CONSTITUTIONAL &

{ ADMINISTRATIVE LAW
Constitutions have come to be regarded as the collective consensus and

ultimate reference point of a nation’s aspirations and ideals. They are

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.

Vitality/Significance of the Constitution

This course is about the Constitutional Law and Administrative Law
of Pakistan. It is based upon a governing document, namely the
Constitution of the Islamic Republic of Pakistan, and its
interpretation by the courts, vested with the Judicial Power of the
State. Indeed, the last word on what a provision of the Constitution
or a law means rests, under the Constitution, with the Supreme
Court. Thus, for our purposes Constitutional Law means the
Constitution and its interpretation by the courts, vested with the
Judicial Power of the State, with the Supreme Court of Pakistan at
the apex

Judicial Power
 Introduction

Synopsis:

1- Growth of Administrative law

2- Nature and scope of Administrative law

3- Rule of law (Development in different nations)

4- Separation of powers

5- Droit administratif

Principle of Administrative laws

 Growth of Administrative law

Administrative law has been characterized as the “most outstanding

legal development of the twentieth century”. It does not mean that,
however that there was no administrative law in any country before
the twentieth century. Being related to public administration,
administrative law should be deemed to have been in existence in
one form or another in every country having some form of
document. It is as ancient as administration itself.

In India itself, administrative law can be traced to the well organized

as the Mauryas and Guptas, several centuries before Christ.

Principle of Administrative laws (contd.)

 Growth of Administrative law (cont.)

What the opening statement, therefore, signifies is that

administrative law has grown and developed tremendously, in
quantity, quality and relative significance in the twentieth century.
The rapid growth of administrative law in modern times is the direct
result of administrative powers and functions.

Principle of Administrative laws (contd.)

 Nature and scope of Administrative law

It is difficult to evolve a satisfactory of administrative law. The

American approach to administrative law is denoted by definition of
administrative law as propounded by the leading scholar, Kenneth
Culp Davis. According to him, 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 Sir Ivor Jennings. It determines
the organization, powers and duties of administrative authorities.

Principle of Administrative laws (contd.)

 Rule of law

Rule of law embodies the doctrine of supremacy of law. It is a basic

and fundamental necessity for a disciplined and organized
community.
“Rule of law”, said dicey in 1885, means “the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness of prerogative or
even wide discretionary authority on the part of the government”.
Dicey claimed that the English men were ruled by law and law
alone.

Principle of Administrative laws (contd.)

 Rule of law (contd.)
Another significance which Dicey attributed to the concept of rule of law
was “equality before law or the equal subjection of all classes to the
ordinary law of the land administered by ordinary law courts”. He
criticised the droit administratif prevailing in France where there were
separate administrative tribunals for deciding cases between the
government and citizens.

Dicey ignored the privileges and immunities enjoyed by crown Under

the cover of constitutional maxim that the king can do no wrong. He
also ignored the many statutes which conferred discretionary powers on
the executive which could not be called into questions in ordinary
courts. Dicey misunderstood miscomprehended the real nature of the
French droit administratif.
Principle of Administrative laws (contd.)
 Rule of law (contd.)

The principle implicit in the rule of law that executive must act
under the law, and not by its own decree or fiat, is a cardinal
principle of common law. Dicey’s analysis is his insistence on the
absence not only of “arbitrary” but even of “wide discretionary”
powers.

Principle of Administrative laws (contd.)

 Separation of powers

The doctrine separation of powers is in implicit in the American

constitution. It emphasises the mutual exclusiveness of the three organs
of the government. To this doctrine, the legislature cannot exercise
executive or judicial power; the executive can not exercise the legislative
or judicial power; and the judiciary can not exercise the other two
powers. Of course, the doctrine of separation of powers does not apply
rigorously, even in the United States, and some exceptions thereto are
recognized in the constitution itself.

The strict separation theory was dented, to some extent, when the
courts conceded that the legislative power could be conferred on the
executive, and thus, introduced the system of delegated legislation.

Principle of Administrative laws (contd.)

 Separation of powers (contd.)

The aim of the doctrine of the separation of power is to guard

against the tyrannical and arbitrary powers of the state. The rational
underline the doctrine has been that if all the power is concentrated
in one and in the same organ or person, there would arise the danger
that it may enact tyrannical laws, execute them in despotic manner.
Execute them in a despotic manner, and interpreted them in an
arbitrary fashion without any external control.

Principle of Administrative laws (contd.)

 Droit Administratif

Droit Administratif is the name given to the administrative law

prevailing in France. The system is itself the product of the doctrine
of separation of powers in the sense that judicial power is kept
separate from administrative power. The system of administratif has
resulted in non-interference by the courts in the working of
administrative authorities.

Principle of Administrative laws (contd.)

Classification of functions
Quasi Judicial is the appellation applied when and administrative body
discharges and a judicatory / judicial function.
The dictionary meaning of the word “Quasi” is “not exactly”. Quasi
judicial act is “ just in between a judicial and administrative functions”.
When there is a contest (lis) between two contending parties, and the
authority adjudicates upon the rights of parties, the authority acts in a
quasi judicial manner but presence of lis is not always necessary or
characterizing the function as quasi judicial. Even when there is no lis, and
there are no two contending parties before the concerned authority, its
function maybe characterized as Quasi judicial to act judicially.
In Ridge V. Baldwin, it was held the duty to act judicially may arise from
the very nature of the functions performed by the authorities.

Quasi Judicial
The ratio in the case of Ridge and Baldwin was approved by the Supreme
Court, in the celebrated case of Monika Gandhi. However in case of
Himachal Pradesh V. Raja Mahindra Pal, it is observed by a 2 judge bench
that the primary test of determining that an authority is quasi judicial is
whether the authority has any express duty to act judicially in arriving at the
decision. This view is, it is submitted, not correct. It ignores Ridge and
Monika Gandhi ase which holds that the duty to act judicially may arise from
the very nature of functions performed by the authority.

The Madiha Pradesh High Court held that the nature of duty to determine
whether the licency has committed any breach of terms and conditions of his
licence and whether for that reason licence should be cancelled, imposes
upon the authority the duty to act judicially and to comply with the
principles of natural justice.

Quasi Judicial (contd.)

The authority exercising quasi judicial power is not bound by guidelines
issued by a higher authority and has to take an in independent view.
It was not open for quasi judicial authority to review its decision unless
a relevant statute or statutory rules permit such a review.
A departmental proceeding is a quasi judicial proceeding and the
inquiry officer performs a quasi judicial function. An inquiry officer is a
quasi judicial authority.
Indian supreme court laid down the following principles to characterize
the functions of the authority as a quasi judicial in Indian national
congress case. The supreme court “(a) a statutory authority empowered
under a statute to do any act (b) which would prejudicially affect the
subject
Quasi Judicial (contd.)
(c) Although there is no lis or contending parties and the contest is
between the authority and the subject and (d) the statutory authority is
required to act judicially under the statute, the decision of the said
authority is quasi judicial”.
As a comment on the above formulation, it is not necessary for the
statute to say expressly that the authority is required to act “judicially”
there under. Such a duty is implied in most of the cases by the courts.
There are two important incidents of a quasi judicial functions: (a) the
concerned authority has to observe the principles of natural justice. (b)
Once a decision has been taken by the concerned authority, it can not
renew its own decision, unless it has statutory authority to do so.

Quasi Judicial (contd.)

Administrative function is to say that it is neither legislative nor a
judicative in nature. Functions which do not fall strictly within the
legislative or judicial field, and fall in residuary class, must be treated as
executive.

An administrative function deals with specific cases and is not of general

applications. In an administrative decision policy and expediency play a
role. An administrative act is the making and the issue of a specific
direction or the application of a general rule to a particular case in
accordance with the requirement of policy.

Constitution of benches of the High Court it has been held that it is and
administrative function to be performed by the chief justice and parties
need not be heard and will have no say in the matter.

Administrative function