The course contents would be General and Basic Principles of Administrative Law,

General and Basic Principles of Law of Administrative Tribunals and the Basic
Principles of Law of Civil Service, with reference to Federal statutes as applicable
to Pakistan.
Book Recommended:
1. Principles of Administrative Law A complete Study by Hamid Khan.
This law is concerned with state power. State is powerful while individual is
weaker person. This law is related with the affairs of public functionar ies with
common public. It provides remedy to public against the wrongs or their ultra
vires. Government cannot act except in accordance to law. Government has to
seek toward the constitutional provisions, which allows to do or not to do certain
acts.
Government may interfere in the life of common man. It may cause either progress
or problem. Good governance is a form of government in which government runs
the affairs of state smoothly and upto the entire satisfaction of people.
Constitution, public, fundamental rights, rule of law, democracy, justice are
respected.
Bad or mal-governance is reverse of good governance. Dictatorship, disorder,
violation, injustice, provisional constitution order, slavery are the essential
elements of it.
Government has unlimited powers which should remain with government but use
of such powers makes government corrupt. Power should not be vested in one
hand.
Government employees or servants or public functionaries should be controlled to
avoid ultra vires. They may be restricted to commit wrongs. Administrative law
deals with it.
How the government is controlled and how the employees are made efficient?
Government is controlled by the institutions of the government. There are two
means to control them, i.e., political and legal means.
Political sources include vote, no confidence, impeachment in presidential system,
dissolution of assemblies, revolution, sedition, agitation, media either electronic
or print, articles, public meetings, editorials, reporting while legal source incl udes
writ petition. Being the student of law we are not concerned with political means.
Legal process is our area of study.
Every institution or public functionary is bound by law to act in accordance with
law or constitution. Law must support their act. A ny act of government
involving ultra vires can be got declared null and void under Article 4 of the
Constitution. Any act exceeding their powers shall be inoperative or inactive.
Acts of public functionaries include jurisdiction and justification in accord ance to
law. Government has huge power and when government decides against someone
then only law can protect individual.
If public functionary commits wrong, government institution commits ultra
vires then individual either may be torpid (dormant, silent, taciturnity) or
institutes writ petition to enforce his right. Judicial or departmental processes are
also subject of administrative law.
Mere constitution is a dead law but administrative law is spirit of constitution.
Constitution brings emerges of educational institute but administrative law
activates and keeps running such institution. Administrative law is not a law in
the sense of legislative enactment but in the form of decisions but legislative and
administrative laws have same applicability in cour ts.
There are three types of litigation such as:
1. Civil litigation in which both parties are private individuals.
2. Criminal litigation or trial in which government and individual are parties
with exception where both parties may be private individuals in the crimes which
is compound-able.
3. Administrative litigation in which individual renders government defendant
or respondent.
Individual is at option to bring writ petition when public functionary commits
wrong or violates his rights. But individual leaves not option when government
held him accused. He has to protect himself to prove innocence. A single individual
cannot protect his skin solely and here a lawyer helps him out and law profession
comes into action to aid him.
Definition administrative law: Every law, which lays down relationship
between public and executives, is called administrative law. Any law including the
law relating to all constitutional laws, statutory, bye -laws, judicial proceedings,
customs, and policies is called administrative law.
Our administrative law is not only codified but scattered. State acts through her
public functionaries. Administrative law constitutes check and balance. It protects
citizen from the cruelty of public functionaries.
To understand the administrative law, theory propounded of Montesque is
necessary to understand. According to his theory following are the main points:
1. Three functions of the government.
2. Three organs of the government.
3. Separation among them.
4. Check and balance.
They must act in their own sphere or areas. This theory limitizes the powers of
public functionaries and protects public. It has seen different changes with the
passage of time. This theory also includes separation with two provisio ns, i.e.,
power should not invest in one hand and there should be no interference to each
other. Where more power is granted there maximum applies power corrupts and
absolute power corrupts absolutely.
All organs of the government perform their additiona l functions in addition to
their original functions. It minimizes arbitrary powers reasonably.

Separation

No power should invest in one No interference to ensure check

hand & balance
Where there is democracy in truer sense there is no power invested in one hand.
There are three organs of government, which perform three functions. They each
also perform two additional functions. Hierarchy is as under:

Government

Executive Judiciary Legislature

Judicial Legislature Executive Legislature Executive Judicial

Executives perform judicial functions when they hold enquiry and
perform legislative functions when they make rules and regulations.
Judiciary performs executive functions when make appointments and
performs legislative functions when make rules and regulations.
Legislature performs executive functions when make appointments and
performs judicial functions when hold enquiry against judges or the person who
commits high treason.
Growth of administrative law: Following are the factors responsible for the
growth of administrative law:
1. Increasing responsibilities:
2. Complex legislation:
3. Complexities of judiciary:
4. Public interest in speedy decisions:
5. Law and order situation:
6. Easy methodology:
7. Good governance:
8. Economic growth:
9. Suffering of public work:
10. Law of experts:
11. Objectives of administrative law: Following are the objectives of
administrative law:
a) Control of government powers:
b) Remedy to aggrieved person:
c) Equal status of state and public:
d) Effective use of government power:
e) Public utility:
f) Determination of government and public disputes:
g) Determination of social problems:
h) Performance of administration - improvement:
i) Maintenance of Rule of law:
Growth of delegated legislation:
1. Definition:
2. Who grants such power:
3. Against separation of power:
4. Growing factors:
a) Liberty to agencies:
b) Inability of government:
c) Lack of time:
d) Lengthy process of legislation:
e) Incapacity of parliamentarians:
f) Requirement of speedy decision/urgent needs:
g) Law and order:
h) Economic growth:
i) Ever changing society:
j) Suffering of policy work:
k) Technicality:
l) Experience:
m) Complexity:
n) Flexibility:
When all organs perform functions apart from their original functions, it is called
quasi function. When constitution invests power then government cannot
intervene in quasi functions of the organs. All executive functions remain
challenge-able.
France follows Droit (legal right) Administrative law while America follows the
Administrative Procedure Act, 1947.
Law and order can be maintained by the institution against the institution. They
may adopt legal proceedings against each other. Who should be equipped with the
knowledge of administrative law? Every one has to get its knowledg e including
private sector, public limited companies, lawyers, students, general public, and
politicians etc. Observance of the administrative law is guarantee of good
governance. Understanding of the administrative law plays an important role in
the society. It leaves good gesture in society. People are not bad but bad control
makes them bad.
What is administrative law itself? Not only laws but customs, policies, rules and
regulations, executive precedents, judicial precedents are also part of
administrative law. Our administrative law is scattered. Adverse discrimination is
legal under Article 25 of the constitution. When arbitrary powers are controlled at
political level then legal method becomes useless. Arbitrary powers are invested to
Prime Minister in UK while US President is helpless before government due to
scrutinized system of USA.
Difference between Constitution and Administrative Law: Some of the
differences are as follows:

Constitution Administrative Law

Constitution Administrative Law
1. Creation of organs 1. Power to organs
Constitution just creates organs This law gives powers to
with the power of delegation. organs.
2. Dead law 2. Alive law.
It is dead law, as it does not It makes institutions active and
operate any institution. thus gives them life.
3. Law of rest 3. Law of motion
This law creates institution at It gives movement to the
once and then gets sleep. institutions once created by
constitution and keeps them
operative forever.
4. Macro level 4. Micro level
It deals all things at bigger It deals all things at lower level.
level.
5. Limited scope 5. Widen scope
It is limited in scope. It is widen in scope.
6. Skeleton 6. Entire body
It is mere skeleton and remains It is apart from the skeleton
incomplete. and makes it complete. It is
fleshy part of the body.
7. Supreme 7. Ordinary
Constitution is supreme law of It is ordinary law in nature and
the land and can cancel other cannot repeal the provisions of
inferior law but no law can the constitution.
repeal it.
8. Origin 8. S
Its origin is parliament Only administrative authority
creates it.
9. Subject 9. S
It deals with only three organs. It deals with only
administrative matters.
10. Power to delegate 10. S
Can delegate powers. Cannot relegate.
Executive function: All the functions of the public functionaries are called
executive functions. They are four in kinds as follows:

Executive Functions

Executive or Quasi Quasi Judicial

Pure Legislative Action
Administrative Action
Action

Discretionary Ministerial
Action (clerical)
Action
Administrative action: Use of discretionary power is called administrative
action. It is such action, which has choice, option, or wisdom and based upon
reason. It is also control-able in accordance to law, which is near to justice so that
no ultra vires can be committed. Powers cannot be used without procedure.
Decision, which is based on injustice or not justifiable, is declared void
(ineffective, null and void, non-operative, not binding). Discretionary actions are
liable to discuss in administrative law. What is discretion? Where a person has
option or choice from many things is called discretion and its use is called
administrative action.
Discretionary action must not be based on bias -ness. Law of suitability plays
effective role in administrative law. It mitigates the chances of corruption. A
person having high qualification is liable to be preferred. Mere seniority is not
enough criteria of judgement. If mere seniority is sole determination point then
high qualification shall become useless. A person cannot be debarred on the
grounds of high qualification. Higher qualification is not p unishment. Where
minimum qualification is merit, person of high qualification is preferable. Mere
high qualification on the perception of his revert (return to previous condition) is
not cause of rejection.
Discretionary actions are also appeal-able on the grounds of violation of
principles of natural justice. They cannot be taken blindly. Justification is the test
to use discretionary actions. If they are beyond the law, they can be challenged. All
executive functions are review-able.
Discretionary actions must follow three rules, i.e., suitability, seniority, or
election. Law binds administrator. Judicial process dominates executive functions
because executive actions are delegated and judicial process is superior.
Condition of compulsory service cannot be ordered because it forms bonded labour
which is against the law. If consideration of bond has been paid then it would be
lawful. Extra benefits provided justify it.
Ministerial action is laborious, without choice, option, and wisdom thus it is not
liable to include in executive powers. Proposal is not choice. Ministerial powers
are not subject of administrative law.
Quasi legislation: When rules are made to administer the law and order situation
within the limitation prescribed by law is called quasi legislation thus disciplinary
action is termed as quasi legislation rather than quasi judicial action. It is
secondary or departmental legislation. Rules and regulations form quasi
legislation. Incoming and outgoing timings, recess time, leave policy etc., all are
examples of quasi legislation. Assembly does not pass these laws, but merely
delegates powers of formulation of rules and regula tions to certain departments.
Quasi-judicial action: When decisions are made keeping in view of quasi
legislation, they are called quasi-judicial actions. When a person is terminated
from service, fined, punished etc. is called quasi -judicial action.
Delegated legislation: It is a legislation, which is allowed to make rules and
regulations under authority. Superior authority grants this power. Sovereign
grants this authority. It should be noted that delegated legislation power is not
liable to delegate it further. It is mere action of superior authority of law making.
Although it is against the theory of separation of power in which each organ acts
in its own sphere and do not interfere in the matters relating with other organs.
But despite of this fact, delegated legislation becomes imperative as necessary to
accomplish the needs and wants of the society.
It does not need any ratification. It may be one man rule, which comes into force
at once. Process of lawmaking is not adopted. There are two methods of
lawmaking, i.e., formal and informal.
Formal: Under this method, process of lawmaking or procedure is adopted. This is
process of legislature. Lawmaking speed is slow.
Informal: It is just one order. Under this method neither procedure nor
ratification is adopted. It is easy and comfortable method of lawmaking.
Necessity of delegated legislation: It is a modern trend and also honour that
maximum liberty be given to subordinate agencies. Since the birth of a human
being till death, everywhere administrative la w governs the entire matters of
everybody. It enlarges the role of government. It makes the role of government
also extensive. Despite of all things government remains unable to produce
requisite law to control all the routine matters.
Parliament cannot hold session regularly. It has maximum four sessions in a year.
Most of its time is passed in dealing with the matters of executive nature or
political. Parliament cannot indulge in bulk lawmaking. It is compulsion on the
part of legislation. Since parliament is handicapped and incompetent to carry on
bulk enactment so the detailed lawmaking authority is handed over to the
subordinate agencies.
No time is left for parliament for detailed lawmaking. Every enactment involves
lengthy process, i.e., presentation of bill, handing over it to standing committees,
reports, detailed consideration and discussion, voting, signature, transmission to
other house, adoption of the same procedure in the transmitted house,
retransmission to the originated house, transmitted ho use may make any
modification or suggests alterations etc. Reconsideration of bill is sometimes
considered the death of bill. This is lengthy and complex procedure of lawmaking.
Parliament cannot afford detailed lawmaking thus transfers it to administrativ e
authorities. Despite legislation of entire laws, its delegation becomes imperative
for legislation thus she transfers her powers to administration.
People who come in parliament are not generally technocrats and most of them
are landlords and fudals. They do not understand the requirement of bye-laws or
subordinate laws. They create merely skeleton or mother legislation. They are
mostly neither educated nor interested and expert in detailed lawmaking. All the
time they protect their own interests. They restrict the imposition of agricultural
income tax. They create public functionaries. Public functionaries, onward work
for detailed lawmaking. Parliamentarians assign authority to different bodies,
which they create such as Water and Sanitation Agency, Wate r and Power
Development Authority, Lahore Development Authority, Punjab University, Capital
Development Authority, Accountant Generals Office etc. Since experts run these
agencies therefore delegated legislation vests to them. They make detailed
lawmaking to run day to day affairs. This lawmaking also meets the urgent need
of the time.
Legislation remains unable to meet the needs of urgency. She does not know how
the papers of students are marked, how the water and electricity connection is
disconnected and restored, how the account in bank is opened and closed, what
shall be the rate of profit (interest) etc. Only concerned departments can make
such rules to meet their requirements.
Society is ever changing and requires up-gradation every time. It is very difficult
for legislation to meet the requirement of the society. Only relevant agencies can
fulfill this requirement therefore they are empowered to do so to satisfy the need
and wants of society rapidly.
This is the age of economics and economics need rapid decisions. Complex
lawmaking procedure cannot meet its urgent demands however it may cause
hurdle in economic growth and development. Prosperity and progress need
decisions on spot.
Indulgence of legislature in ordinary lawmaking restricts it in the policy work.
Where policy work suffers, routine work badly affects. Law of parliament cannot
be changed till its next session. In order to overcome this situation this power is
delegated. It follows easy ways to enact laws. Complex procedure is not adopted
for enactment thus it meets the urgent needs of society.
Separation of power:
1. Definition:
2. Organs of government:
a) Legislation:
b) Executive:
c) Judiciary:
3. Theories:
a) Prevention of liberty:
b) One organ and one power:
c) Non-interference:
d) Discharge of own duty:
4. Defect of separation of power:
a) Impossible apparent separation:
b) Obstruction in administrative law/growth:
c) Historically wrong:
d) Hindrance in welfare of state:
e) Obstruction in speedy legislation:
Modes of law making: There are two modes of law making. Under one mode such
power is delegated to sole authority while on the other hand body exercises this
power. These modes are categorized as formal a nd informal legislation.
1. Formal quasi legislation: Where law making power is vested to body or
group of persons and they are made bound to make law with unanimous or
majority decisions, it is called formal quasi legislation. Mother legislation vest s
this power. Rules are made in the process of formal quasi legislation. Bodies make
them. They are not made upon the wish of single person.
2. Informal quasi legislation: Where one person is authorized to make law is
called informal quasi legislation. Authority derives this power from Enabling Act.
Notification and circulars are kinds of informal quasi legislation. Lengthy process
is no requirement for the process of law making. They are, some times, made on
trial basis. Withdrawal of this quasi legislation is easy.
Classification of delegated legislation: What will be name of law enacted?
Enabling Act provides such provision whether it will be termed as rule, regulation,
bye-law etc. In certain circumstances authority is empowered to determine the
nomenclature of the law. Authority determines own at her wish. Following are the
title based terminologies, which are used to differentiate the things:
1. Rules: The term rules is defined in the General Clauses Act, 1897, as made
in exercise of power conferred by any enactment and includes regulations made as
rules under any enactment. These rules may be made applicable to a particular
individual or to the general public. It may include rules of procedure or the rules
of substantive law.
2. Orders: Under this category, general principle is laid down. This term has
two kinds, quasi-judicial decisions and legislative decisions. As far as former is
concerned, it is administrative lawmaking process while latter is administrative
action. Orders have also its two kinds, i.e., binding and non-binding. It is such type
of administrative action, which refines the policy.
3. Regulations: General Clauses Act defines the laws and nomenclatures. Rules
include the regulations. Government may make rules for detailed legislation. This
power fixes the date for the enforcement of an Act or to grant exemption from the
Act or to fix prices. Generally government departments and autonomous bodies
make regulations such as Water and Development Authority, Punjab
University, Pakistan International Airline, Water and Sanitation Authority etc.
4. Schemes: Such legislation, which gradually enforces, e.g., Wahdat Colony
scheme etc. Under this category law authorizes the administration to lay down a
framework within which the detailed administrative action is to proceed. One
package is introduced which is granted in parts. How the seats in university shall
be filled in is another instance of scheme.
5. Circulars: Banking or financial institutions issue circulars to inform public
certain actions such as National Bank of Pakistan, Central Board of Revenue, State
Bank of Pakistan etc.
6. Notifications: It is same as instructions. Government issues notification to
inform public its decision such as holidays or ban or permission on double pillion.
Financial institutions, banks, Central Board of Revenue etc. issue notifications.
7. Bye-laws: This term is used for the ruling of the semi-government
authorities established under the Acts of legislature. Local government enacts
bye-laws.
8. Directions: This rule making power may be recommendatory or mandatory.
Under mandatory, these have the force of law.
9. Instructions: Act of administrative authority in which directives are issued
is called instruction. Under this quasi legislation kind attention is diverted toward
certain issue. This quasi law making does not afford exception and has effect over
entire subjects. It is permanent in nature. All the employees having qualification
B. A. shall be given allowance of Rs. 700/- is general law thus is covered under
instructions.
10. Statute: It is Act of assembly. There are exceptions to this rule. It can also be
delegated to autonomous bodies such as Punjab University. Syndicate of every
university makes statue.
Need of distinction: Different names are used to differentiate purpose and the
agencies, which pass them. This distinction is not necessary but creates
convenience of understanding. Neither uniform formula of nomenclature nor the
specific name is binding. It is the sweet will of parliament whether she
differentiates among them or not. It is not binding on parliament to follow any
procedure for distinction. Parliament can do everything whatever she wants.
Abuse of power: When parliament gives power to subordinate agencies then it
goes against the concept of separation of power. It is general opinion that this
power may not be given to departments because they ma y exploit the people.
Rights of citizens are affected badly. People gives mandate to the elected people.
Elected people represent common people. They are generally considered
trustworthy. They take interest in lawmaking. They are accountable. They can be
questioned. Their mandate is reviewed at the time of elections. They protect public
interest. Pubic may control them. Parliament makes basic law. Parliament makes
law to hold Ph. D.
People to whom power of legislation is delegated are non -representative. They are
bureaucrats and technocrats. They are highly qualified, experienced, and skilled.
They are educationist, doctors, engineers, accountants, and lawyers, etc. Despite
the above attributes they do not take care of public interest, generally. They are
not accountable. They cannot be questioned. They do not contest in election but
undergo from selection. Public interest is no more important in discharge of their
obligations and performing duties. Public has no control over them. They create
detailed law. They frame detailed law as to how admission shall be given in Ph. D.
They frustrate the law or makes law in their own favour.
There was a Noor Khan, horse keeper, the personal servant, resident of Chakwal,
having 53 years experience, engaged with an English man during their occupancy
over Sub-Continent. English man published an advertisement stating the same
qualification meeting with Noor Khan. There was only Noor Khan who could meet
the requisite qualification. In such a way bureaucracy exploits the public . They
make schemes in such a manner therefore schemes are failed.
In Mustafa Town, residential scheme for the teachers of Punjab University was
introduced with such conditions so that opponent teacher may not get its benefit.
Therefore scheme could not get its ultimate objectives. There is no check over the
powers of administration. They do not require ratification of their enactment.
Their enactment does not undergo from different stages. Their rules are not
published and made part of cupboards.
Control of delegated legislation: There are certain checks, which control the
powers of administration with regard to delegated powers. They are as under:
1. Parliamentary control: Enabling Act of parliament provides such
provisions which delegates and controls the powers of administrative authorities.
Authorities draw their power from Enabling Act of parliament. How powers shall
be exercised and what procedure shall be adopted to exercise such powers is
provided in Enabling Act. In other means all authorities have to follow Enabling
Act in all respects which control them. This defines all procedures. Practically this
control is inactive so far.
Parliament is the superior authority in state, which makes laws. This is the
parliament, which delegates certain powers of law making to authorities through
Enabling Act. Enabling Act provides all powers, authorities, definitions, and area
to act, making the Act comprehensive. All authorities have to follow the Act.
Neither blind power is delegated nor it is left unchecke d. Conditions are imposed.
Limits are provided. Which power is not exercised in such a manner provided in
law and does not conform it, has no validity thus is null and void.
Law making is very lengthy and complex process. It involves readings, standing
committees, amendments proposed by members, voting and transmission to other
house, joint session, reconsideration, and finally assents of president etc.
Legislation cannot afford to follow this process for each and every law required to
run day to day affairs, therefore, this authority of law making is delegated with
certain provisions to avoid its abuse.
Ratification is another parliamentary control over the delegated legislation. All
authorities have to get ratified their legislation from legislature. This provision is
provided when powers are delegated. Some time no entire house ratifies it, but
merely committee of the house considers it. Simple majority is required to ratify it.
Question and answer process during the interval period in parliament is also a
check, which controls the arbitrary powers of delegated legislation. Concerned
minister has to answer the question.
Private members also can put questions and amendments before voting for
ratification. They critically examine the requirement of the law being ratified.
They may also object the contracts such as motor way, high way, and housing
schemes etc.
Private members not only put questions but also may put private bills, which is
effective control over the delegated legislation.
Motion of no confidence is another check to control arbitrary power but this
action is not taken so far in Pakistan, but as far as provision of the control of
arbitrary powers are concerned, it is a way to do so.
2. Judicial control: Personal relief to the aggrieved party is granted in judicial
process. Whoever makes writ takes the advantage of relief.
This control comes, under four categories. They are as follows:
(1) If delegated legislation is against constitution: Delegated legislation
may be ultra vires the Constitution. Legislation declares such legislation null and
void after its due consideration.
(2) If Enabling Act is against constitution: Delegated legislation may
be ultra vires the Enabling Act. This ultra vires goes against the Constitution.
Legislation declares such legislation null and void after detailed going through.
(3) If delegated legislation is against Enabling Act: An instrument of
subordinate legislation may levy no tax, fee, or other pecuniary imposition unless
the Enabling Act specifically authorizes such imposition. Where the statute
authorizes a local authority to levy tax on buildings on the basis of the annual
rental which a hypothetical tenant may pay in respect of the building, the
authority cannot make a rule authorizing levy of tax at a uniform rate according
to the floor area of the premises, irrespective of its letting value.
(4) Unreasonableness of delegated legislation: Another aspect of
substantive ultra vires of delegated legislation is the question of its
reasonableness. If the law enacted is unreasonable, courts declares it null and void
after due investigation.
3. Procedural control: Parliament lays down the procedure by which abuse of
administrative power is controlled. Procedural control mechanism h as the
potential to meet the above noted requirement by allowing specific audit of rules
by those for whose consumption they are made. Procedural control mechanism
operates in three components such as antenatal publicity, consultation, and
postnatal publicity.
(1) Antenatal publicity: It is communication to interested groups before
enactment. Publication attracts suggestions or proposals etc. What shall be
punishment of offence, what shall be examination criteria, what shall be study
hours, what shall be the degree name, are the instances in which prior
communication to interested parties is made.
(2) Consultation: Where procedure lays down the prior consultation with
potential victims, it must take place before enactment. S. 22(f) of Industria l
Relations Ordinance, 1969, provides such power to commission for the enactment
with prior consultation of government. It is a democratic process thus increases
acceptability and affectivity. Where obligatory consultation is not made,
enactment is declared null and void. President, Vice Chancellor, Federal
Government, Provincial Government has to consult with their respective bodies
before going into legislation. These institutions are presumed guardians of their
respective subjects. Answer of this consultation may contain only yes or not.
(3) Postnatal publication: Under this mode, communication to public at
large is made after the law has been made in its final shape. For example,
prospectus is provided to students before awarding the admission. It contains
laws, which have been made thus communicated to those over whom they shall be
applicable after getting admission.
Postnatal communication is a necessary element in the rule making process
because the dictum that ignorance of law is no excuse is b ased on the justification
that laws are accessible to the public.
Judicial review: General principles of law are applicable to judicial review, in
respect of executive acts. Judicial review prevents the abuse of administrative
powers. If administrative powers are abused what remedy shall be available?
Where option is available there abuse of power exists. Judicial review controls
arbitrary powers. It confines or limitizes the use of arbitrary powers. It also
ensures its fair use and provides justice against abuse, if any.
The scope of judicial review has often depended on whether a given function is
classified as judicial or administrative in nature. The functionaries of State derive
their powers from the Constitution or laws and are required to act clearly within
the defined parameters of law.
In administrative action, question whether rights are given or not arises but as far
as judicial review is concerned, right cannot be taken away. Where administrative
action takes away the right, judicial action declar es it void. Quasi action may
declare someone blacklist. Where someone is deprived from his rights, reasons are
mentioned. Someone can be terminated from service. Grant of license or induction
is vested right of administration.
In judicial process opportunity is provided to aggrieved party. Allegations are
proved on evidence. Judicial review follows procedure.
Executive action does not follow any procedure. Procedure may cause delay in
action, which may result in loss. Omission of procedure is guara ntee of expedience
of action. Embargo cannot be imposed on discretionary powers.
Judiciary can declare appointment void if irregularity is observed but cannot
name the person to appoint. Right of appointment again vests to administration.
Within limit of law, any person can be appointed. Suitability can also be preferred.
Judiciary cannot interfere in such matters. Discretionary powers solve day to day
problems. Illegality in administrative action makes it void.
1. Error of jurisdiction: When decision is made beyond the limit of law or
authority is called error of jurisdiction. Where order is made without having any
authority is error of jurisdiction.
2. Error of procedure: Where particular method is not applied in doing
particular thing is called error of procedure. Where appointment is made without
advertisement and call of applications contains error of procedure. Violation or
omission of procedure is error of procedure. Where procedure is not adopted or
wrongfully used?
a) Mala-fide: Different motives make the administrative action mala-fide.
Acquisition of land for the purpose of public benefit is right justification but its
use for commercial purpose is mala-fide. Immediate purpose if proved remote
comes under mala-fide. Where dishonesty is committed is mala-fide. Benefit given
to one on the price of loss to other is mala-fide. Transfer is the right of
administration, but transfer cannot be made for the adjustment of blue eyed
person. Where there is discrimination there is mala-fide intention.
b) Improper purpose: Anything, which is taken for specific purpose should
remain for that purpose. It should not be utilized for any purpose for which it was
taken. Specific purpose should be taken into account. If land is acquired for the
construction of grid station, it should be used for the construction of grid station.
Construction of golf club or residence is improper purpose for which land was not
acquired. If the specific purpose is not met, decision can be pronounced void. Any
act of public functionary is supposed within the limits of law. Any person, who
alleges it in contravention to the policy, should prove its illegality or improper
purpose. The power given to public functionary is administrative autonomy for
expediency. Administrative autonomy should not go beyond the limits of
law. Ultra vires can be challenged and got declared void, but remedy is not
provided. Here law does not mean the Act of Parliament but mere judicial
precedents.
c) Irrelevant consideration: Consideration of the act must be relevant. Act
must be interconnected. If a subscriber applies for the connection of telephone
connection and authority imposes condition that connection shall be provided if
he let department allow passing cable from his house is irrelevant consideration.
If college authority refuses to make card for students on the reason that sufficient
staff is not available is irrelevant. Arrangement of staff is duty of college and not
of the students.
d) Relationship of the facts to consideration: Any matter, which is being
considered, should be relevant and must have some relationship. If police can
make peaceful apprehension, use of force leads irrelevancy. If alleged accused
runs away and avoids apprehension, then police can use force to arrest hi m. Such
use of force has relationship of the facts to consideration.
e) Mixed consideration: Executive authority exercises power. Reasoning of use
of power may or may not relevant. Relief is granted where consideration is mixed
with relevancy and non-relevancy. If sewerage facility is provided due to
avoidance of public nuisance and nearness of office is termed as mixed
consideration. If sewerage is provided due to avoidance of public nuisance it is
relevant consideration. Where sewerage is provided du e to nearness of office is
irrelevant consideration. Where both considerations are put together is called
mixed consideration.
f) Ignoring relevant consideration: Where strong relevant factor is ignored
and less important factor is considered is called ignoring relevant consideration.
Irrelevant matters are taken into account rather than relevant ones. Where
societies are formed in college based on interview and experience of individuals
and the experience considered is short in the presence of long e xperience, it is
called ignoring of relevant consideration. It is challenge -able. Defective selection
is liable to announce void.
g) Colorable exercise of power: Any abuse in nomenclatures with colorable
exercise of power. Any abuse gives its own colour.
h) Un-reasonability: Every action should be reasonable. All people must be
treated equally. Treatment of one should remain with others. Equity & equality is
justice. Confirmation of employee is discretion of administration but causing delay
in confirmation without any reasonable cause is unreasonable. Also
discrimination in confirmation is abuse of power. Where other employees are
confirmed after successfully completion of probation, no one should be left alone.
i) Refusal of discretionary power: Where law gives powers but it is not used
with own determination is called refusal of discretionary power.
i) Non-consideration of the matter of the authority itself: Where higher
authority passes out of turn order to do something and lower aut hority accepts
such order irrespective of discretionary power is termed refusal of discretionary
power.
ii) Acting under dictation: Where authority having discretionary powers fails
to act upon own determination and interference of others decides matter is
denoted acting under dictation.
iii) Imposition of limitation on the discretionary powers: If the action is
taken blindly without hearing of other party is called imposition of limitation on
the discretionary powers. Where policy negates discr etion comes under this
heading.
iv) Acting mechanically: Every officer is bound to examine carefully whichever
he has to sign. If he relies upon junior and signs without examining the document
is action mechanically. Where use of mind lacks is mechanica l act. Mere
signatures are insufficient. Noting is necessary which shows consideration before
approval. Grounds of approval should be mentioned own.
3. Error of judgement: Decision by the Quasi-Judicial Authorities not based on
reason, i.e., unreasoned decision.
a) Absence of the principles of natural justice: Administrative decisions are
based on the principles of natural justice. Where these principles are not adopted,
judgement remains with error.
b) Decision made having mala-fide intention: Where judgement is made
prior to hear matter under dispute is termed mala-fide intention to pass
judgement thus void.
i) Personal interest: Where justice admits personal interest of the authority
passing it is personal interest thus it is error o f judgement. Judgement must be
without having personal interest. Personal interest weakens the essence of justice.
ii) Prejudiced: Where an employee makes complaint against higher authority
and higher authority ceases his electric or water supply, it is termed as act with
prejudice thus comes under error of judgement. It may be of two ways as under:
(1) Decision made not in accordance with law: Law is total ignored and
judgement made lacks application of law.
(2) Decision falls only on the sweet will of Quasi Judicial Authorities but not
on law: Not only law is ignored but decision is made merely on the sweet will of
the management.
(3) Abuse of administrative autonomy: Every decision by such authorities has
the respectful status in the eyes of Court except if such authorities cross the limits
of law/commits ultra vires of the law.
Judicial review of administrative action:
1. What is judicial review:
2. Why judicial review:
3. When review is made:
a) Re-delegation:
b) Acting under dictation:
c) Want of jurisdiction:
d) Irrelevant consideration:
e) Mala-fide action:
f) Improper use of power:
g) Avoid principles of natural justice:
h) Personal liking:
i) Personal interest:
4. Limitation of review:
a) Avoid replacement of administrative action:
b) Avoid imposition of opinion:
c) Confined review on question:
d) It is not appeal but circumstances:
5. Object of review:
a) Prevention of excessive use of power:
b) Protection of constitutional rights:
c) Discourage of abuse of power:
d) Establishment of rule of law:
e) Prevention of alternative legislation:
f) Preference of duty on interest:
g) Adherence of principles of natural justice:
Remedies against abuse of judgement: Whoever uses discretionary powers
either delegated legislation or rule application or quasi -judicial may abuse such
power. Law provides remedies against abuse of such powers. There are three
types of remedies, i.e., quasi-judicial, constitutional, and Ombudsman.
1. Quasi-judicial remedy: It is a remedy, which is available against the
administrative actions. It is available in tribunals and internal inquiries.
Executives itself establish tribunals. Jurisdiction of tribunal is beyond judicial
jurisdiction. They are under judiciary but judiciary does not interfere in the
matters pending therein. Appeal lies in High Court against the decisions of
tribunals.
2. Constitutional remedy: Constitutional or judicial remedy is available where
any irregularity is committed in executive and judicial matters. Five writs are
available under Article 199 of the Constitution.
3. Ombudsman remedy: This right is available where aggrieved party leaves
to institute suit in civil Court. Any individual grievance can be invoked in the
office of Ombudsman. Individual cannot approach Ombudsman directly unless he
does not approach relevant authority. Proof of application to concern ed authority
must be produced. This office has not coercive means to enforce its decisions but
mostly decisions are obeyed. Procedural law is not applicable in this office. Order
of the Ombudsman becomes the base of writ if not complied with.
Natural justice: It is a theory of law based on good consciousness, honesty,
equality, truth, uprightness, good faith, fairness, ethics, and morality etc.
According to the Osborns Law Dictionary, natural justice is defined as the rules
and procedure to be followed by any person or body charged with the duty of
adjudicating upon disputes between, or the rights of other, e.g., a government
department.
Natural justice is permanent in general. It is revealed by Almighty Allah and
preserved in Quran. It is unchangeable and beyond the formulation of man. It has
permanent values. It cannot be altered as with the man made law is.
The chief rules are to act fairly, in good faith, without bias, and in a judicial
temper, to give each party the opportunity of adequately stating his case, and
correcting or contradicting any relevant statement prejudicial to his case, and not
to hear one side behind the back of the other. A man must not be Judge in his own
cause, so that a Judge must declare any interest he has in the subject matter o f the
dispute before him. A man must have notice, of what he is accused. Relevant
documents, which are looked at by the tribunal, should be disclosed to the parties
interested. In short, not only justice should be done, but it should be seen to be
done.
A quasi-judicial authority adopts the principles of natural justice while
discharging the matters in decision making. These principles are not applicable in
courts of law. This law is binding for quasi-judicial authority. This law is exercised
during the determination of public right particularly when it is taking off. But
where the legal justice is exercised there principles of natural justice do not apply.
Where such principles are not followed, decision made by the authority is declared
null and void.
On the other hand legal justice involves the provisions of law enacted by
legislature and followed by the civil and criminal courts. It is applicable only in
courts of law and not elsewhere. It consists on man made laws which are altered
as and when required. They follow legal procedure violence of which renders them
illegal.
Procedure on natural justice: Application of natural justice remains defective if
the following procedure is not applied:
1. Notice: This is the summoning the other party. Rule of nat ural justice
includes proper notice to be served to the party, opportunity to be given to the
party of hearing and defence.
2. Communication of allegations: Allegations imposed must be communicated
to the party. No one should be surprised. Allegations should come into notice of
the person who has to defend his case.
3. Fair right of hearing: There is a maxim audi alteram partem means
hearing of the other side. No one should be condemned being unheard. It is one of
the principle of natural justice. Hearing should be detailed and opportunity of
hearing in writing should also be given. Reasonable time is given for inquiry.
Normally 7 to 14 days are given to hold inquiry. Place where hearing is to be
conducted should also be reasonable. It may either be place of working or office of
the inquiry officer. Officer of the same department should avoid holding inquiry.
Respondent is provided full opportunity to express himself. Production of
witnesses and cross-examination to witnesses is also one of the requirement of the
principles of natural justice. Opportunity of documentary proof is provided.
Unnecessary discussion is not allowed. The courts have held that giving notice to
the party concerned is not adequate in all cases. The party should also be affor ded
reasonable opportunity of producing his defence.
4. Communication of judgement: Once the case has been decided, its
communication is made to respondent. Secret decisions are not allowed. Reasons
are also communicated on which decision is made. Mer e communication of
decision is insufficient if the reasons are not attached with it. Appeal to higher
authority is made within ten (10) days.
5. Rule against bias: Judge cannot be Judge of his own cause. There are three
kinds of biases such as:
a) Personal bias: Where Judge commits favourism due to any reason certain
or uncertain is called personal bias. It may be due to personal friendship, family
relations, personal and vocational relationship, or employer and employee
relationship etc.
b) Official bias: Where proof of personal ill will lacks but abnormal desire is
proved to uphold a particular departmental policy which would prevent an
impartial adjudication of the dispute is called official bias.
c) Pecuniary bias: Where Judge himself derives some financial benefits from
the litigants, it is said that Judge cannot be qualified in such type of cases.
6. Right of higher authority: Right to investigate the case is the right of
higher authority as compare to the defendant. Inquiry officer must be senior
officer. Whoever qualifies being a senior or higher is the question of fact and not
of law. Person having equal or lower position cannot determine the rights of
others.
This is the procedure which quasi-judicial authority has to follow. Violation of this
procedure renders the decision null and void.
Remedies against quasi-judicial decision: Law prescribes following five
remedies as against quasi-judicial decision:
1. Extra ordinary judicial (public) remedy: This is also termed public
remedy or remedy of High Court and Supreme Court. Articles 184 and 199 of the
constitution govern this type of remedy. Law prescribes five prerequisites to avail
this remedy as such:
a) Locus standi: It means the person who has the right to knoc k 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. This is notable tha t only aggrieved party is capable to
avail this sort of remedies. Where some loss is proved which is not too remote but
proximate, this writ is available.
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 on ly 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.
iv) Public interest litigation: This type of remedy is different than of all. Where
aggrieved party exists but due to any problem, it is not able to put writ petition,
there any relevant party comes to assist him in litigation. Person living
in Peshawar cannot move writ petition for the aggrieved person at Lahore. It is
discretion of Court to provide remedy upon the recognition of right. Any lawyer
can move writ petition where WASA commits default in filling of pits on roads
made during line lowering. Lawyers himself are not aggrieved party in a case
where they put writ to Court for public benefit.
Mere suffering of one is person is insufficient. There must be suffering of some
other persons. Demolition of post office from the present location of Gulberg near
Home Economics College to another is one of example. Writ was issued without
remedy.
People who were suffering with the pollution arising out from Margalla Hills were
shifted to another place in result of writ made by the social society of Islamabad.
b) Alternative remedy: What a person shall do where a public functionary
commits wrong? He has to move writ for review. But writ for review cannot be
moved until the civil suit, Ombudsman, and administrative remedies are not
exhausted. Where justice is slow and expensive and no effective remedy is
available, alternative remedy fills the space. Direct approach to High Court is
discouraged. Alternative-remedy without adequate remedy is denial of justice.
Upon the commission of wrong of public functionaries, remedy provided by
Ombudsman and civil courts are not considered sufficient.
Article 199 of the Constitution and S. 9 of Code of Civil Procedure, debar to Civil
and High Court to hear case where writ jurisdiction lies to tribunal. Where
employee is bound to invoke to Punjab Civil Service Tribunal, he cannot make writ
to Civil or High Court. Direct approach constitutes contempt of Court.
c) Discretionary remedy: According to Code of Civil Procedure all suits nature
of which is civil should go to civil courts except which are expressly or impliedly
barred. Sometime judiciary recognizes the right but remains fail to provide
remedy. Dissolution of governments has always been opposed without remedy to
the government dissolved. This can also be termed remedy without remedy.
d) Doctrine of Laches: It means negligence or unreasonable delay in asserting
or enforcing a right. The equitable doctrine, that delay defeats equities, or that
equity aids the vigilant and not the indolent. A Court of equity has always refused
its aid to stale (old, dry) demands, where a party has slept upon his rights and
acquiesced (agree, comply, consent) for a great length of time. Nothing can call
forth this Court into activity but conscience, good faith and reasonable diligence,
when these are wanting the Court is passive and does nothing.
When an equitable right is analogous to a legal right, which is subject to a period
of limitation in brining actions to enforce it, the Court of equity may by analogy
apply the same provision to the equitable right.
e) Illegality not unsuitability: Only question of law, e.g., Public Functionary
posted a person to do job on rotation basis, he cannot file a petition in Court that
this job is not suitable for him. But where authority transfers a person mala-fide,
he can file petition in Court and challenge such mala-fide intention but it should
be appeared on the record.
i) Either law determines the rights and duties or not: Court can interfere
where rights and duties both are involved.
ii) Not on the question of suitability: Suitability is not the sole methodology
to determine promotion, but it can be the point of determination.
f) Relief if public functionary commits ultra vires of the law: Where public
functionary remains fail to implement law and commits ultra vires of law, he is
liable to punish.
g) Court cannot resist public functionary but in case of ultra vires of the
law: Under discretionary power of the public functionaries, Court cannot interfere
in their matters but only can divert their attention to prev ent the commission of
wrongs.
h) Court cannot replace the administrators discretion: But only on the
merit/illegal act.
i) Decision by Court only dependable on illegality by Public Functionary
and not suitability: Where public functionary commits wrong so far as legality is
concerned, Court can prevent them in doing such thing but suitability is apart
from the jurisdiction of the Court.
2. Ordinary judicial (private) remedy: Section 9 of Code of Civil Procedure
provides such type of remedy.
3. Administrative remedy: Higher authority of the same department or
organization is referred to do justice. Termination of three students
from Punjab University Law College can be referred for review to Vice Chancellor
who is the highest authority in the university.
4. Tribunal remedy: High Court is not directly approached until the higher
authority has not been exhausted before going to Court.
5. Ombudsman remedy: This remedy is available for all cases which are
individual in nature. Where case is pending in Court of law, this office is unable to
hear against such case. Parallel or simultaneously remedies are not provided.
Before going to Ombudsman, it should be proved that chance of relevant authority
has been availed.
Public remedy: Under Articles 184 and 199, no discretion is allowed. Courts are
bound to give decision. Relief may not be granted. Limitation does not matter,
either in writs and criminal cases. They may be brought in Court within
reasonable time period.
Public functionaries have right to decide cases. Courts have no right to interfere in
their functions. Court may declare their decisions null and void but in all cases,
public functionaries have to settle cases and not the courts. Also they have to
adhere the limitation of law. They enjoy administrative autonomy. They determine
suitability in public interest. Relief is granted where ultra vires are committed.
Courts do not substitute or replace the decisions of public functionaries but may
declare void.
Writs under Constitution: Public remedy means the remedy as against the public
functionaries. They are five in nature by law as follows:
1. Mandamus: It reveals from mandatory. It means, we command. A high
prerogative writ which issued in the Kings name from the High Court of Justice on
application to the Kings 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.
Under this writ, Court orders to public functionary to act in such a manner
complained. It binds public functionary by law to do certain act necessarily. If he
refuses to do, writ of mandamus is instituted. It was issued against Army Courts
during the regime of Nawaz Sharif.
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.
2. Prohibition: It is reverse of mandamus. Under this writ, Court binds the
public functionary not to act in such a way complained again st. 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.
A writ formerly issuing out of the High Court to restrain an inferior Court from
exceeding its powers. Prohibitions were of three kinds, i.e., an absolute prohibition
was peremptory, and wholly tried up the inferior jurisdiction, a temporary
prohibition (a prohibition quousque) was operative only until a particular act
was done, and was ipso facto discharged on the act being done, a limited or
partial prohibition (a prohibition quoad) extended only to that part of the
proceeding which exceeded the jurisdiction of the inferior Court, allowing it to
proceed as to the residue.
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.
3. 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.
Meaning of habeas corpus:
When in illegal custody:
When in government custody:
Order against whom: Government and private.
Who may apply: Everyone may apply for the issuance of writ of habeas corpus.
No in criminal cases:
4. 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. Constitution
of Army courts during Nawaz Sharifs regime is one of example whose nullity was
declared under this writ. Where any appointment is made without lawful
justification is also subject of this writ.
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.
5. 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 th ere has been
abuse or error, re-tried.
Every administrative action is review-able except in two cases, i.e., disciplinary
forces such as police, army, airport security force etc. and tribunal cases. In two
cases right of writ is not available.
What is certiorari: Request for the record of case. It made by a High Court to
lower court that previously reviewed the case.
Private remedy: This is also called ordinary civil remedy. When case is tried in
civil Court then remedy of High Court extinguishes. These rem edies 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. State affairs are
protected and kept concealed from disclosure. These both are also called judicial
or constitutional remedies. Rests are called quasi-judicial remedies.
District Judge has not sufficient powers to compel public functionary to produce
relevant record. High Court may require such record. Institution of suit against
public functionary is not easy job. There are three types of private remedies
available against the wrong committed by public functionaries. These can be
categorized as follows:
1. Declaration: It declares the act of public functionary void. Since the act is
wrong thus declared void. It merely declares right.
The origin of declaratory action in English law is said to be equitable. A
declaratory action signifies a judicial remedy, which conclusively determines the
rights of the parties. Any person entitled to any legal character, or to any
property, may institute a suit against any person denying or interested to deny,
him title to such character or right. And the Court may in its discretion make
therein a declaration that he is so entitled, and the plaintiff needs no in such suit
as for any further relief.
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 res trained from
continuing or commencing such wrongful act.
Federal Ombudsman: It is forum for quasi-judicial remedy. Office of the
Ombudsman does not work like tribunals. This office does nothing except
compromise as between the parties. This office just passes order compliance of
which seeks the sweet will of the department concer ned. This order just
determines rights and not their enforcement. It is not judicial setup.
Appeal: Appeal can be made against the order of Ombudsman before president.
Order of the president is considered final.
Constitution: President appoints Ombudsman for a period of five years. No
subsequent appoint is made. Status of the Ombudsman is as equal to the judges of
Supreme Court.
Qualification: He must be the Judge of the Supreme Court or qualified as the
Judge of Supreme Court.
Jurisdiction: Its jurisdiction covers all the departments of federal government.
Complaints against negligence, mal administration, corruption, inefficiency, abuse
of power, misuse of authority and processes are the areas, which are subjects of
federal Ombudsman.
Enforcement of orders: Implementation of the order of Ombudsman depends
upon the sweet will of government. This office has no direct power to enforce its
orders as tribunals have. Only the will of the government is the sole way to enforce
its orders.
Most favourite complaints: WAPDA, WASA, Education, Labour, Telephone, and
Sui Gas etc. are the most favourite department against whom public lodges
complaints usually.
Limitation: Limitation Act is not applicable for the institution of complaints
before Ombudsman. But complaint should be lodged as soon as possible. Delay
does not cause failure of administration of justice. No Court fee is applicable on
complaints.
Verification: Verification is the one of important part of the complaints lodged
before Ombudsman. It states that this case is neither pending in courts, nor this
case has been decided in courts. Here principle of res subjudice is applicable. All
the contents of the complaint are true and correct. Complaint was made to the
authority concerned for remedy but it is left without remedy.
Exemptions: Security forces are exempt to complain. Special procedure for
application is not necessary. Complaints against corporations are also cannot be
lodged. Grievance should be individual and not of the nature of public. Complaint
should be against the department and not against individual.
Annual report: Both federal and provincial Ombudsmen prepare their annual
reports and submit them before president and governor respectively.
1. Judge of own cause: There is a maxim that no one should be Judge of his
own cause. It is in contrast of the principles of natural justice. Following are the
reasons:
a) Against natural justice:
b) Personal interest:
c) Legal interest:
d) Pecuniary interest:
e) Other interests:
2. Duty of Judge: He is duty bound to transfer the case against which he has
taken cognizance.
3. Kinds of bias: Following are the kinds of bias:
a) Personal bias:
b) Pecuniary bias:
c) Subject wise bias:
i) Personal liking:
ii) Departmental bias:
iii) Act under dictation:
Consequences will ensure where natural justice is not followed:
1. Definition:
2. Principles:
a) No one should be Judge of his own cause:
b) audi alteram partem:
3. Ingredients:
a) Notice:
b) Hearing:
c) Date, time, and venue:
d) Clear:
e) Communication of allegations:
f) Communication of judgement:
g) Rule against bias:
h) Punishment only on allegations alleged:
i) Right of higher authority:
j) Authority of different department:
k) Evidence:
l) Defence:
m) Representation through advocate:
n) Right of denial:
4. Consequences:
a) Appeal shall lie:
b) Abuse of power:
c) dissatisfaction:
d) writs:
e) declaration:
f) damages:
g) injunctions:
h) remand:
i) re-trial:
Rule of law:
1. definition:
2. Sources of rule of law:
a) Constitution:
b) Customs:
c) Conventions:
d) Religion:
3. Principles:
a) Everyone is subject of law:
b) Equal:
c) In-discrimination:
d) Protection of rights:
e) Double jeopardy:
f) Retention of property:
g) Impartiality:
h) No torture for confession:
4. Defects:
a) Exception with regard to king: He can do no wrong.
b) Prerogative powers of king: He can issue passport.
c) Discretionary powers: King can give or cease citizenship.
d) Postal censorship: Letters can be checked.
e) Public Authorities Protection Act: It protects public authorities.
5. Meaning of Rule of Law:
a) Law and Order:
b) Determination of rules:
c) Extinction of discretionary powers:
d) Legal procedure:
e) Application of natural justice:
f) Review against administrative action:
g) Authority of civil court rather than tribunals: