Assignment on administrative law meanin PDF

Preview

Summary

Admin assi...

Description

“Assignment on administrative law, meaning, functions and importance” Administrative law is the bye-product of the growing socio-economic functions of the State and the increased powers of the government. Administrative law has become very necessary in the developed society, the relationship of the administrative authorities and the people have become very complex. In order to regulate these complex, relations, some law is necessary, which may bring about regularity certainty and may check at the same time the misuse of powers vested in the administration. Historically the most significant development of twentieth century is the rapid growth of administrative law. In this century the philosophy as to the role and function of the state has undergone a radical change. In the ancient society the functions of the state were very few the prominent among them being protection from foreign invasion, levying of Taxes and maintenance of internal peace & order. Today the state is not merely a police state, exercising the sovereign function, but as a progressive democratic state. It seeks to ensure social security and social welfare for the common man. Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the Government. Definition of administrative law It is indeed difficult to evolve a scientific precise definition of administrative law. Some definitions are too broad and some are too narrow. But firstly; what is law? It can’t be defined, but its concept can be understand. Essay by Ivor Jennings; “the institutional theories” Book; “modern theories of law” “The task which many writers on jurisprudence attempt to fulfill in defining law is a futile one” For the law no definition, except in a particular context. Salmon defined law; “Law is a body of principles recognized and applied by the state in the administration of justice and also the rules recognized and acted upon by the courts of justice” And today a good law is deemed to be an instrument of social healthy change in the society, which must be a positive one. Book by Lasky; “A grammer of politics” “What is important in law is not the fact of command, but the end at which that command aims and the way it achieves the end” Case laws;

1) PLD 1972 SC 139 Asma jilani vs govt of Punjab etc. Page 148; “Law is not the will of sovereign. Law is body of principles called rules or norms, recognized by the state in the administration of justice as rule recongnised and acted upon by the courts of justice. It must have the contents and forms of law. It should contain one or more elements of which the different theories of law are based, and give expression to the will of the people whose conduct and behavior the law is going to regulate”. 2) PLD 1969 SC 14 Govt of west Pakistan vs Begum agha abdul karim sorish Kashmiri. Page 16; “Law is not confined to the statue law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down by superior courts from time to time. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law”. 3) PLD 1965 (W.P) pesh 162 Rehmatullah khan vs the state; Page 176; “The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individuals against the arbitrary procedure that may be adopted by the judicial as quasi-judicial authority while making and order effecting those rights. These rules are intended to prevent such authority from doing injustice. 4) PLD 1975 SC 66 Manzoor elahi vs federation of Pakistan. Page120; “Law embraces all legal and equitable rules, defining human rights and duties and providing for their enforcement, ont only as between the man and man, but also between state and its citizens” Page 155; “The term law being understood in the sense of a valid law in terms of the constitution as well as the accepted forms of legal process obtaining in Pakistan” Now what is administrative law? As the powers are increased the chance to their being abused will also increase. Administrative law is not statutory law rather it comprises on those principles which is applicable on every other statutes. Statutes only creates rights and obligations but not those principles on which it is applied, i.e discretion, and in which manner this be exercised, all this aspect is covered by administrative law. If you are aggrieved then the remedy within department and outside to or judicial one are parts of administrative law. So, administrative law is set of laws, rules and regulations which are used in administration of country. Welfare-state have to perform more functions so in consequence the number of public functionaries increased so as their powers. And where it is necessary to provide powers to public functionaries also necessary to make a regulatory mechanism, so that the public functionaries are required to perform functions within the prescribed law, so that the rights of citizens remained protected. That mechanism is administrative law.

Administrative law is most important branch of law, but it is non-statutory and judge-made law, it evolves through courts. And it growth has nexus with the growth of welfare-state. What is administration? Law includes, statutes, customs, judicial principles even the shariat in Pakistan is also a law. And the administration; It can be said; “government of the day” is administration. “Administration is the group of persons who carry in governance”. In the language of political science, “the executive functions are administrative functions”. Administration is further two types; 1) Political/elected 2) Permanent/specialist/non-elected. Finner, Book, (the theory and practice of modern governance); “Administration is the governmental machinery and their purpose is to make policies for welfare of people and to improve governance. And they then implement those policies”.

Definition of administrative law; Broadly saying “administrative law consist of those principles which regulates and governs the executive branch of the state”. Or, “The law which controls executive powers and protect the rights of citizens”. Or, “It regulates relationship between functionaries and individuals/citizens”. “Administrative law institute peace and order, and also improve welfare of the people” It deals with the remedial machinery for the citizens against public functionaries it they abuse their powers.

Defining the administrative law; Administrative Law is, in fact, the body of those rules which regulate and control the administration. Administrative Law is that branch of law that is concerned with the composition of power, duties, rights and liabilities of the various organs of the Government that are engaged in public administration. 1) Dicey; Administrative Law is that part of national legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealing with public officials, which specifies the procedure by which those rights and liabilities are enforced. 2) Austin;

As the law, which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or directly by the subordinate political superiors to whom portions of those are delegated or committed in trust. And, he also differentiate between constitutional law and administrative law, He said, that constitutional law determines the person bare the sovereign powers, however administrative law regulates the end and the modes in which sovereign powers were exercised. 3) Maitland; He said that, Austin definition is narrow one, While constitutional law deals with the structure administrative law deals with functions. 4) Ivor Jennings, book; “the law and the constitution 5th edition page 250 and 270” The law relating to the administration. It determines the organization, powers and duties of administrative authorities. 5) Bernard Schawartz He has defined Administrative Law as, the law applicable to those administrative agencies which possess of delegated legislation and ad-judicatory authority. He said, the goal of administrative law is to be ensure that individual and state are placed on a plane of equality, before the bar of justice. 6) K.C Davis, book, “administrative law 1971” He improves the definition of Jennings, said; administrative law concerns the powers and procedure of administrative agencies, including the law governing judicial review of administrative action. 7) Griffith and street, book, “principles of administrative law 1967 4th edition page 3”; According to them, the main object of administrative law is the operation and control of administrative authorities, it must deal with the following three aspects; a) What sort of powers does the administration exercise? b) What area the limits of those powers? c) What are the ways in which administration is kept within those limits? 8) H.R.Wade; Any attempt to define administrative law will create a number of difficulties. 9) Goodnow; Administrative law is the part of public law. It creates various organizations and also administer the powers of various authorities and also makes provisions or provide mechanism to redress the grievance of citizens. 10) I.V.Massey; It is that branch of public law which deals with the organizations and powers of administration and quasi-administrative agencies. It prescribes the principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom. It concerns with all branched of government and touches administrative and quasi administrative agencies. It is made up of legislative and executive rules and large number of precedents and it regulates the exercise of discretion. 11) Garner; Administrative law may be defined as those rules which are recognized by the courts as law and which relate to and regulate the administrative government. It creates institutions and regulates it and good governance and also regulates the public corporations and also deals with local governments.

12) Jain and Jain; Administrative law deals with the structure powers functions of the organs of the administration, the limits of their powers, the method and procedure followed by them in exercising powers and functions, the methods by which their powers are controlled and legal remedies provided. 13) Dr.F.G.Port; Administrative law is made up of all those legal rules either formally expressed by the law or otherwise which have the object of fulfillment of public law. It is concern with the judicial action by administrative authorities and practiced application of law. 14) Administrative law institute England; They added in above mention definition of Port, It deals with the procedure and also pertains to remedies. 15) Committee in Australia; Although the administrative efficiency is a dominant objective of administrative process, the achievement of that objective should be consistent with attainment of justice to the individual. 16) Judge of new Zealand, refers English case law, “R v Devon” (1995) 1 AER 88; The administration must act fairly and reasonably and according to law, this the essence and the rest machinery. 17) Friedman; In the view of Friedman, Administrative Law includes the following. a) The legislative powers of the administration both at common law and under a vast mass of statutes. b) The administrative powers of the administration. c) Judicial and quasi-judicial powers of the administration, all of them statutory. d) The legal liability of public authorities. e) The powers of the ordinary courts to supervise the administrative authorities. 18) The Indian Institution of Law; Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation. A careful perusal of the above makes it clear that Administrative Law deals with the following problems: A. Who are administrative authorities? B. What is the nature and powers exercised by administrative authorities? C. What are the limitations, if any, imposed on these powers? D. How the administration is kept restricted to its laminose? E. What is the procedure followed by the administrative authorities? And five functions of administrative law; 1. Control function 2. Command function 3. Positive principles 4. Principles of accountability and transparency 5. Remedies/remedial machinery

Function and importance of administrative law; The emergence of the social welfare has affected the democracies very profoundly. The state today pervades every aspect of human life. The functions of a modern state may broadly be placed into five categories, viz, the state as:1. protector, 2. provider, 3. entrepreneur, 4. economic controller and 5. Arbiter. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience has to be supplied. The Administration can change an unsuitable rule without much delay. Such a flexibility of approach is not possible in the case of the legislative or the judicial process. In such a context, a study of administrative law becomes of great significance. The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. It has increasingly become important to control the administration, consistent with the efficiency, in such a way that it does not interfere with impunity with the rights of the individual. Concluding with quote on administrative law; “The goal of administrative law is to redress this inequality to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice”....