INTRODUCTION TO
ADMINISTRATIVE LAW
Mian Ali Haider
L.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
Comparison of the Roles of Statutes and Regulations
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
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 Conseil d'État (Council of
State) as a court of last resort. The main administrative courts are the
"Tribunaux Administratifs" and appeal courts are the "Cours
Administratives d'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 lawtype 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
Parliament
Agency
Agency
Public
Law
(Enabling
Statute)
Federal
Register
Federal
Register
Proposed
Delegated Authority Regulation
Final
Regulation
Public Comment
Judicial
Review
Agency
Code of
Federal
Regulations
CONCLUSION