Sat, November 30 2024

THE LEX

Judges receiving threatening letter continues to Lahore High Court and Supreme Court | Tax Amendment bill presented in Parliament | Election Commissioner gives more powers to magistrate in election matter | The 6 Judges letter remained unattended by Supreme Judicial Council | Lawyers hold strict protest against the interference of Intelligence agencies involvement in judiciary damaging justice and fairness in society

INTRODUCTION OF ADMINISTRATIVE LAW:

Administrative law provides many of the safeguards which prevent government becoming an integrable evil to control the government powers, the nature of those powers, the purpose of governmental functions as well as scope and effectiveness of legal control are the core outline of administration law. One can say administrative law deals with the legal control of governmental powers, that is to say to monitor, to supervise, to check and balance over governmental powers and their functions subject to judicious scrutiny administrative law can be described as those rules which are recognized by the courts as law and which relates to and regulates the administration of government. According to Sir Ivor Gonol and Dicey who belong to that English grown of writers did not recognize the independent existance of administrative law they considered it as part and parcel of constitutional law. The American approach is significally different from the early English approach in that it recognizes administrative law as independent branch of legal discipline. According to Professor ___________administrative law lays special strass on the protection of the man/ ordinary citizen from the arbitrary exercise of public powers. Accountability of the holders of public officer is focal point of administrative law. In nutshell administrative law deals with the structure the powers, the functions and the limits of such powers and functions, the methods, the procedures for caring out the duties so as to protect the rights of the citizen. Dicey Denis defines administrative law is the law concerning the powers and procedures of administrative duties. According to the wade, the primary purpose of administrative law is to keep the powers of government within legal powers, so as to protect the citizen against there. 2 Fayaz Hussain Junejo B.A LLB-IV Salient Differences b/W Constitutional law & administrative Law. Constitutional Law is the Supreme law of the Land, it can be termed as a charter of a Nation, Constitutional Law does not differ in essence from administrative law, both are concerned with the function of the Govt and both are the part of what is known as public law. Administrative and Constitutional law together may be termed as jus publicum or Public Law of a modern state, but the modern line difference the two are. 1. As to the Organ. Constitutional deals with the three organs of the state Via Legislature, Judiciary and Executive. Legislature legislates the law; Judiciary interpret it and Executive implement it While on the other hand administrative law deals with only one organ of the state that is Executive Body. Constitutional law is the supreme law of the land and being a paramount law deals with the whole system of the Govt of a Country, which establishes or regulates or govern the govt. On the basis of Constitutional law various other law are enacted through the Constitutional process For E.g., NAB Ordinance, Anti-Money Laundering Act, Anti-Terrorism Act etc. Whereas Administrative law is basically specie of Constitutional law and being a branch of Public Law, it deals with the relationship of Individual with organized Powers. Administrative is the Body of Law, created by the administrative Agencies in the form of rules, regulations, Qausi Judicial Decision, to carry out regulatory in powers and duties of executive agencies. 2. As to Sources Constitutional law of Sources is Treaties, Conventions, and Precedents Whereas the Sources of Administrative are more or less identical and is concerned with the functions of the Govt by issuing administrative instructions, administrative Directions and Curricular, memoranda For E.g.: In USA, the administrative procedure act of 1946 and the federal tort claim act of 1946 constitutes the major sources of administrative law. In England the tribunals and the inquiries act of 1958 statutory instrument act of 1946, Crown Proceedings act of 1947 are the sources of administrative law. 3 Fayaz Hussain Junejo B.A LLB-IV 3. As to the Jurisdiction. Constitutional law is concerned with the organizations and functions of the govt at rest, that is to say Elected Govt, whereas the administrative law is concerned with the organizations and the functions of govt in motion, that is to say the govt of the day or functional in nature or body of the Person who for the time being carry out that Govt. In other words, deals with the structure of the legislature and Executive but administrative law deals with the functions of the executive. According to Professor Holland the Constitutional law describes; While administrative law describes they are in motion, therefore according to this view the structure of legislation and executive comes within the preview of Constitutional law but they are functioning comes within the spheres of administrative law. 4. As to the Nature. Constitutional law is rigid in nature, it can’t be amended easily, the process of amending any provision of Constitution consumes time as the same need’s approval from assemblies whereas administrative law is flexible in nature, rules and regulations can be amended by compiling codal formalities or changing can be made by way of issuing of circular of directive or instructions. 5. As to the Scope and status. Constitutional law has wider scope being the fundamental law of land and supreme on nature and it deals as with fundamental right, policies matter and emergency provisions, passing of the bills in National assembly and Senate whereas the scope of administrative law is limited it deals with the functions of administrative agencies and how to control and monitor them. 6. As to the rights. Constitutional law deals with the substantive right and remedies being the supreme law of law confers the upon the citizens and provides remedies in case of infringement by various kinds of writs, whereas administrative law lays much stress and deals with public needs and special rights in a limited sphere. 4 Fayaz Hussain Junejo B.A LLB-IV 7. As to Enforcement of Law. In Constitution law it is the duty of executive to enforce all laws of the land by virtue of Article 98 of Constitution. Whereas in administrative law executive only have the power to enforce specifically that law by which that body is regulated. Doctrine of Bias: The Doctrine of bias is based on the preconceive notion it offends the principle of natural justice; the first principle of natural justice consists of the rule against bias or interest and is based on three maxims 1. No man shall be a judge in his own cause 2. Justice should not only be done but manifestly and undoubtedly be seemed to be done that is to say mere paper justice is not enough judgment, orders, Sentences should be executed and implemented in letter and spirit. 3. Judges like scissor wife, should be above suspicion. According to the ordinary Dictionary meaning “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 be bias. According to Lord Denning. Bias is a deep-rooted error and if found and proved the door of dispensation of justice be closed. One can term Bias is synonymity partiality; it is based on personal vendetta and can also be considered notions of Prejudice. Lord Thanker Defines Bias In the leading Case of Franklin vs. Minister of Town and County Planning. 1947 Vol 2 All England Report page 289 relevant 296 in the following words. “My lord’s I could wish bias should be confined to its proper sphere. It’s proper significant in my opinion is to 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 and even include an Arbitrator. Bias has also been defined by Lord Denning in the following expressions 5 Fayaz Hussain Junejo B.A LLB-IV “The judge must show Strongest prove of his neutrality” “One can say blinkers of the placed on the mind of Judges with a feeling of strong prejudice and pre concealed notion which must be weeded out for proper dispensation of Justice. Kinds of Bias 1. Pecuniary Bias: it is one of the strongest types of bias and a worse kind of bias which carries a stigma on dispensation of Justice, it is well settled that as regards pecuniary interest the least or even a fractional pecuniary interest in the matter of litigation which is disqualifies a person from acting as a Judge. According to Griffith and Smith. Whitely stated that pecuniary interest however slight it maybe it disqualifies a Judge, even though it is not proved that the decision in any way if affected. The reason being so no one is to be Judge in its own cause should be held sacred. According to Hals bury Law of England. It stated “there is a presumption that any financial interest however small it may be in the matter in dispute disqualifies a person from adjudicating”. 2. Personal Bias. The 2nd kind of bias is personal one which is based on personal Grudge or personal vendetta. A number circumstances may give rise to personal bias, A judge may be a relative, a friend or business associate of Party. He may have some personal Grudge enmity personal prejudice grievance or professional rivalry against him which includes personal disliking. In View of these factors, there is every likely hood that the judge may be bias towards one Party or prejudice towards others. 3. Official Bias. Official or departmental bias is one of the most baffling problems of administrative law; however, the problem of departmental bias is something which is inherent in the administrative process itself. In administrative Judicial official Bias perspective is inherent and can be presumed For e.g., in any disciplinary proceedings the presumption is of guilt rather than innocence. 6 Fayaz Hussain Junejo B.A LLB-IV It is certain that the sometimes-official perspective and bias do infest administrative adjudication. Reference to the case of Doctor Bonham 77 English reports E.R page 646 AIR 1947, AC p 1572. Concept of Natural Justice. PLD 2010 SC 483. The Principle of Natural Justice means “right of Fair Hearing in the matter to both the parties” The Concept of Natural Justice is combination of certain rules. ➢ Audi Alteram Partem “No body should be condemned unheard” ➢ Nemo Jude in Resua “Nobody should be a Judge in his own cause” Application whereof is to be Decided by the court itself in accordance with the facts and circumstances and the law applicable on the subject. The Principle of Natural Justice is Universally Respected, the principle may always be tailored to the situation, and the phrase Natural Justice is not capable of a static and precise definition. It can’t be imprisoned in the straight Jacket of a Cast iron Formula, with the passage of time, Judges Nurtured this concept of Natural Justice in the tradition of British Jurisprudence with reference to Equity and Good Conscious. Natural Justice is considered as that Branch of Natural law which related to the administration of justice, the application of Natural Justice is not confined only to Judicial Proceedings but also to all then proceedings affecting person’s or property of a party. 7 Fayaz Hussain Junejo B.A LLB-IV Such principle of Natural Justice would be deemed to be part of every statue unless it’s applicability is specifically excluded, Principles of Natural Justice are to be observed not only the Court’s but also by executive and Administrative authorities, it requires that justice not should done only but should manifestly and undoubtedly seem to be done, requirements of opportunities of hearing is that a notice should be served to the person or party in respect of the proposed against him, it is based in the general consensus of Judicial opinion to insure the eliminatory principle of fairness and a fair opportunity of hearing must be provided to the person to controvert the allegations set against him. Such opportunity of Hearing must be a real one not an illusory “Audi Alteram Partem” is a facet of natural Justice, this rule is intended to inject Justice into law, it can’t be applied to defeat the hands of Justice or to made the law lifeless or sled defeating to the common-sense situation. Principle of Natural Justice is also well recognized in Holy Quran for instances all refusal of Iblees to Bow down the Hazrat Adam on the command of Allah, He was punished for his rebellious allegation and Jealous Disobedience, only after he was asked to explain his conduct PLD 1981 SC AJK 4 Principle of Natural Justice is the essence of Justice and the vary fountain head which must on not account be allowed to be polluted. By Virtue of Article 10-A of Constitution of Pakistan the Right of Fair trial is also given which reflects part and parcel of natural hearing. Exceptions. PLD 2010 SC 483. Under exception circumstances the principle of Natural Justice can be dispensed with 1. Where there is no apprehension of injustice. 2. When compulsive necessity so demand, that is to say when prompt action is to be taken. When obligation to give notice would obstruct the taking of a prompt action right of prior notice is excluded, the reason being so that in emergency situations interim majors are taken to avoid the mischief. The national security sovereignty, public order and public interest must be of such high degree as to offer as a great threat which must be given precedence over all things. 3. Statutory exclusion: if the statutory provisions either expressively or specifically or by necessary implications excluded the applications of any principle of Natural Justice then the court can’t ignore the mandate of the legislation 8 Fayaz Hussain Junejo B.A LLB-IV 4. Legislative Actions: Legislative action plenary or sub ordinate is also not subject or the rules of natural Justice, Thus for E.g. Before enacting the law, imposing the tax, fixing price of commodities it is not necessary to issue notice and provide hearing. A legislative Action for instance price fixing is the direction of a general character, not directed against a particular person or individual, manufacturer or trader. It is conceived in the interest of General consumer public. 5. Admitted or Undisputed Facts: in a departmental inquiry where a wrongdoer admitted all the relevant facts, there was no questions of given any opportunity to cross the examine the witness. Again, where the applicant did not deny or dispute the information collected against him, his explanation was sought, he participated in the investigation, he submitted his explanation but did not dispute any of the facts, and question of giving any Fair Hearing does not arise anymore. For e.g., where a person himself pleads guilty or confess his guilt the question of rehearing does not arise more. 6. Confidential Inquiries. Principle of natural Justice may be dispensed with when the inquiry is of confidential nature and disclosure of information may defeat the object of the statute. Thus, no opportunity of being heard to be given to the additional judge of the High Court before his name is dropped from being confirmed (AIR 1982 SC 149) similarly before including the name of a person in surveillance list; no notice is required to given to the person concerned. The Concept of Judicial Review Judicial review represents the means by which the court control the exercises power, govt departments, local authorities, state agencies which are governmental nature much exercise that powers in a lawful manner and within their sphere. Judicial review has developed to ensure that public bodies which exercise law making powers are decision making powers are kept within their limits. One can say that judicial review can be termed as when the court examine the decision and actions of administrative functionaries, According to Grifth, when the court scrutinize the legality of administrative actions and decision, it can be termed as Judicial review in action. Accordingly, the task of the judges is to ensure that the exercise of any power which has been delegated to Ministers, administrative and adjudicatory bodies is lawful According to the power to that body by act of Parliament. The Scope of judicial review has been considered and elaborated by the Hon’ble SC of Pakistan in the case Habibullah Energy Ltd vs Wapda reported in PLD 2014 SC 47. 9 Fayaz Hussain Junejo B.A LLB-IV According to Harold Burca, in reality judicial review is the rights protecting service, rendered by the courts against abuse of power by the administrative functionaries” According to Hon’ble C.J John Marshall, as he then was in the case of Marbury Vs Madison absorbed “judicial review protects the Constitution, it the judicial veto on legislation” Demard and demo says that Judicial review is the examination by the court in cases lay down Before them of legislative statues and administrative or executive acts to determine whether or not they are prohibited by the constitution or in excess of power granted to it. One can say that judicial review should lie where the vires of the administrative actions is in question? Judicial review is the only remedy available to test the legality of the decision made by the public bodies. According to De Smith, “Judicial review of the administrative actions is inevitably, sporadic remedy available to a person asking the court to hold a scrutiny of administrative actions on the touchtone of the doctrine of ultra vires. The superior courts in Pakistan exercises the power of judicial review one under article the 199 of Constitution of Pakistan and secondly 184 (3) of the constitution of Pakistan. While the exercising the power under article 199 the high court also acts the supervising jurisdiction as conferred under article 203 of Constitution to maintain check and balance in regards to the acts of the functionaries and if the decision is found to be arbitrary, capricious, unwarranted in law, the same can be revisited and can be strike down. Likewise, the Hon’ble Supreme Court of Pakistan can invoke this power of Judicial review 184(3) of Constitution of Pakistan when the question of any fundamental rights and public importance is invoked. This power can be exercised Suo-motos. In order to attract article 199 one has to show that he is an aggrieved person and an aggrieved person is one whose legal rights and remedies is denied, person’s aggrieved includes who has general grievances or he has must suffered a legal grievances for E.g. where a decision passed has been passed against him by a particular authority or functionary, loss of personal benefits or disadvantage to a person is also an aggrieved person, the scope of aggrieved person has been broaden in the leading case of Fazul I’d din reported in PLD 1969 SC 223, where in the Hon’ble SC held “ A right is stricto jurisdiction says is not required but it is enough if the Petitioner applicant disclose that he has some personal interest, in the performance of legal duty which if not performed or if performed in a manner not permitted by the law which would result in the loss of personal benefits to him or curtailment of prevailage remedy under such circumstance judicial review attractive. 10 Fayaz Hussain Junejo B.A LLB-IV The Second requirement is to show the right of locus standi (right to address the court) but it must be remembered that the aggrieved person must perceived the right of locus standi. The constitution of Pakistan embodiesthe Judicial review not only under article 199 or 184(3) but by necessary implications in number of other provisions incorporating the Islamic principle and model judicial review principle such as Article 2 Islam to be the state religion, article 2(a) objective resolution, article 27) provisions relating to the Quran and Sunnah keeping the concept of judicial review as a part of divine law. Conclusion: To sum up the function of judicial review is to act as a check against the excess of power in derogation of private rights. Judicial review upholds the rules of law and it is expending its growth with the passage of time. What do you understand by Administrative Actions? Administrative action is a comprehensive term, it is a term of wide import which includes many things at the same time. these administrative actions may include administrative directions, administrative instructions and administrative functions, however all transactions arise out of administrative process, whether in the form of administrative directions, instructions or functions on a wider spectrum can be described as Administrative Actions Classification of Administrative Action takes various forms for E.g. There are number of administrative tribunals such as Service tribunal, Income tax tribunal, banking Tribunal etc. Other forms include Commissions (Water Board Commission), Boards, Committees or any authorities (for E.g., Provincial Ombudsman). Which as a part of administrative machinery act in a judicial manner for all practical purposes, subject to all the Trappings by the Court. Administrative Actions can be classified into 3 broad categories. a. Rule Making Actions or Quasi- Legislative Action. It is a legislature, which is the law making organ of the any state, in most written constitution the law making power is Expressly stated to vest in the legislature but in present century today the legislative bodies can’t give that quality and quantity of laws which is required for the efficient functioning of a modern intensive form of 11 Fayaz Hussain Junejo B.A LLB-IV Government, therefore the delegation of a law making power to the administration is a compulsive necessity, when any administrative authority exercises the law making power delegated to it by the legislature, it is known as rule making actions or power of the administration or Quasi Legislative action. b. Decision making action or Quasi-Judicial action. Now a days bulk or most of the decisions which effect up a private person comes not from the court but from the administrative agencies exercising adjudicator power, the reason is since administrative decision making is also a byproduct of intensive form of government. The traditional form of Judicial system can’t give to the people that quantity and quality of Justice which is required in a modern welfare state. The term Quasi-Judicial is used to mean to administrative adjudication or decisionmaking process. Administrative decision making may be defined as “Power to perform acts” which are administrative in character for E.g., Making a posting, transferring from one department to another, giving promotion, seniority or demoting a Civil servant etc. Caring within the colour of Judicial dispensation are some characteristics thereof, the reason being so administrative decision is mostly done by informal process for E.g., by issuing administrative directives, administrative instructions or some time written representation would be sufficient compliance of natural Justice. The Donoughtmora Committee made analysis of a true Judicial Decisions and summed up attributes which pre supposes a lis between two or more than two parties and then involves four requisites 1. Presentation of the case. 2. To determine question of fact on the Basis of evidence laid by the parties. 3. To determine question of law on the basis of legal arguments. 4. To give a decision by way of speaking order based on sound reasoning by applying the law to the facts of the case. c. Power to implement the decision. This power of implementation is also known as residuary power or residuary action which is neither legislative nor judicial, it is concerned with the treatment of a particular situation and is devoid from generality, it is based on subjective (Opinion framing)satisfaction when decision is based on policy guidelines or expediency, it does not decide a right though it may affect a right for E.g. Decision of the Quasi-Judicial Authority to be implemented in later and spirit, Issuing direction to the sub ordinate authority not to carry out their functions contrary to law, making reference to the tribunal Nab Authority for adjudication under the law, Preventive Detention (ECL) or 12 Fayaz Hussain Junejo B.A LLB-IV deportation, Granting or withholding the sanction, Requisition acquisition granting or cancelling of allotment. Finality of administrative action or Ouster Clause. Generally, a clause is inserted in the statutes by which the action or decision of the administrative authority is made final, such a clause has been giving various names that is to say Finality clause, exclusion clause, Ouster clause or conclusive clause. But no finality clause contained in any statue can barred the judicial review available under the Constitution, in a leading case it has been held that the word final means “Final for the purpose of act or ordinance only but does not barred the constitutional modes of judicial review” as Administrative Actions and Decisions are always subject to judicial trapping and if the action or decision is ultra vires, contrary to law and evidence, the court has all the power to set a side such an action or decision of the administrative authority. 13 Fayaz Hussain Junejo B.A LLB-IV Administrative instructions. Administrative instructions are the most efficacious for achieving some kind of uniformity in the administrative discretion and to regulate in an area which is new and dynamic, it also gives a desire flexibility to the Administrations without resorting with the lengthy process and technicalities of rule making process. Administrative instructions may be statutory or nonstatutory, it may be specific or general, it may be directory or mandatory. The nature of the instructions depends largely on the provisions of the statues which authorize the. Administrative agencies and functionary to issue instructions, the instructions which are generally issue not under any statutory, such as autonomous bodies but under the general power of administration they are considered directory instructions, they don’t have the force of law and a such are enforceable but the breach there off can be visited with disciplinary actions, Administrative Actions which have no statutory force of law, don’t gives any legal rights and can’t be enforced in court because it is not back by statutory rules whereas Administrative Actions issued by competent author having a statutory backing have binding force and can be enforceable min law, The power to issue instructions flows from the general executive power of the administration, one should keep in mind administrative instructions can’t over right the statutory rules by administrative action, the govt functionaries has power to fill upon the gaps in the rules, if rules are silent on the subject and Administrative Actions must not be inconsistent with the existing rules. Statutory rules can not be modified or amended by administrative instructions. Relevant Case Laws 1. PLD 1964 SC 21 2. 1990 MLD 1947 3. PLD 1996 Lahore 180 4. PLD 1961 SC 105. However, in various cases the supreme court held that if the administrative instructions don’t run counter to the statutory rules, they have a binding effect and their violation can be enforced through a court of law. Similarly, if administrative instructions are construed as 14 Fayaz Hussain Junejo B.A LLB-IV making a representation to the people, then anyone acting on such representation can hold the administrative agency bound on the ground of equitable estopple. Administrative instructions are nothing but guidelines or recommendations or advice issued by the executive or administrative functionaries. Administrative Directives. Another mode of controlling or stream lining the affairs of administration under the garb of administration, administrative directions may be issued which is nothing but a command or mandate and administrative instructions is of lesser degree as compare to administrative directives but both of them are analogous in nature, there is an increase trend of issuing of administrative directions with the passage of time by the administrative agencies, Directions are issued by the variety of purpose, administrative authorities churn out directions through Letters, Curricular, Memoranda, Office Letter, Press notes and even by the publication in the Govt Gazette in the notification. Directions may be specific, particular purpose or r a particular case or it may be a general in nature, lying down the general principles, Policies, practical or procedures to be followed in the similar cases According to 2018 SCMR 1544. Sometimes directions of general nature may resemble a rule or delegated legislation but the two differs basically in concept and essence at the same time directives are designated as Administrative Quasi- law or administrative Quasi legislation. Delegated legislation can be issued only when the authority concerned has statutory power to do so but statutory power is not necessary for the purpose of issuing directions or directives. Generally, Directions are issued under the general administrative power of govt functionaries although at time statutory powers may also be conferred to issue administrative directions, although Direction may not be enforceable if not backed by any statutory power but is does not follow from this that administrative authorities may disregard with the impunity. The authorizes are expected to follow the directives and the breach where off may lie to disciplinary actions or any other appropriate action against them. 1. AIR 1970 SC 2313. 2. AIR 1955 SC 549 Short Notes of Administrative Law 15 Fayaz Hussain Junejo B.A LLB-IV Illegality Double Action Pleas of bargaining Ultra Vires Aggrieved person Locus Standi Procedural impropriety Principle of proportionality Locus Standi: While exercising the writ jurisdiction, the court has to decide / consider as first question whether the petitioner has locus Standi to invoke the constitutional jurisdiction of the court. Locus Standi means a place of standing before the Court, a right of audience before the Court. A right of appearance in a court and to be heard, A person seeking judicial review of an administrative action or Quasi-Judicial action much show that he has a direct personal interest in the act which he challenges before the Court. Person having an interest in the Performance of legal duty by a public functionary which is not being performed or perform in a wrongful manner would result in the loss of personal benefit or interest of a person, then such person has a locus Standi to file a constitution petition. Lord Denning Says that: According to him the question of locus Standi is the most vexed/ Popular question of all, lord Denning further summed up as follows regarding the question of locus Standi. “I must confess that whenever an ordinary citizen comes to court and complaints that this government department or local authority is abusing or misusing it’s powers, I always like to hear what he has to say” According to De-Smith, Locus Standi refers to legal capacity to challenge an act or decision whether the decision is valid or invalid, is relevant to the determination of question whether the applicant has the locus Standi to impugn it. The leading Case on the Principle of Locus Standi has been considered by the Hon’ble Supreme Court of Pakistan in Fazul din case PLD 1969 SC 223 wherein it has been held that the concept of locus Standi has been interpreted in a liberal manner and the scope was wider 16 Fayaz Hussain Junejo B.A LLB-IV holding a person having even an interest in the subject matter of the case can successfully maintain a writ before the High Court. Aggrieved Person. An aggrieved person is one who must have suffered a legal grievance or a person against whom a legal decision has been pronounced. According to Black’s law dictionary “ It relates of a person or an entity having legal rights which are adversely affected having been harmed by infringement of such legal rights, Thus one can say A person who has been deprived of a benefit, prevailage through an illegal act or omission could be considered as an aggrieved person. In order to invoke the constitutional jurisdiction, the person has to show that he is an aggrieved person which is a condition precedent then only the question of locus Standi arises. Illegality: The term illegality refers to against the mandate of law, one can say that ignorance of legal provisions by courts such ignorance would amount to committing illegality PLD 2007 Kar 392, one can term illegality when the court overlook the law, ignore to apply the correct law of fails to exercise its jurisdiction so vested upon it or passes an order or act beyond the scope of its jurisdiction violating, disregarding, overlooking any law of procedure prescribes under the statues amounts to illegality. According to lord Denning, illegality denotes a radical defect. Illegality is unlawfulness an act which is not authorized by law. Principle of Proportionality: The principle of proportionality can be termed as equality in ratios, For E.g. That the conviction or the sentenced must be in the light of the gravity of the offence committed, the principle that the use of force should be in proportion to the threat or grievance provoking the use of force. Irrationality: 17 Fayaz Hussain Junejo B.A LLB-IV It means not guided by reasons or by fair consideration of facts finding based on without any clause able reasoning without any justification, without any rhyme or reason, without any justification, non-applicability of judicious mind reflecting an act of arbitranass all these factors amount to irrationality. Double Action: The term double action is commonly known as Double Jeopardy. A 2nd prosecution for the same offence after acquittal or conviction or multiple punishments for the same offence is not permissible in law, the golden principle of law is that if a person has been dried once and he is acquitted or convicted cannot be dried again, this is also postulates and safeguarded under article 13 of the constitution of Pakistan. Plea Bargaining: PLD 2009 Lahore 312 (relevant 317) The concept of pleas bargaining is generally explained as pretrial negotiations, that takes place b/w an accused person and the prosecution, during which the accused person agrees to plead guilty to the charges in exchange of certain concession to be extended by the prosecution. Under Islamic system of dispensation of criminal justice in Pakistan many offences including some serious offences like murder are compoundable, compound ability of such offences inherently some sense of resorting to plea bargaining in respect thereof. Academic classify plea bargaining in three categories that is to say charge bargain, sentence bargain and fact bargain. a. In charge bargain, the accused person is given an option to plead guilty to a lessor charge or only to some of the charges framed against him. b. In Sentence bargain, the accused person pleads guilty to the charge framed against him but there is the bargain on the quantum of sentence. c. Fact Bargain is concerned with the admission of the relevant fact by the accused person in exchange for concession by the prosecution. The driven factors behind all the clause of pleas bargaining are, 18 Fayaz Hussain Junejo B.A LLB-IV 1. Saving the time of court 2. Cutting down the expenses involving the trial 3. Expeditious delivery of justice. Delegated legislation: It is also known as permissible legislation, delegated legislation can also be referred as subordinate legislation, delegation of power is not a new phenomenon and it has been validly recognized in other advanced countries of the world, the word delegate means to authorize to assign, to interest task of power due to possitry of time the Parliament enacts the main act and handover the power to make rules and regulations to respective states, provinces or subordinate authorities, various forms of delegated legislation are, Ordinances, regulation, rules, scheme, by laws, curriculars, directives, notification, instruction etc. The subordinate authority has to discharge it’s functions within the power conferred as per the parent act, if it exceeds its limit then it’s actions will be ultra vires and the same can be challenged before the Court of law, The power that is delegated can’t be uncontrolled and uncanalised, it is subject to check and balance, it must be such as to re canalized within the banks that keep it from over flowing, Power of delegation is factionary called power to fill up the details. There are two main checks on the power of legislation to delegate, these beings in good sense and the principle that it should not cross the line beyond. Exception. The following functions can’t be delegated a. To declare what the law shall be in relation to a particular territory, this being a question of policy of making legislation and fall within the domain of essential functions and such policy making legislation cannot be delegated to the subordinate authority, it remains with the domain legislature itself. b. Power to repeal can’t be delegated to the subordinate authority as this function lies only with the legislature. c. To make assumptions from the operational of the act. d. To prescribe an offence and its punishment which is essentially a legislative function. e. To prescribe a special procedure for the trial of the statutory offence, this is also a legislative act. 19 Fayaz Hussain Junejo B.A LLB-IV f. To modify or amend the law without any Parliamentary practice. Ombudsman This is contained in PLD 1983 Central statues 17. 1994 PLD 1 Provincial statues (Sindh Act 1991) Who is an Ombudsman? In the modern era of administrative law, the need of the ombudsman has a reason in order to resolve the grievances at a gross route level even of ordinary citizen at low cost or expenses without any legal formalities and with speedy dispensation of Justice, the post ombudsman is created as a watchman to diagnose, investigate, redress and rectify injustice done to a person through maladministration. Maladministration includes a decision, process, recommendation, rules or regulations or to establish practice or procedure, which is also perverts, arbitrary, caprices, unreasonable, unjust, pious, discrimatory, oppressive all involves exercise of power or failure to exercise the power with an improper refer favoritism and administrative excesses by the agencies. Who is agency? It includes ministry, division, departments, Commission, office of the federal govt, statutory provision, institution established or controlled by the govt but does not include Supreme Court, high Court, Supreme Judicial Council or Federal Shariat Court. In order to attract the jurisdiction of the Ombudsman there should be act of maladministration on the part of the ………..…under such circumstances a complaint may be field before the Ombudsman by aggrieved person. Appointment of Ombudsman. The federal ombudsman is appointed by the President whereas the Provincial Ombudsman appointed by the governor, his functions and his powers have to be 20 Fayaz Hussain Junejo B.A LLB-IV discharged in a fair and honest manner throughout Pakistan or province in a diligent manner. The ombudsman shall hold office for a period of 4 years and he shall not be eligible for any extension or for his re-appointment but he may resign his office by writing under his hand president or to the governor. The ombudsman should not hold any other office for profit. The terms and conditions of service and renumeration of the ombudsman are salary, privileges will be determined by the President. The ombudsman may be removed from the office by the President on the ground of misconduct or be incapable of properly performing the duties of his office by reason of physical or mental incapacity. Jurisdiction of the Ombudsman is attracted upon a complaint filed by an aggrieved person in respect of the maladministration by an agency. Or on a reference by a President, or the federal Council or N.A or on a motion of the Supreme Court or of the High Court may giving the course of proceedings or on his motion of Suo Motto undertake any investigation into any allegation of maladministration on the part of any agency, officer or employees. When his jurisdiction bar: 1. Where any proceeding is sub judicious (pending) any court. 2. Where it relates to the external affairs of the Pakistan or the relation or dealing of the Pakistan with any foreign affairs or where it relates or matter connected to the defense of Pakistan or any part thereof concerning the military, navy or air force. Procedure: The procedure of proceedings before the ombudsman is informal, a complaint shall be made in oath to the ombudsman or in case of the death by his legal representatives which shall be handed over to the office of the ombudsman. No anonymous complaint shall be entertained by the ombudsman, the ombudsman shall conduct the investigation upon the complaint by issuing notice to the agency and he may adopt such procedure as he considers, appropriate for such investigation and he may obtain information from such person as he may think fit, A person shall entitle to appear in person or through representative. Ombudsman shall in accordance with the rules pay expensive or allowances to any person who attain the proceedings of the ombudsman, the conduct of an investigation shall not affect any action taking by the agency concerned. After holding the investigation and hearing the matter as the case may be the ombudsman may frame of his own opinion that the matter considered amounts of 21 Fayaz Hussain Junejo B.A LLB-IV maladministration, he shall communicate his findings to the agency concerned by way of recommendation for implementations. The Ombudsman has power to punish to any person for contempt who abuses interfere or obstruct or disobey the directives recommendations or orders of the ombudsman. The ombudsman has power to or may delegate his power or any of his staff member to search any premises, the ombudsman has also power of sending and enforcing the powers, compiling the Productions of documents or issuing commission for Examination of witnesses. Bar of Jurisdiction: No court or other authority shall have jurisdiction to question the validity of any action taken or to be taken or done under this act. No court or other authority shall have jurisdiction to grant an injunction or stay in respect of any proceedings ongoing before the Ombudsman unless the party establishes that the ombudsman has no jurisdiction. Any person aggrieved by decision or orders of the ombudsman may within 30 days or the decision or order make representation to the president who may pass such order Thereon as he deem fit.  

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