Administrative Law.pptx

Administrative LawDefinition, Scope, Functions

Organs of the State

Legislature: A selected body of people with the power to make, amend and repeal laws.

Judiciary: The court system and judges considered collectively.

Executive: That branch of government which is responsible for enforcing laws and judicial decisions, and for the day-to-day administration of the state.

Public Administration

Public administration is the executive function of the government.

It can be defined as the activity or process of administering public affairs and carrying out governmental functions.

Examples of PA practices; Maintaining peace and order Processing of claims Building roads and bridges

Delegated Legislation

A legislative body is best suited to determining the direction of major policy, but it lacks time, technique and expertise to handle the mass of detail. The legislature has to content itself with laying down broad policies and to leave the rest to administration.

The administrative organ exercises legislative power and issues an excess of rules, bye-laws, and orders of a general nature which are designated as delegated legislation.

Introduction to Administrative Law

In the field of law, the most significant and outstanding development of the 20th century is the rapid growth of administrative law. It does not, however, mean that there was no administrative law before this century. Since many years it has been very much in existence. But in this century, the philosophy as to the role and function of the state has undergone a radical change. There was increase in governmental functions. Today, the state is not merely a police state, exercising sovereign functions, (protecting the population from external aggression and from internal strife and for this collecting taxes from the people)

Introduction to Administrative Law

but as a progressive democratic welfare state, it seeks to ensure social security and social welfare for the common man, regulates the industrial relations exercises control over production manufacture and distribution of essential commodities; starts many enterprises, tries to achieve equality for all and equal pay for equal work. Today, the state is required to look after the health, and morals of people, provide education to children and takes all the steps which social justice demands. All these developments have widened the scope of administrative law.

Defining Complex Term of "Administrative Law"

It is indeed difficult to evolve a scientific, precise and satisfactory definition of administrative law. Many jurists have attempted to define it. But none of the definitions has completely defined the nature, scope and contents of Administrative Law. Either the definitions are too broad and include much more than what is necessary or they are too narrow and do not include all the necessary contents.

Definition by Ivor Jennings

Ivor Jennings provided the following definition of the term "administrative law".

According to him, "administrative law is the law relating to the administrative authorities".

This is the most widely accepted definition.

Definition by Prof. Wade

According to Wade any attempt to define administrative law will create a number of difficulties. But if the powers and authorities of the state are classified as legislative, administrative and judicial, then administrative law might be said, "the law which concerns administrative authorities as opposed to the others".

Definition by Jain and Jain

According to Jain and Jain, "Administrative law deals with the structure, powers and function of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the method by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation".

Definition by Jain and Jain

Administrative law, according to this definition, deals with four aspects:-

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

2. It fixed the limits of the powers of such authorities.

3. It prescribes the procedures to be followed by these authorities in exercising such powers and,

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

Definition by Griffith and Street

According to Griffith and Street, the main object of Administrative law is the operation and control of administrative authorities, it must deal with the following three aspects:-

1. What are the limits of those powers?

2. What sort of power does the administration exercise?

3. What are the ways in which the administrative is kept within those limits?

Definition by Garner

According to Garner, administrative law may be described as "Those rules which are recognized by the court as law and which relates to and regulate the administration of government."

Scope of Administrative Law

In order to determine the scope of administrative law we must come to grips with two concepts

1) The separation of powerAt the core of the idea of separation of powers are two basic propositions

(a) The prevention of concentration of power in to hands of one institution or individual

(b) The exercise of power should be subject to some external checks and balance


2) The rule of law

(a) Absolute supremacy of Law

(b) Equality before the Law

All are bound to follow the same law


Administrative law specifies the rights and liabilities of private individuals in their dealing with public officials and also specifies the procedure by which those rights and liabilities can be enforced.

It provides accountability and responsibility in administrative functioning


In order to determine the nature and scope of administrative law, it is imperative to know what it deals with.

Administrative Law deals with:1) The structure, powers and the function of organs of administration

2) The limit of their power and functions


Administrative Law deals with: (Cont.)

3) The methods and procedure followed by the organs of administration in exercising their power and functions, and

4) The methods by which their powers are controlled, including the legal remedies available to any persons when their rights are infringed by their operation.

History

• Administrative law has been categorized as one of the most outstanding legal development of twentieth century.

• According to Parker “since Administrative Law is the law that governs, and is applied by the executive branch of government, it must be as old as that branch”.

• It was considered appropriate that the state should take interest in promoting the conditions of ordinary citizens. From then onwards responsibility & functions of the state were increased so much.

• The increase in state activates increased the work of all state organs i.e. the legislature, judiciary & executives.

• The administrative organ, therefore, was considered to be paramount importance in the machinery of government.

• Administrative law received much attention in almost all the developed & democratic countries of the world.

U.S.A

• The pioneer work on administrative law has been done by three men continuously - Goodnow of Colombia, Ernst of Chicago & Felix of Harvard.

• In America Administrative Law was in existence in the 18th century.• The first Administrative Law was embodied in the 1789 Statutes.• This law, with the passage of time, grew quite rapidly & various books on

this topic were published, e.g. “Comparative Administrative Law” published in 1893. Another book published in 1905 on the “Principles of Administrative Law of the United States”.

• The evolution process of administrative law. Ultimately, reached the creation of formal code of law namely the administrative Procedure Act 1946.

• This Act was enacted by the Congress & approved by President Truman in 1946.

Pakistan

• Administrative Law as we know it or study it today was not in existence in the Indian Sub-continent. British rule were prevailing & remained from 18th century to 1947, even than after independence, in 1947.

• The first Constituent Assembly of Pakistan passed the Prevention of Corruption Act. The prime aim for such legislation was to control the malpractices in the Administrative region.

• For many years the superior Courts of Pakistan administered administrative Law in addition to their appellate jurisdiction over Civil & Criminal cases.

• On 28th February 1970 Justice Cornelius in his address to Lahore High Court Bar Association, determined the scope of judicial review of administrative action.

• The first ever start, took place, towards the introduction of Administrative law & the establishment of Administrative Tribunals, when the interim Constitution of 1972 was embodied with the provision for the establishment of administrative Courts & Tribunals.

Introduction toAdministrative Law

Administrative law started taking place in 19th century. Before that, it was present in many countries, in one form or other, whether its existence was formally recognized or not.

Administrative Law is normally called 20th century phenomenon, as its philosophy to role and function, of the state experienced a radical change.

From legal point of view it is concerned with the roles and constitutional positions of public authorities.

It is also concerned with the powers and duties of administrators, with their legal relationship with one another, with the public and their employees.

Pakistan

The first ever start, took place, towards the introduction of Administrative Law, was in 1972 ,with the provision for establishment of Administrative Courts and Tribunals.

Introduction toConstitutional Law

By the 18th century, Constitutional Law emerges with more clarity and strength.

This is where the constitutional law is stabilized and becomes the Constitutional Law to know today;

A law protecting human rights Base State Protector of social, cultural, religious and

fundamental rights

Difference between Administrative & Constitutional Law

Both branches are part of public law and concern with the organization and function of government.

There is a difference in their nature and application. However, the dividing line between the two

branches is the matter of convenience. Constitutional Law deals with the individual’s

rights. Administrative Law lays equal stress on public

needs.

Administrative Law

Administrative Law deals with public administration.

It determines the organization, powers and duties of executive authorities.

It sets limits to their powers and functions. It deals with the methods and procedures

followed by the executives in exercising their powers.

Constitutional Law

Constitutional Law deals with the distribution and exercise of the functions of the government.

Constitutional Law relates to the topics like, method of choosing the president and his powers, the establishment of legislative and adjudicating bodies, their functions, the tenure and appointment of judges, status of ministers and position of civil servants, the armed forces, treaty making powers, citizenship, specifications of electoral boundaries, civil liberties and procedure for amending the constitution.

Salient Features of Administrative Law

Seeks to adjust relationship between the public power and personal rights.

Deals with the structure, power and functions of the public administration.

Deals with the methods and procedures followed by the executives in exercising their power

Salient Features of Administrative Law

Concerns with the ruling on regality of the exercise of public powers.

It desires for consistency of principles and to give the citizens the utmost legal protection

Definition of Rule of Law

1. Everything must be done according to law.

2. Government should be conducted within the framework of recognized rules and principles and must be able to justify its actions authorized by law.

3. The judges will settle the disputes regarding the legality of acts.

4. The government should not enjoy unnecessary privileges or exemptions from ordinary law.

Supremacy of Law

1. Absence of arbitrary power

No one is to be punished except for a distinct breach of law established in the ordinary legal manner before the law courts of the land.

2. Equality before law

All men should be treated equal without any discrimination of color, race or affiliation to any distinguished class or group.

3. The rights of citizen

The rights of the citizens ought to be secured and guaranteed by some positive and enforceable provisions of law.

Declaration of Dehli, 1959

Establishment of the civil rights as well as the social, economic, educational and cultural conditions.

Existence of effective government capable of maintaining law and order and emphasis on the need for government to pay heed to the welfare of the individual.

An independent judiciary and free legal profession are indispensible requisites of a free society under the rule of law.

Rule of Law: Main Features

Separation of powers between the major organs of the government.

Defined authority and power through the constitution.

Preservation of the basic and fundamental human rights.

The existence of proper functioning of sovereign and truly representative legislature.

Independence of judiciary. Judiciary will determine remedial action if any transgression of the law occurs.

NATURAL JUSTICE

Natural justice is also known as “substantial justice”, ”fundamental

justice” and “universal justice”.

Introduction

Natural Law is based on natural ideals and values which are universal. In the absence of any other law, the Principles of Natural Justice are followed.

Earliest form of natural law can be seen in Roman expressions. It is used interchangeably with Divine Laws and the common law of nations.

The Principles of Natural Justice are considered basic human right because they attempt to bring justice to the parties naturally.

Factor required for natural justice

(a) To be presented with the entirety of the case - good, bad or indifferent

(b) To be afforded adequate time to consider those allegations.

(c) To be given an opportunity to reply to same.

(d) To have such representations heard in an impartial manner by the management

Rules of natural justice

The Hearing Rule This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker


The Bias Rule

This second rule states that no one should be a judge in his or her case. This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.


The Evidence Rule

The third rule is that an administrative decision must be based upon logical proof or evidence material.

Benefits of natural justice

Assists the decision maker in reaching the correct and preferable decision.

Provides the decision maker with relevant information.

Provides a useful avenue for the decision maker to ensure that the facts or information that he/she is relying on is correct.

Exposes any weaknesses in the decision-making process, information or evidence on which a decision is to be based.

The comments or submissions made by the person or organization may provide advance warning.

The Doctrine of Ultra Vires:

The doctrine of Ultra Vires stands for the acts, which are for any reason in access of power, are often described as being outside the Jurisdiction

Professor Wade declares “any administrative Act or Order, which is ultra vires or outside jurisdiction, is void in Law”. This is because validity of any order or administrative action needs statutory authorization, and if the order or action is not within the prescribed legal limits, then it has no legs to stand on.

Action null and void for being ultra vires

David Foulkes has given certain grounds that vender the administrative action null and void for being ultra vires. Following are the grounds:

An act may be ultra vires if it is done by a wrong person. He who has had powers delegated to him cannot sub-delegate them to

another. Where the person or body doing an act has not been properly appointed or

constituted. Where a power is expressly or impliedly given for one purpose, an

exercise of that power solely for another purpose is invalid. The exercise of power will be invalidated where irrelevant considerations

are taken into account or relevant considerations are neglected. Bad faith is clearly a ground for attacking the exercise of any power.

Additions

The doctrine of ultra vires, as mentioned earlier, enables the courts to control the unlawful acts of public administrators.

The courts have, therefore, constructed their system for the judicial control of administrative powers by stretching the doctrine of ultra vires.

All the executive agencies of democratic countries are run by delegated legislation, where the parliament delegates its power of rule making to the executive agencies.

It is accepted in almost all the democratic countries that the courts can decide the validity of delegated legislation.

Substantive ultra viresProcedural ultra vires

Doctrine of ultra vires is in fact is a scale for the measurement of delegated legislation, its validity and the proper observations of procedure created by the said legislation, The doctrine is of two kinds:

1. Substantive ultra vires.

2. Procedural ultra vires.

The Substantive ultra vires deals with the situation where the executive authorities enact laws or rules, for which they are not authorized by the parliament to enact.

The Procedural ultra vires means, when the authorities fail to comply with or follow the procedural requirement prescribed by the statutes.

Additions

According to Grifith and Streets the principle of substantive ultra vires is a body of jurisdictional facts. If a statute confers jurisdiction on an administrative body in certain defined factual situation, and if an essential fact on which the deciding authority’s jurisdiction depends is absent, then anY exercise of that jurisdiction will be void.

An administrative agency, therefore, will act if it fails to take all proper considerations into account or if it has taken the wrong matters into consideration in arriving at its decision, the act of such agency will be ultra vires and so will be the act of a body where the powers are not exercised according to the procedure that has been specified by the legislature.

Administrative Action

All transactions arising out of administrative process, whether in the form of administrative directions, instructions or functions, can be broadly described as administrative action.

Classification of Administrative Action1. Rule-making action or quasi-legislative action

2. Decision-making action or quasi-judicial action

3. Rule application action or administrative action

4. Finality of administrative action

1) Rule-making action orquasi-legislative action

When an administrative authority exercises law-making power delegated to it by legislature, it is known as a rule-making action of the administration or quasi-legislative action.

Example; Agencies with authority over environmental matters may

pass rules that restrict the rights of property owners to alter or build on their land;

Departments of revenue may pass rules that affect how much tax a person pays

Local housing agencies may set and enforce standards on health and safety in housing

2) Decision-making action or quasi-judicial action

A large number of decisions that affect a private individual are not handed down by the courts but are given by the administrative agencies who exercise powers, such as a tribunal board, which has powers and procedures resembling those of a court of law or judge.

A decision-making action or quasi-judicial action is specifically based on the facts of a case and declares a pre-existing right.

3) Rule Application Action or Administrative Action

Rule application action or administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is free of generality. It has no procedural obligations of collection evidence and weighing arguments. It is based on subjective satisfaction where a decision is based on policy . It does not decide a right though it may affect a right.

An administrative action may either be statutory or non-statutory.

Example; Issuing directions to subordinate officers, not having the force of

law. Making a reference to a tribunal, for which they are not

authorized.

4) Finality of administrative action

Generally, a clause is inserted in the statute by which the actions of an administrative authority are considered final. Such a clause has been given various names, i.e. finality clause, exclusion clause, conclusive clause etc.

No specific generalization is possible as to the manner in which administrative actions are made final.

No finality clause contained in any statute and expressed in any language can bar the judicial review available under the constitution.

What is Judiciary ?

The JUDICIARY ( also known as the Judicial System) is the system that interprets & applies the law in the name of the state.

The judiciary also provides a mechanism for the resolution of disputes.

The term “Judiciary “ is also used to refer collectively to the personnel, such as Judges, Magistrates & other adjudicators, who form the core of the judiciary.

What is Judiciary ?

It usually consists of a court of final appeal called the Supreme Court together with lower court.

The courts functions as custodian & guardians of the rules of the law values.

Role of Judiciary

The main role of judiciary in the society is to maintain the check & balance.

Ensuring equal justice under law to every one. Under the doctrine of the separation of powers, the

judiciary generally does not make law or enforce law, but rather interprets law & applies it.

Judicial Control over Administrative Law

Judiciary made a distinct effort in the transfusion of its norm in civil bureaucracy.

The efforts of the judiciary to work out the basic principles of Administrative Law is a worth mentioning development within the frame work in public administration.

Judicial Review

In many jurisdictions the judiciary has the power to change the law through the process of judicial review.

Judicial review is the system under which legislative and executive actions are subject to review by the judiciary.

Judicial Review

It is almost common in all civilized countries to allow judicial review when fault is found with administrative action.

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Administrative Law.pptx

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