INTRODUCTION TO ADMINISTRATIVE LAW

INTRODUCTION TO ADMINISTRATIVE LAW Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

Twin Issue Doctrine • Administrative law can be approached in much the same fashion as many other law school courses. • If you regard the field merely as a collection of discrete legal doctrines, it may make a great deal of sense simply to memorize various general principles, to apply those principles to a final examination, and then forget about the topic. • The lectures / material provided can be used in that fashion A more profitable approach, however, to truly understanding administrative law—and for practicing administrative law—is to keep two questions in mind from the beginning: • (1) What are the rules of the game, both substantive and procedural? and • (2) How may I best represent my client before an administrative agency? • Thinking through the twin issues of doctrine and the application of that doctrine through the lawyering process will make you a much better lawyer, even if it doesn’t necessarily have an immediate payoff in your law school course.

INTRODUCTION • Constitutions have come to be regarded as the collective consensus and ultimate reference point of a nation’s aspirations and ideals. • Always looked upon as the primary custodians of individual and collective rights and the supreme arbiters in disputes between the organs of a State. • They are the mirror to the ideological hopes of the past, the litmus test for the actuality of the present and the looking glass for the future. • The alchemy of their creation and interpretation is suffused with politics, and the politics of a nation are greatly influenced by its constitutional disputes.

TRUST THEORY • Pakistan is a Federal Islamic Republic, with a parliamentary system of government, both at the centre and in the provinces. • That it is an Islamic Republic distinguishes it from other republics, the distinction being that in Pakistan • “sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust”. • This is known as Trust theory

Pakistan is a Republic with a parliamentary form of government implies that the system of federalism is so designed as to accommodate the parliamentary form of government to suit the conditions and genius of Pakistan. • This will naturally require the noticing of the important respects in which our system differs, say, from the British system. • A democratic State acts by its legislative, its executive or its judicial authorities; it can act in no other way. • So does the Islamic Republic of Pakistan. To ensure against the tyranny of the accumulation of all powers – legislative, executive, judicial – in the same hands, the Constitution of Pakistan provides for the separation of powers or functions – a system of tripartite federal and provincial governments

STARTING POINT • It has been said, and rightly, that Judicial Review is judicial power in action. • The power of judicial review conferred upon the Supreme Court under Article 184 and upon the High Courts under Article 199 of the Constitution. • Under Article 199, the power, among others, is to direct a person performing public functions • “to refrain from doing anything he is not permitted by law to do, • or to do anything he is required by law to do”; • and to declare that an act done by such a person • “has been done or taken without lawful authority”. • Here, we are, to a large extent, in the field of, what is called, Administrative Law.

Just as there is life outside the hospitals, so there is law outside the courts. • As Kinneth Culp Davis, known as the father of the US Administrative Law, has observed in one of his works: • “In all advanced nations of the world, justice is administered more outside courts than in them”, • by prosecutors, welfare administrators, immigration officers, tax and customs officers and tribunals, service tribunals etc. • Need of the time is to evaluate Administrator Law in its constitutional context, that is, only the administrative law aspects of judicial decisions mostly rendered by the superior courts in exercise of the power of judicial review under Articles 184 and 199 of the Constitution

OVERVIEW OF ADMIN LAW • In the broadest sense, administrative law involves the study of how those parts of our system of government that are neither legislatures nor courts make decisions. • These entities, referred to as administrative agencies, are normally located in the executive branch of government and are usually charged with the day–to–day details of governing. • Agencies are created and assigned specific tasks by the legislature. • The agencies carry out these tasks by making decisions of various sorts and supervising the procedures by which the decisions are carried out. • For Example DHA, LDA, WAPDA, LESCO

Under that mandate, Agencies does two things: • (1) it makes general …………policies (within the terms of the statute, of course) and • (2) it processes individual applications for, and terminations of, ………….. • Affected persons who disagree with the agency’s decisions on either the substance of the program or the procedures under which that program is implemented—and whose grievances are not resolved within the agency—are permitted to take their dispute into courts for resolution. • Occasionally, aggrieved persons return to the legislative branch in an attempt to persuade Parliament to alter the statute under which the social security program functions.(USA) in Pakistan to the courts

This is the basic model for any administrative process; • Whether you are studying federal administrative law, a Provincial administrative system, or even a single administrative agency, the process of decision–making is likely to be similar, even when the missions of the agencies differ. • It is the unifying force of the administrative process—in dramatic contrast to the wide variety of substantive problems with which agencies deal— • That has persuaded most administrative law researchers / professors to concentrate on agency procedure rather than agency substance

FUNDAMENTALS OF ADMIN LAW • First, under our constitutional system, agencies are creatures of the legislature. • They do not spring up on their own, and they cannot be created by courts. • Agencies function only insofar as a legislature has given them the authority to function. • That authority may be exceptionally broad or incredibly narrow • Federal administrative agencies are typically endowed with broad, general powers. By contrast, state legislatures often enact far more detailed agency statutes because of a lingering reluctance to give state agencies unfettered power

Whatever form a new administrative agency takes, the legislature must enact a statute creating the agency. • This statute, sometimes called an agency’s organic act but more frequently referred to as an agency’s enabling act, is the fundamental source of an agency’s power. • This principle—that the legislature creates agencies and sets limits on their authority—should be regarded as cardinal rule number one of administrative law. • Far too many people in law school and, on occasion, even experienced practitioners, lose sight of this fundamental principal. • A misunderstanding of this basic concept can lead to erroneous assumptions about an agency’s ability to deal with a particular issue or problem

Three Sources of the Law • Legislative • Judicial • Executive • President • Cabinet • Administrative Agencies • are established by legislatures, agencies and are usually organized under the executive branch of government, often associated with a Cabinet position • conduct legislative, executive, and judicial types of activities • exist on both federal and Provincial levels

Examples of executive branch agencies are the • Environmental Protection Agency • Department of Transportation • Federal Reserve Board • Department of Agriculture • Postal Service • Civil Aviation Administration • Because of the scope of parliamentary delegation of authority, each agency is unique in its structure, its personnel, and the nature of its regulations. • Unless talking about a specific agency, administrative agencies’ regulations and decisions must be discussed in broad generalizations.

AN ADMINISTRATIVE AGENCY MAY BE CALLED • Board • National Labor Relations Board • Commission • Federal Communications Commission • Corporation • Federal Deposit Insurance Corporation • Authority • Lahore Development Authority • Department • Department of Transportation • Administration • Social Security Administration • Agency • Environmental Protection Agency

Role of Administrative Agencies • Legislative: Granted rulemaking authority • Parliament delegates authority to promulgate regulations to administrative agencies • Enact enabling statutes • Establish the scope of agency authority • Presidential Executive Order may also delegate authority to promulgate regulations to administrative agencies. • Judicial: Parliament may also grant power to hear and settle disputes arising from the regulation or the enabling statute. • Executive: Parliament may also grant power to investigate and prosecute violators of regulations.

Role of Administrative Agencies The Securities and Exchange Commission is an example of an agency with powers similar to those of all three branches of government • Legislative: promulgates regulations governing what information must be given to investors. • Judicial: conducts hearings to determine guilt and mete out punishment to violators of these regulations. • Executive: enforces these regulations by prosecuting violators by disciplinary actions and stop orders.

Outcomes of agency actions include • Rules or regulations (the two words are used interchangeably), which have the same effect as statutes • Licenses, which include permits, certificates, other types of permission • Advisory opinions, which are authoritative interpretations of statutes and regulation but are not binding • Orders, which are the final disposition of any agency action, other than rulemaking • Decisions, which adjudicate controversies arising out of the interpretation of statutes or regulations; they are issued in the same manner as court decisions

STATUTES Passed by Parliament Provide for broad social and economic goals and legal requirements Get their power from the Constitution Reviewed by courts for constitutionality Representative democracy- Parliament acts to represent the will of the people REGULATIONS Issued by agencies Get their power from Parliament Prescribe specific legal requirements to meet Parliamentary goals Reviewed by courts to determine constitutionality, limits of delegated authority, and whether they are arbitrary and capricious Participatory democracy – agencies must seek and consider public comment Comparison of the Roles of Statutes and Regulations

The Process of Promulgating Regulations (Rulemaking) The initiative behind promulgation of a new regulation or a change in a regulation can originate from many sources, including • legislation that delegates authority • Parliamentary hearings and reports • court orders • Executive Orders and Office of Management and Budget Circulars • agency acting on its own initiative • emergency situations, technological developments, etc. • political pressures • Federal Advisory Committee recommendations • petitions and informal requests from affected parties

ADMIN LAW IN CIVIL LAW • Unlike most Common-law jurisdictions, the majority of civil law jurisdictions have specialized courts or sections to deal with administrative cases which, as a rule, will apply procedural rules specifically designed for such cases and different from that applied in private-law proceedings, such as contract or tort claims. • In France, most claims against the national or local governments are handled by administrative courts, which use the Conseild'État (Council of State) as a court of last resort. The main administrative courts are the "TribunauxAdministratifs" and appeal courts are the "CoursAdministrativesd'Appel". • Administrative law in Germany called“Verwaltungsrecht”de:Verwaltungsrecht (Deutschland), generally rules the relationship between authorities and the citizens and therefore, it establishes citizens’ rights and obligations against the authorities.

GLOBAL ADMIN LAW • Global administrative law is an emerging field that is based upon a dual insight: • That much of what is usually termed “global governance” can be accurately characterized as administrative action; • and that increasingly such action is itself being regulated by administrative law-type principles, rules and mechanisms – in particular those relating to participation, transparency, accountability and review. • GAL, then, refers to the structures, procedures and normative standards for regulatory decision-making including transparency, participation, and review, and the rule-governed mechanisms for implementing these standards, that are applicable to formal intergovernmental regulatory bodies; • The focus of this field is not the specific content of substantive rules, but rather the operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, transparency, participation, and assurance of legality in global governance

President Executive Order Delegated Authority Congressional Oversight Judicial Review Parliament Agency Agency Agency Public Law (Enabling Statute) Federal Register Proposed Regulation Federal Register Final Regulation Code of Federal Regulations Delegated Authority Public Comment

CONCLUSION

INTRODUCTION TO ADMINISTRATIVE LAW