Assignment # 1 CONSTITUTIONAL AND ADMINISTRATIVE LAW CONSTITUTIONAL LAW State and Government Sta te and gove rnment mea ns and inc ludes pol it ical ly organi zed people , a nat ion, independent government, definite territory, capability to hold the territory, international recognition and a Constitution. WHAT IS LAW? Law is simultaneously a right and a duty. Right means to do, use or hold something to the exclusion of others. KINDS OF RIGHTS Private Rights Private Right Public Right Constitutional Right Legal Right Fundamental Rights Contractual Rights Human Rights WHAT IS JUSTICE Distributive Justice By the parliament by law making Bad laws… injustice to the people Good laws: More rights to the citizens… more justice to the citizens Corrective Justice By the courts It is restoration of the rights Restoration by force of the state CRIMINAL AND CIVIL JUSTICE Criminal justice Only by the courts No private revenge is allowed In criminal justice punishment is awarded Criminal courts are available in the country
Our all Constitutions maintained spirit of the Govt. of India Act, 1935.
Parliamentary form of Govt. followed like U.K.
Strong executive was maintained.
1973 Constitution is a big move made to bring some balance in this regard.
LEGISLATIVE POWER
Law making power is with the Parliament. Laws are for good governance of the country.
Laws for the executive are to be made the Parliament. Laws for the judiciary are to be
made by the Parliament and no laws, no power to the executive and judiciary.
EXECUTIVE POWER
The constitution provides executive power to the executive;
The cabinet and president are heading the executive;
Separation of power in parliamentary system does not exist in true sense;
Cabinet is dependent to the Parliament but practically it is in a position to maneuver;In Pakistani constitution, the cabinet and president have constitutional power independent
from the parliament;
Pakistani constitution is mixed form of parliamentary and presidential form of governance and
Executive is strong in Pakistan.
IS FEDERATION STRONG IN PAKISTAN?
• More legislative powers with federation.• More executive powers with federation.
The rule of law is a legal maxim that states no person is immune to law. The phrase has been used since the 17th century, but the concept can be traced to ancient Greece.
Aristotle put it this way: "law should govern". Rule of law stands in contrast to the idea
that the sovereign is above the law (rex lex), a feature of Roman Law and other legalsystems.
One way to be free from the rule of law is by denying that an enactment has the necessary
attributes of law. The rule of law has therefore been described as "an exceedingly elusivenotion" giving rise to a "rampant divergence of understandings".
At least two principal conceptions of the rule of law can be identified: a formalist or
"thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define
specific procedural attributes that a legal framework must have in order to be incompliance with the rule of law. Substantive conceptions of the rule of law go beyond
this and include certain substantive rights that are said to be based on, or derived from,
the rule of law.
I. Introduction to the Rule of Law
Politicians, lawyers, economists and policy-makers often use the term “rule of law” tocharacterize a certain type of legal-political regime. As the pace of globalization has
increased in the past two decades, many developing countries have prioritized their
policy agendas to promote the rule of law. This FAQ provides an introductoryexplanation of the concept of the rule of law and how it relates to development. It
concludes with a brief description of some of the criticisms that have been made about
the concept of the rule of law.
II. What is the Rule of Law?
The rule of law does not have a precise definition, and its meaning can vary betweendifferent nations and legal traditions. Generally, however, it can be understood as a legal-
political regime under which the law restrains the government by promoting certain
liberties and creating order and predictability regarding how a country functions. In themost basic sense, the rule of law is a system that attempts to protect the rights of citizens
from arbitrary and abusive use of government power.
A. Elements of the Rule of Law
In his book The Morality of Law, American legal scholar Lon Fuller identified eight
elements of law which have been recognized as necessary for a society aspiring to
institute the rule of law. Fuller stated the following:
1. Laws must exist and those laws should be obeyed by all, including government
officials.
2. Laws must be published.3. Laws must be prospective in nature so that the effect of the law may only take place
after the law has been passed. For example, the court cannot convict a person of a crime
committed before a criminal statute prohibiting the conduct was passed.4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
6. Law must not command the impossible.7. Law must stay constant through time to allow the formalization of rules; however, law
also must allow for timely revision when the underlying social and political
circumstances have changed.
8. Official action should be consistent with the declared rule.Standing alone, these eight elements may seem clear and understandable. But they are
actually difficult to implement in the real world because governments are often
compelled to prioritize one goal over another to resolve conflicts in a way that reflects
society’s political choices. For example, making too many laws that are too detailed andspecific may make the legal system too rigid. Inflexibility could cause the courts of a
country (judiciary) to neglect the human element of each particular case. Additionally,instead of only applying prospectively, some laws are meant to apply retroactively, or to
past conduct, because they were passed with the specific intent of correcting the conduct
in question. Fuller recognized these conflicts and suggested that societies should prepare
to balance the different objectives listed above.
B. Beyond Fuller’s Elements
Fuller’s criteria is helpful in understanding the rule of law because it outlines the types of rules, or formal constraints, that societies should develop in order to approach legal
problems in a way that minimizes the abuse of the legal process and political power. The
rule of law, however, extends beyond mere regulations and is also shaped by the so-called “institutional constraints” on government implied in Fuller’s elements. One such
institutional constraint is the existence of an independent judiciary; another is developing
ways of promoting “transparent governance.” Informal constraints, such as local cultureor traditions that may encourage citizens to organize their behavior around the law, also
help constrain the government, promote liberty and, therefore, define the rule of law.
Although still seemingly vague, the rule of law may be most concretely defined as a
theory of governance relying upon a series of legal and social constraints designed toencourage order and to prevent arbitrary and unreasonable exercise of government power.
III. The Rule of Law and Development
Multilateral institutions such as the World Bank and many policymakers throughout the
world believe the rule of law promotes economic development.
A. Theory
Modern economic development often comes with the introduction of a market economy,
or an economy based on private enterprise that does not rely on government-planned
production. Max Weber, a famous sociologist and economist, has commented that the
capitalistic order upon which a market economy is based is organized upon a rational,
law-bound state. The market economy brings buyers and sellers to the market for
complex transactions and the international sale of goods. In the age of globalization, players in the market economy can come from many different parts of the world.
Law is important to the market economy because it is the common basis on which parties
can make agreements; it provides parties with confidence that disputes can be resolvedefficiently and fairly. For this reason, the predictability and order that the rule of law
promotes in substantive laws is viewed as the stabilizing force behind much economic
development. The rule of law helps set the “rules of the game” in critical areas such asinvestments, property, and contracts.
The rule of law also serves as an important assurance of social rights and government
accountability. Governmental restraint is especially critical for many transitioningeconomies where a previously planned economy is to be transformed into one that is
market-based. When the government is no longer the sole owner of land, capital, and
labor, the rule of law guarantees that the crucial elements of the economy will be free
from arbitrary governmental actions. The rule of law thus assures market participants thatthe government will adopt a hands-off approach to investments and production, allowing
those participants to fully exercise their rights in relation to land, labor and capital.
B. Important Components of Rule-of-Law Reforms
i. Court Reforms
The efficiency of the courts is an important component in rule-of-law reforms as theexistence of a judiciary is a fundamental aspect of the rule of law. For the newly
independent states established after the downfall of the U.S.S.R., for example, providing
an efficient means of dispute resolution was crucial to meeting the demands of anincreasingly privatized economy. At the most basic level, this simply meant that courts
needed to be available to adjudicate disputes and enforce resolutions. For countries that
are further along in the reform process, more complex structural reforms that strengthencourt capacity (i.e., training judges), independence, and transparency are needed.
To increase accountability and transparency, information technology systems may be
installed to provide greater public access. To increase independence of the courts, thegovernment can provide them with funding that will allow them to make their own
financial and administrative decisions. Furthermore, for countries that have already
established these structural reforms, to encourage the adoption of the rule of law, court
performance should be evaluated on a periodic basis. Independence, accountability,efficiency, access, affordability, alternative dispute resolution mechanisms, and the
quality of professionals are some of the characteristics that may provide an accurate
measurement of the system’s success.
An example of success in this area of rule-of-law reform is the Arbitrazh courts in Russia.
Established to hear solely economic disputes, the Arbitrazh courts underwent legislativereforms in 1991, 1992, and 1995. Those reforms led to personnel and procedural
safeguards, as well as the establishment of a higher-level appellate court. The immediate
result of the reforms was an increase in the number of cases filed in the Arbitrazh court
system. Moreover, research has shown that despite Russia’s corruption and localism
problems, foreign litigants are treated fairly. Although there are exceptions in some local
regions, statistics indicate progress in court reforms and the ability of the Arbitrazh courts
to resolve basic commercial disputes in a timely manner. .
ii. Legal Rules
Another important rule-of-law reform goal is to build the legal rules. As Fuller stated,“laws must exist.” Economic reforms have generated a large number of new economic
laws in developing countries. Between 1990 and 1995, 45 developing and former
socialist countries enacted new investment laws or codes covering a wide range of areas.Many of these investment laws were passed to liberalize the existing investment regime
in the developing country by offering clear and broad legal protection for all types of
investments. In China, for example, overall national legislative activities have seen
continuous growth. This growth is evidenced by the fact that the total number of laws,resolutions, and amended laws rose to 306 in 1993-1998 from only 60 between 1978 and
1983—the period during which economic reform began.
C.
Institutional Encouragement on the Global Level
To encourage additional country-specific development, in the early 1990s the WorldBank and the International Monetary Fund (IMF) began conditioning financial assistance
on the implementation of the rule of law in recipient countries. These organizations
provided aid to support initiatives in legislative drafting, legal information, public and
legal education, and judicial reforms, including alternative dispute resolution. Byconditioning funds on the establishment of the rule of law, the World Bank and the IMF
also hope to reduce corruption, which undermines economic development by scaring
away investors and preventing the free flow of goods and capital.Currently, in its Millennium Development Goals (MDG), the United Nations (UN) also
champions the rule of law as a vehicle to bring about more sustainable environmental
practices. The MDGs are eight goals that the UN hopes to achieve by 2015 in an effort torespond to the world’s greatest development challenges. The MDGs call on nations to
make laws in areas such as international environmental and energy law, and also call on
nations to encourage their citizenry to abide by those rules through changes in custom.The UN explicitly acknowledges that achievement of the MDGs rests heavily on the
development of the rule of law, among other factors.
IV. Criticisms of the Rule of Law
A. Law as the Ruling Standard
The very term “rule of law” suggests that the law itself is the sovereign, or the ruler, in a
society. As an ideal, the rule of law stands for the proposition that no person or particular
branch of government may rise above rules made by elected political officials. Theselaws reflect the morals of a society, and in a Western democracy they are supposed to be
pre-established, formalized, neutral, and objective. Everyone is subject to their dictates in
the same way. The rule of law, therefore, is supposed to promote equality under the law.
Critics of the rule of law, however, have noted that this system creates a ruling elite that
has the power to manipulate through the law. As Harvard law professor and leader of the
critical legal studies movement, Morton J. Horwitz, suggested, “By promoting procedural justice [the rule of law] enables the shrewd, the calculating, and the wealthy to
manipulate its forms to their own advantage.” Scholars who agree with this statement see
the law as “indeterminate,” meaning that the law has no clear or objective meaning.Consequently, the law cannot possibly serve as an effective barrier to the government’s
abuse of power because power structures in society, not the law itself, determine the
outcome of legal issues and problems.
Because judicial interpretation and enforcement of the law is influenced by the ruling
elite, the rule of law does nothing more than legitimize already existing legal
relationships and power structures. The absence of predetermined outcomes coupled withthe possible influence of the ruling elite means that the obligations of equality and
predictability that the rule of law imposes are impossible to achieve. Although the rule of
law appears to be “objective,” meaning that it is fairly applied to all people, it is actually
subjective and unfairly applied. The rule of law theory has therefore gained anundeserved legitimacy in the modern world.
Partly responding to the criticism outlined above, some scholars have commented that
part of the problem with the rule of law is its narrow conception. Instead of viewing the
rule of law solely as a judicially focused book of rules, scholars should focus more on the
informal and institutional constraints that restrict governments. For example, the moraland tradition-based restraints that societies impose on the government should be given
greater consideration in reforms and the overall conception of the rule of law. These
aspects of the rule of law are not subject to the same type of manipulation. This broader conception may help avoid situations in which the legal elite manipulate laws because by
its definition the rule of law is not solely dependant on the judiciary, which often reflects
the power of the elite, for its power.
B. Additional Limits of the Rule of Law
Laws are often incapable of providing definitive standards of behavior because of their
complex structures and unavoidable ambiguities in language. As mentioned previously,
this often leads to the unpredictable application of the law. Critics of the rule of law claim
that due to the indeterminacy in the rules, at no time is a person fully protected within asphere of individual freedoms. Consequently, one can never be sure that their actions are
legitimate or their freedom justified. Furthermore, the rule of law may not be tied to
general notions of justice or fairness. The rule of law is therefore sometimes criticized for tolerating extraordinarily unjust rules, rules that undercut the theoretical justification of
the rule of law—the promotion of liberty and restrained government.
C. Law & Development: Legal Transplantation
The term “legal transplantation” describes the phenomenon of borrowing legal rules from
other countries. Academic debates often center on the moral and practical implications of
legal transplantation and, by extension, the imposition of the rule of law. Many
developing countries, including China, Russia, Turkey and Japan, since the early 1900s,
had varying legal traditions of their own. When developing countries such as these adoptlaws from other countries, the rules borrowed may not fit the underlying tradition,
culture, and social context of the developing country. For example, Western democracies
tend to focus on individual liberties, which many people associate with capitalism.Consequently, the Western notion of what constitutes the rule of law reflects this world-
view. Other legal structures, however, may emphasize communitarian duties and
responsibilities. Additionally, in the West, legal development occurred simultaneouslywith social, political and economic development, while in countries such as China, the
creation of the rule of law has been driven in large part by the need to contend and
interact with more developed countries. Therefore, transplanted laws may often be at
odds with cultural, political and social norms since they were not simultaneously created.Legal transplantation is especially common in economic laws such as competition
(antitrust), consumer protection, intellectual property rights, and securities and exchange
regulations. In economic law, legal transplantation usually creates less controversy than
in other areas of laws such as constitutional, administrative or family law. Seemingly, thisis because economic law includes concepts such as efficiency, stability, and predictability
in the marketplace, whereas on non-economic laws may cut more deeply into a society’sculture. The transplantation of economic laws is still often criticized, however, as being a
form of subtle blackmail. Because Western societies generally control access to the
global market, to some extent, developing nations must adopt the developed nations’ laws
and understandings of the rule of law in order to engage effectively in global economicactivity.
V. Conclusion
As evidenced by the failure to arrive at a precise definition, the rule of law is a
complicated theory. As much as it embodies politics and the ideals of democracy, an in-depth understanding of the theory must include the law’s interaction with language,
history, social structure, and culture. Importantly, the rule of law is more than just a set of
rules and their judicial application. As a much-advocated theory in development studies,the rule of law is also a matter of policymaking, institutional development, and
Fundamental Rights is a charter of rights contained in the Constitution of Pakistan. Itguarantees civil liberties such that all Indians can lead their lives in peace and harmony as
citizens of Pakistan. These include individual rights common to most liberal democracies,
such as equality before law, freedom of speech and expression, freedom of association
and peaceful assembly, freedom to practice religion, and the right to constitutionalremedies for the protection of civil rights by means of writs such as habeas corpus.
Violations of these rights result in punishments as prescribed in the Pakistan Penal Code,
subject to discretion of the judiciary. The Fundamental Rights are defined as basic human
freedoms which every Indian citizen has the right to enjoy for a proper and harmoniousdevelopment of personality. These rights universally apply to all citizens, irrespective of
race, place of birth, religion, caste, creed, color or Gender . They are enforceable by thecourts, subject to certain restrictions. The Rights have their origins in many sources,
including England's Bill of Rights, the United States Bill of Rights and France's
Declaration of the Rights of Man.
The six fundamental rights recognized by the constitution are:
1. The right to equality2. The right to freedom
3. The right to freedom from exploitation4. The right to freedom of religion 5. Cultural and educational rights
6. The right to constitutional remedies
7. Protection of property rights.8. Equality of citizens.
9. Non-discrimination in respect of access to public places.
10. Safeguard against discrimination in services.
11. Preservation of language, script and culture
Rights mean those freedoms which are essential for personal good as well as the good of
the community. The rights guaranteed under the Constitution of Pakistan are fundamental
as they have been incorporated into the "fundamental Law of the land" and areenforceable in a court of law. However, this does not mean that they are absolute or that
they are immune from Constitutional amendment.
Fundamental rights for Indians have also been aimed at overturning the inequalities of
pre-independence social practices. Specifically, they have also been used to abolishuntouchability and hence prohibit discrimination on the grounds of religion, race, caste,
sex, or place of birth. They also forbid trafficking of human beings and forced labour .
They also protect cultural and educational rights of ethnic and religious minorities by
allowing them to preserve their languages and also establish and administer their owneducation institutions.
The Constitution of Pakistan and Fundamental Rights
The currently enforced 1973 Constitution is the supreme law of the country and all laws passed should be in line with the Constitution. However, this Constitution has undergone
various amendments, specially during the previous Martial Law period (1977-1985),
which have weakened the guarantees it provides for equal rights.
Articles 8 to Article 28 of the 1973 Constitution describe the Fundamental Rights whichare to be available to all citizens, women as well as men wherever they may be, as well as
all people temporarily or permanently in Pakistan. However, the freedoms guaranteed can
be curtailed or taken away by the government on the grounds of the sovereignty or integrity of Pakistan, maintenance of public order, public morality. BUT these restrictions
can be challenged in the superior courts. What to do if yours Rights have been violated
below. The executive is bound to implement these rights while the judiciary is bound totake notice of any violations and provide redress on individual complaints or take notice
of its own (called ‘suo moto’ notice) of any gross violations of a collective right. For
example, the Supreme Court has recently taken suo moto notice of the killings in
Karachi.
The basis of fundamental rights is laid out in Article 4, which states that it is the
inalienable right (i.e., can never be taken away) of individuals (citizens wherever they
may be as well as individuals currently in Pakistan) to enjoy the protection of law and betreated in accordance with law. It also guarantees the protection of life, liberty, body,
reputation & property of an individual.
A person cannot be:
prevented from doing something which is legal
compelled to do something which the law does not require him/her to do
DEFINITION OF ADMINSTRATIVE LAW
Law regulating the powers, procedures, and acts of public administration. It applies to all
public officials and public agencies. As distinguished from legislative and judicial
authority, administrative authority entails the power to issue rules and regulations basedon statutes, grant licenses and permits to facilitate the conduct of government business,
initiate investigations of and provide remedies for complaints or problems, and issue
orders directing parties to conform to governing statutes or rules. An administrative-law judge is a government official with quasi-judicial powers, including the authority to
conduct hearings, make findings of fact, and recommend resolution of disputes
concerning the agency's actions.
ADMINSTRATIVE LAW
The law relating to the control of government power, including the detailed rules which
govern the exercise of administrative decision taking. Despite A. V. Dicey's reluctance in
his Law of the Constitution (1885) to accept the idea of specific and specialized legalrules governing administrative decisions, English law has developed administrative law
especially since c.1960. Lord Diplock 1982 regarded the development of English
administrative law ‘as having been the greatest achievement of the English Courts in my
judicial lifetime’. Primarily the courts have developed general principles to ensure that all public authorities must act within the powers granted to them by Act of Parliament. Such
principles include reasonableness in making decisions and principles of natural justice to
ensure fair procedure. Discretion must not be abused and decisions must be made
according to law and not outside the powers of the Act, which might make them ultra vires. Under section 31 of the Supreme Court Act 1981, and Rules of the Supreme Court,
Order 53, an applicant may seek judicial review. This procedure permits an applicationfor such remedies as a judicial order or damages as is appropriate to the facts of the case.
The various remedies available under English law are mandamus, prohibition, or certiorari and the private law group of remedies such as declaration, injunction, or
damages. Leave to apply for judicial review must first be obtained in the Crown Office before a judge and usually on affidavit or written evidence. Once leave is granted there
may be a hearing of the case where all the parties may be represented. The matter which
is the subject of complaint must be a ‘public law’ question and the courts have definedthe exact meaning of this term on a case-by-case basis since the House of Lords decision
in. Applications for judicial review have steadily increased since 1981. The subjects for
review extend from immigration disputes, housing, local government, and planningmatters.
The English system of administrative law has developed on a case-by-case basis inmarked contrast to administrative law in both the United States and in France, which
owes its development to the nature of the written constitution in both jurisdictions.
This is a big question, because just the scope of this term is absolutely huge.
Constitutional law essentially encompasses all the foundational laws that our country is
based upon. The creation and execution of laws by the government and the scope of power and authority given to the government is regulated by constitutional law. Just as it
sounds, it is based off of the tenets of a constitution and all the elements within the
constitution that outline the power of the government, state and people.
For the purposes of this article, we will be discussing constitutional law in the United
States and go through a brief outline of what it is and why it exists. The United States
constitutional law is the body that governs the implementation and interpretation of theUS constitution.
It sets forth of the terms of the Constitution and directly describes the range and use of these terms. It covers areas of law like relationships between states and the federal
governments, the rights of individuals and citizens of the US and all other areas
concerned with constitutional law.
Because the US constitution lays out so many rules and contains archaic language, many
people argue that it is open to interpretation and not meant to be taken literally. For
example, in the United Stated courts, judges are often divided by how much they stick to
the constitution and how much they interpret it in different ways.
Some say a literal translation of the constitution is best, others say that the terms are far too vague to be used specifically and that the constitution should be treated more as a
guideline than anything else.
All other forms of law necessarily fall under the auspices of constitutional law. Because it
is so huge, there are many details to go into; enough books have been written about this
type of law to render anything but a summary unnecessary. Suffice to say, constitutionallaw is the law that supersedes all others and one that literally determined the founding of
the nation of the United States of America.
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A constitution is a set of fundamental principles or established precedents according to
which a state or other organization is governed.[1] These rules together make up, i.e.constitute, what the entity is. When these principles are written down into a single or set
of legal documents, those documents may be said to comprise a written constitution.
Constitutions concern different levels of organizations, from sovereign states to
companies and unincorporated associations. A treaty which establishes an international organization is also its constitution in that it would define how that organization is
constituted. Within states, whether sovereign or federated, a constitution defines the
principles upon which the state is based, the procedure in which laws are made and by
whom. Some constitutions, especially written constitutions, also act as limiters of state power by establishing lines which a state's rulers cannot cross such as fundamental rights.
Natural justice or procedural fairness is a legal philosophy used in some jurisdictions
in the determination of just, or fair , processes in legal proceedings. The concept is veryclosely related to the principle of natural law (Latin: lex naturalis) which has been
applied as a philosophical and practical principle in the law in several common law
jurisdictions, particularly in the UK , Canada and Australia.
In common law legal systems the term natural justice refers to two specific legal
principles.
BACKGROUND
According to Roman law certain basic legal principles are required by nature, or so
obvious that they should be applied universally without needing to be enacted into law bya legislator. The assertion in the United States' Declaration of Independence, "We hold
these truths to be self-evident," expresses some of this sentiment. The rules or principlesof natural justice are now regularly applied by the courts in both common law and civil
law jurisdictions. Natural justice operates on the principles that man is basically good,
that a person of good intent should not be harmed, and one should treat others as one
would like to be treated.
Natural justice includes the notion of procedural fairness and may incorporate the
following guidelines:
• A Right to Advanced Warning. Contractual obligations depriving individuals of
their Rights cannot be imposed retrospectively.
• A person accused of a crime, or at risk of some form of loss, should be given
adequate notice about the proceedings (including any charges).
• A person making a decision should declare any personal interest they may have inthe proceedings.
• A person who makes a decision should be unbiased and act in good faith. He or she
therefore cannot be one of the parties in the case, or have an interest in the outcome.
This is expressed in the Latin maxim, nemo iudex in causa sua: "no man is permitted to be judge in his own cause".
• Proceedings should be conducted so they are fair to all the parties - expressed in the
Latin maxim audi alteram partem: "let the other side be heard".
• Each party to a proceeding is entitled to ask questions and contradict the evidence
of the opposing party.
• A decision-maker should take into account relevant considerations and extenuatingcircumstances, and ignore irrelevant considerations.
• Justice should be seen to be done. If the community is satisfied that justice has been
done, they will continue to place their faith in the courts. Notably, natural justice is
binding upon both public and private entities, such as trade unions. In contrast, the
U.S. concept of due process is strictly limited to decisions made by governmental
entities, although the U.S. state of California has developed a doctrine of fair
procedure which is binding upon certain types of private entities in that state
What is meant by Principles of Natural Justice and Procedural Fairness?
Valid Reason
To ensure that all employees are treated fairly and consistently, any action relating to
concerns about an unsatisfactory level of performance must be based on a valid reason(s).That is, a reason which is sound, defensible or well founded. The employer must be able
to provide proof of that valid reason(s).
Natural Justice
An employer must also ensure that the principles of natural justice and procedural
fairness are adhered to at every stage of the Managing Underperformance process.
Natural justice is concerned with ensuring that employees receive fair treatment in their employment. This includes making sure that the employee is advised of all the allegations
of poor performance and is provided with the opportunity to respond on each occasion.An opportunity should also be given to state any mitigating circumstances. The response
provided by the employee and any mitigating circumstances must be taken into
consideration by the decision-maker prior to reaching any decisions (ie the line manager
cannot simply ignore any explanations offered by the employee.)
Fundamental to the concept of natural justice is the need to ensure that the employee is
afforded a fair hearing and the opportunity to present their viewpoint prior to any adversedecision being made.
The employee must be advised of the reasons for any disciplinary action taken. This is particularly so where a decision is taken to dismiss the employee.
While the exact requirements will depend on the seriousness of any concerns, natural
justice includes providing the employee with:
• Equal treatment (ie one employee should not be treated more or less favourably than
another employee - eg singling out an employee)
• Adequate notice of process
• Details of the performance concerns
• An opportunity to respond
• Substantiation of the facts• A support person of their choice (eg a union representative or colleague)
• An unbiased and impartial decision maker.
Procedural Fairness
Procedural fairness is not easily defined but the following principles can be used as a
guide when deciding whether reasonable action has been taken:
• Clear communication of policies, procedures and instructions
• Full consideration of relevant facts is undertaken by decision makers
• Reasons are given to the employee regarding the concerns of the line manager Documentation is compiled and maintained throughout all aspects of the procedures,
including co-signing and copies are provided to relevant parties
2009 (237) E.L.T. 241 (S.C.)
IN THE SUPREME COURT OF INDIADr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
UMA NATH PANDEYVersus
STATE OF U.P.
Criminal Appeal No. 471 of 2009, decided on 16-3-2009
Natural justice - Violation of - Notice not issued - Revision Orderpassed by Single Judge without issuing notice to parties - Natural justice is
essence of fair adjudication and to be ranked as fundamental - Purpose of following principles of natural justice is to prevent miscarriage of justice -
Notice and hearing required as per principles of natural justice - Impugnedorder set aside - Matter remanded to High Court for considering the matter
afresh. [paras 2, 3, 8, 19, 20]
Natural justice - Notice and hearing - First rule is ‘nemo judex in causa
sua’ meaning ‘no man shall be a judge in his own cause’ - Second rule of natural justice is ‘audi alteram partem’ meaning no one should be
condemned unheard - Notice is first limb of this principle - Notice must beprecise and unambiguous - Time given should be adequate so as to enable
party to make re-presentation - Order passed wholly vitiated if such noticeand reasonable opportunity absent - Essential that party is put on notice
before passing adverse order against him. [paras 8, 17]
Order - Violation of natural justice, effect of - Whenever order is struck
down as invalid as violative of principles of natural justice, final decisionabsent and fresh proceedings left open - Order assailed by virtue of inherent
defect is vacated but proceedings not terminated. [para 17]
Natural justice and legal justice - Expressions ‘natural justice’ and
‘legal justice’ do not present water-tight classification - Substance of justiceto be secured by both - Natural justice called in aid of legal justice when
legal justice fails to achieve such solemn purpose - Natural justice relieveslegal justice from unnecessary technicality, grammatical pedantry or logical
Natural justice - Objects and intention - Principles of natural justice
laid down by Courts for minimum protection of rights of individual againstarbitrary procedures that may be adopted by a judicial, quasi-judicial and
administrative authority while making order affecting rights - Rules of
natural justice intended to prevent such authority from doing injustice.[para 10]
Natural justice - Rules - Rules of natural justice are not rules embodiedalways expressly in a statute or rules framed thereunder - Rules of natural
justice may be implied from nature of duty to be performed under a statute- Every administrative order involving civil consequences must be consistent
with rules of natural justice - Civil consequences cover everything that
affects a citizen in his civil life. - What particular rule of natural justice should beimplied and what its context should be in a given case must depend to a great
extent on the fact and circumstances of that case, the framework of the statuteunder which the enquiry is held. [para 15]
Words and Phrases - Natural justice - Natural justice is another name
for commonsense justice - Rules of natural justice are not codified canonsbut principles ingrained into conscience of man - Natural justice isadministration of justice in a commonsense liberal way. [para 6]
Application of these principles is in summary proceedings. Principles of the Natural
Justice are applied in summary proceeding cases. Principles of the natural justice areapplied to avoid injustice to the parties in administrative proceedings. These principles
need also to be applied by the formal courts summary proceedings.
Assignment # 9
ADMINISTRATIVE FUNCTIONS (ACTIONS)
AND LEGISLATIVE FUNCTIONS
Administrative Functions 1. The act or process of administering, especially the management of a government or largeinstitution.2. The activity of a government or state in the exercise of its powers and duties.
3. Often Administrationa. The executive branch of a government.b. The group of people who manage or direct an institution, especially a school or college.4. The term of office of an executive officer or body.5. Law Management and disposal of a trust or estate.6. The dispensing, applying, or tendering of something, such as an oath, a sacrament, or medicine.
The process by which an administrative agency issues an order and such order being
affirmative, negative, injunctive, or declaratory in form are called administrativeadjudication.
Most formal proceedings before an administrative agency follow the process of either
rule making or adjudication. Rule making formulates policy by setting rules for the futureconduct of persons governed by that agency. Adjudication applies the agency's policy to
the past actions of a particular party, and it results in an order for or against that party.
Both methods are strictly regulated by the law of administrative procedure
The separation of powers is a model for the governance of a state. The model was firstdeveloped in ancient Greece and came into widespread use by the Roman Republic as
part of the unmodified Constitution of the Roman Republic. Under this model, the state is
divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches. The normal
division of branches is into an executive, a legislature, and a judiciary. For similar
reasons, the concept of Separation of church and state has been adopted in a number of countries, to varying degrees depending on the applicable legal structures and prevalent
views toward the proper role of religion in society.
ADMINSTRATIVE COURTS/ QUASI-JUDICIAL TRIBUNALS
The Constitution of Pakistan provides for “separation of powers” with in-built
mechanism of “checks and balances” between the legislative, executive and judicial
organs of the State. The document calls for “independence of the judiciary” and ordainsits “separation from the Executive”. To complement the notion of judicial independence,
the Constitution contains elaborate provisions for qualifications and mode of appointmentof judges of superior courts i.e. Supreme Court and High Courts, their terms and
conditions of service, compensation package and grounds/procedure for removal. The
subordinate courts are created under legislative enactment and the terms and conditions
of service of judicial officers are prescribed. Such courts work under the administrativecontrol of the respective (provincial) High Court. The Supreme Court is the apex court of
the country, the final appellate authority and guardian of the Constitution, hence the final
arbiter of law and Constitution. Its precedents are binding on High Courts and all other courts. The Constitution allows the established of special courts and administrative
tribunals for various Federal/provincial subjects, through statutory enactment, by the
respective legislature i.e. Parliament or Provincial Assembly. Such courts/tribunalsoperate under the Executive
The word “executive” comes from word “execute”. Execute means to carry into effect; to
fulfill; to do; to perform delegated powers with the own will.
Administrative discretion refers to the degree of latitude or flexibility exercised by public
administrators when making decisions or conducting any agency business. The chief
source of administrative discretion comes from legislative bodies that have drafted vaguelaws. These skeletal statutes essentially allow public administrators the discretionary
power to interpret laws as they see fit, as long as their discretionary interpretations do not
contradict specific statutory provisions. Public administrators are normally not hesitant toexercise broad discretionary power because the reviewing courts tend to routinely defer
to agency discretion (i.e., expertise), and also are specifically prohibited by statute from
reviewing any agency action precluding judicial review or committed to agencydiscretion by law
1. Ensuring effective governance
2. Ensuring fair governance and respect for the general principles of law
Natural law or the law of nature (Latin: lex naturalis) has been described as a law
whose content is set by nature and that therefore has validity everywhere. As classicallyused, natural law refers to the use of reason to analyze human nature and deduce binding
rules of moral behavior. The phrase natural law is opposed to the positive law (meaning
"man-made law", not "good law"; of a given political community, society, or nation-state,
and thus can function as a standard by which to criticize that law. [2] In natural law jurisprudence, on the other hand, the content of positive law cannot be known without
some reference to the natural law (or something like it). Used in this way, natural law can
be invoked to criticize decisions about the statutes, but less so to criticize the law itself.Some use natural law synonymously with natural justice or natural right (Latin ius
naturale), although most contemporary political and legal theorists separate the two.
Although natural law is often conflated with common law, the two are distinct in that
natural law is a view that certain rights or values are inherent in or universally cognizable
by virtue of human reason or human nature, while common law is the legal tradition
whereby certain rights or values are legally cognizable by virtue of judicial recognition or
articulation.[3] Natural law theories have, however, exercised a profound influence on the
development of English common law,[4] and have featured greatly in the philosophies of
Thomas Aquinas, Francisco Suárez, Richard Hooker , Thomas Hobbes, Hugo Grotius,Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and
Emmerich de Vattel. Because of the intersection between natural law and natural rights, it
has been cited as a component in United States Declaration of Independence and theConstitution of the United States. The essence of Declarationism is that the founding of
the United States is based on Natural law
What is law, and do we really need it?
As such, there is no single or correct answer to this question. In past no one really
questioned lawmakers, law distributors, or the laws themselves. But of late, society has begun to question most legal activities as to their effectiveness and competence. The
cause of these reviews has emerged by changing times, changing thoughts,
understanding, beliefs, as well as the development of technology and other such new
developments within societies.
Sources of Law
Precedent
Precedent is one of the sources of law. The judgments passed by some of the learned
jurists became another significant source of law. When there is no legislature on particular point which arises in changing conditions, the judges depend on their own
sense of right and wrong and decide the disputes. Such decisions become authority or
guide for subsequent cases of a similar nature and they are called precedents. Thedictionary of English law defines a judicial precedent as a judgment or decision of a court
of law cited as an authority for deciding a similar state of fact in the same manner or on
the same principle or by analogy. Precedent is more flexible than legislation and custom.It is always ready to be used.
Custom
A custom is a rule which in a particular family or in a particular district or in a particular
section, Class or tribe, has from long usage obtained the force of law. The dictionary of
English law defines custom as a law not written, which being established by long use and
consent of our ancestors has been and daily is put into practice. Custom as a source of law got reorganization since the emergence of saving on the horizon of jurisprudence. It
is an exemption to the ordinary law of the land, and every custom is limited in its
application.
Legislation
Legislation is that source of law which consists in the declaration of legal rules by acompetent authority. Legislature of legal rules by a competent authority. Legislature is
the direct source of law. Legislature frames new laws amends, the old laws and cancels
the existing in all countries. In modern times this is the most important source of law
making. The term legislature means any form of law making. Its scope has now been
restricted so a particular form of law making. It not only creates new rules of law it also
sweeps away existing inconvenient rules.
Judicial review
Interpretation is a very important function of the court, the process of ascertaining the
meaning of letters and expressions by the court is either interpretation or construction.Interpretation is the process of which the court seeks to as certain the Meaning of a
particular legislature. It is through interpretation, the judiciary evolves the law and brings
the changes in it and thus keeps the law abreast of law
TREATIES
A treaty is an agreement entered into by countries, nations, or other legal persons
recognized in international law. If only two nations or other international persons are thecontracting parties, the treaty is called bilateral; if more than two are involved, it is
usually called multilateral. The typical legislature of a modern nation-state may pass laws
which a minority of the legislators are unwilling to approve, and these laws will bind
everybody subject to the jurisdiction of the legislating body. Norms imposed bymultilateral treaties, on the other hand, ordinarily bind only those countries which have
manifested their approval by signing the treaty or otherwise adhering to it.
Assignment # 13
JUDICIAL REVIEW OF POLITICAL QUESTIONS
Political Question
It is a constitutional question. Where a speaking answer is available in the Constitution;A question to be answered by the parliament;
A dispute as to parliament and political executive; and
Discretional powers of the Constitutional entities.
Cases where speaking answer is available in the Constitution
Appointment of the High and Supreme Court judges;Appointment and removal of the Ministers;
Shela Zia case 1994;Traffic muddle case Karachi-1997;
Al Jehad Trust case- Appointment of judges case-1996 and 1997; and
Assad Ali case- Mr. Sajjad Ali Shah Case-1998
JUDICIAL REVIEW AND JUDICIAL ACTIVISM
Judicial activism has been a common catch phrase of politicians in recent decades and
gained the attention of the public and various interest groups. But what exactly is judicial
activism? This paper seeks to rehash the debate amongst political scientists and legalscholars and seeking a more precise definition. By seeking this definition, the aim is to
quantify judicial activism for broader application to political scientists. While judicial
activism may exist, it may also exist at various levels on a court depending on
institutional and other contextual factors
Judicial Activism
Judicial activism is a philosophy advocating that judges should reach beyond the
Constitution to achieve results that are consistent with contemporary conditions and
values. Most often, it is associated with (modern) liberalism that believes in broadinterpretation of the Constitution which can then be applied to specific issues .
Judicial activist factors
They take constitution as a living document.
They believe that judges to have equal responsibility as to the public welfare.They give liberal interpretation as to the rights of the people
Judicial Restraint
Judicial restraint means that judges should respect to the democratic process and stay out
of policy debates if democracy is to thrive.
Judicial restraint means that constitution should not be liberally interpreted to the
derogation of the law of the parliament. If conflict comes parliament to be held supreme
The town's ombudsman said he would look into charges of corruption.
Origin of Ombudsman
Swedish, literally, representative,
Commission on TaxationSubmission by the Office of the Ombudsman
Functions of Ombudsman
The institution of Insurance Ombudsman was created by a Government of India
Notification dated 11th November, 1998 with the purpose of quick disposal of thegrievances of the insured customers and to mitigate their problems involved in redressal
of those grievances. This institution is of great importance and relevance for the
protection of interests of policy holders and also in building their confidence in thesystem. The institution has helped to generate and sustain the faith and confidence
amongst the consumers and insurers.
Appointment of Insurance Ombudsman
The governing body of insurance council issues orders of appointment of the insurance
Ombudsman on the recommendations of the committee comprising of Chairman,
IRDA, Chairman, LIC, Chairman, GIC and a representative of the Central Government.Insurance council comprises of members of the Life Insurance council and general
insurance council formed under Section 40 C of the Insurance Act, 1938. The governing
body of insurance council consists of representatives of insurance companies.
Eligibility
Ombudsman is drawn from Insurance Industry, Civil Services and Judicial Services.
Terms of office
An insurance Ombudsman is appointed for a term of three years or till the incumbentattains the age of sixty five years, whichever is earlier. Re-appointment is not permitted.
Office Management
The Ombudsman has a secretarial staff provided to him by the insurance council toassist him in discharging his duties. The total expenses on Ombudsman and his staff are
incurred by the insurance companies who are members of the insurance council in such proportion as may be decided by the governing body.
Removal from office
An Ombudsman may be removed from service for gross misconduct committed by himduring his term of office. The governing body may appoint such person as it thinks fit to
conduct enquiry in relation to misconduct of the Ombudsman. All enquiries on
misconduct will be sent to Insurance Regulatory and Development Authority whichmay take a decision as to the proposed action to be taken against the Ombudsman. On
recommendations of the IRDA, the Governing Body may terminate his services, in case
he is found guilty.
Power of Ombudsman
Insurance Ombudsman has two types of functions to perform (1) conciliation, (2)Award making. The insurance Ombudsman is empowered to receive and consider
complaints in respect of personal lines of insurance from any person who has any
grievance against an insurer. The complaint may relate to any grievance against theinsurer i.e. (a) any partial or total repudiation of claims by the insurance companies, (b)
dispute with regard to premium paid or payable in terms of the policy, (c) dispute on the
legal construction of the policy wordings in case such dispute relates to claims; (d)delay in settlement of claims and (e) non-issuance of any insurance document to
customers after receipt of premium.
Ombudsman's powers are restricted to insurance contracts of value not exceeding Rs. 20lakhs. The insurance companies are required to honour the awards passed by an
Insurance Ombudsman within three months.
Manner of lodging complaint
The complaint by an aggrieved person has to be in writing, and addressed to theinsurance Ombudsman of the jurisdiction under which the office of the insurer falls.
The complaint can also be lodged through the legal heirs of the insured. Before lodging
a complaint:
i) the complainant should have made a representation to the insurer named in the
complaint and the insurer either should have rejected the complaint or the complainant
have not received any reply within a period of one month after the concerned insurer has received his complaint or he is not satisfied with the reply of the insurer.
ii) The complaint is not made later than one year after the insurer had replied.
iii) The same complaint on the subject should not be pending with before any court,consumer forum or arbitrator.
Recommendations of the Ombudsman
When a complaint is settled through the mediation of the Ombudsman, he shall makethe recommendations which he thinks fair in the circumstances of the case. Such a
recommendation shall be made not later than one month and copies of the same sent tocomplainant and the insurance company concerned. If the complainant accepts
recommendations, he will send a communication in writing within 15 days of the date
The ombudsman shall pass an award within a period of three months from the receipt of
the complaint. The awards are binding upon the insurance companies.
If the policy holder is not satisfied with the award of the Ombudsman he can approach
other venues like Consumer Forums and Courts of law for redressal of his grievances.
As per the policy-holder's protection regulations, every insurer shall inform the policyholder along with the policy document in respect of the insurance Ombudsman in
whose jurisdiction his office falls for the purpose of grievances redressal arising if any
subsequently.
Steady increase in number of complaints received by various Ombudsman shows that
the policy-holders are reposing their confidence in the institution of InsuranceOmbudsman.
