Lecture_6_Administrative_Law.ppt
- 1. ADMINISTRATIVE LAW Mirza Faran Baig
- 2. VI. Administrative Law Meaning, Scope and Significance; Nature and Contents of Administrative Law, Administrative Ethics, Delegation of authority and Legislation, Administrative Tribunals; Administrative Law- Pakistan.
- 3. INTRODUCTION
- 4. INTRODUCTION Administrative Law is that portion of law which determines the organization, powers and duties of administrative authorities. According to Dicey Dicey has defined administrative law as denoting that portion of a nation’s legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced.
- 5. INTRODUCTION Mr. M.J Fort of England defined administrative law for the first time in the year 1929 in his book on administrative law stating that: “Administrative law is that portion of law which is traced in rules, regulations, notifications, order, bye-laws, schemes, circulars etc. and are also implicitly found in the prerogatives with an object to fulfill public law.”
- 6. It is the law relating to the control of powers of the government. The main object of this law is to protect individual rights. Rules which are designed to ensure that the administration effectively performs the tasks assigned to it. Principal objective of Administrative Law as ensuring governmental accountability, and fostering participation by interested parties in the decision- making process
- 7. NATURE, SCOPE & CONTENTS OF ADMINISTRATIVE LAW
- 8. NATURE & SCOPE OF ADMINISTRATIVE LAW Object of the study of administrative law is to keep administrative authorities within their limits so that the discretionary powers may not be turned into arbitrary powers. Kennith Culp Davis divided Administrative law in three parts: The powers vested in administrative agencies; The requirements imposed by law upon the exercise of those powers; and Remedies available against unlawful administrative actions.
- 9. In modern welfare state the individual is affected in many ways in the name of “Public Good” & “Public interest”. To provide adequate remedies when one’s rights are infringed by the executive authorities. Administrative law is instrument that can be used for the maintenance of the balance between power and justice. Scope according to Massey: The study of administrative law is not an end in itself but a means to an end. The focal point of this law is the reconciliation of power with liberty. The main task of administration law is to maintain an ideal equilibrium between the powers of administration and the dictates of the individual liberty.
- 12. Delegation of Authority and Legislation
- 13. SUBORDINATE LEGISLATION The legislative process was also inadequate. It had no time and technique to deal with all the details. It was impossible for legislature to lay down detailed rules and procedures When detailed provisions were made by the legislature, they were found to be defective and inadequate, e.g., rate fixing.
- 14. Delegation of powers to the administrative authorities. Courts decide cases with formality and technicality. The administrative tribunals are not bound by rules of evidence and procedure They can take a practical view of the matter to decide complex problems. Administrative authorities can take preventive measures, e.g. licensing, rate fixing, etc.
- 15. Do not to wait for parties to come before them with disputes. Preventive actions may prove to be more effective and useful Rather than punishing a person after he has committed a breach of any provision or law. Freeman says, "Inspection and grading of meat answers the consumer's need more adequately than does a right to sue the seller after the consumer is injured.“
- 16. ADMINISTRATIVE LAW IN PAKISTAN
- 17. ADMINISTRATIVE LAW IN PAKISTAN No legislation enacted either by the parliament or state legislature exclusively on administrative law. The main sources of administrative law are Rules Regulations Orders Notifications Bye-laws
- 18. ADMINISTRATIVE LAW IN PAKISTAN Schemes Governmental resolutions Memorandums Department circulars Various Tribunals and quasi judicial bodies There are also legislations which provide for the establishment of tribunals e.g. National Tribunals, Industrial Tribunals and Labour Courts.
- 19. Administrative law is not a codified law Like Contract Act, Penal Code, Transfer of Property Act, Evidence Act, Constitution of Pakistan, etc. It is essentially an unwritten, uncodified law. It has developed slowly in the wake of factual situations before courts. In a welfare State, administrative authorities are called upon to perform not only executive acts, but also quasi-legislative and quasi-judicial functions. It has its origin in need and necessity in protecting personal rights and in safeguarding individual interests. ADMINISTRATIVE LAW IN PAKISTAN
- 20. CAUSES OF RISE ADMINISTRATIVE LAW
- 21. Urbanization Industrial Revolution need for increase in providing Housing Roads Parks Effective drainage system etc. Legislations were enacted for provision of above Administrative authorities were required to Make rules and regulations Frame schemes for effective infrastructure and facilities To meet Emergency Situations CAUSES OF RISE ADMINISTRATIVE LAW
- 22. Enacting legislations is a lengthy process Easy and quick to frame schemes and rules for meeting emergency situations Due to the flexibility of making the rules there is a constant growth of administrative law There is scope for experiments in administrative process Legislation is rigid in character while the administrative process is flexible. The judicial system proved inadequate to decide and settle all types of disputes. It was slow, costly, inexpert, complex and formalistic. Industrial tribunals and labor courts were established, which possessed the techniques and expertise to handle complex problems.
- 23. Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures Suspension Revocation Cancellation of licenses Destruction of contaminated articles, etc. Which are not generally available through regular courts of law
- 25. NATIONAL ACCOUNTABILITY BUREAU (NAB) It extends to the whole Pakistan. Effective measures for the detection, investigation, prosecution Speedy disposal of cases involving corruption Corrupt practices, misuse/abuse of power misappropriation of property Kickbacks Commissions Recovery of outstanding from those persons who have committed default
- 27. Establishment of Ombudsman To check maladministration Simple and transparent enquiry procedure No need for a lawyer No cost to the complainant Usually decides in favor of the public
- 28. Thank you
- 29. Need of administrative reforms felt because the increase of state functions. The aristocratic style of doing things has intensified the practice of despotism & the centrifugal tendencies. The power hungry administrators do not immerse themselves in departmental setting. Kennedy: Administrative system of Pakistan firmly adheres to conceptual dichotomy between staff and line officers. Lippmann: Examined the role of an administrator in a liberal social setting. Administrative Reforms
- 30. Ivor Jennings gave most widely-accepted definition Administrative Law is the law relating to the administration. It determines the organization, powers and duties of the administrative authorities. According to Griffith and Street, there are three difficulties: It does not distinguish administrative law from constitutional law For the law which determines the powers and functions of administrative authorities may also deal with the substantive aspects of such powers, e.g. legislations relating to public health services, houses, town and country planning, etc.; but these are not included within the scope and ambit of administrative law. It does not include the remedies available to an aggrieved person when his rights are adversely affected by the administration. There is scope for experiments in administrative process. Here,
- 31. Govt. Initiatives in administrative Reforms After Independence, experts, local & foreign, high powered commissions and committees, extensively studied problems sector of spectrum of administration. Sir Victor Turner the than Finance Secretary headed the committee for re-organization of governmental functionaries (1947). 1949, Pay Commission constituted headed by Justice M. Munir (Standards of remuneration – Munir Report). In 1952, K.S. Jeffries (UK) requested to prepare a report on Development of Organization & methods of work. In 1953, Rowland Egger (USA) prepared report for the improvement of Administrative Sector in Pakistan.
- 32. Govt. Initiatives in administrative Reforms In 1955, Bernard L. Gladieux submitted a report on reorganization of administrative machinery of Pakistan. Mr. G. Ahmad was deputed to make suggestions about the organizational structure, functions & procedures of the ministries, departments & subordinate offices. He submitted report in 1956 & 1961. In 1962, the then Finance Minister M. Shoaib worked on revival of functional and structural organization of Public Administration at Federal Level. (based on 1962 Constitution) In 1969, Justice Fazle Akbar Chairman on Regional Administrative Reorganization. Justice A.R. Cornelius headed the Committee for Services Reorganizations (1970).
- 33. Govt. Initiatives in administrative Reforms In 1972, Zulfiqar Ali Bhutto constituted Administrative Reforms Committee, Khurshid Hassan was the chairman, Required to review the proposal/recommendations already present to chalk out an action program of administrative reforms (report submitted in 1973). It is renowned as Civil Service Reforms 1973. In 1979, Justice Anwar ul Haq (Chairman Civil Service Commission of Pakistan) submit report on reorganization of civil service & other related matters. In mid 90s, Justice Dorab Patel, to develop & implement the good governance reforms agenda (named as “Good Governance Group”). In 1999, Nawaz Sharif Govt. issued “Strategy for improving Governance”
- 34. UNITED STATES OF AMERICA In USA the following are the sources of administrative law: Administrative Procedure Act, 1893 Statutory Instrument Act, 1946 Federal Tort Claim Act, 1947 The Tribunals and Enquiries Act, 1958 The Parliamentary Commissions Act, 1962 Apart from these legislations, the Constitution of USA is also considered as a source of administrative law in addition to the judgments delivered by the U.S Supreme Court
- 35. UNITED KINGDOM The sources of administrative law in the UK are: Rule Publication Act, 1946 Federal Torts Claims Act, 1947 etc. In the UK, since there is no written constitution, the bulk source of administrative law is derived from the decisions delivered by the superior courts, the customary practices that are followed in the course of administration and so on.
- 36. According to Massey: “Without a good system of administrative law any society would die because of its own administrative weight like a Black Hole – which is dying neutron star that collapses due to own gravity. Administrative law, therefore, becomes the body of reasonable limitations and affirmative actions parameters which are developed and operationalized by the legislature and the Courts to maintain and sustain a rule of law in society.”
- 37. According to Kennith Culp Davis, “An administrative agency is a governmental authority, other than a court and a legislature which affects the rights of private parties either through administrative adjudication or rule-making” “Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.” According to Professor Upendra Bakshi of India “Administrative law as that portion of law which controls the abuse of powers by the administrative authorities so as to protect the rights of individuals”
- 38. The most significant and outstanding development of the 20th century is the rapid growth of administrative law. Though administrative law has been in existence, in one form or the other, before the 20th century, the philosophy as to the role and function of the State has undergone a radical change. The governmental functions have multiplied by leaps and bounds. Today, the State is not merely a police State, exercising sovereign functions, but as a progressive democratic State, It seeks to ensure social security and social welfare for the common man, regulates the industrial relations, exercises control over the production, manufacture and distribution of essential commodities, starts many enterprises, tries to achieve equality for all and ensures equal pay for equal work.
- 39. SOURCES OF ADMINISTRATIVE LAW In few legal systems, there are statutes laying down rules, principles and procedures to be followed by administrative agencies. But even in absence of specific enactments dealing with a particular situation, certain fundamental rules, basic principles and minimum requirements of law are well settled and all authorities are bound to observe them. A person adversely affected by any action of an administrative authority has right to challenge such action in an appropriate body or a court of law.