTRATIVE LAW

1. Historical Growth & development of Administrative Law

2. Factors Responsible for growth of Admin law

3. Difference between Admin Law & Constitutional law

4. Administrative Actions /Delegated Legislation

5. Judicial review of Administrative actions in Pakistan

6. Law of writs

7. Rule of law

8. Separation of Powers.

9. Public Interest Litigation.

a. Aggrieved Person.

10. Principles of Natural Justice.

i. Audi Alterm Partem.

ii. Nemo Judex In Causa Sua ‘justice not to be done but seems to be done’

iii. (Or)
 iv. Nemo Debet Esse Judex In Propria Causa. ‘Judges should be above
suspicion.’

v. Orders must be speaking

B- OMBUDSMAN

C- LAW OF TRIBUNALS

1. Punjab Service Tribunal Act, 1974.

2. Punjab Service Tribunals (Procedure) Rules, 1974.

CLASSIFICATION OF LAWS

National Law International Law

Public Law Private Law

Constitutional Law Administrative Law Criminal Law

HISTORICAL GROWTH & DEVELOPMENT

Q. 9: ADMINISTRATIVE LAW

1. PREFACE:
As societies develop so has the sphere of law, regulating them, now
law freely impinges on each & every aspect of our lives. Here comes in Admin. Law, its true rules,
regulations & systems made by subordinate authorities to control different departments. However
they are subject to the doctrine of checks & balances. (Check & balance imposed by legislature
&courts).

2. WHAT IS ADMINISTRATIVE LAW

It is the study of the nation’s legal system
i.e. system by which officials with private individuals & the procedure & rules regarding this dealing
determines organization, power & duties of all Admin Authorities.

3. A BRANCH OF PUBLIC LAW.

It fundamentally deals with issues of administrative
action. It precludes public interest & public policy; hence it may diverse into a branch of primarily of
public law.

4. REASONS:

 Radical change in society & legislature has no time.

 Courts were over burden & their scope is not wider.

 Administrative law in such state gave protection & it varies from country to country.

5. GROWTH & DEVELOPMENT:

 British Constitution.

 Constitution of America. Give comparison

 Constitution of India. Between these

 Constitution of Islamic Republic of Pakistan. Constitutions

6. DEFINITION OF ADMINISTRATIVE LAW:
i) OSBORN’S CONCISE LAW DICTIONARY:

“The subordinate branch of constitutional law consisting of body of rules which govern. The
detailed exercise of executive functions by the officers or public authorities to whom they are
entrusted by the constitution; for example, the law relating to town and country planning.”

ii) DIECY:

“Administrative law relates to the organization, powers and duties of administrative authorities.”

iii) WADE:

“Administrative Law is the law relating to the control of government power”

7. NATURE OF ADMINISTRATIVE LAW:

Administrative Law deals with powers and duties of administrative authorities, the manner in which
the powers are exercised and remedies which are available to the aggrieved persons, when those
powers are abused by these authorities. Due to various reasons, the administrative process has
come to stay and it has to be accepted as a necessary evil in all progressive societies, particularly in a
welfare state, where many schemes for the progress of the society are prepared and administered
by the government.

 RANBIR YADAV

Versus

STATE OF BIHAR

(1996 PSC (Crl.) 873)

“Administrative powers must not yield place to judicial powers simply because in given circumstances
they co- exist.”

8. SCOPE OF ADMINISTRATIVE LAW:

i) Law in true sense.

ii) Branch of Public Law.

iii) Control the mechanism.

 iv) Deals with organizations, powers & duties of Administrative Authorities.

9. AIM & OBJECTS OF ADMINISTRATIVE LAW:

i) Protect from arbitrary exercise of powers.

ii) Operation & Control of Administrative authorities.

iii) To keep Administrative Authorities with in their limits.

iv) Accountability of holders of public powers.

v) Study power in developing society.

10. REASONS FOR GROWTH OF ADMINISTRATIVE LAW:

i) Radical changes.

ii) Rapid redress.

iii) Rigid legislation.

iv) Effectiveness of Administration Authorities.

v) Effective control.

vi) Inadequacy of judicial system.

vii) In adequacy of Legislative system.

viii) Avoidance of technicalities.

ix) Accountability.

x) Concept of welfare state.

xi) Preventive measure

11 RELATIONSHIP OF ADMINISTRATIVE LAW WITH

CONSTITUTIONAL LAW:
 Maitland.

“Constitutional Law deals with structure and broader rules which regulate the functions, the details
of the functions are left to Administrative Law.”

 Hood Philips.

“Constitutional Law is concerned with the organization and functions of government at rest whilst
administrative Law is concerned with that organization & those functions in motion.”

 KEITH:
“It is logically impossible to distinguish Administrative Law from Constitutional Law and all attempts
to do so are artificial.”

 JENNINGS:

“Administrative Law is power, duties, organization, and functions of Administrative Authority;

whereas Constitutional law is power, duties, organization, and functions of various organs of state.”

 HOLLAND:

“Administrative Law deals with government in action while constitutional law deals with government
at rest.”

12. Preclude:
Q. 10: DOCTRINE OF JUDICIAL REVIEW

1. PREFACE:

2. DOCTRINE OF JUDICIAL REVIEW:

Judicial Review is a fervent concept of law which can be describe as,

Means employed by judicial organs of the state to ensure legality, rationality and propriety in
administrative acts, legislative acts, executive acts, thereby guaranteeing adherence to constitution
and rule of law. And, on other hand ensuring that the organs of state that they does not transgress
the limits imposed on them by law.

3. JUDICAIL REVIEW CONFERS JURISDICTION UPON COURTS OF LAW:

The fervent concept of Judicial Review confer jurisdiction over courts of law to ensure legality,
propriety and rationality in administrative/executive actions.

4. OBJECTIVE OF JUDICIAL REVIEW:

The objective of judicial review is of very ultimate nature which ensures the smooth working of
system, efficiency and mitigating the chances of arbitrariness.

“Ultimate objective is to guarantee the adherence to constitution and rule of law which results in
Constitutionalism. Furthermore confines the organs of states to their conferred limits.”

5. JUDICIAL REVIEW, SAFE GUARDS THE WILL OF PARLIAMENT:

Judicial Review not only adhere the rule of law but also safeguards the will of parliament by way of
confining the organs of state to their prescribed limits and also ensure the functioning of organs in
accordance with intent of parliament.
6. AGAINST WHOM EXERCISED:
a) Ministerial Actions.

b) Administrative/Executive Actions.

c) Judicial Actions.

d) Quasi-judicial Actions.

e) Legislative Actions.

f) Administrative Discretion.

7. JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS:

Judicial Review of Administrative Actions is the glowing field of law.

In modern state all administrative actions either Judicial, Quasi-Judicial (decisions of tribunals) &
Ministerial Actions are judicially review able by court.

8. BASIS FOR JUDICIAL REVIEW OF ADMINISTRATIVE

ACTIONS:

Following are the three basis or grounds available for judicial review of Administrative actions:

(a) Illegality.

(b) Irrationality.

(c) Procedural impropriety.

9. ILLEGALITY OF ADMINISTRATIVE ACTIONS:

Any illegality of Administrative Actions is liable for judicial review. The term illegality corresponds to
situation where authority,

 Acts wrongly.

 Fails to act.

(a) Instances of acting wrongfully:

i) Error of Law.
 ii) Duress/Coercion.

iii) Using power for wrongful purpose.

iv) Mala fides (Acting in bad faith)

(b) Instances of failing to Act:

i) Fettering discretion.

ii) Failure to take in account the relevant considerations.

iii) Take in account irrelevant considerations.

iv) Wrongful delegation of power.

v) Failure to exercise discretion.

10. IRRATIONALITY OF ADMINISTRATIVE ACTION:

Term Irrationality corresponds to un-reasonableness or unreasonable conditions.

11. PROCEDURAL IMPROPRIETY OF ADMIN. ACTION:

Procedural impropriety indicates the deficiency in application of procedure by the authority that
passed an order of Administrative nature or any organ of state functions not with in the procedural
limits prescribed for its functioning.

(a) Instances of procedural impropriety:

i) Failure to follow correct procedure.

ii) Breach of natural justice.

iii) Failure to respect legitimate exceptions.

iv) Non-Speaking orders.

12. JUDICIAL REVIEW OF ADMIN. DISCRETION:

As we know, administrative authorities possess lots of discretionary powers so judicial review is an

effective control over aforesaid administrative discretion.
 a) Discretion Defined:

Legal concept of discretion implies power to make choice between alternative courses of actions if
only one course is lawfully adopted and such decision of choice is made performance of duty.

b) Judicial Review of Administrative Discretion:

Where a person is aggrieved by an exercise of discretionary powers, usually attack or discretion that
not exercised within legal norms.

By judicial reviewing court always judge the discretion on criteria whether discretion is legal or
sweet will of authority.

c) Criteria for Judging Discretion:

Discretion must be according to law or exercised within the norms of law.

d) King’s Bench Decision or Discretion:

Where so ever a commissioner or other person hath power given to do anything at his discretion. It
is to be understood of sound discretion and according to law and this court hath power to redress
things otherwise done by them

e) Circumstances where Court can Interfere with the Discretionary power:

13. SCOPE OF JUDICIAL REVIEW IN PAKISTAN:

The scope of judicial review is very widening in Pakistan Constitution.

Art # 8 of 73’s Constitution is the touch stone from where the concept of judicial review gets
emerged. The clear manifestation of power of judicial review is evident from Art. # 199 of 73’s
Constitution which confers writ jurisdiction upon High Court.

14. WRIT JURISDICTION UNDER ARTICLE 199

15. PRECLUDE REMARKS:

Q. 11: A Plea Bargain

1. PREFACE

A plea bargain is an agreement in a criminal case between the prosecutor and accused whereby the
accused agrees to plead guilty to a particular charge in return for some concession from the
prosecutor. This may mean that the accused will plead guilty to a less serious charge or to one of
several charges, in return for the dismissal of other charges; or it may mean that the accused will
plead guilty to the original criminal charge in return for a more lenient sentence.

2. MENAING

The term is also known as plea agreement, plea deal or copping a plea

3. RELAY PROVISIONS OF LAW

 Sections 25 & 26 of National Accountability Bureau Ordinance 1999

 Section 337 – 339 of The Code of Criminal Procedure 1898

4. KINDS OF BARGAIN

 Charge bargaining

Accused plead guilty to a less serious crime than the original charge.

 Count bargaining

Accused plead guilty to a subset of multiple original charges.

  Sentence bargaining

Accused plead guilty agreeing in advance what sentence will be given; however, this sentence can
still be denied by the judge.

5. PLEA BARGAIN IN PAKISTAN

Plea bargain as a formal legal provision was introduced in Pakistan by the National Accountability
Ordinance 1999, an anti-corruption law. A special feature of this plea bargain is that the accused
applies for it, accepting guilt, and offers to return the proceeds of corruption as determined by
investigators/prosecutors.

In other cases, formal plea bargains in Pakistan are limited, but the prosecutor has the authority to
drop a case or a charge in a case and, in practice, often does so, in return for a accused pleading
guilty on some lesser charge. No bargaining takes place over the penalty, which is the court's sole
privilege.

6. VOLUNTARY RETURN / PLEA BARGAINING U/S 25

a. Time Span

 At any time

 Before or after the commencement of trial

b. Who Can Plead

 The holder of a public office or

 Any other person accused of any offence

 NAB ordinance
c. Conditions

 willing to return to the NAB the assets or

 Gains acquired through corruption or corrupt practices

d. Procedure

I. If the trial has not commenced, the Chairman NAB may release the accused; and

II. If the trial has commenced, the Court may, with the consent of the Chairman, release the
accused.

7. TRANSFER OF AMOUNT TO RELEVANT DEPARTMENT

The amount deposited by the accused with the NAB shall be transferred to the Federal Government
or, as the case may be, a Provincial Government or the concerned bank or financial institution, etc.,
within one month from the date of such deposit.

8. TENDER OF PARDON TO ACCOMPLICE/PLEA-BARGAINING U/S 26

I. Power of chairman NAB

II. At any stage of investigation or inquiry

III. The chairman may

IV. With a view to obtaining the evidence

V. Tender a full or conditional pardon to such a person

VI. On condition of his making a full and true disclosure

VII. The whole of the circumstances within his knowledge relating to the said offence including
the names of the persons involved therein whether as principals or abettors or otherwise.
9. EXAMINATION AS WITNESS

Every person accepting a tender of pardon shall be examined as a witness in the subsequent trial.

10. UNTRUE DISCLOSURE

I. Chairman NAB certifies that in his opinion

II. Any person who has accepted such tender

III. Either by willfully concealing anything essential or by giving false evidence

IV. Such a person may be tried for the offence in respect of which the pardon was so tendered

11. CONTROVERSY AGAINST PLEA BARGAIN

I. Close relationship with rewards, threats and coercion

II. Potentially endangers the correct legal outcome

III. Infringes of protections against self incrimination

IV. Prosecutors’ duty to prove the case

V. No strive to find out the truth

VI. Against natural justice

12. PRECLUDE REMARKS

Q.12: Public interest Litigation

1. PREFACE

Public interest Litigation, in simple words, means, litigation filed in a court of law, for the protection
of "Public Interest". The concept of Public Interest Litigation is not defined in any statute or in any
act. It has been interpreted by judges to consider the intent of public at large.

2. RELAY PROVISION OF LAW

Article 184 (3) Constitution of Islamic Republic of Pakistan 1973

3. FOCAL POINTS OF “PUBLIC INTEREST LITIGATION"

There are various areas where a Public Interest Litigation can be filed. e.g

I. Violation of basic human rights of the vulnerable groups

II. Content or conduct of government policy

III. Compel public authorities to perform a public duties, and

IV. Violation of basic fundamental rights

4. CONCEPT OF “PUBLIC INTEREST LITIGATION”

1. Public Interest Litigation is a desirable and indeed selfless and noble

undertaking. It helps to deliver civic justice through speedy, adequate and
effective redress upon violation of constitutionally guaranteed rights.

2. Public Interest Litigation is meant to protect the rights of public as it brings

questions of public importance before a court of law which otherwise may not
 have been the case and the abuse underlying public interest litigation might
have remained unaddressed.

5. INGREDIENTS OF ARTICLE 184 (3)

 The Supreme Court shall

 Have the power to
 Make and order
 If it considers that a question of public importance
 With reference to the enforcement of any of the Fundamental Rights given in
Article 8 – 28 is involved.
 Without prejudice to the provisions of Article 199

6. EXPLANATION

7. ILLUSTRATIVE CASE LAWS

i. PAKISTAN STEEL MILL CASE

ii. NRO CASE

iii. MEMOGATE CASE

iv. APPOINTMENT OF OGDC CHAIRMAN CASE

8. CONCEPT OF LOCUS STANDI & PUBLIC INTEREST LITIGATION

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient
interest in the proceeding of Public Interest Litigation will alone have a locus standi and can
approach the court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions.
9. REASONS FOR DEVELOPMENT OF PUBLIC INTEREST LITIGATION

I. Economic & social disadvantage

II. Rate payer may seek accountability of local authorities

III. Violation of constitutional rights

IV. Violation of statutory obligations

V. Organized social plan

VI. Revolution in judicial process

VII. Preservation of legal order

VIII. Enforcement of public duties

IX. No hard n fast rule or Straight jacket formula to determine grievance

10. CHARACTERISTICS PUBLIC INTEREST LITIGATION

Through the mechanism of Public Interest Litigation the courts seek to protect human rights in the
following ways

I. By creating a new regime of human rights

II. By democratization of access to justice

III. By fashioning new kinds of relief’s

IV. By judicial monitoring of State institutions

V. By devising new techniques of fact-finding

11. PITFALLS IN PUBLIC INTEREST LITIGATION

I. Courts must draw a distinction between private profit & public interest
 II. Court should not allow its process to be abused

III. Difference of Locus standi and justiciability

IV. Not to overstep judicial functions

V. Confinement of strategic exercised

12. PRECLUDE REMARKS

Public Interest Litigation develops a new jurisprudence of the accountability of the state for
constitutional and legal violations adversely affecting the interests of the weaker elements in the
community.
Q. 13: UBI JUS IBI / Remedies / WRIT.

1. PREFACE
Administrative law provides for control over the administration by an outside agency strong enough
to prevent injustice to the individual while leaving the administration adequate freedom to enable it
to carry on effective Government.

“Property exercised the new powers of the executive lead to a welfare state, but abused they lead to
a totalitarian state” By Lord Denning

2. PRINCIPAL OF UBI JUS IBI REMIDUIM

It means the person who has the right to knock at the door of the Court. A place of standing. The
right to be heard in Court or other proceedings

3. KINDS OF ADMINISTRATIVE ACTIONS

I. Quasi Legislative

II. Purely executive

III. Quaisi Judicial Functions

4. CONSTITUTIONAL REMEDIES
These are also termed public. Articles 184 and 199 of the constitution govern this type of remedy.
Law prescribes five prerequisites to avail this remedy as such:

a) CONCEPT OF LOCUS STANDI

It means the person who has the right to knock at the door of the Court. A place of standing. The
right to be heard in Court or other proceedings. Followings are eligible to get this remedy:

i) Aggrieved party: Under Article 199 of the Constitution Certiorari, Mandamus, and
Prohibitory writs are available for the party whose legal rights are violated due to act of
public functionary. Violation of legal right either directly or indirectly leads aggrieved
party to go to High Court. This prevents the multiplicity of litigation.

ii) Any person: Under Article 199 of the Constitution Habeas Corpus and Quo warranto are
available. Application to High Court is converted into writ. It is applicable in the cases
where interest of particular locality is suffered. Only the person from such locality is
subject to bring writ.

It is related to the suffering of particular locality and only the person from that locality may bring
writ against public functionary. Person from remote area cannot bring writ.
 iii) Suo motu: This is the action of Court either at its own motion or on application. This
remedy is not provided under constitution but inherent powers of Court govern it. S. 561
– A of Code of Criminal Procedure deals with it. Also S. 151 of Code of Civil Procedure
deals it.

5. PUBLIC REMEDIES
Public remedy means the remedy as against the public functionaries. They are five in nature by law
as follows:

A- Mandamus
It reveals from mandatory. It means, “we command”. A high prerogative writ which issued in the
King’s name from the High Court of Justice on application to the King’s Bench Division, to some
person or body to compel the performance of a public duty, where no other effective means of
redress was available. It has been replaced by an order of mandamus.

When issued:

When public functionary fails to do which is his duty.

Object:

It objects to compel the public functionary to do duty or certain thing.

Against whom issued:

Public functionary who negates his duty to do.

Who may apply:

Any aggrieved person may apply for the issuance of this writ.

B- Prohibition
It is reverse of mandamus. Under this writ, Court binds the public functionary not to act in such a
way complained against. Where public authority acts, which is prohibited, writ of prohibition is
issued. Court prevents authority to do certain act. It is just like stay order.

Meaning of prohibition:

It means not to act in such a way adopted.

When issued:

When public functionary having no powers to do certain thing.

Object:

It objects to keep in limits the public functionary.

Against whom:
It is issued against public functionary to whom prohibition is required. It is not issued against private
person.

Who may apply:

Any aggrieved person may apply.

C- Habeas corpus:
It is illegal detention made by public functionary or government official. High Court orders writ for
production of the person so detained.

Where a private person makes such wrongful detention or restriction, it amounts kidnapping thus
the writ of habeas corpus cannot be got issued.

S. 100 of Code of Criminal Procedure empowers Magistrate for the issuance of orders for the search
of person wrongfully detained.

It is a prerogative writ directed to a person who detains another in custody and commands him to
produce or “have the body” of that person before the Court.

D. Quo Warranto
It is a common writ against any public functionary as to why he has acted without jurisdiction or
authority. His action is mala-fide. His action is declared as void if not justified before law. When
power or authority is used without any lawful justification then writ of quo warranto lies.

Meaning of quo warranto:

Act without jurisdiction. How you posses jurisdiction? As to why you have acted without jurisdiction?

When issued:

When appointment is illegal.

Against whom issued:

Can be issued against Prime Minister, Advocate General, Judges of High Court, Attorney General,
Speaker of National Assembly, Chairman of Senate, and Accountant General.

Object:

This objects to discourage the illegal possession of position and act without jurisdiction.

Who may apply:

Any aggrieved person may apply for the issuance of writ of quo warranto.

E. Certiorari
A writ directed to an inferior Court of record, commanding it to “certify” to the Queen in the High
Court of Justice some matter of a judicial character. It was used to remove civil causes or
indictments from inferior courts of record into the High Court, that they may be better tried, or if
there has been abuse or error, re-tried.
Request for the record of case. It made by a High Court to lower court that previously reviewed the
case.

6. PRIVATE / CIVIL REMEDIES

These are also called ordinary civil remedy. When case is tried in civil Court then remedy of High
Court extinguishes. These remedies are available in UK and USA frequently but not available in
Pakistan and India. In UK and USA public functionary can be sued as common person. In Pakistan
lengthy process is involved into it.

Two months’ notice is required to public functionary before going to Court. Head of Department
responds in relation to notice. If such permission is not granted, no suit shall lie.

i. TYES OF PRIVATE / CIVIL REMEDIES

1. Declaration

It declares the act of public functionary void. Since the act is wrong thus declared void. It merely
declares right.

Declaratory suits can also be filed against government bodies, local authorities, and statutory
authorities. Grant of declaratory decree is a matter of discretion with a Court. A party who comes to
the Court with unclean hands is not entitled to declaratory decree. Declaratory relief can be refused
where the declaration sought appears to it either useless or anfractuous one (turned into the wind).

2. Damages

Damages are available in civil courts against public functionaries. They can be prayed as in tort.
Where fine is imposed to public functionary, it causes their dismissal from service. Damages do not
cause removal from service.

In Pakistan and India, a distinction is drawn as a result of the historical developments between the
local authorities and the statutory corporations, on the one hand, and the state, on the other for the
purposes of an action for damages.

3. Injunctions

Order 39, Rules 1 and 2 of Code of Civil Procedure govern injunctions. Perpetual injunctions are
granted under Specific Relief Act. It is merely prevention to do certain act, which is prohibited. It is
prohibited in UK under Crown Proceedings Act, 1947. But these are granted in Pakistan. They are not
considered as effective remedy. Civil Court may issue injunctions against public functionaries.

Historically, the injunction has been as wide as prohibition in its functions in English law. Injunction is
a judicial process by which one who has invaded or is threatening to invade the rights, legal or
equitable of another, is restrained from continuing or commencing such wrongful act.
7. PRECLUDE REMARKS
Q. 14: Rule Of Law

1. PREFACE:

The entire basis of administration law rest on the concept of the rule of law. No country can function
and no nation can march along true democratic way of life without a true & continuous realization of
the importance of Rule of Law and of judicial review of Legislature and Executive action.

Rule of Law is the fervent concept of constitutional law and had clear explication in our 73’s
Constitution U/Art 4 read with Art 25 of Constitution of pakistan.

2. MEANING OF DOCTRINE:

The aforesaid concept contemplates that government should be subject to law rather than law to be
subject to government.

“Government of laws, not of men”.

Furthermore, rule of law just requires that law really rules and justice should prevail. So, society
must governed by established principle which results that action of administration are foreseeable.

3. HISTORICAL DEVELOPMENT OF DOCTRINE:

In primitive era, Might is right was the order of day and there was no concept of Central requisitory
Authority exists. Than Thomas Hobbs’s theory of social contract emerges which prescribe John Lock
and he gave the concept of central requisitory authority and idea of state had been developed in
mechanism that people submitted their rights to central authority and in return gave certain
protection to the rights of individuals.

The aforesaid central requisitory authority is just a branch of law which governs the society.

4. EMERGENCE OF RULE OF LAW:

The concept of doctrine of RULE OF LAW, no doubt, is very ancient as said in HOLY ROMAN
EMPEROR KONARD II declared in great feudal law compilation

“That no holder of a feudal estate shall be deprived of his life. But, by the laws of Empire and
judgment of his peers.”

Magna Carta 1215 also contains the Expression of rule of law which declares that:

“No free man shall be taken or arrested or disposed, or exiled or may destroyed nor will we gone
upon him and nor will we send for him except under lawful judgment of his equals or law of land”.

Then finally the glittering thesis of DICEY’S rule of law comes which contain a Holy misconception
about administration Tribunal

 C. J. Sir Edward Coke in James I reign was the originator of this concept

5. DICEY’S THESIS OF RULE OF LAW AND ITS BACK GROUND:

Professor Dicey’s conception of rule of law was the result of battle between the arbitrary power
exercised by royalty and parliament which was ended at the establishment of ultimate SUPREMACY
OF PARLIAMENT in1885. Therefore rule of law in ENGLAND means the supremacy of parliament and
its laws.

6 DICEY ‘S EXPOSITION OF RULE OF LAW:

According to Dicey Rule of Law means absolute Supremacy or predominance of regular laws as
opposed to the influence of arbitrary power and exclude the existence of arbitrariness, of
prerogatives or even discretionary authority on the part of the Government.

Thus it means:

i) Supremacy of law

ii) Equality before law

iii) Predominance of Legal Spirit

7. THREE CRYSTALLISED POINTS OF DICEY ‘THESIS OF RULE OF LAW:

 Following are the points of Dicey’s rule of law:

i) No arbitrary, retrospective penal laws.

ii) No body should be deprived of his liberty unless a clear violation of clear and
legitimate law has taken place.

iii) Common law protects rights in better manner than a codified bill of rights.

8. NO ARBITRARY, RETROSPECTIVE PENAL LAWS:

DICEY on first step laid down the general rule that no arbitrary, retrospective penal laws can be
made and all are equal in eye of law.

a) Meaning of term arbitrary, retrospective laws:

An arbitrary law means which based on whimsical. In other words a law which confers discretion
upon authority to exercise power under said law.

b) Retrospectivity of law:

Preface and implementation of law for time when it was not there.

c) When retrospectivity can be attributed to law:

LORD AROCATE v/s BURMA SHELL

(1965 A.C)

“No retrospective law unless where legislature render its retrospective effect and legislature shall
unequivocally render said effect”.
9. NO BODY SHOULD BE DEPRIVED OF HIS LIBERTY UNLESS A CLEAR
VIOLATION OF CLEAR AND LEGITIMATE LAW HAS TAKE PLACE.

Dicey settled the second step of rule of law that no body should be deprived of his liberty unless a
clear violation of clear and legitimate law has taken place.

By this due process is adhered to accused and opportunity of fair trail available to accused.

a) Meaning of term clear and legitimate law:

A clear law means which is certain, unambiguous in form of enactment and duly published or
conveyed to subjects.

Where as legitimacy of law governs by two factors:

i) Made by competent authority.

ii) Capable to get habitual obedience or get society recognized.

10. COMMON LAW PROTECTS RIGHTS IN BETTER MANNER THAN A

CODIFIED BILL OF RIGHTS.

Dicey set the background common law will govern the rights and there is no need of the other
codification and rights are based on General principles of Constitution which are result of judicial
decisions.

11. HOLY MISCONCEPTION OF THESIS

Though Dicey fully realize the fact there must be a lawful authority within the state, relied on one
organ of state, which is courts restraining the illegal excess of other. But Dicey did not examine the
later lawful powers which the march of time gradually requires/demanded. The complexity of
modern social life and economic problems raise the necessity of administrative law or administration
requires the creation of tribunal to decide administrative and Quasi-judicial issues.
This misconception of Dicey regarding tribunals and modern needs leads to his thesis towards less
cherishing way but its importance still remains.

12. RULE OF LAW AND ADMIN LAW

Administrative law approach to fulfill functions of state assigned to it, being as welfare state. Even
though Dicey did not foresee that tribunals and delegated legislation will be the order of day all over
the modern world.

Administrative law is not against rule of law but in fact based on rule of law and ensured rule of law
as that actions of organs of state which may injure citizen are taken within the time of prescribed
rules and not by sweet will of authority.

13. ART 4 READ With ART 25 TO ENSURE RULE OF

LAW IN PAKISTAN:

Art 4: Right of individuals to be dealt within accordance of law etc.

Art 25 Equality of citizens

14. RATIONALE BEHIND RULE OF LAW:

Remarked by “ALEXENDER HAMILTON”

“In framing a government which is to be administered by men the great difficulty lies in this, you
must enable the government to control the governed and in next place oblige it to control itself”.

15. RULE OF LAW AND DROIT ADMINISTRATIFF

 Droit administratif
Administrative law governs the relationship between the State (in its various manifestations) and
private citizens or organisations. The rules of administrative law are set forth in particular in the
Code administratif, or Administrative Code, although - as with criminal law - there are also a large
number of legislative and regulatory texts that stand alone, such as the texts governing the status
and powers of industry regulators (most of which have the status of autorité administrative
indépendante or AAI).

Administrative law in France can be considered to comprise two main categories: general
administrative law and sector-specific administrative law.

 Droit administratif général

Administrative law is a fully fledged area of law in France, enjoying - like civil law (dealt with in the
civil courts) and criminal law (dealt with in the criminal courts) - its very own court system (the
administrative courts).

Indeed, administrative law, in its most general sense, concerns the control exerted by these
administrative courts over the actions of public servants - what we might call in English 'judicial
review'

Ground for contesting a decision's legality

(i) incompétence (the decision maker did not have the authority to make the decision)

(ii) vice de procédure (the decision maker failed to follow the correct procedure)

(iii) vice de forme (the decision instrumentum did not contain appropriate mentions - a rare
occurrence)

(iv) violation de la loi (the decision maker broke a clear statutory requirement)

(v) erreur de fait (the decision maker based his decision on a fact which was not well established) (v)
erreur dans la qualification des faits (the decision maker based his decision on a correct fact, but did
not give appropriate legal significance to it) and

(vi) erreur de droit (the decision maker did not correctly interpret the law).

 Droit administratif sectoriel

With the opening to competition of industries such as gas, electricity, broadcasting and
telecommunications,

the laws introduced to govern such competition in the public utility sectors (collectively known as
droit sectoriel) have created the most animated manifestation of administrative law in France today,
and keep a large number of lawyers –

both avocats (lawyers admitted to the bar) and juristes d'entreprises (in-house lawyers) - gainfully
employed.
16. PRECLUDE REMARKS:
Q. 15: Separation of power

1. PREFACE:
Same mentioned

2. MEANING OF DOCTRINE:
“All power Corrupts absolute power tends to corrupts absolutely”. According to him the best way to
avoid abuse of the power by the governmental agencies is to divide the political power and vest in
into the hands of diverse persons so that there is effective check on power by power

3. OBJECT:
Rule of law mentioned

4. NEED FOR SEPERATION OF POWERS:

The main reason for keeping the powers distinct and for not permitting the same authority to
exercise two or three powers of the state, namely: legislature, executive, and judicial, can be best
understood from the words of LORD ACTON. According to him “All power Corrupts absolute power
tends to corrupts absolutely”. According to him the best way to avoid abuse of the power by the
governmental agencies is to divide the political power and vest in into the hands of diverse persons
so that there is effective check on power by power.

5. POLITICAL THINKERS AND SEPERATION OF POWERS:

 ARISTOTLE:

Aristotle had said that all powers should not be allowed to concentrate since it creates a dictator. So
for the freedom of people separation of powers is necessary.

 JHON LOCKE:

In 1690 JHON LOCKE wrote in his book “Treatise on Civil Government” that if the laws are to be made
for the general welfare of people than their should be proper separation of powers.

 MONTESQUIEU:

The doctrine of separation of powers was first formulated in 1748 by Montesquieu, a French Political
thinker, in his book “Spirit of Law”. The main idea given by him was that for political liberty, same
person should not be allowed to make the laws. He was of the view that for political liberty, the
doctrine of separation of powers should be followed.
What Montesquieu meant by separation of powers was that Legislature and Executive should
neither have any control over the acts of each nor should they exercise the powers of each other.

6. RATIONALE BEHIND THE DOCTRINE:

a) Blackstone:

In all tyrannical governments where the right of making and enforcing law vested in one and same
man, and wherever these two powers are united, there can be no liberty.

b) Montesquieu:

When Legislature, Executive and judicial powers are united in the same person, there can be no
liberty because apprehension may arise, that the same monarch should enact tyrannical laws to
execute them in tyrannical manner. And the judge might behave with violence and oppression in the
same way.

7. PRE REQUSITE LAY DOWN BY AMERICAN SUPREME COURT:

KILBOUME Vs THOMSON

“Perfection of system of separation of powers required that the time and sphere which separate and
divide these departments (legislature, executive, and judiciary) shall be broadly and clearly defined.”

8. SEPERATION OF POWERS DOESN’T MEAN

ISOLATION:

9. DOCTRINE AND PARLIAMENTARY FORM OF GOVT

Doctrine of separation of powers has no relevance in the parliamentary democracies, except that it
has secured the independence of judiciary from the control of executive.

10. DOCTRINE AND PRESIDENTIAL FORM OF GOVT

The doctrine of separation of powers is very much applicable in United States, which has introduced
Presidential form of government. The Federal Executive power is vested in the President, the Federal
Legislative power is vested in Congress and the Federal Judicial power is vested in the Supreme
Court.

The President and his Cabinet are not members of Congress, and they are not responsible to
congress.

The President holds office for a fixed term and he is not necessarily of the same political party as the
majority in either House of Congress.
11. DOCTRINE AND CHECKS & BALANCES:
Separation of powers, as it works in America has been criticized from various points of views. In view
of the ‘check & balances’, connecting the three organs of state, separation of powers is by no means
complete. The fathers of U.S Constitution intended that the balance of powers should be attained by
checks & balances between three organs of the state.

The following are the circumstances where Doctrine of Separation of Powers lacks its validity or
application.

o The President may veto measures passed by Congress, though his veto may be
overridden by a two-third vote of both the Houses.

o The President has no power to negotiate treaties, but they must be confirmed by a
two-third vote of the Senate.

o The Senate may refuse to confirm certain appointments made by the President,
notably that of Judges of the Supreme Court.

12. MODERN VIEW:

Today, separation of powers means three different things.

i) Same person should not be the member of more than one organ, at the same time,
e.g. Ministers should not sit in Parliament.

ii) One organ should not interfere with the functions of other organ. It should do its
own duty, e.g. Judiciary should be independent of the executive.

iii) One organ of government should not perform the functions of another. e.g.
Ministers should not have legislative powers.

The above-mentioned principles, relates to the points given by DIECY in 1896, while delivering
lecture at OXFORD UNIVERSITY. He performed various tests, for the application of doctrine of
separation of powers, on the following points:

i) Member

ii) Function

iii) Control
According to him;

 Same member should not be the member of more than one organ.

 One organ should not perform the functions of other organ.

 One organ should not control the other organ.

13. SEPERATION OFPOWERS IN PAKISTANI CONSTT.

In Pakistan Constitution, there is neither separation of powers nor the check and balances. In fact
the constitution hardly provides any balance of powers between the three organs of the state.

14. ARTICLE 175 OF CONSTITUTION:

Judiciary is separated from executive.

15. CRITICISM:
i) Ministers are chosen from legislature.

ii) Functions of government doesn’t fall in three classes only, there should be more
than three organs.

16. PRECLUDE REMARKS:

Q. 16: Writ. Power of court

1. PREFACE
“Writ is a peremptory order issued by a superior court”

PLD 2001 SC 415

“Relief in Constitutional jurisdiction being discretionary should not be granted to hold”

2. WRIT OF MANDAMUS
The name of a writ, the principal word of which when the proceedings were in Latin, was
mandamus, we command.

It is a command issuing in the name of the sovereign authority from a superior court having
jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of
such superior court, requiring them to do some particular thing therein specified, which appertains
to their office and duty, and which the superior court has previously determined, or at least
supposes to be consonant to right and justice.

i. WRIT OF MANDAMUS; NOT A WRIT OF RIGHT

Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion
of the court to whom the application for it is made; and this discretion is not exercised in favor of
the applicant, unless some just and useful purpose may be answered by the writ.

ii. OBJECT OF THE WRIT

This writ was introduced is prevent disorders from a failure of justice; therefore it ought to
be used upon all occasions where the law has established no specific remedy, and where in justice
and good government there ought to be one. Mandamus will not lie where the law has given
another specific remedy.

iii. AMERICAN PRACTICE AS TO WRIT OF MANDAMUS

The 13th section of the act of congress of Sept. 24, 1789, gives the Supreme Court power to issue
writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed
or persons holding office, under the authority of the United States. The issuing of a mandamus to
courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in the
Supreme Court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by
the constitution, the exercise of original jurisdiction by the Supreme Court is restricted to certain
specified cases, which do not comprehend a mandamus. The latter clause of the above section,
authorizing this writ to be issued by the Supreme Court to persons holding office under the authority
of the United States, is, therefore, not warranted by the constitution and void.

The circuit courts of the United States may also issue writs of mandamus, but their power in this
particular is confined exclusively to those cases in which it may be necessary to the exercise of their
jurisdiction.

iv. PAKISTANI PRACTICE

A writ of mandamus is an order that relates to the performance of legal duties and is issued
to lower courts or to persons responsible for the performance of that duty.

The High Court issues this writ of mandamus ordering a public official or body or a lower court to
perform a specific legal duty relating to public matters.

If a peoples parliament , or a state parliament, or a divisional parliament or other governmental

body fails to perform a duty that is required by law, a citizen can be make an application for the
issue of such a writ.

v. WRIT OF PROHIBITION

A writ of prohibition is intended to apply to administrative bodies over which the Supreme
Court has no jurisdiction or any individual that makes or passes an order or decision without the
authority so to do and which adversely affects the rights of a citizen. The writ will prohibit them from
implementing such orders.

This means that by a writ of prohibition, excesses of authority exercised by inferior courts can be
prohibited. In a way this is applied for to prohibit and correct past excesses of authority.

3. MEANING OF THE WRIT

The name of a writ issued by a superior court, directed to the judge and parties of a suit in an
inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that
the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction,
but to the cognizance of some other court.

The writ of prohibition may also be issued when, having jurisdiction, the court has attempted to
proceed by rules differing from those which ought to be observed or when, by the exercise of its
jurisdiction, the inferior court would defeat a legal right.
i. A JUDICIAL WRIT FROM A HIGHER COURT ORDERING A LOWER COURT
NOT TO EXERCISE JURISDICTION IN A PARTICULAR CASE
A writ of prohibition, in the United States, is an official legal document drafted and issued by a
supreme court or superior court to a judge presiding over a suit in an inferior court. The writ of
prohibition mandates the inferior court to cease any action over the case because it may not fall
within that inferior court's jurisdiction. The document is also issued at times when it is deemed that
an inferior court is acting outside the normal rules and procedures in the examination of a case. In
another instance, the document is issued at times when an inferior court is deemed headed towards
defeating a legal right.

ii. QUO WARRANTO

A Quo Warranto writ is applied for by an individual for the examination of matters related to
the appointment or the election for a position.

This is a method by which necessary correction can be made to protect any infringement of a
citizen's rights through the abuse and excesses exercised by those in authority.

A writ brought before a proper tribunal, to inquire by what

warrant a person or a corporation acts, or exercises certain

powers. --Blackstone.

[1913 Webster]

quo warranto - Bouvier's Law Dictionary, Revised 6th Ed (1856) :

QUO WARRANTO, remedies. By what authority or warrant. The name of a writ

issued in the name of a government against any person or corporation that

usurps any franchise or office, commanding the sheriff of the county to

summon the defendant to be and appear before the court whence the writ

issued, at a time and place therein named, to show "quo warranto" he claims

the franchise or office mentioned in the writ.

2. This writ has become obsolete, having given way to information in

the nature of a quo warranto at the common law;

3. An information in the nature of a quo warranto, although a criminal

proceeding in form, in substance, is a civil one.

LEADING CASE LAW
The writ of quo warranto is neither an ancillary writ nor a provisional remedy which can be issued by
a court, having jurisdiction over a main case, in the exercise of its ancillary jurisdiction to resolve an
incident in that case. The writ of quo warranto is an extraordinary and prerogative writ specifically
sought as the principal relief in an action addressed against acts of authority unlawfully asserted,
and necessarily requires the exercise of the original jurisdiction of a court.

Since the grant of the prerogative writ of quo warranto presupposes the exercise of original
jurisdiction as a sine qua non, an original petition therefor cannot be considered as an ancillary
remedy against "incidents arising from, incidental to, or related to, such cases." As definitively held
in Garcia, et al. vs. De Jesus, unlike the ancillary writs issued as provisional remedies, the power to
issuer a writ of quo warranto, just like the other extraordinary writs under Rule 65 of the Rules of
Court, is never derived by implication. Such power must be expressly conferred.

It is true that the grant of jurisdiction to try actions carries with it all necessary and incidental powers
to employ writs; processes and other means essential to make its jurisdiction effective. But, this is
on the premise that there is such original jurisdiction expressly and priorly granted from which the
necessary and incidental powers may be implied. With respect to the Sandiganbayan, it was never
expressly granted original jurisdiction over petitions for certiorari, mandamus, prohibition and quo
warranto.

The cases of Peña, (an action for damages, with writ of preliminary injunction, questioning the
revocation of the authorization as signatory previously granted to a respondent therein), Aquino, (a
petition for certiorari and prohibition filed by private respondent before the RTC assailing the
sequestration order issued by PCGG), and Soriano III, (involving the question of whether the RTC and
SEC can decide the issue of the validity of the sequestration of shares of stock), which are relied
upon by the majority in the present case, were all decided in 1988, while the other cited case of
Africa vs. PCGG,. was decided in 1992, all before the decision in Garcia, Jr. was handed down. The
doctrine enunciated in Garcia, Jr. should, therefore, be considered as the controlling rule, as those in
the aforementioned cases are not in point.

Obviously, because of their disquisition based on the aforesaid previous cases on which they rested
their Preclude Remarks, the majority found it unnecessary to discuss Republic Act No. 7975. This
recent amendment to the jurisdiction of the Sandiganbayan, especially on the specific issue involved
in the case at bar, does not offer them any solace either. Republic Act No. 7975, which took effect
on May 6, 1995 and vested the Sandiganbayan with exclusive original jurisdiction over petitions for
the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunction and other
ancillary writs and processes in aid of its appellate jurisdiction is inapplicable to the present case.
Jurisdiction is conferred by substantive law and, as such, that law vesting additional jurisdiction in
the court may not be given retroactive effect.

It is noteworthy that such additional jurisdiction to issue the writs enumerated therein can be
exercised by the Sandiganbayan only in aid of its appellate jurisdiction, the same limitation imposed
on the Court of Appeals before it was given full certiorari jurisdiction. Also, while said amendatory
legislation conferred jurisdiction on the Sandiganbayan to issue the aforementioned extraordinary
writs, it refrained from including therein the prerogative writ of quo warranto.

4. CERTIORARI

The writ of certiorari is an order calling for the transcript of the proceeding of a case in a lower court
for review by a superior court.

The Supreme Court of the Union has the power to call for the proceedings of any lower court and to
examine if the ruling therein is in accordance with the provisions of law and to review and alter any
wrong decision. Some lower courts fail to exercise the jurisdiction they have or exceeded the limits
of their jurisdiction either through loss of memory or a misinterpretation of the law. In such cases,
the Supreme Court of the Union may pass any decision it sees fit so to do.

In addition, the courts and other quasi-judicial bodies, governmental officials and others who are
empowered to act in matters affecting the rights of citizens must be subject to the supervisory
jurisdiction of the Supreme Court and the process by which this is exercised is by way of a writ of
certiorari.

i. DERIVATION
Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to". It is also
the name given to certain appellate proceedings for re-examination of actions of a trial court, or
inferior appeals court. The U.S. Supreme Court still uses the term certiorari in the context of
appeals.

 Petition for Writ of Certiorari. (informally called "Cert Petition.") A document which a
losing party files with the Supreme Court asking the Supreme Court to review the decision of
a lower court. It includes a list of the parties, a statement of the facts of the case, the legal
questions presented for review, and arguments as to why the Court should grant the writ.

 Writ of Certiorari. A decision by the Supreme Court to hear an appeal from a lower court.

 Cert. Denied. The abbreviation used in legal citations to indicate that the Supreme Court
denied a Petition for Writ of Certiorari in the case being cited.

Someone with a legal claim files a lawsuit in a trial court, such as a U.S. District Court, which receives
evidence, and decides the facts and law. Someone who is dissatisfied with a legal decision of the
trial court can appeal. In the federal system, this appeal usually would be to the U.S. Court of
Appeals, which is required to consider and rule on all properly presented appeals. The highest
federal court in the U.S. is the Supreme Court. Someone who is dissatisfied with the ruling of the
Court of Appeals can request the U.S. Supreme Court to review the decision of the Court of
Appeals. This request is named a Petition for Writ of Certiorari. The Supreme Court can refuse to
take the case. In fact, the Court receives thousands of "Cert Petitions" per year, and denies all but
about one hundred. If the Court accepts the case, it grants a Writ of Certiorari.

ii. AMERICAN PRACTICE

"Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of
certiorari will be granted only for compelling reasons." Rule 10, Rules of the U.S. Supreme Court.

The U.S. Supreme Court's certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme
Court.

The effect of denial of certiorari by the U.S. Supreme Court is often debated. The decision of the
Court of Appeals is unaffected. However, the decision does not necessarily reflect agreement with
the decision of the lower court

6. WRIT OF HABEAS CORPUS

Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus.
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought
to the court so it can be determined whether or not that person is imprisoned lawfully and whether
or not he should be released from custody. A habeas corpus petition is a petition filed with a court
by a person who objects to his own or another's detention or imprisonment. The petition must show
that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus
petitions are usually filed by persons serving prison sentences. In family law, a parent who has been
denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a
habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

CASE LAW; Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991)

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the
court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is
the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state
action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered
with the initiative and flexibility essential to insure that miscarriages of justice within its reach are
surfaced and corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay
respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91
(1969). Because the habeas process delays the finality of a criminal case, however, the Supreme
Court in recent years has attempted to police the writ to ensure that the costs of the process do not
exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive
petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice
to the prosecution, frustration of the sovereign power of the States, and the "heavy burden" federal
collateral litigation places on "scarce federal judicial resources," a burden that "threatens the
capacity of the system to resolve primary disputes." McCleskey, 499 U.S. at 467.
The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But
the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly
administration of justice and therefore weaken the forces of authority that are essential for
civilization.' " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion
of Frankfurter, J.))

The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is
valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose
of the great writ is not to relitigate state trials.

Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520
(1982) (each claim raised by petitioner must be exhausted before district court may reach the merits
of any claim in habeas petition).

Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-
examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849
F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (Preface
of extraneous prior bad acts evidence during deliberations constitutes error of constitutional
proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to habeas relief
only if it can be established that the constitutional error had "substantial and injurious effect or
influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9
(1993). Whether the constitutional error was harmless is not a factual determination entitled to the
statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v.
Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).

In a habeas corpus proceeding, a federal court generally "will not review a question of federal law
decided by a state court if the decision of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S.
722, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the
state court has declined to address the petitioner's federal claims because he failed to meet state
procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337
(1992). Thus, the independent state grounds doctrine bars the federal courts from reconsidering the
issue in the context of habeas corpus review as long as the state court explicitly invokes a state
procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).

Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish
that it resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the
responsibility of the court, once it concludes there was error, to determine whether the error
affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id.

On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial
misconduct, like the standard of review for a claim of judicial misconduct, is “‘the narrow one of due
process, and not the broad exercise of supervisory power.' “Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)).”The relevant question is
whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting
conviction a denial of due process.' “Id. (quoting Donnelly, 416 U.S. at 643).
A federal court has no supervisory authority over criminal proceedings in state courts. The only
standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at
1571. Objectionable as some actions might be, when considered in the context of the trial as a
whole they are not "of sufficient gravity to warrant the Preclude Remarks that fundamental fairness
has been denied." Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic
comments and offensive conduct, although perhaps inconsistent with institutional standards of
federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude
toward defendant's testimony, and his reinforcement of identification evidence by government
witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has
been violated").

The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not
mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state
court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging
state court convictions, relief is available only for constitutional violations.

Whether a constitutional violation has occurred will depend upon the evidence in the case and the
overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality
determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of
instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155
(1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial
than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves
the failure to give a particular instruction bears an "especially heavy" burden).

Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997
F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the
shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id.
(quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether
the error affected the verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994
(1995).

The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson
which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149
(finding shackling at trial harmless error because defendant only wore waist chain that could not be
seen by jury).

7. HABEAS CORPUS IN ENGLAND

Blackstone cites the first recorded usage of habeas corpus in 1305, in the reign of King Edward I.
However, other writs were issued with the same effect as early as the 12th century.

The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act
1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had
been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a
petition of habeas corpus.
Then as now, the writ of habeas corpus was issued by a superior court in the name of the King, and
commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before
the King's courts of law. Petitions could be made by the prisoner himself or by a third party on his
behalf, and as a result of the Habeas Corpus Acts could be made regardless of whether the court was
in session, by presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by private
individuals, most famously in Somersett's Case (1771), where the negro slave Somersett was freed
with Lord Mansfield's declaration that "The air of England has long been too pure for a slave, and
every man is free who breathes it".

Although the form of the writ of habeas corpus requires that the prisoner be brought to the court in
order for the legality of the imprisonment to be examined, modern practice is to have a hearing with
both parties present on whether the writ should issue, rather than issuing the writ and waiting for
the return of the writ by the addressee before the legality of the detention is examined. The prisoner
can then be released or bailed by order of the court without having to be produced before it.

The right of habeas corpus has been suspended or restricted several times during English history,
most recently during the Second World War. In parts of the country, or for certain classes of
resident, habeas corpus has been suspended more recently, however. The British Government's
2004-2005 passage of the Prevention of Terrorism Bill through the House of Commons brought a
great deal of criticism, much of which suggesting that the bill threatened Habeas corpus.

8. HABEAS CORPUS IN THE UNITED STATES

This procedure, part of English common law, was considered important enough to be specifically
mentioned in the U.S. Constitution, which says, "The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
(Article One, section nine). Under title 28, section 2254 of the United States Code, all federal courts
have jurisdiction to issue writs of habeas corpus.

The most common American use of habeas corpus today is as part of the appeals process after
conviction. Decisions by the Rehnquist Supreme Court and the Anti-Terrorism and Effective Death
Penalty Act of 1996 have limited its use, especially in capital cases.

9. SUSPENSION OF HABEAS CORPUS DURING THE AMERICAN CIVIL

WAR
Habeas corpus was suspended on April 27, 1861 during the American Civil War by President Lincoln
in parts of midwestern states, including southern Indiana. He did so in response to demands by
generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the
Union who supported the Confederate cause. His action was challenged in court and overturned by
the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte
Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. It must also be noted
that after secession from the Union, Jefferson Davis also suspended the Habeas Corpus and imposed
martial law in the confederacy. This was in part to maintain order and spur industrial growth in the
South to compensate for what it had lost when it seceeded.

In 1864, Lambdin Milligan and four others were accused of planning to steal Union weapons and
invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their
execution was not set until May 1865, so they were able to argue the case after the Civil War. It was
decided in the Supreme Court case Ex Parte Milligan 71 U.S. 2 1866 that the suspension was
unconstitutional because civilian courts were still operating, and the Constitution (according to the
Court) provided for suspension of habeas corpus only if these courts are actually forced closed. This
was one of the key Supreme Court Cases of the American Civil War, which dealt primarily with
wartime civil liberties and martial law.

Civil War-era habeas corpus decisions have attracted renewed scrutiny since the beginning of the
War on Terror, in light of the Bush Administration's assertion of presidential authority to designate
even U.S. citizens as enemy unlawful combatants and hold them indefinitely, without criminal
charges or access to counsel.
Service law
Q. 1: Define and explain the following, Probation, promotion, termination of service?

1. Preface
Under civil service laws, probationary appointment is an initial step towards permanent

appointment on a civil post, in this period; the employer has a right to terminate the

appointee without assigning any reason.

Promotion is also one of the modes of appointment of civil servant on a civil post; it is a

general rule that no civil servant can claim his promotion as a right.

Termination of services is an end of life of employee’s job with the employer; employer

cannot terminate his employee without serving notice or may be terminated in some case

without serving notice.

2. Definition of Probation
Probationary period is such period in which newly appointed employee has to show that he is

capable to perform the required duties of the job before he will be considered as permeation

on the position.

3. Probation rules under rule 7

Following are the probation rules under rule 7. Details are as under.

1. Period of probation
Newly appointed person to a post will perform his duties on probation for the period of two

years, or will perform his duties under the directions of appointing authority for the period

of one year

2. Written record of probation

The appointing authority will kept the written record of the probation period of newly

appointed person, so that it may be presented when needed.

3. Extension of probation
During the probation or after expiring the period of probation, the appointing authority will

pass the orders for extension of probation period if authority thinks fit.
4. One year extension of probation
If the appointing authority does not pass any order for extension of probation period, in this

case it will be considered that the probation has been extended for the period of one year.

5. Continuation of order
During the extended period of probation, it will be considered that the appointment is

continued till further orders.

4. Definition of promotion
In terms of employment, promotion is meant change of duties and title, it happens where an

employee has gained a particular experience as well as having better qualification for

promotion to higher post.

5. Conditions for promotion

Following are the conditions for promotion. Details are as under.

1. Qualification
It is a necessary condition for the promotion of an employee from lower post to higher post

that he must possess minimum qualification for the prescribed post.

2. Experience
It is a necessary condition for the promotion of an employee from lower post to higher post

that he must possess an experience for the prescribed post.

3. Board’s recommendation
It is a necessary condition for the promotion of an employee from lower post to higher post

that the promotion board must recommend any employee for the prescribed post.

4. Reserved post
It is a necessary condition for the promotion of an employee from lower post to higher post

that there should be a reserved post for departmental promotion.

5. Selection or Non-Selection post

It is a necessary condition for the promotion of an employee from lower post to higher post

that there should be a selection or non-selection post for departmental promotion.

6. Definition of termination of service

Termination of services is an end of life of employee’s job with the employer; employer

cannot terminate his employee without serving notice or may be terminated in some case
without serving notice.

7. General rule
As it is a general rule that no civil servant shall be terminated without serving notice

8. Circumstances when civil servant can be terminated without notice

Following are the some circumstances where a civil servant can be terminated even without

serving notice to him. Details are as under.

1. On probation
A civil servant can be terminated without notice from his service if he is performing his

duties on probation period. Appointing authority has discretionary power to terminate him

in this case

2. On expiry of contract
A civil servant can terminated without notice from his service if his employment contract

with the employer has been expired, Appointing authority has discretionary power to

terminate him in this case.

3. On Ad-Hoc appointment
A civil servant can terminated without notice from his service if he has been appointed on

Ad-Hoc basis because such appointment is terminable on the appointment of new civil

servant, Appointing authority has discretionary power to terminate him in this case.

9. Preclude Remarks
To conclude I can say that a civil servant can be promoted to higher post if he has gained an

experience as well as qualification for the higher post. A civil servant can be terminated from

service if he get failed to prove himself suitable for the post during the period of probation,

even without notice

Q # 2: Please specify the procedure to be observed by the inquiry officer on inquiry
committee during an inquiry of the accused person under the Punjab Civil Servants Rules
1975?

1. Preface
Under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, whenever any civil

servant is found guilty of corruption and misconduct, in this case a special procedure of

inquiry is observed against that civil servant, for this purpose an inquiry officer is appointed

by the competent authority to investigate the matter.

2. Relevant provision
Rule 5 to 12 of Punjab Civil Servants (E&D) rules 1975, deals with inquiry procedure.

3. Grounds for Inquiry against Civil Servant

Following are the grounds for inquiry against the civil servant.

1. Inefficiency
If any civil servant is found inefficient towards his job and unable to perform his duties in

accordance with law, in this case inquiry will be set up: inefficiency is meant to ineligibility

towards official responsibilities

2. Corruption
If any civil servant is found guilty of corruption, in this case inquiry will be set up against him,

corruption is meant to abuse of power by the civil servant for private gain

3. Misconduct
If any civil servant is found guilty of misconduct, in this case inquiry will be set up against

him; misconduct is meant an unacceptable behavior of civil servant which is not in

accordance with the conduct rules 1966.

4. Subversion
If any civil servant is found guilty of subversion, in this case inquiry will be set up against

him; subversion is meant dishonest and violent methods to make change in the official

records in order to conceal the facts and stealing source codes etc.
4. Modes of initiation of inquiry
Following are the modes of initiation of inquiry against any civil servant.

1. Suspension
Before initiation of proceedings against civil servant, he may be suspended by the

authorized officer for the purpose of inquiry

2. Leave
Before initiation of proceedings against civil servant, he may be asked to avail the leave

from the authorized officer for the purpose of inquiry

5. Procedure observed for inquiry

Following are the procedures observed for inquiry by the inquiry officer. Details are as under.

1. Inform the accused

An inquiry officer shall inform the accused by written order of action likely to be taken

against him.

2. Mention the grounds

An inquiry officer shall mention the grounds in the written order of action likely to be taken

against him.

3. Opportunity of Show cause

An inquiry officer shall give an opportunity of show cause to accused against that action,

within 14 days from the issuance of order of action.

4. Time for justification

An inquiry officer shall give 14 days’ time to accused for justification against the charge

alleged to him, so that accused may collect all the evidences and ask the witnesses for

testimony in order to prove himself innocent.

5. Examination of evidence

of the evidences will be assured before smooth judicial proceedings.

6. Cross examination of witnesses

An inquiry officer shall cross-examine the witnesses appeared in order to give testimony in

favor of accused, reliability and legality of the witnesses will be assured before smooth

judicial proceedings.
7. Initiation of inquiry
An inquiry officer after completion of examination of evidences as well as cross examination

of witness shall initiate the procedure of inquiry against accused.

8. Submission of report
An inquiry officer shall submit a report to authorized officer after completion of procedure

of inquiry within the 10 days.

9. Imposition of penalty
At the end, if accused is found guilty of offence according to the report submitted, in this

case the authorized officer shall impose penalty on accused in accordance with law.

6. Kinds of penalties imposed on Civil servant

Following are the penalties which are imposed on civil servant under Punjab civil servant rules

1975.

1. Reduction to lower post

Under rule 3, any civil servant who is found guilty, may be reduced to lower post

2. Recovery of loss
Under rule 3, any civil servant who is caused to pecuniary loss of government, he will have

to pay damages to the government

3. Compulsory retirement
Under rule 3, any civil servant who is found guilty, he may be punished with compulsory

retirement caused to pecuniary loss of government, he will have to pay damages to the

government

4. Removal form services

Under rule 3, any civil servant who is found guilty, he may be removed from services

5. Dismissal from services

Under rule 3, any civil servant who is found guilty, he may be dismissed from services ,

dismissal is more serious in nature than the removal from services

7. Preclude Remarks
To conclude I can say that a civil servant is under an obligation to perform his duties honestly,

but if he is found guilty of corruption, misconduct or subversion, in this case he shall be

punished in accordance with the rules of conduct and a proper procedure of inquiry by

inquiry officer shall be conducted in this regard

Q # 3: Who is competent to file an appeal before service tribunal under
service tribunal act 1973? Discuss the procedure for filing such an appeal.

1. Preface
Any civil servant aggrieved by any order of the service tribunal under Punjab Civil Servant Act

1974, has a right to file an appeal under section 4 of Punjab Service Tribunal Act 1974. An

appeal is a form of complaint which is made by the aggrieved civil servant before the superior

court against the decision of subordinate court in order to revise the decision. The aim of

making an appeal is testing the accuracy of the decision of the lower court.

2. Relay provision
Rule 4 and 5of Punjab Civil Service Tribunal Act 1974, deals with competency of aggrieved to

file an appeal before service tribunal.

3. Definition of tribunal
A group of judges with the authority to pronounce judgment of a particular matter on the

basis of evidence at a place other than courts.

4. Tribunal must be a person or body

Under the provision of Article 160 of Constitution of Pakistan 1956, a tribunal must be a

person or a body that is authorized to pronounce final judgment on a particular matter

before him, judgment of tribunal may be known as decree, order, and semblance.

5. Definition of Appeal
Submission of an application by the aggrieved civil servant before the Punjab Service tribunal

for the judicial review of the decision of the lower court is called appeal

6. Who is competent to file an appeal?

Any civil servant aggrieved by any order, whether original or appellate, made by the

departmental authority in respect of terms and conditions of his service. In this case

aggrieved civil servant can file an appeal before the service tribunal under section 4 of Punjab

Service Tribunal Act 1974.

7. Conditions in which appeal can be filed
Following are the conditions in which appeal can be filed.

1. Against original order

Any aggrieved civil servant can file an appeal against original order by which terms and

conditions of his service have been violated.

2. Against appellate order

Any aggrieved civil servant can file an appeal against appellate order by which terms and

conditions of his service have been violated.

3. Against departmental authority

Any aggrieved civil servant can file an appeal against departmental authority by which terms

and conditions of his service have been violated.

8. Cases in which appeal can be filed

Following are the cases in which appeal can be filed against the departmental authority,

appellate.

1. Reduction to lower post

Under section 4 of Punjab Service Tribunal Act, a civil servant can file an appeal against his

reduction to a lower post.

2. Compulsory retirement
Under section 4 of Punjab Service Tribunal Act, a civil servant can file an appeal against his

compulsory retirement.

3. Removal form services

Under section 4 of Punjab Service Tribunal Act, a civil servant can file an appeal against his

removal from services.

4. Dismissal from services

Under section 4 of Punjab Service Tribunal Act, a civil servant can file an appeal against his

dismissal from services.

9. Difference between tribunal and courts

Following are the differences between the tribunals and the courts.

1. As to staff
Official deputed in the court is always a judge
Official deputed in the tribunal may be a judge or not

2. As to cases
Official deputed in the courts deals with all the cases

Official deputed in the tribunals deals with specific cases

3. As to discretion
Official deputed in the courts cannot use discretionary powers

Official deputed in the tribunals can use the discretionary powers

4. As to independency
Officials deputed in the courts are independent in respect of their tenure and terms and

conditions

Official deputed in the tribunals are dependent in respect of their tenure and terms and

conditions.

5. As to procedure
Official deputed in the courts follows a code of procedure

Official deputed in the tribunals does not follow a code of procedure

6. As to party
Official deputed in the courts cannot become a party to a case

Official deputed in the tribunal can become a party to a case

10. Preclude Remarks

To conclude I can say that it is the right of the Civil Servant to file an appeal before Service

tribunal against an order of a departmental authority and the jurisdiction of the High Court is

barred under Article 212 of the 1973 Constitution of Pakistan

Q # 4: What are the various kinds of penalties? What procedure to be observed by the authorized
officer in case of initiation of proceedings against accused person under the Punjab Civil

Servant (E&D) Rules 1975?

1. Preface
Under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, whenever any civil

servant is found guilty of inefficiency, corruption, misconduct and engaged in revolutionary

activities, in this case such civil servant is punished with different types of penalties either

minor or major under Punjab Civil Servants (E&D) rules 1975. Grounds and types of penalties

are being mentioned below.

2. Relevant provision
Rule 3 and 4 of Punjab Civil Servants (E&D) rules 1975, deals with imposition of penalties to

the Civil servants.

3. Definition of Penalty
A penalty is a punishment which is given for doing something wrong which is against the rule

of law.

4. Grounds for Imposition of penalties

Following are the grounds for imposition of penalties against civil servants.

1. Inefficiency
If any civil servant is found inefficient towards his job and unable to perform his duties in

accordance with law, in this case such civil servant will be punished: inefficiency is meant to

ineligibility towards official responsibilities

2. Corruption
If any civil servant is found guilty of corruption, in this case such civil servant will be

punished, corruption is meant to abuse of power by the civil servant for private gain

3. Misconduct
If any civil servant is found guilty of misconduct, in this case such civil servant will be

punished; misconduct is meant an unacceptable behavior of civil servant which is not in

accordance with the conduct rules 1966.

4. Subversion
If any civil servant is found guilty of subversion, in this case such civil servant will be

punished; subversion is meant dishonest and violent methods to make change in the official

records in order to conceal the facts and stealing source codes etc.

5. Kinds of major penalties

Following are the kinds of major penalties which are imposed on civil servant under Punjab civil

servant rules 1975.

1. Reduction to lower post

Under rule 3, any civil servant who is found guilty, may be reduced to lower post

2. Recovery of loss
Under rule 3, any civil servant who is caused to pecuniary loss of government, he will have

to pay damages to the government

3. Compulsory retirement
Under rule 3, any civil servant who is found guilty, he may be punished with compulsory

retirement caused to pecuniary loss of government, he will have to pay damages to the

government

4. Removal form services

Under rule 3, any civil servant who is found guilty, he may be removed from services

5. Dismissal from services

Under rule 3, any civil servant who is found guilty, he may be dismissed from services ,

dismissal is more serious in nature than the removal from services

6. Kinds of minor penalties

Following are the kinds of minor penalties which are imposed on civil servant under Punjab civil

servant rules 1975.

1. Censure
Under rule 3, any civil servant who is found guilty, he may be awarded with the penalty of

censure as a minor penalty

2. Withholding of promotion
Under rule 3, any civil servant who is found guilty, he may be awarded with the penalty of
withholding of promotion for a specific period as a minor penalty

3. Withholding of increment
Under rule 3, any civil servant who is found guilty, he may be awarded with the penalty of

withholding of increment for a specific period as a minor penalty

4. Withholding of salary
Under rule 3, any civil servant who is found guilty, he may be awarded with the penalty of

withholding of salary for a specific period as a minor penalty

7. Requirements for imposition of penalty

Following are the requirements of imposition of penalty for civil servant. Details are as under.

1. Personal hearing
Personal hearing is an essential requirement of imposition of penalty to the civil servant

either minor or major penalty. Because it is a rule of natural justice that no one should be

condemned unheard e.g. Audi Alterm Partem.

2. Show cause notice

Show cause notice is an essential requirement of imposition of penalty order of dismissal of

the civil servant from services, will be considered as an invalid order if second show cause

notice has not been served to civil servant.

8. Preclude Remarks
To conclude I can say that the penalties may be awarded to civil servant if he is found guilty

of inefficiency, corruption, misconduct or is found in subversive activities under the Punjab

Civil Servant (E&D) Rules 1975. Before imposition of penalty it is necessary that a show cause

notice to be served to civil servant and should be mentioned the proposed action which will

be taken against him

 ‫آپ سب کی دعاؤں کا ہمہ وقت طلب گار‬

‫لیکچرار‪ :‬مــبشراقبال‬
‫ایڈووکیٹ ھائی کورٹ‬
‫‪LL.B, LL.M, MSC, Dipl Communication Skills‬‬

‫آفس‪ :‬فاطمہ اینڈ اقبال الء چیمبر الھور‬

‫ایڈریس‪ :‬ھجویری ٹاور بیسمنٹ ‪ 01-B‬چوبرجی چوک‬
‫لوئرمال الھور‬
‫‪Call No: 0300-0096491‬‬