1 Complete Notes of Constitutional & Administrative Laws

5TH SEMESTER



TO BE STUDIED DURING THE SEMESTER

FOLLOWING CONSTITUTIONAL AND ADMINISTRATIVE LAWS ARE BEING
GOVERNED IN PAKISTAN:

AFTER MID-TERM:
1) Legal System of Pakistan
2) Constitutional Law Preamble, Fundamental Rights & Principles of Policy
3) Historical Growth and Development of Administrative
4) Factors Responsible for growth of Administrative Law
5) Administrati ve Action / Delegated Legislation
6) Judicial Review of Administrative Action i n Pakistan
7) Law of Writs
8) Rule of Law
9) Separation of Powers
10) Public Interest Litigation
12) Ombudsman
AFTER MID-TERM:
11) Principles of Natural Justice
Audi Alterm Partem
Nemo Judex In Causa Sua Justice not be done but seems to be
done
OR
Nemo Debet Esse Judex In Propria Cause, Judges should be above
suspicion
Orders must be speaking

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AFTER MID-TERM


NORMS OF NATURAL JUSTICE & ITS EXCEPTION / EXCLUSION:

Meanings of Administrati ve Law:

1) Mozley and Whiteley s Law Dictionary
Administrative Law is the body of laws which deals with the powers of executives
or administrative organs of state. It relates to their judicial and quasi judicial
power.

2) Sir William Ivor Jennings
Administrative law is the law relating to the administration. It determines the
organizations powers and duties of administrative authorities.

Exceptions of Natural Justice:
Personal hearing where law expressly negates.
1) Where law is expressly negates the right of personal hearing that no application
of Audi Alteram Partem. For example, an organization mixed its bye laws and in
the written that if any executive member does not attend any consecutive
meetings, will be dismembered without giving an opportunity of being heard.
2) This principle is not applied while doing legislation:
2.1 Determining the rate of taxes
2.2 Fixing prices while enhancing prices
2.3 Making and amending new laws
3) If an enquiry is conducted and no other competent person is available than
accused. The principle of natural justice is negated and accused can be
appointed as Adjudicator/J udge.
4) In confidential enquiry, this principle can be overlooked because if the principle
is applied, it will defeat the norms of justice. For example, appointment of judge
of High Court and confirmation of judges of High Court or termination of
Additional J udge of High Court.
5) In emergency, where prompt action or preventive action is required the principle
of natural justice may be overlooked by the court. For example, where a
dangerous building is required to be demolished immediately to save the human
life, any department can demolish.

JUDICIAL REVIEW & TYPE OF WRITS
Some important concepts:

1) STATE
State is a combination of four things i.e. collection of these four ingredients:
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Land Solid part of the earths surface
Population Total number of any group of living things
Government System by which a State is governed
Sovereignty Supreme Ruler

o Sovereignty composed of three parts:

Legislature Makes the law (Parliament)
Executive Implement the law (Bearcats)
Judiciary Interprets the law and can also make laws as well in
terms as they explain the law. J udiciary is there for
interpret the law.

Judicial Review:
J udicial Review means review by courts of administrative actions with the review to
ensuring their legality. Review is different from appeal. In appeal, the appellate
authority can go into the merits of decision of the authority appealed against but in
review the reviewing authority does not go into the merits of decisions. In judicial review
of administrative actions, the courts only inquire whether the authority has decided
according to law. J udicial review undertakes scrutiny (close investigation) of
administrative actions on the touch stone (yard stick, dark schist (layered crystalline
rock) or jasper used for testing alloys by marking it with them) of doctrine (a principle of
religious or political belief, set of such principles) of ultravires (beyond ones legal power
of authority). The device authorities are given powers by statute (written law passed by
a legislative body) and such power must be exercised within the limits of the powers
driven by such statute.

As long as authority acts within the ambit of the powers given to it, no court can
interfere. The constitution (body of fundamental principles by which a State or other
body is governed) of Pakistan 1973 provides judicial review of administrative actions in
articles 199 (writ petition) by the High Court and articles 188 & 184 by the Supreme
Court (highest judicial court in a State etc.). Article 184 is restricted to violation of
fundamental rights and article 185 is restricted to right of appeal and article 188 deals
with review with supreme courts. So article 199 is the main provision of the judicial
review of administrative actions. Article 212 is available against decisions of tribunals
(board appointed to adjudicate in some matter, court of justice). Whereas article 199 is
available against any advice authority and not only for the violation of fundamental
rights.

Writ:
Writ (form of written command to act or not act in some way) is an ultimate remedy
(means of counteracting or removing anything undesirable) when all the effective
alternative remedies have been availed.

Writ is check of superior judiciary on judiciary, executive and on legislative.



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Kinds of Writ in J udicial Review

Following are the types of writ petitions:

1) Mandamus
2) Habeas Corpus
3) Prohibition
4) Certiorari
5) Quo Warranto

1)
When someone is required to do something by law and he is not doing that.
MANDAMUS
It is the check of superior judiciary on legislatures and executives.
When someone is required not to do something by law and he is doing that.
Mandamus is sought for direction to the subordinate court/tribunal or government
officer to perform mandatory duties correctly. Writ of mandamus is most popular writ,
which is issued against the arbitrary/illegal acts of government officials including
police officers, municipal bodies etc. This writ is given to a lower-level court or a
government officer to mandate that proper laws are followed. Mandamus might be
given if an official is not using his position appropriately or if a court is not following
the laws of the state or country. This writ (also called the writ of mandate) ensures
that the government and the individuals in charge are performing their functions
properly.

2) PROHIBITION
It is check of Superior judiciary on subordinate judiciary. When subordinate court or
tribunal are working illegal or without jurisdiction and during their proceeding in case
a writ of prohibition take place. Writ of prohibition is made to prevent court or
tribunal from doing something which it has no powers to do. It is an order directing
an inferior in a court to refrain from continuing with a proceeding therein on the
ground that the proceedings without jurisdictions or contrary to the laws of land.

3) CERTIORARI
When a matter has been decided or concluded by the lower judiciary or tribunal
(board appointed to adjudicate in some matter, court of justice) illegally without
jurisdictions (Administration of justice, a legal or other authority) or in excess or
jurisdiction the writ of Certiorari can be evoked by the aggrieved party (having a
grievance, suffering from an imprison/deny of legal right). At this time this writ will be
evoked.

4)
It is check of judiciary on legislature, executive and private persons. So Habeas
Corpus is collection of two words. Habeas means unlawful detention (to detain
someone without his will) and Corpus means living human beings (not a dead body).
HABEAS CORPUS
(Writ requiring a person to be brought before a judge or into court, especially to
investigate the lawfulness of his or her detention, illegal detention).

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Like the example of Bhatta (Bricks factory) labour. Writ of Habeas Corpus is in
evoked when a living person is detained by someone. Habeas Corpus is
prerogative (right or privilege exclusive to an individual or class) for securing the
liberty of the subject, by affording (to present) an affective means of immediate
release from unlawful detention whether in prison or private custody. By the courts
command the production of the subject and inquiries (presentation) into the cause of
detention and if there is no legal justification, the person is set at liberty. This is why
this writ is called the great writ of liberty.

5) QUO WARRANTO
(By what/which authority)

Quo means under which and warranto means authority permission. So it is a check
of judiciary on judiciary, legislature and executive. It is writ of inquiry about holding
any office doing any work issuing any order. So it is writ of inquiry.

RULE OF LAW

1) INTRODUCTION
Rule of law is one of the unique characteristic of the English Constitution. This
doctrine is accepted in the Constitution of USA and also in the Constitution of
Pakistan. The entire basis of Administrative Law is the doctrine of rule of law. No
Constitution of any country can function and no nation can march along the true
democratic way of life without a true and continuous realization of the importance of
the rule of law and judicial review of legislative and executive actions.

2)
ACCORDING TO BLACKS LAW DICTIONARY
MEANING OF RULE OF LAW

The rule of law means the supremacy of law which provides that decisions
should be made by the application of known principles of laws without the
intervention of discretion in their application.

3)
ACCORDING TO WADE
DEFINITION OF RULE OF LAW

A rule of law requires that Government should be subject to the law rather than
law subject to Government.

ACCORDING TO LORD HEWART
The rule of law means the supremacy of law as distinguished from mere
arbitrariness or some alternative mode which is not law of determining or
disposing of the rights of individuals.

4)
The concept of rule of law is of old origin. Its roots can be traced in Magna Carta
1215, in which it has been said, No free man shall be taken or imprisoned or
disseised or exiled of in any way destroyed, nor will we go or send for him, except
under a lawful judgment of his peers and by the law of land. However, Sir Edward
HISTORICAL BACKGROUND OF RULE OF LAW
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Coke, C. J . is said to be the real originator of this concept. In a battle against king,
he maintained successfully that the king should be under God and law and he
established the supremacy of a law against the executive. Later on the Dicey
developed the theory of Coke in his classic book. The law and Constitution
published in the year 1885.

5) BASIS OF RULE OF LAW
The term rule of law is derived from the French phrase la principle de legalite
which means principle of legality which refers to a Government based on principles
of law and not of men. In this sense the concept of la principle de legalite was
opposed to arbitrary powers.

6)
Supremacy of law
DICEY EXPOSITION OF RULE OF LAW

According to Dicey, the doctrine rule of law means three things, namely:
Equality before law
Predominance of legal spirit

i) SUPREMACY OF LAW
By explaining the first principle Dicey states that rule of law means the absolute
supremacy or predominance of regular law as opposed to the influence of
arbitrary power or wide discretionary power. It excludes the existence of
arbitrariness, or prerogative or even wide discretionary authority on the part of
the Government. According to him the Englishmen are ruled by the law alone, a
man can be punished for a breach of law, executive has no authority to put a
man behind the bars arbitrarily. In other words, according to this doctrine, no
man can be arrested, punished or be lawfully made to suffer in body of goods
except by due process of law and for a breach of law established in the ordinary
legal manner before the ordinary Court of the land.

ii) EQUALITY BEFORE LAW
Dicey states that no man is above law but that every man, whatsoever his rank or
condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of ordinary tribunals. What is law-legal rights and obligation for me-
must hold equality as such for all citizens? This means that whatever the status
of a person, he must submit to the ordinary law and ordinary Courts of the
country. There are no separate Courts for the trial of Government servants in
England, likewise there is no separate law by which the servants of the
Government can be trialed. All citizen of the states are ruled under the same
law. The violation of a particular law gives the same punishment to an ordinary
man as well as to a wealthy man. The high Government officials and the
ordinary men, both are produced before the same Court. Moreover, no person
can plead immunity from the obedience to the law of England.

iii)
Dicey states that the general principles of the Constitution are the result of
judicial decisions determining the rights of private persons in particular cases
PREDOMINANCE OF LEGAL SPIRIT (JUDICIAL DECISIONS)
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brought before the Courts. This refers to the important part played by English
judges in safeguarding the rights and liberties of the Englishman.

7)
i) He ignored the principles and immunities enjoyed by the Crown under the maxim
the King can do no wrong.
CRITICISM ON DICEY THEORY
The critical examination of the three characteristic of the rule of law as pointed by
Dicey shows that the rule of law is not to be found in England in the form in which he
presented it. There were many violations in the rule of law even in the time of Dicey
and in recent times the tendency is to deviate from the strict rule of law.

ii) He ignored the growth of administrative tribunals.
iii) He misunderstands and misconstrued the real nature of the French System.

8) MODERN CONCEPT OF RULE OF LAW
Diceys concept of rule of law was not accepted fully at anytime. In modern times,
the doctrine of rule of law has given the following meanings:

i) Law and order
ii) Fixed rules for everyone
iii) Elimination of discretion
iv) Due process of law and fairness
v) Natural law or observance of principles
vi) Preference of judge and ordinary Courts, tribunal

9) DEVELOPMENT OF CONCEPT OF RULE OF LAW IN DIFFERENT COUNTRIES

i) RULE OF LAW IN PAKISTAN
Rule of law has been embodied in the Constitution of Pakistan 1973. The principle
equality before law or equal protection of law has been incorporated in its Articles
2A, 3, 3A, 4, 8, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,
37, 175(3), 184(3), 199, 209.

ii) RULE OF LAW IN AMERICA
Amendment 5th and 14th of American Constitution deal with the process clause.
According to which the life and liberty of a person are not subject to uncontrolled
powers of the Government.

iii) RULE OF LAW IN GREAT BRITAIN
In great Britain, rule of law in the recent days is based on the following ideas:

i) Accordance with law
ii) Fundamental Rights
iii) Governmental Obligations

10) RULE OF LAW AND INTERNATIONAL MOVEMENTS:
Many international movements have been run to promote the concept of rule of
law. These movements are as under:
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i) European Convention on Human Rights (1950)
ii) Universal Declaration of Human Rights (1948)
iii) Delhi Declaration 1959
iv) Movement of rule of law under the UN International Commission 1959

11) CONCLUSION
To conclude I can say that rule of law implies the supremacy of law. No person
can be punished unless and until it is definitely proved that he has violated some
law of the country. There can be no arbitrary punishment of any individual. No
man is above the law. Every man, whatever his rank or condition is subject to
the ordinary law of the country. What is law for the one is also law for another.

NATURAL JUSTICE & ITS EXCEPTIONS / EXCLUSIONS

1) INTRODUCTION
Natural J ustice is an important concept in Administrative Law. It is not possible to
define precisely and scientifically the expression Natural J ustice. The principles of
Natural J ustice or Fundamental Rules of Procedure or Administrative Action are
neither fixed nor prescribed in any code. They are better known than described and
easier proclaimed than defined.

2) MEANING OF NATURAL JUSTICE
Natural J ustice has meant many things to many writers, lawyers and systems of law.
It has many colors and shades and many forms. It is known as substantial justice,
fundamental justice, universal justice or fair play in action.

3)

DEFINITION OF NATURAL JUSTICE

The term of Natural J ustice expresses the close relationship between the
common law and moral principles describing what is right and what is wrong.

ACCORDINIG TO DE-SMITH

It is justice that is simple and elementary, as distinct from justice that is complex
sophisticated and technical.

4)
ACCORDINIG TO MEGORY
PRINCIPLES / NORMS OF NATURAL JUSTICE
i) Nemo debet esse judex in propria causa: No man shall be a judge in his own
cause or the deciding authority must be impartial and without bias and

The traditional English Law recognizes two principles of Natural J ustice:

ii) Audi Al teram Partem: Hear the other side or both side must be heard or no man
should be condemned unheard or that there must be fairness on the part of the
deciding authority.
However, due to repaid development and growth of Constitutional Law as well as
Administrative Law, a third principle of Natural J ustice has also been evolved.
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iii) Speaking Orders or Reasoned Decisioned: All orders should be supported by
reasons.

1)
a) General; The first principle of Natural J ustice consists of the rule against bias
or interest and biased on three maxims: (i) No man shall be a judge in his
own cause. (ii) J ustice should not only be done but manifestly and
undoubtedly be seen to be done and (iii) J udges like Caesars wife should be
above suspicion. (iv) J udge should be disinterested but not interested.
BAIS OR INTEREST
b) Meaning; According to the dictionary anything which tends or may be
regarded as tending to cause such a person to decide a case otherwise than
on evidence must be held to the blased. In other words, a predisposition to
decide for or against one party without proper regard to the true merits of the
dispute is bias.

In Franklin V. Minister of Town & Country Planning, Lord Thankerton defines
bias as under:

My Lords, I could wish that the use of the word bias should be confined to
its proper sphere. Its proper significance in my opinion id denote a departure
from the standard of even-handed justice which the law requires from those
who occupy judicial office or those who are commonly regarded as holding a
quasi-judicial office, such as an arbitrator.
c) Principle explained; The first requirement of Natural J ustice is that the judge
should be impartial and neutral and must be free from bias. He is supposed
to be indifferent to the parties to the controversy. He cannot act as judge of a
cause in which he himself has some interest either pecuniary or otherwise as
it affords the strongest proof against neutrality. He must be in a position to
act judiciary and to decide the matter objectively. If the judge is subject to
bias in favour or or against either party to the dispute or is in a position that a
bias can be assumed, he is disqualified to act as a judge and the proceedings
will be vitiated. It is a well-settled principle of law that justice, should not only
be done but manifestly and undoubtedly be seen to be done. J ustice can
never be seen to be done if a man acts as a judge in his own cause or is
himself interested in its outcome. This principle applies not only to judicial
proceedings but also to quasi-judicial as well as administrative proceedings.
d) Types of Bias. Bias is of three types:
i) Pecuniary bias
ii) Personal bias
iii) Official bias or bias as to subject-matter

i) Pecuniary bias. It is well settled that as regards pecuniary interest the
least pecuniary interest in the subject-matter of the litigation will disqualify
any person from acting as a judge, Griffith and Street rightly state that a
pecuniary interest, however slight will disqualify even though it is not
proved that the decision is in any way affected (emphasis supplied). In it
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is stated, There is a presumption that any financial interest, however
small, in the matter in dispute disqualifies a person from adjudicating.
In Dr. Bonham, a Director of Cambridge University was fined by the
College of Physicians for practicing in the city of London without the
licence of the College. The statute under which the College acted
provided that the fines should go half to the King and half to the College.
The claim was disallowed by Coke, C. J . as the College had a financial
interest in its own judgment and was a judge in its own cause.
Dimes v. Grand J unction Cannal is considered to be the classic example
of the application of the rule against pecuniary interest. In this case, the
suits were decreed by Vice Chancellor and the appeals against those
decrees were filed in the court of Lord Chancellor Cottenham. The
appeals were dismissed by him and decrees were confirmed in favour of a
canal company in which he was a substantial share-holders. The House
of Lords agreed with the Vice Chancellor and affirmed the decrees on
merits. In fact, Lord Cottenhams decision was not in any way affected by
his interest as a shareholder and yet the House of Lords quashed the
decision of Lord Cottenham. Lord Campbell observed:
No one can suppose that Lord Cottonham could be, in the remotest
degree, influenced by the interest that he had in this concern but my
Lords, it is of the last importance that the maxim, that no one is to be a
judge in his own cause, should be held sacred. And it will have a
most salutary influence on (inferior) tribunals when it is known that this
High Court of last resort, in a case in which the Lord Chancellor of
England had an interest, considered that his decree was on the
account a decree not according to law and was set aside. This will be
a lesson to all inferior tribunals to take case not only that in their
decrees they are not influenced by their personal interest but to avoid
the appearance of laboring under such an influence.
ii) Personal bias. The second type of bias is personal one. A number of
circumstances may give rise to personal bias. Here a judge may be a
relative, friend or pusiness associate of party. He may have some
personal grudge, enmity or grievance or professional rivalry against him.
In view of these factors there is every likely-hood that the judge may be
biased towards one party or prejudiced towards the other.
Thus, where the Chairman of the Bench was a friend of the wifes family,
who had instituted matrimonial proceedings against her husband and the
wife had told the husband that the Chairman would decide the case in her
favour, the Division Court quashed the order. Similarly, a Magistrate who
was beaten by the accused was held disqualified from hearing a case filed
against an accused. Again a decision was set aside on the ground that
the Chairman was the husband of an executive officer of a body which
was a party before the tribunal. In the same way, a Magistrate cannot
convict his own employees for breach of contract on the basis of a
complaint filed by his bailiff.
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The above principle is accepted in India also. In one case, a manager
conducted an inquiry against a workman for the allegation that he had beaten
the manager. It was held that the inquiry was vitiated. In another case, their
existed political rivalry between M and the Minister, who had cancelled the
licence of M. A criminal case was also filed by the Minister against M. It was
held that there was personal bias against M and the Minister was disqualified
from taking any action against M.
e) Test; Real likel y-hood of bias. A discussed above, a pecuniary interest,
however small it may be, disqualified a person from acting as a judge. But
that is not the position in case of personal bias or bias as to subject-
matter. Here the test is whether there is a real likely-hood of bias in the
judge.

2)
a) Meaning. Audi Alteram Partem means hear the other side or no man should
be condemned undheard or both sides must be heard before passing any
order.
AUDI ALTERAM PARTEM
b) Principle explained. The second fundamental principle of natural justice is
Audi Alteram Partem i.e. no man should be condemned unheard or both the
sides must be heard before passing any order. De-Smith says, no
proposition can be more clearly established than that a man cannot incur the
loss of liberty or property for an offence by a judicial proceeding until he has
had a fair opportunity of answering the case against him. A party is not to
suffer in person or in pursue without an opportunity of being heard. This is
the first principle of civilized jurisprudence and is accepted by laws of Men
and God. In short before an order is passed against any person, reasonable
opportunity of being heard must be given to him. Generally, this maxim
includes two elements: (i) Notice and (ii) Hearing
i) Notice. Before any action is taken, the affected party must be given a
notice to show cause against the proposed action and seek his
explanation. It is a sine quo non of the right of fair hearing. Any order
passed without giving notice is against the principles of natural justice and
is void ab initio.
ii) Hearing. The second requirement of audi alteram partem maxim is that
the person concerned must be given an opportunity of being heard before
any adverse action is taken against him.
One office and the decision was given by another officer, the Court upheld
the order since the officer who had passed the order had taken full not of
all the objections put forward by the petitioners.
3)
a) General. Though the rules of natural justice, namely, nemo judex in causa
sua and audi alteram partem, have now a definite meaning and connotation
in law and their content and implications are well understood and firmly
established, they are nonetheless not statutory rules. Each of these rules
yields to and changes with the exigencies of different situations. They do not
apply in the same manner to situations which are not alike. These rules are
EXCLUSION / EXCEPTION OF NATURAL JUSTICE
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not cast in a rigid mould nor can they be put in a legal strait-jacket. They are
not immutable but flexible. These rules can be adopted and modified by
statutes and statutory rules and also by the constitution of the Tribunal which
has to decide a particular matter and the rules by which such Tribunal is
governed. There are situations which demand the exclusion of the rules of
natural justice by reason of diverse of factors like time, place, the
apprehended danger and so on. In the following cases, the principles of
natural justice may be excluded:
b) Circumstances.
1) Statutory exclusion. The principles of natural justice operate only in
areas not covered by any law validly made. In other words they do not
supplant the law but supplement it. Therefore, even where the statute is
silent about the observance of the principles of natural justice, such
statutory silence is taken to imply compliance with the principles of natural
justice. But it a statutory provision either specifically or by necessary
implication of any or all the principles of natural justice then the Court
cannot ignore the mandate of the Legislature or the statutory authority and
read into the concerned provision the principles of natural justice.
Administrative tribunal (.e.g. Regional Transport Authority), unlike judicial
bodies, not bound to permit appearance of parties by lawyers or grant
certified copies of order passed. Circumstances under which High Court
would in exercise of writ jurisdiction, control action of administrative
tribunal.
One thing should not, however, be forgotten. In Indo-Pakistan, Parliament
is not supreme and therefore, a law made by the Parliament or a
Legislature should stand the test of Constitutional provisions. In these
circumstances, even if there is no provision of observance or compliance
with the principles of natural justice, Courts may read natural justice with a
view to sustain the law as constitutional.
2) Legislative Acts. Legislative action, plenary or subordinate, is also not
subject to the rules of natural justice. Thus, before enacting a law
imposing tax, fixing price etc. it is not necessary to issue notice and afford
hearing.
A legislative action, for instance, price fixing, is a direction of a general
character, not directed against particular person or individual manufacturer
or trader. It is conceived in the interests of the general consumer public.
It is the right of the citizens to obtain essential articles at fair prices. It is
also the duty of the State to provide them to the citizens by compelling and
obliging the manufacturers, producers and traders to supply and sell
essential commodities at such prices. There is no question of invoking
principles of natural justice in such cases.
Situations, may however, arise where the Legislature may itself provide for
notice and hearing, for example, levying a municipal rate. The legislature
may also direct the subordinate Legislative authority to make such inquiry
as it thinks fit before making legislation. Again when an owner of the
property or goods is compelled to sell his property or goods to the
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Government or its nominee and the price to be paid is directed by the
legislature to be determined according to the guidelines laid down by it,
the act of such determination of price may be said of a quasi-judicial
nature. The determination of price in such a situation may acquire quasi-
judicial character.
3) Necessity. One more exception to the rule that no man shall be a judge
in his own cause is the doctrine of necessity. An adjudicator who is
subject to disqualification on the ground of bias or interest may have to
adjudicate a claim if there is no other person competent or authorized to
decide or quorum cannot be formed without his presence. In such cases,
the principle of Natural J ustice would have to give way to necessity for
otherwise there would be no means of deciding the matter and the
machinery of justice or administration would break down.
The doctrine of necessity applies not only to judicial matters but also to
quasi-judicial as well as administrative matters.
4) Confidential Inquiries. Again, the observance of the principles of natural
justice may be dispensed with where the enquiry is of a confidential nature
and disclosure of information may defeat the object of the statute. Thus,
no opportunity of being heard can be given to an Additional J udge of a
High Court before his name is dropped from being confirmed. Similarly,
before including a name of any person in a surveillance register, no notice
is required to be given to the person concerned. A principle of judicial
inquiry, whether fundamental or not, is only a means to an end. If it can
be shown in nay particular class of case that the observance of a principle
of this sort does not serve the ends of justice, it must be dismissed,
otherwise it would become the master instead of the servant of justice.
5) Preventi ve Action. Natural justice may be excluded if its effect would be
to stultify the action sought to be taken or would defeat and paralyze the
administration of the law. Where an obligation to give notice and
opportunity to be heard would obstruct the taking of prompt action,
especially action of preventive or remedial nature, right of prior notice and
opportunity to be heard my be excluded by implication. Audi alteram
partem rule is intended to inject justice into the law and it cannot be
applied to defeat the ends of justice or to make the law lifeless, absurd,
stultifying, self-defeating or plainly contrary to the common sense of the
situation! Therefore, if importing the right to be heard has the effect of
paralyzing the administrative process or the need for promptitude or the
urgency of the situation, so demands, natural justice may be excluded.
In exceptional cases and emergency situations, interim measures may be
taken to avoid the mischief of the passportee becoming an escapee
before the hearing begins. Bolt the stables after the horse has been
stolen is not a command of Natural J ustice. National security,
sovereignty, public order and public interest must be of such a high
degree as to offer a great threat.
The right to be heard cannot be presumed when in the circumstances of
the case here is paramount need for secrecy or when a decision will have
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to be taken in emergency or when promptness of action is called for where
delay would defeat the very purpose or where it is expected that the
person affected would take an obstructive attitude.
6) Emergency. In exceptional cases of urgency and emergency where
prompt and preventive action is required to be taken, the principles of
natural justice need not be complied with. Thus, where a dangerous
building is required to be demolished immediately to save human lives or
where a banking company is required to be wound up in the interest of
depositors or where a dangerous and desperate person is required to be
extended or detained or where a passport is required to be impounded in
public interest, pre-decisional hearing is not necessary. However,
immediacy does not exclude duty to act fairly because even an emergent
situation can co-exist with the canons of natural justice. The only effect of
urgency on the application of the principle of fair hearing would be that the
width, form and duration of the hearing would be tailored to the situation
and reduced to the reasonable minimum so that it does not delay and
defeat the purpose of the contemplated action.
7) Other cases. There may also be cases wherein nothing unfair can be
inferred by not affording an opportunity to present or meet a case .
In such cases, it may not be necessary that an action can be taken only
after issuing notice or affording hearing. Thus, where the party has
waived, notice by conduct or has not submitted any reply to the show
cause notice or due to vast majority of examinees adopting unfair means
on a large scale, it is not practicable to hold an enquiry or where the
statements have been recorded in absence of the delinquent but they
have been made available to him or where in all probability, the witnesses
may not come forward to depose at the regular enquiry etc. that the
principles of natural justice need not be complied with. Natural justice
should not destroy administrative order by interesting on the impossible.

DELEGATED LEGISLATION

1) INTRODUCTION
With the growth of the administrative process in the 20
th
century, administrative rule
making or delegated legislation has assumed tremendous proportions and
importance. Today the bulk of the law which governs people comes not from the
legislature but from the chambers of administrators. The fact is that the direct
legislation of parliament is not complete unless it is read with the help of rules and
regulations framed there under, otherwise by itself it become misleading.

2) MEANING OF DELEGATED LEGISLATION
The meaning of the expression delegated legislation may be given as under:

When the function of legislation is entrusted to organs other than the legislature by
the legislature itself, the legislation made by such organ is called Delegated
Legislation .


15 Complete Notes of Constitutional & Administrative Laws

3) DEFINITION OF DELEGATED LEGISLATION
i) GENERAL DEFINITION
Delegated legislation is an expression which covers a multitude of confusion. It
is an excuse for the legislatures, a shield for the administrators and a provocation
to the constitutional jurists.
ii) ACCORDING TO SALMOND
Delegated legislation defined by Salmond as That which proceeds from any
authority other than the sovereign power and is therefore dependent for its
continued existence and validity on some superior supreme authority .
iii)
a) Exercise by a subordinate agency of the legislative power delegated to it by
the legislature or
ACCORDING TO JAIN AND JAIN
According to J ain and J ain the term delegated legislation is used in two senses.
It may mean:
b) The subsidiary rule themselves which are made by the subordinate authority
in pursuance of the power conferred on it by the legislature.

4)
The traditional theory which postulates separation of powers was exposed to an
enormous strain when the legislatures started delegating legislative power to the
executive in a large quantity, irrespective of whether the constitutional pursuits
approve it or not, delegation of legislative power has become the need of the day.

JUSTIFICATION FOR THE GROWTH OF DELEGATED LEGISLATION
5) REASONS FOR GROWTH OF DELEGATED LEGISLATION OR REASONS FOR
Many factors are responsible for the rapid growth of delegated legislation or
inevitable delegated power in every modern democratic state which are discussed
as follows:

i)

THE INEVITABLE DELEGATED POWERS OF THE EXECUTIVE ORGAN
PRESSURE UPON PARLIAMENTARY TIME
The legislative activity of the state has increased in response to the increase of
its functions and responsibilities. The legislature is preoccupied with more
important policy matters and rarely finds time to discuss matters of detail. It
therefore, formulates the legislative policy and gives power to the executive to
make subordinate legislation for the purpose of implementing the policy.
ii)

TECHNICALITY OF THE SUBJECT MATTER
Sometimes the subject matter on which legislation is required is so technical in
nature that the legislature, being himself a common man, cannot be expected to
appreciate and legislate on the same, and the assistance of experts may be
required. Members of Parliament may be the best politicians but they are not
experts to deal with highly technical matters which are required to be handled by
experts. Here the legislative power may be conferred on experts to deal with
technical problems e.g. gas, atomic energy, drugs, electricity etc.
16 Complete Notes of Constitutional & Administrative Laws

iii) THE NEED OF FLEXIBILITY
A statutory provision cannot be amended except by an amendment passed in
accordance with the legislative procedure. This takes time. It may however, be
necessary to make changes in the application of a provision in the light of
experience. It is, therefore, convenient if the matter is left to be provided through
subordinate legislation. Delegated legislation requires less formal procedure and
can be a good device for flexibility.
iv) STATE OF EMERGENCY
In times of emergency, the Government may have to take quick action. All its
future actions cannot be anticipated in advance and hence provisions cannot be
made by the legislature to meet all enforceable contingencies. It is safer to
empower the executive to lay down rules in accordance with which it would use
its emergency powers. Thus delegated legislation showed substantial growth
during the times of 2nd World War and during the proclamations of emergency.
v) EXPERIMENT
The practice of delegated legislation enables the executive to do experiment.
This methods permits rapid utilization of experience and implementation of
necessary changes in application of the provisions in the light of such experience
e.g. in road traffic matter, an experiment may be conducted and in the light of its
application necessary changes could be made. If the changed rules and
regulations are found to be satisfactory, they can be implemented successfully.
On the other hand if they are found to be defective, the defects can be cured
immediately.
vi )
6) FUNCTIONS WHICH CAN BE DELEGATED (OR CLASSIFICATION OF
COMPLEXITY OF MODERN ADMINISTRATION
The complexity of modern administration and the expansion of the functions of
the state to the economic and social sphere have rendered its necessary to
resort to new form of legislation and to give wide powers to various authorities on
suitable occasions. In a country like Pakistan where control and regulation over
private trade, business or property may be required to be imposed, it is
necessary that the administration should be given ample power to implement
such policy so that the immediate action can be taken. By resorting to traditional
legislative process, the entire object may be frustrated by vested interests and
the goal may not be achieved at all.

i)
DELEGATED LEGISLATION):
POWER TO BRING AN ACT INTO OPERATION
Usually the Act provides that it shall come into force on such date as the Federal
Government may by notification in the official gazette, appoint. Such power is
given because the Government has better knowledge of the practical exigencies
of bringing the law, the executive is bound to bring into force.


17 Complete Notes of Constitutional & Administrative Laws

ii) CONDITIONAL LEGISLATION
The legislature makes the law but leaves it to the executive to bring the Act into
operation when conditions demanding such operation are obtained. The
executive has to decide whether such conditions obtain and when it is satisfied
that they do, it should issue a notification bringing the law into operation. This is
called Conditional Legislation .
iii) POWER TO APPLY AN ACT TO A GIVEN TERRITORY
Power may be given to the executive to apply an Act or any Act which may be in
force some territory to the territory under its administrative control. The executive
may restrict and make modification in the original legislation to suit the
exigencies of the territory under its control.
iv) POWER TO EXEMPT FROM AND EXTEND THE SCOPE OF AN ACT
This power is of two kinds. One is where the legislature declares that the Act will
apply for a particular duration but gives power to the executive to extend its life
by a notification.
The other is where the legislature makes the Act applicable to specified objects
but empower the executive to extend it application to similar other objects or
exempt any of these from its application.
v) POWER TO FILL IN DETAILS
This is the most common type of delegated legislation. The legislature passes
the skeleton and empowers the executive to provide the flesh and bones through
subordinate legislation. The enabling clause usually says that the Federal or the
Provincial Government may makes rules to carry out the purpose of the Act.
vi )
7)
POWER TO REMOVE DIFFICULTIES
Many Acts contained provisions for conferring such extensive power of delegated
legislation on the executive. The purpose of a such provision is to enable the
executive to remove difficulties in the implementation of the Act and effectuate its
purpose and policy.

i)
FUNCTION WHICH CANNOT BE DELEGATED
ESSENTIAL LEGISLATIVE FUNCTION
Essential legislative functions cannot be delegated by the legislature to the
executive.
ii) REPEAL OF LAW
Power to repeal a law essentially a legislative function and therefore
delegation of power to the executive to repeal a law excessive delegation and
in ultra vires.