INTRODUCTION TO

ADMINISTRATIVE LAW

Mian Ali Haider

L.L.B., L.L.M (Cum Laude) U.K.
 Twin Issue Doctrine
 Administrative law can be approached in much the same fashion as many other
law school courses.
 If you regard the field merely as a collection of discrete legal doctrines, it may
make a great deal of sense simply to memorize various general principles, to
apply those principles to a final examination, and then forget about the topic.
 The lectures / material provided can be used in that fashion A more profitable
approach, however, to truly understanding administrative law—and for
practicing administrative law—is to keep two questions in mind from the
beginning:
– (1) What are the rules of the game, both substantive and procedural? and
– (2) How may I best represent my client before an administrative agency?
 Thinking through the twin issues of doctrine and the application of that doctrine
through the lawyering process will make you a much better lawyer, even if it
doesn’t necessarily have an immediate payoff in your law school course.
 INTRODUCTION
 Constitutions have come to be regarded as the collective
consensus and ultimate reference point of a nation’s aspirations
and ideals.
 Always looked upon as the primary custodians of individual and
collective rights and the supreme arbiters in disputes between the
organs of a State.
 They are the mirror to the ideological hopes of the past, the litmus
test for the actuality of the present and the looking glass for the
future.
 The alchemy of their creation and interpretation is suffused with
politics, and the politics of a nation are greatly influenced by its
constitutional disputes.
 TRUST THEORY
 Pakistan is a Federal Islamic Republic, with a
parliamentary system of government, both at the centre
and in the provinces.
 That it is an Islamic Republic distinguishes it from
other republics, the distinction being that in Pakistan
– “sovereignty over the entire universe belongs to
Almighty Allah alone, and the authority to be
exercised by the people of Pakistan within the limits
prescribed by Him is a sacred trust”.
 This is known as Trust theory
 Pakistan is a Republic with a parliamentary form of
government implies that the system of federalism is so
designed as to accommodate the parliamentary form of
government to suit the conditions and genius of Pakistan.
 This will naturally require the noticing of the important
respects in which our system differs, say, from the British
system.
 A democratic State acts by its legislative, its executive or its
judicial authorities; it can act in no other way.
 So does the Islamic Republic of Pakistan. To ensure against
the tyranny of the accumulation of all powers – legislative,
executive, judicial – in the same hands, the Constitution of
Pakistan provides for the separation of powers or functions – a
system of tripartite federal and provincial governments
 STARTING POINT
 It has been said, and rightly, that Judicial Review is judicial power in
action.
 The power of judicial review conferred upon the Supreme Court under
Article 184 and upon the High Courts under Article 199 of the Constitution.
 Under Article 199, the power, among others, is to direct a person
performing public functions
– “to refrain from doing anything he is not permitted by law to do,
– or to do anything he is required by law to do”;
– and to declare that an act done by such a person
– “has been done or taken without lawful authority”.
 Here, we are, to a large extent, in the field of, what is called, Administrative
Law.
 Just as there is life outside the hospitals, so there is law
outside the courts.
 As Kinneth Culp Davis, known as the father of the US
Administrative Law, has observed in one of his works:
– “In all advanced nations of the world, justice is administered
more outside courts than in them”,
– by prosecutors, welfare administrators, immigration officers,
tax and customs officers and tribunals, service tribunals etc.
 Need of the time is to evaluate Administrator Law in its
constitutional context, that is, only the administrative
law aspects of judicial decisions mostly rendered by the
superior courts in exercise of the power of judicial
review under Articles 184 and 199 of the Constitution
 OVERVIEW OF ADMIN LAW
 In the broadest sense, administrative law involves the study of how
those parts of our system of government that are neither
legislatures nor courts make decisions.
 These entities, referred to as administrative agencies, are normally
located in the executive branch of government and are usually
charged with the day–to–day details of governing.
 Agencies are created and assigned specific tasks by the legislature.
 The agencies carry out these tasks by making decisions of various
sorts and supervising the procedures by which the decisions are
carried out.
 For Example DHA, LDA, WAPDA, LESCO
 Under that mandate, Agencies does two things:
– (1) it makes general …………policies (within the terms of the
statute, of course) and
– (2) it processes individual applications for, and terminations of,
…………..
 Affected persons who disagree with the agency’s decisions on either the
substance of the program or the procedures under which that program is
implemented—and whose grievances are not resolved within the agency
—are permitted to take their dispute into courts for resolution.
 Occasionally, aggrieved persons return to the legislative branch in an
attempt to persuade Parliament to alter the statute under which the social
security program functions.(USA) in Pakistan to the courts
 This is the basic model for any administrative process;
 Whether you are studying federal administrative law, a
Provincial administrative system, or even a single
administrative agency, the process of decision–making is likely
to be similar, even when the missions of the agencies differ.
 It is the unifying force of the administrative process—in
dramatic contrast to the wide variety of substantive problems
with which agencies deal—
 That has persuaded most administrative law researchers /
professors to concentrate on agency procedure rather than
agency substance
 FUNDAMENTALS OF ADMIN
LAW
 First, under our constitutional system, agencies are creatures of
the legislature.
 They do not spring up on their own, and they cannot be created
by courts.
 Agencies function only insofar as a legislature has given them
the authority to function.
 That authority may be exceptionally broad or incredibly narrow
 Federal administrative agencies are typically endowed with
broad, general powers. By contrast, state legislatures often
enact far more detailed agency statutes because of a lingering
reluctance to give state agencies unfettered power
 Whatever form a new administrative agency takes, the legislature must
enact a statute creating the agency.
 This statute, sometimes called an agency’s organic act but more
frequently referred to as an agency’s enabling act, is the fundamental
source of an agency’s power.
 This principle—that the legislature creates agencies and sets limits on
their authority—should be regarded as cardinal rule number one of
administrative law.
 Far too many people in law school and, on occasion, even experienced
practitioners, lose sight of this fundamental principal.
 A misunderstanding of this basic concept can lead to erroneous
assumptions about an agency’s ability to deal with a particular issue or
problem
 Three Sources of the Law
 Legislative
 Judicial
 Executive
– President
– Cabinet
– Administrative Agencies
 are established by legislatures, agencies and are
usually organized under the executive branch of
government, often associated with a Cabinet
position
 conduct legislative, executive, and judicial types of
activities
 exist on both federal and Provincial levels
 Examples of executive branch agencies are the
– Environmental Protection Agency
– Department of Transportation
– Federal Reserve Board
– Department of Agriculture
– Postal Service
– Civil Aviation Administration
 Because of the scope of parliamentary delegation of
authority, each agency is unique in its structure, its
personnel, and the nature of its regulations.
 Unless talking about a specific agency, administrative
agencies’ regulations and decisions must be discussed in
broad generalizations.
AN ADMINISTRATIVE AGENCY MAY BE
CALLED
– Board
 National Labor Relations Board
– Commission
 Federal Communications Commission
– Corporation
 Federal Deposit Insurance Corporation
– Authority
 Lahore Development Authority
– Department
 Department of Transportation
– Administration
 Social Security Administration
– Agency
 Environmental Protection Agency
 Role of Administrative Agencies
 Legislative: Granted rulemaking authority
– Parliament delegates authority to promulgate regulations
to administrative agencies
 Enact enabling statutes
 Establish the scope of agency authority
– Presidential Executive Order may also delegate authority
to promulgate regulations to administrative agencies.
 Judicial: Parliament may also grant power to hear and settle
disputes arising from the regulation or the enabling statute.
 Executive: Parliament may also grant power to investigate
and prosecute violators of regulations.
 Role of Administrative Agencies
The Securities and Exchange Commission is an example of
an agency with powers similar to those of all three
branches of government
– Legislative: promulgates regulations governing what
information must be given to investors.
– Judicial: conducts hearings to determine guilt and mete
out punishment to violators of these regulations.
– Executive: enforces these regulations by prosecuting
violators by disciplinary actions and stop orders.
Outcomes of agency actions include

– Rules or regulations (the two words are used

interchangeably), which have the same effect as statutes
– Licenses, which include permits, certificates, other
types of permission
– Advisory opinions, which are authoritative
interpretations of statutes and regulation but are not
binding
– Orders, which are the final disposition of any agency
action, other than rulemaking
– Decisions, which adjudicate controversies arising out of
the interpretation of statutes or regulations; they are
issued in the same manner as court decisions
Comparison of the Roles of Statutes and Regulations

STATUTES REGULATIONS
 Passed by Parliament  Issued by agencies
 Provide for broad social  Get their power from
Parliament
and economic goals and
legal requirements  Prescribe specific legal
requirements to meet
 Get their power from the Parliamentary goals
Constitution  Reviewed by courts to
 Reviewed by courts for determine constitutionality,
constitutionality limits of delegated
 Representative authority, and whether they
are arbitrary and capricious
democracy- Parliament
acts to represent the will  Participatory democracy –
agencies must seek and
of the people
consider public comment
The Process of Promulgating Regulations
(Rulemaking)
The initiative behind promulgation of a new regulation or a
change in a regulation can originate from many sources,
including
– legislation that delegates authority
– Parliamentary hearings and reports
– court orders
– Executive Orders and Office of Management and
Budget Circulars
– agency acting on its own initiative
– emergency situations, technological developments, etc.
– political pressures
– Federal Advisory Committee recommendations
– petitions and informal requests from affected parties
 ADMIN LAW IN CIVIL LAW
 Unlike most Common-law jurisdictions, the majority of civil law
jurisdictions have specialized courts or sections to deal with administrative
cases which, as a rule, will apply procedural rules specifically designed for
such cases and different from that applied in private-law proceedings, such
as contract or tort claims.
 In France, most claims against the national or local governments are
handled by administrative courts, which use the Conseil d'État (Council of
State) as a court of last resort. The main administrative courts are the
"Tribunaux Administratifs" and appeal courts are the "Cours
Administratives d'Appel".
 Administrative law in Germany
called“Verwaltungsrecht”de:Verwaltungsrecht (Deutschland), generally
rules the relationship between authorities and the citizens and therefore, it
establishes citizens’ rights and obligations against the authorities.
 GLOBAL ADMIN LAW
 Global administrative law is an emerging field that is based upon a dual insight:
 That much of what is usually termed “global governance” can be accurately
characterized as administrative action;
 and that increasingly such action is itself being regulated by administrative law-type
principles, rules and mechanisms – in particular those relating to participation,
transparency, accountability and review.
 GAL, then, refers to the structures, procedures and normative standards for
regulatory decision-making including transparency, participation, and review, and
the rule-governed mechanisms for implementing these standards, that are applicable
to formal intergovernmental regulatory bodies;
 The focus of this field is not the specific content of substantive rules, but rather the
operation of existing or possible principles, procedural rules and reviewing and other
mechanisms relating to accountability, transparency, participation, and assurance of
legality in global governance
 President

Executive
Order Congressional Judicial
Delegated Oversight Review
Authority

Parliament Agency Agency Agency

Public Federal Federal

Law Register Register Code of
(Enabling Federal
Statute) Proposed Final Regulations
Delegated Authority Regulation Regulation

Public Comment
CONCLUSION