MGT621 — Final Term Summary (Lectures 23–45)

📘 Lecture 23 — Fundamental Right—Inviolability of Dignity of Man and Privacy of Home

📖 Overview: This lecture examines Article 14 of the Pakistan Constitution of 1973, which guarantees the inviolability of human dignity and the privacy of home. It explains the limits of this protection, the prohibition of torture for confessions, and the legal remedies available when these fundamental rights are violated.

🗂️ Topics Covered

The lecture covers the meaning and scope of Article 14, including the key terms "dignity," "subject to law," and "inviolable." It discusses the regulation of privacy rights, the prohibition and history of torture, specific legal provisions against torture in Pakistan, and concludes with the remedy of a writ of prohibition for enforcement of these rights.

📝 Lecture Summary

Fundamental Right---Inviolability of Dignity of Man and Privacy of Home

Article 14 of the Pakistan Constitution of 1973 provides that "the dignity of man and, subject to law, privacy of home, shall be inviolable." This establishes two core protections: the inherent worth of every person and the security of their residence. The protection of the privacy of home is made subject to law, meaning it can be regulated by law but not abolished. For example, a police officer may be permitted by law to enter a house to make an arrest or a search. However, actions like tapping or stealthily photographing something inside a house are considered invasions of privacy.

💡 Why this matters: The phrase "subject to law" creates a balance between individual rights and the state's need to enforce laws, such as for lawful arrests or searches, preventing the right from being an absolute barrier to justice.

🔑 Definition — Dignity: self-respect. 🔑 Definition — Subject to law: having regard to the law. 🔑 Definition — Inviolable: sacred; unchallengeable; unbreakable.

The lecture clarifies that the protection is not absolute. The guarantee cannot be taken away by law, but it can be regulated. Torture, defined as the infliction of pain on human beings, is prohibited by both Article 14 and the general law. Despite this, police sometimes inflict various forms of torture on suspects, such as keeping them awake all night, laying them on an ice slab, or hanging them from the ceiling with head downwards, to extract evidence.

In England, torture was once a recognized part of criminal procedure. In 1689, the "Claim of Right" was enacted to curb it, declaring the use of torture in petty cases without evidence illegal. Instruments like iron bars and thumbscrews were used. Torture was finally abolished in England during the reign of Queen Anne by an Act of Parliament.

In Pakistan, torture is prohibited by various laws. Under Section 163(1) of the Code of Criminal Procedure 1898, "no police officer or any person in authority shall offer or make any inducement, threat or promise for obtaining a confession." Under Section 348 of the Pakistan Penal Code 1860, it is an offence to wrongfully confine a person for the purpose of extracting a confession from him. Furthermore, Article 38 of the Qanun-e-Shahdat 1984 states that a confession made to a Police Officer is inadmissible as evidence against the maker.

🔑 Definition — Code: a complete system of positive laws, carefully arranged and officially promulgated. 🔑 Definition — Confine: detain in prison. 🔑 Definition — Extracting: taking. 🔑 Definition — Confession: declaration of guilt. 🔑 Definition — Abolished: eradicated. 🔑 Definition — Inadmissible: not allowed; disallowed.

Remedy for the enforcement of the fundamental rights

A remedy is the means of enforcing a right or preventing a wrong. Where executive action questions the dignity of man and privacy of home, the remedy is filing a writ of prohibition.

🔑 Definition — Remedy: the means of enforcing a right or preventing a wrong.

A writ of prohibition is an extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non-judicial officer or entity from exercising a power. No person can be arrested by the Police except in accordance with law for the purpose of investigation. Where it is found that Police or other agency is acting against the law and contrary to the fundamental rights of a citizen, then a writ of prohibition may be filed with the court.

🔑 Definition — Writ of prohibition: an extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non-judicial officer or entity from exercising a power. 🔑 Definition — Contrary: opposite. 📌 Example: If police enter a private home without legal authorization to conduct a search, a citizen can file a writ of prohibition to stop the action. Similarly, if police torture a suspect to extract a confession, a writ of prohibition can be sought to forbid this unlawful action.

⭐ Key Takeaways

The most critical point is that Article 14 of the Constitution guarantees the inviolability of human dignity and the privacy of home, but the latter is subject to reasonable regulation by law. Torture is strictly prohibited in Pakistan by multiple laws, including the Constitution, the Code of Criminal Procedure, the Pakistan Penal Code, and the Qanun-e-Shahdat, and any confession obtained through such means is inadmissible as evidence. Understand the precise definitions of key terms like "dignity," "inviolable," and "subject to law" as they apply to Article 14. Finally, know that the primary remedy for violation of these fundamental rights is a writ of prohibition, which is used to prevent a lower court or authority from acting outside its jurisdiction or in violation of law.

🧠 Quick Revision Questions

1. What does Article 14 of the Pakistan Constitution of 1973 state regarding dignity and privacy?
2. Explain the significance of the phrase "subject to law" in the context of the privacy of home.
3. Name three specific laws in Pakistan that prohibit or penalize torture or the extraction of confessions by force.
4. What is the definition of a writ of prohibition, and when is it the appropriate remedy for a violation of Article 14?
5. Define the terms "inviolable," "dignity," and "inadmissible" as used in this lecture.

📘 Lecture 24 — Fundamental Rights ----(1) Freedom of Movement etc. (2) Freedom of Assembly

📖 Overview: This lecture examines two fundamental rights guaranteed by the Constitution of Pakistan 1973: the freedom of movement (Article 15) and the freedom of assembly (Article 16). It explains the scope, limitations, and judicial interpretation of these rights, including concepts like externment, internment, and the determination of reasonable restrictions in both normal times and national emergencies.

🗂️ Topics Covered

The lecture covers Article 15 on freedom of movement—including the right to remain, enter, move freely, reside, and settle in any part of Pakistan subject to reasonable restrictions in public interest. It also covers Article 16 on freedom of assembly—including the right to assemble peacefully without arms, the distinction between rights and liberties under English law, judicial tests for reasonableness, and the impact of national emergencies on these freedoms.

📝 Lecture Summary

Article 15 of the Constitution of Pakistan 1973 provides that “every citizen shall have the right to remain in, and subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.

This article guarantees every citizen the right to stay in Pakistan, with the ability to enter, move freely, reside, and settle in any part of the country. The right to remain in the country is described as absolute and unqualified. Key terms include: Remain (= stay; continue), Subject to (= having regard to), Reasonable (= logical; practical; sensible), Restriction (= limitations; control), Public interest (= community concern), and Any part thereof (= any part of Pakistan).

Under Article 15, a citizen cannot be banished from the country. His right to step in, step out from the country, move freely throughout Pakistan, reside, and settle in any part of Pakistan is subject to reasonable restrictions imposed by law. In Abul Ala's Maudoodi vs. the State Bank of Pakistan (PLD 1969 Lah. 908), Muhammad Akram, J. held that the purpose behind this safeguard "is to remove all territorial barriers within the country for the citizens of Pakistan. It is designed to be a check against provincialism, regional discrimination, and all parochial considerations." To a citizen of Pakistan, the whole of his country is his cherished home, freely and equally accessible to him subject to any reasonable restrictions imposed by law in the public interest.

🔑 Definition — Externment order: An order meaning "to leave a certain area." 🔑 Definition — Internment order: An order meaning "not to leave a certain area." Both orders curtain (restrict) the freedom of movement. A law authorizing externment or internment must fall within the limits of permissible legislation, and the restrictions on the exercise of the right of freedom of movement must be reasonable and in public interest.

Freedom of Assembly

Freedom of Assembly includes taking part in public meetings, processions, and demonstrations. Under English Law, all the freedoms including the freedom of assembly are in fact liberties and not rights. Freedom of assembly means that there is no law forbidding people to assemble. If a number of people choose to go to the same place at the same time, this is not unlawful, provided that they keep within the limits of the law, individually and collectively. An assembly convened for the purpose of affecting a breach of peace is unlawful at Common Law, and there are various statutory offenses, notably under Public Orders Acts, Highways Acts, the Police Act 1964, and local bye-laws. Britain is a party to the European Convention which provides that everyone has the right to freedom of peaceful assembly.

Article 16 of the Constitution of Pakistan 1973 provides that "every citizen shall have the right to assemble peacefully without arms, subject to any reasonable restrictions imposed by law in the interest of public order." The US Supreme Court held that "the very idea of a government, republican in form, implies a right on the part of citizens to meet peaceably for consultation in respect of public affairs."

The fundamental right guaranteed to citizens of Pakistan is to gather unarmed and for peaceful purposes, which can only be restricted by laws that have as their object the maintenance of public order. The restrictions imposed must be reasonable, and in each case it is the court to decide whether the restriction is reasonable or not. In deciding whether the restrictions are reasonable or not, the court will take into consideration the conditions prevailing at the time, the extent and the duration of the restrictions, and all the other surrounding circumstances.

In Abdul Hameed Qadri vs. D.M. Lahore (P.L.D. 1957 Lah. 213), it was held that "the danger to human life and safety and the disturbance of the public tranquility fall within the purview of the expression 'public order', and if an order is passed by the District Magistrate to prevent danger to human life and safety and the disturbance of public tranquility, it is an order passed in the interest of public order."

🔑 Definition — Tranquility: Meaning harmony.

Determining reasonableness of restrictions

In determining the reasonableness of restrictions, several circumstances shall have to be taken into consideration, including the conditions prevailing at that time, and the nature, extent, and duration of the restrictions of the fundamental rights. Having regard to all the surrounding circumstances, the restriction imposed may be quite unreasonable, while in a different set of circumstances that may be reasonable. There cannot be laid down any absolute and fixed standard by which the reasonableness of restrictions upon fundamental rights may be tested, but it can be safely assumed that in judging the same an objective standard i.e., the standard of the average prudent man shall have to be applied.

The concept of reasonableness is nothing but that of harmonizing individual's right with collective interest.

Freedom of assembly in the state of national emergency

Freedom of assembly may be restricted to a greater extent in time of national emergency than in normal times. The restriction should be certain and well defined and imposed directly by law rather than by the discretionary authority of the Police or other executive authority. In Nawab Zada Nasrullah Khan vs. Government of West Pakistan (P.L.D. 1965 Lah. 642), it was ruled that freedom of assembly is not in its nature absolute. It is a relative right subject to imposition of reasonable restrictions with necessary conditions to safeguard the public interest.

According to American Law, there must be grave and immediate danger to the interest of public order to restrict the right. In other words, any attempt to restrict freedom of assembly must be justified by clear public interest threatened, not doubtfully or remotely, but by clear and present danger, and only the gravest abuses, endangering paramount interests, give occasion for permissible limitation on the right.

💡 Why this matters: The freedom of assembly is not unlimited—it must be balanced against public order. During emergencies, greater restrictions are permissible, but they must be justified by a clear and present danger, not by vague or remote threats. Courts play the crucial role of determining whether restrictions are reasonable in each specific context.

🔑 Definition — Grave: Meaning serious. 🔑 Definition — Paramount: Meaning supreme; dominant.

⭐ Key Takeaways

The right to remain in Pakistan under Article 15 is absolute and unqualified, but movement, residence, and settlement are subject to reasonable restrictions imposed by law in the public interest. The purpose of Article 15 is to remove territorial barriers and check provincialism and regional discrimination. Freedom of assembly under Article 16 guarantees the right to assemble peacefully without arms, subject to reasonable restrictions in the interest of public order. Courts determine reasonableness by considering prevailing conditions, the nature, extent, and duration of restrictions, and all surrounding circumstances using an objective standard. During national emergencies, greater restrictions on assembly are permissible, but they must be justified by a clear and present danger to paramount interests.

🧠 Quick Revision Questions

1. What is the difference between an "externment order" and an "internment order," and what two conditions must a law authorizing such orders satisfy to be valid?
2. According to the Supreme Court of the United States, what does the idea of a republican government imply about the right of citizens to assemble?
3. In Abdul Hameed Qadri vs. D.M. Lahore, what two situations were held to fall within the purview of "public order"?
4. What standard must be applied to judge the reasonableness of restrictions on fundamental rights, according to the lecture?
5. Under American Law, what kind of danger must exist to justify restricting the freedom of assembly, and what term is used to describe this requirement?

📘 Lecture 25 — Fundamental Right---Freedom of Association

📖 Overview: This lecture explains the constitutional right to freedom of association under Article 17 of the Constitution of Pakistan, 1973. It covers the meaning, scope, limitations, and judicial interpretations of this fundamental right, including the formation of associations, unions, and political parties. Understanding this lecture is essential for grasping how individual liberties are balanced against state interests like sovereignty and public order.

🗂️ Topics Covered

The lecture begins by defining the phrase "freedom of association" and then examines Article 17 of the Constitution of Pakistan, 1973, in detail. It outlines the three freedoms guaranteed by this article: formation of associations, unions, and political parties. The lecture then discusses the objects of associations, the legal documents containing their aims, landmark case laws on reasonable restrictions, and the writ jurisdiction of the High Court under Article 199 for enforcement of these rights.

📝 Lecture Summary

Meaning of the phrase ‘Freedom of Association’

Freedom of association means forming and belonging to political parties, trade unions, societies, and other organizations. A person is at liberty to join an association provided it does not amount to criminal conspiracy under the criminal law. Conversely, no one is obliged by law to join any association against their will.

🔑 Definition — Freedom of Association: the right to form and belong to political parties, trade unions, societies, and other organizations.

Article 17 of the Constitution of Pakistan, 1973

Article 17 provides that every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. Additionally, every citizen not being in the service of Pakistan shall have the right to form or be a member of a political party, subject to similar restrictions. If the Federal Government declares a political party is operating in a manner prejudicial to sovereignty or integrity, the matter must be referred to the Supreme Court within fifteen days, and the Court's decision is final.

📐 Formula: Article 17 → Right to form associations/unions/political parties, limited by reasonable restrictions for sovereignty/integrity/public order/morality.

📌 Example: In Abul A’la Maudoodi vs. Government of West Pakistan (P.L.D 1964 S.C 673), Section 16 of the Criminal Law Amendment Act 1908, which authorized the Provincial Government to declare an association unlawful based on subjective satisfaction, was held to be an unconstitutional interference with the right of freedom of association. The Court determined that the reasonableness of a restriction must be examined by the court, including the mode of application.

Three freedoms guaranteed by Article 17

Article 17 guarantees three freedoms: (1) Freedom to form associations, (2) Freedom to form unions, and (3) Freedom to form political parties. The first two freedoms are subject to reasonable restrictions in the interest of sovereignty or integrity of Pakistan, public order or morality. The third freedom (political parties) is subject only to reasonable restrictions in the interest of sovereignty or integrity of Pakistan. The right flows from other fundamental rights like freedom of movement, profession, speech, and religion.

🔑 Definition — Vicarious Liability: liability that a supervisory party bears for the actionable conduct of a subordinate or associate based on the relationship between the two parties.

Objects of Associations

An association may take the form of a political party, company, institute, firm, union, society, or club. When persons combine for a common object, they generally set out their aims and objects in a document and establish an organizational structure. They may associate for political, economic, or social purposes, or for promoting science, religion, art, culture, literature, or charity. So long as the purpose is lawful, the law imposes no restriction.

🔑 Definition — Documents containing aims and objects: written documents outlining the purpose and organizational structure of an association.

📌 Example: The dissolution of Imdadi companies by the Undesirable Companies Act 1958 was upheld in Progress of Pakistan Co. Ltd. Vs. Registrar Joint Stock Companies (P.L.D. 1958 Lah.887) because the companies encouraged immoral gambling, thus falling outside lawful purposes.

Deputing person to attend meeting in violative of Rights

A law that authorizes a District Magistrate to depute a person to attend a public meeting for reporting purposes and to compel the meeting organizer to admit that person is an unjustified invasion of the right of free assembly and association.

📌 Example: In Nawabzada Nasrullah Khan vs. Government of West Pakistan (P.L.D. 1965 Lah. 642), it was held that such a law violates the right of free assembly and association.

Compulsory registration and rendition of accounts by political parties

Compulsory registration of political parties violates Article 17(2) of the Constitution. However, provisions requiring the rendition of accounts for audit by political parties are in consonance with Article 17(3), which mandates that every political party shall account for the source of its funds in accordance with law.

📌 Example: In Benazir Bhutto vs. Federation of Pakistan (P.L.D. 1988 S.C. 416), it was held that Article 17(3) requires every political party to account for the sources of its funds. The purpose is to identify foreign-aided parties whose activities are prejudicial to the sovereignty or integrity of Pakistan, as fund sources provide a guideline for determining a party's true character.

Writ Jurisdiction of High Court

Article 199 of the Constitution is very wide in scope and is introduced to correct actions of government functionaries suffering from lack of jurisdiction or excess of jurisdiction. If citizens are deprived of their constitutional guarantee illegally or not in accordance with law, Article 199 can be invoked for redress.

🔑 Definition — Revoked: cancelled.

📌 Example: The High Court, on the application of an aggrieved party, has the power to make an order directing a person performing functions within the territorial jurisdiction of the High Court (in connection with affairs of the Federation, Province, or a local authority) to refrain from doing anything against the fundamental rights conferred by the Constitution.

⭐ Key Takeaways

The most critical points for exam preparation are: Article 17 guarantees three distinct rights—to form associations, unions, and political parties—each with specific limitations. The first two are subject to reasonable restrictions for sovereignty, integrity, public order, or morality, while political party formation is restricted only for sovereignty or integrity. Forced attendance at meetings by government deputies is unconstitutional, and compulsory registration of political parties is invalid, but mandatory accounting of funds is lawful. The High Court's writ jurisdiction under Article 199 provides broad remedies against any infringement of fundamental rights by government functionaries.

🧠 Quick Revision Questions

1. What are the three freedoms guaranteed by Article 17 of the Constitution of Pakistan, 1973?
2. In what ways do the restrictions on forming political parties differ from those on forming associations or unions?
3. Why was the dissolution of Imdadi companies upheld in the Progress of Pakistan Co. Ltd. case?
4. What was the ratio decidendi in Abul A’la Maudoodi vs. Government of West Pakistan regarding the reasonableness of restrictions?
5. According to Benazir Bhutto vs. Federation of Pakistan, why does Article 17(3) require political parties to account for their funds?

📘 Lecture 26 — Fundamental Right—(1) Freedom of Trade, Business or Profession (2) Safeguards Against Taxation for the Purposes of any Particular Religion

📖 Overview: This lecture explains two fundamental rights guaranteed under the Pakistan Constitution 1973. First, it examines Article 18 which provides citizens the freedom to engage in lawful professions, trades, and businesses, along with the limitations the state may impose. Second, it discusses Article 21 which safeguards individuals from being forced to pay taxes for the propagation of religions other than their own.

🗂️ Topics Covered

The lecture covers the provisions of Article 18 of the Pakistan Constitution 1973 regarding freedom of trade, business, or profession, including the conditions and provisos that allow regulation through licensing systems, free competition measures, and government monopolies. It also addresses Munir's interpretation of the word "lawful" and Cornelius J.'s observations on regulation versus licensing systems. The second part examines Article 21's safeguard against compulsory taxation for religious purposes, distinguishing between taxes and fees. Finally, it discusses the writ jurisdiction of High Courts under Article 199 for enforcing fundamental rights.

📝 Lecture Summary

Fundamental Right—Freedom of Trade, Business or Profession

Article 18 of the Pakistan Constitution 1973 provides that "subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business."

💡 Why this matters: This article establishes the constitutional basis for economic freedom while allowing reasonable state regulation.

🔑 Definition — Subject to: having regard to 🔑 Definition — Qualification: prerequisites; criterion 🔑 Definition — Lawful: permitted by law 🔑 Definition — Profession: line of work; career 🔑 Definition — Trade: buying & selling

Thus Article 18 provides that having regard to such prerequisites or criteria, if any, as may be prescribed by law, every citizen shall have the right to enter upon any career or occupation permitted by law and to conduct any lawful buying and selling or business.

Provided that nothing in this Article shall prevent: (a) The regulation of any trade or profession by a licensing system; or (b) The regulation of trade, commerce or industry in the interest of free competition therein; or (c) Carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service to the exclusion, complete or partial, of other persons.

🔑 Definition — Provided: proviso; adds condition or exception or addition to whatever is said earlier 🔑 Definition — Regulation: parameter 🔑 Definition — Licensing system: authorization system 🔑 Definition — Exclusion: keeping out; leaving out 🔑 Definition — Complete: total; whole 🔑 Definition — Partial: part

Simple Sense of the Fundamental Right: Freedom of Trade, Business or Profession

The sense of this fundamental right may be stated by saying that every citizen of Pakistan is entitled to engage himself in any lawful profession and occupation and do any lawful trade or business, but the state may by law: (i) Prescribe qualification for the practice of a profession, occupation, trade or business; (ii) Regulate any trade or profession by a licensing system; (iii) Regulate any trade, commerce or industry in the interest of free competition; and (iv) Assume for itself or grant to a Government controlled corporation, the monopoly, complete or partial, of any trade, business, industry or service.

Munir Says the Word ‘Lawful’ Implies Complete Banning of Profession etc.

Munir opined that the word 'lawful' that occurs in the principal paragraph has the import of enabling the state completely to ban a profession, occupation, trade or business by declaring it to be unlawful. According to him, "unlawful" in common parlance means anything forbidden by law and this is also the meaning assigned to it in law.

🔑 Definition — Parlance: manner of speaking

Therefore the right to enter upon a profession or occupation or to conduct any trade or business can hardly be described to be an unqualified constitutional right when such right may be denied by law.

In the case of East & West Steamship Co. vs. Pakistan P.L.D 1958 S.C. 41, Cornelius, J., in the light of the provisions of the Control of Shipping Act, 1947, made observations which illustrate the concepts of "regulation", "license" and "licensing system" as under:

"I consider that the law constitutes a violation of the main provisions under Article 12, guaranteeing a right to conduct a lawful trade, and I consider also that a law expressed in the terms of the Control of Shipping Act relating to any trade cannot fall within the saving clause provided for regulation of trade by a licensing system..."

Cornelius, J. also observed that "the freedom which the citizens had guaranteed to themselves is thus placed entirely at the disposal of the Executive to respect or destroy as it pleases."

Right to Apply for License is a Valuable Right

The fundamental right authorizes the regulation of any trade or profession by a licensing system. The state therefore may by law direct that certain trades or professions will not be carried on except under a license, and it may by license determine the place where and the time when certain businesses are to be conducted. But the right to apply for a license is not a fake but a valuable right, as held by Shamim Textile Mills vs. Republic of Pakistan P.L.D. 1972, and therefore a law may be attacked on the ground that the rule-making power under it amounts to excessive delegation of legislative power.

🔑 Definition — Right: an interest protected by law

Government Trading & Monopolies

Clause (c) of the Proviso to Article 18 permits the Government or a Government-controlled corporation to have a monopoly in any trade, business, industry or service. But the clause does not permit the State to confer any such privilege on a private person or a corporation, as any such measure would amount to an ouster of other citizens from the trade or industry.

🔑 Definition — Monopoly: domination; cartel 🔑 Definition — Confer: bestow 🔑 Definition — Privilege: advantage 🔑 Definition — Ouster: expulsion

On the other hand, as would appear from proviso (b) to Article 10, the Government should, where a monopoly exists, regulate the trade or industry in the interest of free competition.

Safeguards Against Taxation for Purposes of Any Particular Religion

Article 21 of the Pakistan Constitution 1973 provides that "no person shall be compelled to pay any special tax, the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own."

🔑 Definition — Tax: impost; burden; charge 🔑 Definition — Proceed: revenue 🔑 Definition — Propagation: promulgation; spreading

Thus Article 21 provides that no person shall be obliged to pay any special tax, the revenue of which is to be spent on the promulgation or maintenance of any religion other than his own.

🔑 Definition — Promulgation: spread; proliferation

In order to attract the provision of this article, the levy must be a tax. Where the imposition is in the nature of a fee, it does not fall within the prohibition of this article. There is no generic difference between a tax and a fee. Both are different forms in which the taxing power of a state manifests itself.

🔑 Definition — Levy: charge 🔑 Definition — Generic: basic

Tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is imposed by law. Tax is a common burden and the only return which the taxpayer gets is the participation in the common benefits of the state. Fee, on the other hand, are payments primarily in the public interest but for some special services rendered or some special work done for the benefit of those from whom payments are demanded.

🔑 Definition — Exaction: the act of demanding

Writ Jurisdiction of High Court

Provisions of Article 199 are not confined to cases where the person against whom the order is proposed to be passed has been performing judicial or quasi-judicial functions. Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by this Article on the superior courts.

Article 199 is very wide in scope, and has been introduced to correct the actions of Government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction. This article is an omnibus article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally, or not in accordance with law, then Article 199 can always be invoked for redress.

The High Court, on application of an aggrieved party, has power to make an order directing a person performing, within the territorial jurisdiction of the High Court, functions in connection with affairs of the Federation, Province or a local authority, to refrain from doing anything against the fundamental rights conferred by the Constitution of Pakistan 1973.

⭐ Key Takeaways

Article 18 guarantees every citizen the right to engage in any lawful profession, trade, or business, but this right is subject to state-imposed qualifications and regulations through licensing systems, competition measures, and government monopolies. The word "lawful" is critically important because it enables the state to completely ban certain professions or trades by declaring them unlawful, making this a qualified rather than absolute right. The right to apply for a license is a valuable right that cannot be treated lightly, and excessive delegation of legislative power in licensing matters can be challenged in court. Article 21 protects individuals from being compelled to pay special taxes whose proceeds are used to propagate or maintain religions other than their own, though this prohibition applies only to taxes and not to fees. Finally, Article 199 provides broad writ jurisdiction to High Courts to correct illegal or unconstitutional actions by government functionaries, including executive authorities, serving as a crucial remedy for citizens whose fundamental rights have been violated.

🧠 Quick Revision Questions

1. What are the three exceptions (provisos) to the fundamental right of freedom of trade, business, or profession under Article 18 of the Pakistan Constitution 1973?

2. According to Justice Munir's interpretation, what is the significance of the word "lawful" in Article 18, and how does it affect the nature of this fundamental right?

3. In the case of East & West Steamship Co. vs. Pakistan, what did Justice Cornelius observe about the relationship between regulation and licensing systems?

4. What is the key difference between a "tax" and a "fee" as explained in the context of Article 21's safeguard against taxation for religious purposes?

5. Under Article 199, what categories of authorities fall within the writ jurisdiction of the High Court, and what is the purpose of this jurisdiction?

📘 Lecture 27 — Fundamental Right --- Freedom of Speech, Expression and Press

📖 Overview: This lecture examines Article 19 of the Pakistan Constitution, 1973, which guarantees the right to freedom of speech, expression, and press, subject to reasonable restrictions. It explains the scope, limitations, and importance of these freedoms, along with the constitutional provisions for contempt of court and the writ jurisdiction of High Courts.

🗂️ Topics Covered

The lecture covers Article 19 of the Pakistan Constitution with its key terms and definitions, limitations on freedom of expression including treason, sedition, defamation, blasphemy, and obscenity, the scope of freedom of speech and press as defined by Alexander Hamilton, the importance of these freedoms in democratic governance, reasonableness of restrictions including the landmark case of Nawabzada Nasrullah Khan vs. Government of West Pakistan, contempt of court under Article 204 of the Constitution and the Contempt of Court Act 1976, and the writ jurisdiction of High Courts under Article 199.

📝 Lecture Summary

Fundamental Right --- Freedom of Speech, Expression and Press

Article 19 of the Pakistan Constitution, 1973 provides that "every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation, commission of or incitement to an offence."

🔑 Definition — Subject to: having regard to 🔑 Definition — Reasonable: logical; sensible 🔑 Definition — Restrictions: limitations 🔑 Definition — Glory: grandeur 🔑 Definition — Integrity: honor 🔑 Definition — Any part thereof: any part of Pakistan 🔑 Definition — Contempt of court: the act of disrespecting the court 🔑 Definition — Defamation: the act of harming the reputation of other 🔑 Definition — Commission of an offence: act of doing an offence 🔑 Definition — Incitement to an offence: provocation to an offence 🔑 Definition — Offence: crime; violation of law

Thus the Article 19 provides that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, having regard to any logical limitations imposed by law in the interest of the grandeur of Islam or the honor, security or defense of Pakistan or any part of Pakistan, friendly relations with foreign states, public order, decency or morality, or in relation to act of disrespecting the court, act of harming the reputation of other, act of doing or provocation to do a crime.

Limitation on the freedom of expression

Limitation on the freedom of expression includes treason, sedition, incitement to racial hatred, official secrets, contempt of court or Parliament and incitement to mutiny or disaffection among the armed forces and Police. The other limitations are defamation, civil and criminal seditious libel, blasphemy, obscenity and the application of the restrictions, imposed by these areas of law on newspaper, wireless, television and theaters.

🔑 Definition — Treason: disloyalty 🔑 Definition — Sedition: trouble making 🔑 Definition — Incitement: provocation 🔑 Definition — Racial: ethnic 🔑 Definition — Hatred: hate 🔑 Definition — Contempt of court: act of disrespecting court 🔑 Definition — Contempt of parliament: act of disrespecting Parliament 🔑 Definition — Mutiny: revolt 🔑 Definition — Disaffection: hostility 🔑 Definition — Defamation: the act of harming the reputation of other 🔑 Definition — Libel: defamation by the medium of writing 🔑 Definition — Restrictions: limitations

Thus Limitation on the freedom of expression includes disloyalty, trouble making, provocation to ethnic hate, official secrets, act of disrespecting court or act of disrespecting Parliament and provocation to revolt or hostility among the armed forces and Police. The other limitations are the act of harming the reputation of other, civil and criminal trouble making written defamation, blasphemy, obscenity and the application of the limitations, imposed by these areas of law on newspaper, wireless, television and theaters.

Scope of Freedom of Speech & Press

Alexander Hamilton said: "The liberty of press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals."

🔑 Definition — Liberty: freedom; independence 🔑 Definition — Impunity: exemption from punishment 🔑 Definition — Motive: intention; object 🔑 Definition — Justifiable: reasonable; acceptable 🔑 Definition — Ends: purposes

Thus the freedom of press is the right to publish with exemption from punishment, truth, with good intentions for reasonable purposes though reflecting on government, magistracy, or individuals.

Freedom of speech and freedom of press are fundamental personal rights and liberties which are the corner stones of democratic institutions.

The liberty of the press is not confined to newspapers and periodicals but necessarily embraces pamphlets, leaflets and every sort of publication.

🔑 Definition — Embrace: hold; grip

The right to speech is not limited to public addresses, pamphlets or words of an individual, but it also embraces every form and manner of dissemination of ideas that appear best fitted to bring such idea and views to the attention of the populace and to the attention of those most concerned with them.

🔑 Definition — Dissemination: propagation 🔑 Definition — Populace: public; population

The privilege of free speech carries with it freedom of choice as to the mode of expression that may be employed; it includes of mechanical and manual instrumentalities of communication, such as press and banners as a natural and appropriate means of conveying information on matters of public concern, which may be protected under the Constitutional guarantee of free speech and press.

🔑 Definition — Mechanical: motorized 🔑 Definition — Manual: physical 🔑 Definition — Instrumentalities: appliances; electrical devices

Importance of the freedom

The freedom of speech and expression means the right to express one's convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.

A democratic government attaches great importance to this freedom because without freedom of speech, the appeal to reason which is the basis of democracy cannot be made.

It is said that freedom of speech and of the press lays at the foundation of all democratic organizations, for without free political discussion on public education, so essential for the proper functioning of the process of popular government, is possible.

The Journal of the International Commission of Jurist states that it needs no emphasis that a free press, which is neither directed by the executive nor subjected to censorship, is a vital element in a free state; in particular, a free, regularly published, political press is essential in modern democracy.

The citizens called upon to make political decisions, must be comprehensively informed, know the opinions of others and be able to weigh them up against each other. The press keeps the dialogue alive, it provides the information, adopts its own point of view, and thus works as a directive giving force to the public debate. It stands as a permanent means of communication and control between the people and their elected representatives in Parliament and Government.

Reasonableness of Restrictions on freedom of speech and expression

The freedom of speech and expression, including the liberty of the press under Pakistan Constitution is subject to any reasonable restrictions that may be imposed by law in the interest of glory of Islam, the security of Pakistan, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by executive action. An absolute test of reasonableness of restrictions cannot be laid down.

🔑 Definition — Test: examination; check; analysis

📌 Example: In Nawabzada Nasrullah Khan vs. Government of West Pakistan P.L.D. 1965 Lah.642, the Lahore High Court held that freedom of speech and press is not absolute at all times and in all circumstances, and it does not means that one can talk or distribute where, when and how one chooses.

The state can impose reasonable restrictions on the freedom of speech in the interest of friendly relations with foreign state. It is a recognized principle of international law that State in their relation with other States are responsible for the acts committed by persons within their jurisdiction. In accordance with this principle the most modern systems of law have made provisions for the punishment of libel against the heads of foreign states.

🔑 Definition — Libel: to defame someone in a permanent character

The English common Law punishes such libel on the ground that they imperil the peaceful relation of Her Majesty with foreign states.

🔑 Definition — Imperil: put in danger

A law which makes it an offence to publish any libel tending to degrade or expose to hatred or contempt any foreign prince, ambassador or other foreign dignitaries will fall within this expression and will be held valid provided that the restrictions are not unreasonable.

The freedom of speech and expression does not extend to indecent or immoral publications and utterances. But as this concept of decency and morality differ historically and geographically, the court must decide the matter in the light of the existing and generally accepted notions of decency and morality in a given society.

Contempt of Court

Article 204 of the Pakistan Constitution 1973 and the Contempt of Court Act 1976 make provisions and confer jurisdiction on the Supreme Court and the High Courts to punish any person who---

(a) Abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the court; or

(b) Scandalized the court or otherwise does anything which tends to bring the court or a judge in relation to his office in to hatred, ridicule or contempt; or

(c) Does anything which tends to prejudice the determination of a matter pending before the court; or

🔑 Definition — Prejudice: bigotry; unfairness

(d) Does any other thing which, by law constitutes contempt of court.

Writ Jurisdiction of High Court

Provisions of Article 199 are not confined to cases where the person against whom the order is proposed to be passed has been performing judicial or quasi judicial functions. Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by this Article on the superior courts.

🔑 Definition — Orbit: track; range; scope

Article 199 is very wide in scope, and has been introduced to correct the actions of Government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction. This article is an omnibus article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally, or not in accordance with law, then Article 199 can always be invoked for redress.

High Court on application of an aggrieved party has power to make an order directing person performing, within territorial jurisdiction of High Court functions in connection with affairs of Federation, Province or a local authority to refrain from doing anything against the fundamental rights conferred by the Constitution of Pakistan 1973.

💡 Why this matters: Article 199 serves as a powerful constitutional remedy for citizens whose fundamental rights are infringed, allowing High Courts to correct unlawful actions by government functionaries at federal, provincial, and local levels.

⭐ Key Takeaways

A student must remember that Article 19 of the Pakistan Constitution guarantees freedom of speech, expression, and press but subjects these rights to reasonable restrictions in the interest of Islam's glory, national security, foreign relations, public order, decency, morality, contempt of court, defamation, and incitement to offences. The scope of these freedoms extends beyond newspapers to include pamphlets, leaflets, and all forms of dissemination, while limitations include treason, sedition, racial hatred, official secrets, blasphemy, and obscenity. The landmark case of Nawabzada Nasrullah Khan established that these freedoms are not absolute in all circumstances. Contempt of court under Article 204 covers abuse of court process, scandalizing the court, and prejudicing pending matters. Finally, Article 199 provides the writ jurisdiction of High Courts as a remedy for citizens against infringement of their fundamental rights by government functionaries at any level.

🧠 Quick Revision Questions

1. What are the specific grounds on which reasonable restrictions can be imposed on freedom of speech under Article 19 of the Pakistan Constitution, 1973?

2. According to Alexander Hamilton's definition, what four elements constitute the liberty of the press?

3. What did the Lahore High Court hold in the case of Nawabzada Nasrullah Khan vs. Government of West Pakistan (P.L.D. 1965 Lah.642)?

4. Under Article 204 of the Constitution and the Contempt of Court Act 1976, what four categories of conduct constitute contempt of court?

5. What is the scope of Article 199 of the Pakistan Constitution, and how can citizens invoke it for redress?

📘 Lecture 28 — Fundamental Rights—(1) Freedom to Profess Religion & to Manage Religious Institutions (2) Safeguard as to educational institutions in respect of religion etc. (3) Right to acquire and dispose of property

📖 Overview: This lecture examines three fundamental rights guaranteed by the Constitution of Pakistan 1973: the freedom to profess, practice, and propagate religion (Article 20); safeguards for educational institutions regarding religious instruction (Article 22); and the right to acquire, hold, and dispose of property (Article 23). It also introduces the writ jurisdiction of the High Court under Article 199 as a remedy for rights violations, making these protections judicially enforceable.

🗂️ Topics Covered

The lecture covers the detailed interpretation of Article 20, including definitions of key terms like "profess," "practice," and "propagate," and the meaning of religion. It explains the limitations of "subject to law, public order, and morality" and how fundamental rights cannot be taken away by law, citing Jibendra Kishore vs. East Pakistan. It then examines Article 22's safeguards for students in educational institutions and discrimination protections. Finally, it details Article 23's right to property, its constitutional limits (e.g., compulsory acquisition), and introduces the writ jurisdiction of High Courts under Article 199 for enforcement.

📝 Lecture Summary

Article 20 of the Pakistan Constitution 1973

Article 20 of the Pakistan Constitution 1973 provides that, subject to law, public order and morality: (a) Every citizen shall have the right to profess, practice and propagate his religion; and (b) Every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

The lecture explains "subject to law, public order and morality" as meaning "having regard to" those elements. Key terms are defined: "Profess" means admit or acknowledge; "Practice" means follow or observe; "Propagate" means promulgate; "Denomination" means value; "Every sect thereof" means every division or faction of the religion; "Establish" means set up or found; "Maintain" means uphold or preserve; "Manage" means deal with or control. A synonym-based restatement is provided: "Every citizen shall have right to acknowledge, follow and promulgate his religion; and every religious value and every faction of the religion shall have the right to set up, uphold and control its religious institution."

🔑 Definition — Religion: Religion includes all forms of belief in the existence of a superior being exercising power over human beings by volition, and imposing rules of conduct, with future rewards and punishments. Religion is also defined as a matter of belief and doctrine, concerning the human spirit expressed overtly in the form of ritual and worship. "Belief" means faith or conviction; "Doctrine" means a set of guidelines; "Overtly" means explicitly; "Ritual" means practice; "Worship" means respect or adoration.

The right of a man to entertain religious views as they appeal to his individual conscience, without dictation or interference by any person or power, civil or ecclesiastical, is as fundamental in a free government as is the right to life and liberty. "Conscience" means sense of right and wrong; "Dictation" means notation; "Interference" means intervention; "Civil" means public; "Ecclesiastical" means priestly or church.

Subject to public order and morality: If a religion is immoral (e.g., allowing indecent exposure of human body) or its practice leads to public disorders, the legislature may step in to regulate the religion, practice, and propagation. So long as religious beliefs are held, professed, and practiced in private, no question of public disorder can arise. But when they are practiced and propagated in public—by speeches, processions, and placards, and are accompanied by denunciation of other religions—they are bound to clash with the rights of others and lead to breaches of the peace. "Denunciation" means condemnation, criticism, or censure. It is for this consideration that the practice and propagation of religion is made subject to law.

The fundamental right in the Pakistan Constitution has been subjected to law, but this does not mean it can be taken away by law. The case Jibendra Kishore vs. East Pakistan held that the very conception of a fundamental right is that, being a right guaranteed by the Constitution, it cannot be taken away by law. Therefore, in accordance with the principle that a constitution should receive liberal interpretation in favor of the citizen—especially with respect to provisions designed to safeguard freedom of conscience and worship—the words "subject to law" cannot mean that the right to profess, practice, and propagate religion may be completely taken away by law. They should be interpreted as merely permitting the making of laws by which the manner in which religion is to be professed, practiced, and propagated, and the establishment, management, and maintenance of religious institutions (e.g., Waqf Alal-Aulad), may be regulated.

💡 Why this matters: This distinction ensures that fundamental rights are genuine constitutional guarantees, not mere privileges revocable by ordinary legislation.

Fundamental Right — Safeguard as to educational institutions in respect of religion etc.

Article 22 of the Constitution of Pakistan 1973 provides that no person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony, or worship relates to a religion other than his own. "Instruction" means teaching; "Ceremony" means ritual.

In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation. "Discrimination" means inequality or favoritism.

Subject to law, no religious community or denomination shall be prevented from providing religious instructions for pupils of that community or denomination in any educational institution maintained wholly by the community or denomination.

Subject to law, no citizen shall be denied admission to any educational institution receiving aid from public revenue on the ground only of race, religion, caste, or place of birth.

Nothing in this article shall prevent any public authority from making provisions for the advancement of any socially or educationally backward class of citizens.

Fundamental right — Right to acquire and dispose of property

Article 23 of the Pakistan Constitution 1973 provides that "every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest."

"Right" means an interest protected by law; "Acquire" means buy or purchase; "Hold" means grasp; "Dispose of" means sell; "Subject to" means having regard to; "Reasonable" means logical or sensible; "Restrictions" means limitations.

Thus, Article 23 provides that "every citizen shall have an interest protected by law to buy, grasp and sell the property in any part of Pakistan, having regard to the constitution and any logical limitations imposed by law in public interest."

Subject to the Constitution: The right to acquire, hold, and dispose of property guaranteed to the citizen of Pakistan is subject to the following other provisions of the Constitution:

1. Compulsory acquisition of land with compensation.
2. The compulsory acquisition of land without compensation for preventing danger to life, property, or public health; or enemy property or evacuee property; and the taking over of property acquired by unfair means and the management of property for a limited period in public interest.
3. Compulsory acquisition of property without compensation for the purposes of:
   • (a) Providing education and medical aid to all or any specified class of citizens; or
   • (b) Providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
   • (c) Providing maintenance to those who, on account of unemployment, sickness, infirmity, or old age, are unable to maintain themselves.

Writ Jurisdiction of High Court

Provisions of Article 199 are not confined to cases where the person against whom the order is proposed to be passed has been performing judicial or quasi-judicial functions. Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by this Article on the superior courts. Article 199 is very wide in scope and has been introduced to correct the actions of government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction. This article is an omnibus article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution.

If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally, or not in accordance with law, then Article 199 can always be invoked for redress. The High Court, on application of an aggrieved party, has power to make an order directing a person performing, within the territorial jurisdiction of the High Court, functions in connection with affairs of the Federation, Province, or a local authority to refrain from doing anything against the fundamental rights conferred by the Constitution of Pakistan 1973.

⭐ Key Takeaways

Students must remember that Article 20 guarantees religious freedom but is expressly limited by law, public order, and morality. However, the landmark case of Jibendra Kishore vs. East Pakistan establishes that "subject to law" cannot completely take away the right—it only permits regulation of the manner of exercise. Article 22 protects students from forced religious instruction of a different religion and prohibits discrimination based on race, religion, caste, or place of birth in state-aided institutions. Article 23 guarantees the right to acquire, hold, and dispose of property, but this right is subject to constitutional limitations including compulsory acquisition, sometimes even without compensation, for public welfare purposes. Finally, Article 199 provides a powerful remedy: the High Court can issue orders to any government functionary to stop violations of fundamental rights, making these constitutional guarantees judicially enforceable.

🧠 Quick Revision Questions

1. Explain the scope of "subject to law, public order and morality" in Article 20 of the Pakistan Constitution 1973, citing the case that clarified their meaning.
2. What are the protections granted to students regarding religious instruction under Article 22 of the Constitution? Are there any exceptions?
3. List three circumstances under which property can be compulsorily acquired without compensation according to the Constitution.
4. What is the significance of Article 199 (Writ Jurisdiction of the High Court) in enforcing fundamental rights?
5. Define "religion" as given in the lecture, and explain why its practice and propagation are made subject to law.

📘 Lecture 29 — Fundamental Rights ----(1) Protection of Property Rights (2) Non-Discrimination in Respect of Access to Public Places (3) Safeguard Against Discrimination in Services (4) Preservation of Language, Script & Culture

📖 Overview: This lecture examines four fundamental rights enshrined in the Pakistan Constitution 1973: protection of property rights, non-discrimination in access to public places, safeguards against discrimination in services, and preservation of language, script and culture. These constitutional guarantees establish the legal framework for individual economic security, equal treatment, and cultural identity preservation, making them essential for understanding the rights and protections available to Pakistani citizens.

🗂️ Topics Covered

The lecture covers Article 24 regarding compulsory acquisition of property with compensation requirements and multiple exceptions for public safety, unfair means, enemy property, state management, education, medical aid, housing, and social welfare. Article 26 addresses religious freedom in educational institutions, non-discrimination against religious communities in taxation, and admission rights to publicly-funded institutions. Article 27 prohibits discrimination in government service appointments based on race, religion, caste, sex, residence or place of birth, with provisions for reserved posts and provincial residence requirements. Article 28 guarantees the right to preserve and promote distinct languages, scripts and cultures, while Article 199 establishes the writ jurisdiction of High Courts.

📝 Lecture Summary

Protection of Property Rights — Article 24

Article 24 of the Pakistan Constitution provides that no person shall be compulsorily deprived of his property save in accordance with law. This means no person shall be by force dispossessed of their property except according to legal procedure.

🔑 Definition — Compulsorily: by force; under duress 🔑 Definition — Deprived: dispossessed; run down; set aside 🔑 Definition — Save: except

No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation thereof. The law must either fix the amount of compensation or specify the principles and manner in which compensation is to be determined and given.

🔑 Definition — Acquire: purchase 🔑 Definition — Possession: control; custody 🔑 Definition — Compensation: recompense; payment 🔑 Definition — Thereof: of the property

Thus no property shall be by force purchased or taken control of except for a public purpose and except by the authority of law which provides for payment of the property and either fixes the amount of compensation or specifies the principles and the manner in which compensation is to be determined and given.

💡 Why this matters: This establishes the constitutional requirement that any government taking of private property must be for a public purpose and must include compensation, protecting citizens from arbitrary state seizure.

Exceptions to Article 24 protection: Nothing in this Article shall affect the validity of any law permitting:

1. Compulsory acquisition for preventing danger to life, property or public health
2. Taking over of property acquired by unfair means or contrary to law
3. Acquisition, administration or disposal of enemy property or evacuee property
4. Taking over management of property by the State for a limited period in public interest or for proper management
5. Acquisition of property for providing education and medical aid to citizens
6. Acquisition of property for providing housing and public facilities such as roads, water supply, sewerage, gas and electric power
7. Acquisition of property for providing maintenance to those unable to maintain themselves due to unemployment, sickness, infirmity or old-age

🔑 Definition — Unfair: unmerited; unjust; unreasonable 🔑 Definition — Means: earnings; resources 🔑 Definition — Contrary: against

Non-Discrimination in Respect of Access to Public Places — Article 26

Article 26 of the Pakistan Constitution 1973 provides that no person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.

🔑 Definition — Religious instructions: holy teachings or holy lessons 🔑 Definition — Religious Ceremony: holy ritual; holy service; holy observance 🔑 Definition — Religious Worship: holy devotion

Thus no person attending any educational institution shall be required to receive holy lessons, or take part in any holy ritual, or attend holy devotion, if such instruction, ceremony or worship relates to a religion other than his own.

In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.

🔑 Definition — Discrimination: bias 🔑 Definition — Community: group of people 🔑 Definition — Granting: conferring; giving way 🔑 Definition — Exemption: immunity; exception 🔑 Definition — Concession: allowance

Thus in respect of any religious institution, there shall be no bias against any group of people in conferring of immunity or allowance in relation to taxation.

Subject to law, no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination.

🔑 Definition — Subject to law: having regard to law 🔑 Definition — Religious community: holy group of people 🔑 Definition — Religious instruction: holy lessons 🔑 Definition — Pupil: taught

Thus having regard to law, no religious group of people or denomination shall be prevented from providing religious lessons for taught of that group of people or denomination.

Subject to law, no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.

Nothing in Article 26 shall prevent any public Authority from making provision for the advancement of any socially or educationally backward class of citizens.

Safeguard against Discrimination in Services — Article 27

Article 27 of the Pakistan Constitution 1973 provides that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth.

First proviso: For a period not exceeding twenty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan.

🔑 Definition — Provided: proviso that brings addition or condition or exception to whatever is said earlier

Second proviso: In the interest of the said service, specified posts of service may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex.

🔑 Definition — Entail: demand; require

Nothing in clause (1) shall prevent any Provincial Government or authority from prescribing, in relation to any post or class of service, conditions as to residence in the Province for a period not exceeding three years prior to appointment.

Preservation of Language, Script & Culture — Article 28

Article 28 of the Pakistan Constitution provides that "subject to Article 251, any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and, subject to law, establish institution for that purpose."

🔑 Definition — Subject to: having regard to 🔑 Definition — Section of citizens: segment of citizen 🔑 Definition — Distinct: different; dissimilar 🔑 Definition — Subject to law: having regard to law

Thus having regard to Article 25, any segment of citizens having a different language, script or culture shall have the right to preserve and promote the same and having regard to law, establish institution for that purpose.

The National Language of Pakistan is "Urdu" but the English Language may for the time being be used for official purpose.

This Article does not entitle a person or community speaking a regional language to claim that the University operating in its area should make such language one of the media of examination. Any section of citizens, however, have the right to promote their distinct language, script or culture and for the purpose to establish the necessary institutions.

Writ Jurisdiction of High Court — Article 199

Provisions of Article 199 are not confined to cases where the person against whom the order is proposed to be passed has been performing judicial or quasi judicial functions. Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by this Article on the superior courts.

Article 199 is very wide in scope, and has been introduced to correct the actions of Government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction. This article is an omnibus article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the constitution.

If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally, or not in accordance with law, then Article 199 can always be revoked for redress.

The High Court on application of an aggrieved party has power to make an order directing a person performing, within territorial jurisdiction of High Court, functions in connection with affairs of federation, province or a local authority to refrain from doing anything against the fundamental rights conferred by the Constitution of Pakistan 1973.

⭐ Key Takeaways

The protection of property rights under Article 24 requires that no person be deprived of property except by law and for a public purpose with compensation, though seven specific exceptions exist for public safety, unlawful acquisition, enemy property, state management, education, medical aid, housing, and social welfare. Article 26 prohibits requiring students to participate in religious activities of other faiths, bans discrimination against religious communities in taxation, and ensures admission to publicly-funded institutions cannot be denied based on race, religion, caste or place of birth. Article 27 prohibits discrimination in government service appointments based on race, religion, caste, sex, residence or place of birth while allowing twenty-year reservations for underrepresented groups and sex-based reservations for posts requiring specific gender performance. Article 28 grants linguistic and cultural minorities the right to preserve and promote their distinct language, script and culture through institutions, though Urdu remains the national language. Article 199 establishes the High Court's writ jurisdiction as a broad remedy against any infringement of fundamental rights by government functionaries, whether judicial, quasi-judicial or administrative.

🧠 Quick Revision Questions

1. Under Article 24, what are the two essential requirements that must be met before property can be compulsorily acquired by the State?
2. Name at least four exceptions listed in Article 24 that permit compulsory acquisition of property without violating the fundamental right.
3. According to Article 26, on what grounds is it prohibited to deny admission to an educational institution receiving aid from public revenues?
4. What are the prohibited grounds of discrimination in government service appointments under Article 27, and what two exceptions are provided?
5. Under Article 28, what specific rights do citizens with a distinct language, script or culture possess, and what limitation exists regarding universities and regional languages?

📘 Lecture 30 — Fundamental Rights---Equality of Citizens

📖 Overview: This lecture examines Article 25 of the Pakistan Constitution 1973, which guarantees equality of citizens before the law and equal protection of the law. It explains the distinction between these two concepts, the principle of reasonable classification, and the legal remedies available through the superior courts for enforcement of fundamental rights, particularly under Articles 199 and 184.

🗂️ Topics Covered

The lecture begins with the text and explanation of Article 25, including non-discrimination on the basis of sex and special provisions for women and children. It then distinguishes between "Equality before law" and "Equal Protection of the Laws", citing Dicey and Jennings. The concept of classification and its reasonableness is explained with two required conditions. The lecture covers the remedy for enforcement of fundamental rights through Articles 199(2) and 184, including who cannot invoke these articles, the duty of the High Court, and the meaning of "writ" and locus standi.

📝 Lecture Summary

Fundamental Rights---Equality of Citizens

Article 25 of the Pakistan Constitution, 1973 provides that all citizens are equal before law and are entitled to equal protection of law. "Equal before law" means identical before law, and "entitled" means warranted. "Equal protection of law" means identical shelter of law. The Constitution also states there shall be no discrimination on the basis of sex alone, and nothing in this Article shall prevent the state from making any special provision for the protection of women and children.

“ Equality before law” & “Equal Protection of the Laws”

The expression "equality before law" is a declaration of equality of all persons, meaning the absence of any privilege in favor of any individual. Every person, whatever his rank or position, is subject to the ordinary jurisdiction of the ordinary courts. Dicey in his “Law of the Constitution” explains legal equality as: "with us every official from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal justification as any other citizen".

The second expression "equal protection of laws" directs that equal protection shall be secured in the enjoyment of rights and privileges without favoritism or discrimination. It is a pledge of protection or guarantee of equal laws. Although there is much in common between the two expressions, they do not mean the same thing. The word "Law" in "Equality before law" is used in a generic sense — a philosophical sense — whereas the word "laws" in "Equal protection of laws" denotes specific laws. Jennings in his law of the Constitution said that equality before law means that amongst equals the law should be equal and should be equally administered and that like should be treated alike. It forbids discrimination between persons who are substantially in similar circumstances or conditions. The rule is: like should be treated alike and unlike should be treated differently.

Classification

The rule that like should be treated alike and unlike should be treated differently leads to classification between persons made by laws. Persons may be classified in groups, and such groups may differently be treated if there is a reasonable basis for such difference.

Reasonableness of classification

A classification to be valid must be reasonable. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the needs in respect of which the classification is made. To pass the test of permissible classification, two conditions must be fulfilled:

1. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group.
2. The differentia must have a rational relation to the object sought to be achieved by the statute in question.

Remedy for the enforcement of fundamental right

Provisions of Articles 199(2) and 184 of the Constitution of 1973 of Pakistan have authorized the superior courts with the power to enforce the fundamental rights in case of complaint about violation. An aggrieved citizen, on the basis of the rule "ex debito justitiae" — as a matter of right — can claim redress of his grievance for the enforcement of his fundamental rights. The aim of having a declaration of fundamental rights in the constitution is that such rights should be regarded as inviolable under the constitution. They are not mere pious enunciations of principle but are made specifically justiciable under the constitution. When a citizen complains of violation of fundamental rights, the High Court should exercise its power under Article 199 to investigate the matter and pass such order as may be found just, legal and equitable.

Who cannot invoke Article 199 and 184 of the Constitution?

Constitutional jurisdiction of the High Court & Supreme Court cannot be invoked by any one who is guilty of bad faith and of unconscionable conduct.

Duty of High Court in relation to Article 199

Exercise of jurisdiction under Article 199 is discretionary, but the High Court must exercise the powers in good faith, justly and fairly having regard to all relevant circumstances.

Abuse of power by executive authority

Where there is clear abuse of power by executive authority and there is denial of fundamental right to citizens, the High Court is under constitutional duty to ensure that people must be dealt in accordance with law.

What is meant by the word: ‘Writ’?

Writ means a written order. According to Black’s Law dictionary Edition 8th, a writ is: "A court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act." In other words, a writ is a remedial right for the enforcement of a substantive right. Through writs, the superior courts control executive actions. Whenever the executive acts in violation of the law, the High Court may grant an order which will relieve the aggrieved from the ultra vires act of the executive. Through a writ petition, the High Court exercises its power to provide expeditious and efficacious relief to the writ petitioner. A petition filed under Article 199 is neither a suit nor an application under the Civil Procedure Code; it is a petition under the supreme law of the land, i.e., the constitution.

🔑 Definition — Remedial right: The secondary right to have a remedy that arises when a primary right is broken. 🔑 Definition — Substantive right: A right that can be protected or enforced by law.

What is locus standi?

Locus standi is the right to bring an action or to be heard in a given forum. To file a writ petition, it is necessary that the person aggrieved must have a locus standi.

Power of High Court under Article 199 of the Constitution of Pakistan 1973

Authorities performing judicial, quasi-judicial, and administrative functions fall under the jurisdiction of the High Court. Article 199 makes no distinction between administrative, judicial or quasi-judicial bodies. Article 199 is wide in scope and has been introduced to correct the actions of Government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction. The right to file a petition under Article 199 has been given to an “aggrieved person.” A writ petition under this Article is not maintainable if the petitioner has come for some indirect purpose. A petitioner acting malafide is not entitled to relief by the High Court. While exercising jurisdiction under Article 199, the court is not to treat the matter as if it were a court of further appeal.

⭐ Key Takeaways

1. Article 25 establishes equality before law (generic, philosophical, absence of privilege) and equal protection of laws (specific laws, guarantee without discrimination). 2. The principle of classification is valid only if it is reasonable, founded on an intelligible differentia, and has a rational relation to the statute's objective — like must be treated alike, unlike differently. 3. Enforcement of fundamental rights is through Articles 199 (High Court) and 184 (Supreme Court); an aggrieved person with locus standi can seek a writ as a matter of right (ex debito justitiae). 4. A writ is a remedial right — a court’s written order commanding action or restraint; it is not a suit or civil application but a constitutional petition. 5. The High Court’s jurisdiction is discretionary but must be exercised in good faith; it cannot be invoked by persons guilty of bad faith or unconscionable conduct, and the court does not act as a further appeal court.

🧠 Quick Revision Questions

1. What are the two expressions contained in Article 25 of the Pakistan Constitution 1973, and how do they differ in meaning?
2. Explain the rule of classification derived from equality before law. What are the two conditions for a classification to be valid?
3. Through which Articles can a citizen seek enforcement of fundamental rights, and what is the legal principle (ex debito justitiae) governing such a claim?
4. According to Black’s Law Dictionary, what is a “writ” , and why is it considered a remedial right?
5. Who is not allowed to invoke the constitutional jurisdiction under Articles 199 and 184, and what is the duty of the High Court when exercising its discretionary power under Article 199?

📘 Lecture 31 — Administrative Tribunal

📖 Overview: This lecture examines the concept of Administrative Tribunals in modern governance, explaining how the executive organ of a state now performs quasi-judicial functions alongside traditional courts. It covers the constitutional basis for creating these tribunals, their types, characteristics, and the reasons for their growth, particularly as the old police state model has transformed into a welfare state.

🗂️ Topics Covered

The lecture begins by explaining that the traditional theory of all judicial functions being performed by ordinary courts has become obsolete. It then discusses the constitutional provision under Article 212 for creating Administrative Tribunals, lists the kinds of tribunals (Service, Election, Inland Revenue, and Labor Tribunals), defines what constitutes a special law versus general law, and explores the reasons for the growth of Administrative Tribunals including the insufficiency and rigidity of traditional courts. Finally, it outlines the key characteristics of Administrative Tribunals.

📝 Lecture Summary

Administrative Tribunal

Today the executive organ of a state performs many quasi-legislative and quasi-judicial functions. The traditional theory that all judicial functions are performed by the traditional judiciary has become obsolete (= outdated). In reality, many judicial functions are now performed by the executive organ of a state, such as search and seizure, imposition of fine, levy of penalty, and confiscation of fine. Due to the increase in the role of modern government, the old police state has converted into a welfare state.

These days, due to change in theory and practice, the executive organ regulates industrial relations and exercises control over production. Under the overwhelming role of the executive in the administration of the state, it is not possible for ordinary courts to decide disputes expeditiously (= fastly). Therefore, to decide issues created under special laws, Administrative Tribunals are created to decide various quasi-judicial issues in place of ordinary courts. The tribunals are created under the Constitution of Pakistan.

💡 Why this matters: This shift reflects a fundamental change in how justice is administered in modern states — the traditional judiciary cannot handle the volume and specialization of disputes arising from the expanded role of government.

Relevant Article of Constitution as regard creation of Administrative Tribunal

Under clause (1) of Article 212, the appropriate legislature is empowered to enact laws for the creation of Administrative Tribunal. The tribunals exercise exclusive jurisdiction in the relevant subject matter.

Kinds of Tribunals

Following are the kinds of Tribunals:

1. Service Tribunal
2. Election Tribunal
3. Inland Revenue Tribunal
4. Labor Tribunal

Tribunals are those bodies of men appointed to decide controversies arising under certain special law.

What is Special Law?

As per Black's Law Dictionary (8th Edition), a special law is a law that pertains to a person, place, or thing, as opposed to the general public.

What is General Law?

General law is law that is neither local nor confined in application to a particular person.

Administrative Tribunal includes a court, and often these two terms are used interchangeably. The functions of the special tribunal are wholly judicial and not administrative. Some writers say it is not possible to define the word "Tribunal"; however, it means a seat or a bench upon which a judge or judges sit in a court to dispense justice as regards some special law.

Tribunals are clad (= clothed) in many of the trappings of a court, and though they exercise quasi-judicial functions, they are not full-fledged courts.

🔑 Definition — Administrative Tribunal: An adjudicatory body which decides controversies and exercises judicial power as distinguished from pure administrative power, and possesses some of the trappings of a court but not all.

Reasons for the Growth of Administrative Tribunals

As per Dicey's theory of 'Rule of Law', the ordinary law of the state must be administered by the ordinary courts; hence, he believes there is no scope for Administrative Tribunal in a state. The classical theory of separation of power also states Dicey's view by saying that in a state it is the duty of the ordinary court to dispense justice and there is no scope for Administrative Tribunal.

However, the conversion of the police state concept into welfare state ideology has necessitated the emergence of special laws. Hence, in a modern state, Administrative Tribunals are inevitable.

Following are the cogent (= logical; convincing) reasons for the growth of Administrative Tribunals:

1. The traditional courts are insufficient in number and capacity to keep pace with the role of governance in a welfare state.
2. The traditional courts are slow in process, costly, and more formal in processing cases.
3. Due to the manifold increase in socio-economic responsibility of governance, many special branches of society have emerged, and disputes thereunder need special courts; ordinary courts lack expertise in such specialized fields.
4. Administrative tribunals can avoid technicalities as they take a functional view rather than a theoretical and legalistic one.
5. The traditional judiciary is conservative, rigid, and technical. They follow strict rules of evidence and procedure, whereas tribunals are not bound to follow strict rules of evidence and procedure and can take a practical view of the matter to decide the issue in contention.
6. In ordinary courts, decisions are given after hearing parties and on the basis of record and evidence. This procedure is not fully followed in administrative tribunals; instead, wide discretionary power is conferred on them, and they mostly follow the formula: less of law, more of discretion.

Characteristics of Administrative Tribunal

• Administrative Tribunal is not an executive body or administrative department of the Government.
• Administrative Tribunal cannot delegate its quasi-judicial function to any other authority.
• It follows rule of natural justice while discharging its judicial functions.
• Administrative tribunals are bound to perform their duties judicially.
• Administrative Tribunals record findings of facts and apply legal rules on the hearings.
• Administrative tribunal is the creation of a statute and has statutory origin.
• As regards procedural matters, Administrative Tribunal possesses powers of a court, e.g., to summon witnesses, to administer oath, and to compel production of documents.
• Administrative Tribunal is not bound to follow strict rules of evidence and procedure.
• Administrative Tribunals are independent and are not subject to administrative interference in the discharge of judicial and quasi-judicial functions.
• Against the decisions of Administrative Tribunal, writ of certiorari and writ of prohibition are available to an aggrieved person.

⭐ Key Takeaways

Administrative Tribunals are statutory bodies created under Article 212 of the Constitution of Pakistan to adjudicate disputes arising under special laws, as the traditional judiciary is insufficient, slow, costly, and lacks expertise in specialized fields. The main types include Service, Election, Inland Revenue, and Labor Tribunals. While they possess many trappings of a court (e.g., power to summon witnesses), they are not bound by strict rules of evidence and procedure — instead, they follow a "less of law, more of discretion" approach. Key characteristics include independence from administrative interference, adherence to natural justice, and being creations of statute. Importantly, their decisions remain subject to judicial review through writs of certiorari and prohibition.

🧠 Quick Revision Questions

1. Under which Article of the Constitution of Pakistan can the legislature create Administrative Tribunals?
2. What are the four kinds of Administrative Tribunals mentioned in the lecture?
3. What is the difference between a "special law" and a "general law" as per Black's Law Dictionary?
4. List three reasons why traditional courts are insufficient for modern governance, leading to the growth of Administrative Tribunals.
5. What two writs are available to an aggrieved person against the decisions of an Administrative Tribunal?

📘 Lecture 32 — Administrative Tribunal and Rules of Evidence & Procedure

📖 Overview: This lecture examines the procedural flexibility of administrative tribunals, which are not bound by strict rules of evidence and procedure but must adhere to the rule of natural justice. It explores the scope of judicial review of tribunal decisions and distinguishes administrative tribunals from traditional courts. This matters because understanding these procedural rules and constitutional safeguards is crucial for grasping how administrative justice operates outside the formal court system.

🗂️ Topics Covered

The lecture covers the inherent power of administrative tribunals to regulate their own procedure, the two principles of natural justice (no one should be a judge in his own cause and no one can be condemned unheard), the non-application of technical evidence rules, the scope of High Court interference, the judicial review of tribunal decisions, suggestions of the Franks' Committee, and the distinction between administrative tribunals and courts.

📝 Lecture Summary

Administrative Tribunal and Rules of Evidence & Procedure

An administrative tribunal has inherent power (=power arising from a status, office or a position) to regulate its own procedure subject to (=having regard to) statutory requirement (=requirement arising from a statute). Administrative tribunals are vested with the power of summoning witnesses and enforcement of attendance, discovery and inspection, production of documents etc. under the Code of Civil Procedure, 1908. The proceedings of an administrative tribunal are deemed judicial proceedings for the purpose of Sections 193, 195 and 228 of the Penal Code 1860 and Sections 480, 481 and 482 of the Code of Criminal Procedure 1898. However, as a matter of fact, the tribunals are not bound to follow strict rule of evidence and procedure. Administrative tribunals are bound to follow the rule of natural justice and fair play.

What is Rule of Natural Justice?

There are two principles known as the rule of natural justice: (1) Nemo in propria causa index ess debet — No one should be made a judge in his own cause; (2) Audi alteram Partem — No one can be condemned unheard. The rule of natural justice is a sound product of human civilization, a high law of nature, and an intelligent common sense of human beings. In American Jurisprudence, it is called "due process of Law". De Smith states that "the rule of Natural Justice express the close relationship between Common law and moral principles describing what is right what is wrong." Megory J. states Natural Justice is simple and elementary, as distinct from justice that is complex sophisticated and technical. The aim of Natural Justice is to prevent miscarriage of justice.

These two basic principles on which the whole superstructure of judicial control of administration are usually not made part of statutory laws. In a case Al Hya Noor-ul-Zaman v. AJ & K Zakat Council (NLR 1987 Civil 341), it was held that the principle of Natural Justice shall be presumed to be incorporated in every statute unless its application is excluded by express words in it.

🔑 Definition — Rule of Natural Justice: A legal principle that no one should be a judge in their own cause and no one can be condemned unheard; it is a high law of nature and intelligent common sense, also known as "due process of law" in American jurisprudence.

Technical Rules of Evidence and Fair Opportunity

Technical rules of evidence do not apply to the proceedings of Administrative Tribunals; they can rely on hearsay evidence or decide the question on the basis of onus of proof or admissibility of evidence and documents by exercising discretionary power. In a case it was held that tribunals exercising quasi-judicial functions are not Courts; and they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources and through all channels without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.

What is fair opportunity? What is fair opportunity depends on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in the Courts.

🔑 Definition — Fair Opportunity: A contextual concept where the party against whom information is used must be given a chance to explain it; its adequacy depends on the facts and circumstances of each case.

Scope of Interference of High Court

A tribunal vested with judicial or quasi-judicial power may pronounce an erroneous decision; in this regard the High Court may issue writ on the instance of aggrieved party. But where the decision does not disclose any error on the face of the proceedings, there is absolutely no ground which would justify a superior court in issuing a writ or direction for the removal of the decision of the tribunal.

Every functionary of state derives its power from the Constitution or law and is required to act within the defined parameters of law. Constitutional schemes leave no room for arbitrariness (=unpredictability), capriciousness (=untrustworthiness), nepotism (=favoritism) and jobbery (=impersonation). Article 199 does not forbid issue of writs against Government but only limit them to particular cases. Even a writ may be issued against administrative order if there is defiance (=disobedience) from mandatory provision of law.

Judicial Review of Tribunals' Decisions

No appeal, revision, or reference against the decision of Tribunal is maintainable where the said right is not made available by a statute. Provisions may also be provided for ousting jurisdiction of civil court; and in such situations the decision given by a Tribunal will be final and conclusive. But this statutory finality will not affect the jurisdiction of the High Court under Article 226 & 227 and of the Supreme Court. The judicial review power of High Court and Supreme Court is recognized by the Constitution of Pakistan 1973 and the same can be taken away by any statute.

Where a tribunal had acted without jurisdiction (=allocated field of work) or has failed to exercise jurisdiction vested in it or if the order passed by the Tribunal is arbitrary (=illogical), perverse (=bad) or malafide (=with bad intention) or it has not observed the principle of natural justice or there is an apparent error on the face of the order or record or the order is ultra vires (=beyond the prescribed limit) the Act, or there is no evidence in support of the order or the order is based on irrelevant considerations or where the finding recordings are conflicting and inconsistent or grave (=serious) injustice is perpetuated (=carried on) by the order passed by the Tribunal or the order is such that no reasonable man would have made it, the same can be set aside by the High Court or by the Supreme Court.

Review is not re-hearing of the matter on merits. A review of a judgment is a serious step and it is done where there is glaring omission or patent mistake or a grave error has erupt by judicial fallibility. A mere repetition through different Counsels and overruled arguments, a second round on ineffectually covered ground or minor mistakes of inconsequential import are insufficient.

📌 Example: If a tribunal decides a case without hearing one party, the High Court can set aside that order for violating the rule of natural justice (audi alteram partem).

Suggestions of Franks' Committee on the Improvement of Administrative Tribunal System

In 1955, a committee under the chairmanship of Sir Oliver Frank was constituted to give recommendations on the constitution and working of Administrative Tribunals. The following were the recommendations:

• Chairman of Tribunal should be appointed and removed by the Lord Chancellor.
• Member should be appointed by the council and removed by the Lord Chancellor.
• Chairman should have legal qualifications and always in the case of Appellate Tribunal.
• Remuneration for service on Tribunal should be reviewed by the Council of Tribunals.
• Procedure for each Tribunal based on Common principles but suited to its needs should be formulated by the Council.
• The Citizen should be helped to know in good time the case he will have to meet.
• Hearing should be in public except only in cases involving (i) public security (ii) intimate personal or financial circumstances (iii) professional reputation, where there is a preliminary investigation.
• Legal representation should always be allowed save only in most exceptional circumstances.
• Tribunals should have power to take evidence on oath, to subpoena witnesses and to award costs. Parties should be free to question witness directly.
• Decisions should be reasoned, as full as possible, and made available to the parties in writing.
• Final Appellate Tribunal should publish and circulate selected decisions.
• There should be right of appeal on a point of law and merits to an Appellate Tribunal, except where the lower Tribunal is exceptionally strong.

Administrative Tribunal Distinguished from Court

Administrative tribunal and court have certain similarities: both are constituted by state; both are vested with judicial powers; their duty is to dispense justice to masses; they are of permanent stature and existence; they are permanent adjudicating bodies. It was held in a case that the basic and fundamental feature common in both is that they discharge judicial functions and exercise judicial powers vested in a sovereign state. But, besides the above, it is a core fact that an "Administrative Tribunal" is not a full-fledged court but possesses some of the trappings of a court.

Following are the points of distinction between the two:

1. A court is part of the traditional system of court; it derives judicial power from a sovereign state, whereas an Administrative Tribunal is an agency created by statute vested with judicial powers. Administrative tribunal is part and parcel of executive branch of a state. Lord Green said Administrative Tribunal performs hybrid form of functions.
2. Judges of the traditional court are independent from the executive organ of a state in respect of their terms and condition of services etc., whereas the matter is otherwise in relation to the judges of Administrative Tribunal.
3. A court of law is presided over by a judge well learned in law, whereas, the matter may be otherwise in case of Administrative Tribunal.
4. In a court of law a judge may be an impartial arbiter and he cannot decide the matter in which he is interested but in the case of judge of Administrative Tribunal, the matter is otherwise.
5. A court of law is bound by all the rules of evidence and procedure but Administrative Tribunal is not bound by all these unless made obligatory by the statute.

Whether Administrative Tribunal follows Principle of Natural Justice?

Administrative Tribunal does not perform purely administrative function; it performs judicial and quasi-judicial functions. The tribunal decides disputes independently, judicially and objectively without any bias or prejudice. The Frank Committee, in its report, declared following three fundamental objectives of Administrative Tribunal: (1) Openness (2) Fairness (3) Impartiality. The Law Commission in its fourteenth Report observed that Administrative Tribunal performs quasi-judicial functions and they must act judicially in accordance with the rule of natural justice.

What is Rule of Natural Justice? (Revisited)

There are two principles known as rule of natural justice: (1) Nemo in propria causa index ess debet (No one should be made a judge in his own cause); (2) Audi alteram Partem (no one can be condemned unheard). Rule of Natural Justice is a sound product of human civilization, a high law of nature, and an intelligent common sense of human beings. In American Jurisprudence it is called "due process of Law". However due to rapid growth of 'Administrative Law' & 'Constitutional Law' a third principle of Natural Justice has been evolved which is: (3) Speaking order or reasoned decision.

Speaking order means an order speaking for itself. In other words every order must contain reason in its support. According to this principle the party affected must know why and on what grounds the order was passed against him.

As to why reasons for a decision are required to be disclosed, there are three reasons:

1. Aggrieved party has right to appeal to appellate court on the ground that the decision of the authority is based on erroneous reasons.
2. Obligation to record reason is a deterrent against arbitrary action taken by executive authority invested with judicial power.

🔑 Definition — Speaking Order: An order that contains reasons in its support so that the affected party knows why and on what grounds the order was passed against them; it is the third principle of natural justice evolved due to the growth of Administrative Law and Constitutional Law.

⭐ Key Takeaways

The most critical points to remember from this lecture are: (1) Administrative tribunals are not bound by strict rules of evidence and procedure but must follow the rule of natural justice, which includes the principles that no one should be a judge in their own cause and no one can be condemned unheard. (2) The High Court and Supreme Court retain judicial review power over tribunal decisions if the tribunal acted without jurisdiction, violated natural justice, made an arbitrary or perverse order, or if the order is ultra vires. (3) A third principle of natural justice, the speaking order or reasoned decision, has evolved requiring tribunals to provide reasons for their decisions. (4) The Franks' Committee recommended openness, fairness, and impartiality as fundamental objectives of administrative tribunals, with specific procedural safeguards including public hearings and legal representation. (5) Courts differ from administrative tribunals in that courts are part of the traditional judicial system with independent judges bound by all rules of evidence, while tribunals are executive agencies with procedural flexibility and may not have legally qualified presiding officers.

🧠 Quick Revision Questions

1. What are the two core principles of the rule of natural justice, and what does each Latin maxim mean?
2. Under what conditions can the High Court set aside a decision of an administrative tribunal?
3. What is a "speaking order" and why is the obligation to record reasons important?
4. List at least five distinctions between an administrative tribunal and a traditional court.
5. What were the three fundamental objectives of administrative tribunals declared by the Franks' Committee?

📘 Lecture 33 — Judicial & Alternative Remedies against Administrative Action

📖 Overview: This lecture examines the judicial and alternative remedies available against administrative action, emphasizing the constitutional framework for controlling executive power. It explains the importance of prerogative writs, the jurisdiction of High Courts under Article 199 of the Constitution of Pakistan 1973, and key principles such as locus standi, delay and laches, and alternative remedies. Understanding these remedies is crucial for protecting individual rights and maintaining the rule of law in a democratic state.

🗂️ Topics Covered

The lecture covers the fundamental concept of remedies against administrative action, the historical background and purpose of prerogative writs, the jurisdiction of High Court regarding judicial review under Article 199 of the Constitution of Pakistan 1973, the meaning and importance of locus standi, against whom writs may be issued including the definition of "State" under Article 12, the doctrine of delay and laches, and the principle of alternative remedy. It also discusses the discretionary nature of writ jurisdiction and the circumstances under which courts may refuse relief.

📝 Lecture Summary

Introduction: Need for Control over Administrative Action

Administrative Law recognizes that there must be some outside control strong enough over administrative action to prevent injustice to the individual while giving the administration adequate freedom to carry on the business of government effectively. Today, government functions have increased manifold in every walk of life. In this regard, Lord Denning says that "proper exercising the new executive powers lead to a welfare state but where they are abused lead to a totalitarian state."

💡 Why this matters: Without effective control on the executive, the individual will be without remedy, which is against the fundamental concept: ubi jus ibi remedium (where there is a right, there is a remedy). It is said that right and remedy are two sides of a coin and cannot be disassociated from each other.

🔑 Definition — Remedy: the means of enforcing a right or redressing a wrong.

The important judicial remedy available to an aggrieved person against administrative action is the prerogative remedy. Prerogative writs are writs which originally were issued only at the suit of the King but which were made available to the subject. They were called "prerogative" because they were conceived as being intimately connected with the rights of the Crown.

Historical Background and Purpose of Prerogative Writs

In England, the prerogative writs played a vital role in maintaining and upholding the rights and liberties of common men and in providing effective safeguards against the arbitrary actions of public authorities.

As per the Constitution of Pakistan 1973, judicial review is an integral part of our constitutional system, and without it there will be no government according to the rule of law. Judicial review is basic and fundamental for the maintenance of a democratic state and is the unquestionable part of our judicial and constitutional system.

Jurisdiction of High Court as Regard "Judicial Review"

Article 199 of the Constitution of Pakistan 1973 confers powers on the High Court to make orders on the writ petition of an aggrieved party. The Article intends to enable the High Court to control the executive so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order may be granted by the court to make the citizen relieved from the illegal act of the executive.

🔑 Definition — Writ (as per Black's Law Dictionary): A court's written order in the name of a state or other competent legal authority commanding the addressee to do or refrain from doing some specified act.

The powers and jurisdiction of the High Court conferred by Article 199 cannot be restricted through any law which is not a part and parcel of the constitution.

The High Court and the Supreme Court can issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

The jurisdiction of the High Court under this Article is meant to provide expeditious and efficacious remedy in a case where illegality, impropriety, and flagrant violation of law regarding the impugned action is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial, and disputed facts.

Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the constitution against the infringement of law and the Constitution by the executive authorities, and strike a rational compromise and a fair balance between the rights of citizens and the actions of the state functionaries claimed to be in the larger interest of society.

Who has Locus Standi to File Writ before High Court?

The issue as to who may file a petition is a fundamental question and has given rise to much debate and controversy, yet its importance cannot be ignored or underestimated because the court may not entertain such a petition if not presented by an aggrieved or interested person.

It is an established rule that if the petitioner has no locus standi to file the petition, he cannot be heard on the merits.

🔑 Definition — Locus Standi (as per Black's Law Dictionary): The right to bring an action or to be heard in a given situation.

📌 Example 1: In a case, a petitioner was a candidate who submitted an application following the advertisement published by the department for a vacancy of a driver. It was held by the court of law that no law conferred a right to the petitioner to be appointed by the authorities, but the petitioner had the right to demand that the authorities should determine his application in accordance with law. It was held that the petition was maintainable.

📌 Example 2: In another case, it was held by the High Court that every citizen and member of the public, whether he is personally aggrieved or not, has the duty to highlight and raise voice against illegal and unconditional acts of the Provincial Government.

Against Whom Writ May Be Issued?

While deciding whether a writ would lie in given circumstances, the first inquiry to be made is against whom a writ can be issued.

Ordinarily, a writ lies against the State and the statutory bodies and persons charged with public duties. Though private persons are not immune from the writ jurisdiction of the Supreme Court and High Court, issuance of the writ to them requires exceptional circumstances.

As a general rule, a writ lies against the State, and as per Article 12 of the Constitution 1973, the State includes: "In this part unless the context otherwise requires, the State includes the Government and Parliament of the country and the Government and the Legislature of each of the Provinces and all local or other authorities within the territory of the country or under the control of the Government."

Meaning thereby, a writ may be issued against the following:

1. The Government and Parliament of the country.
2. The Government and the Legislature of each of the provinces.
3. All local or other authorities within the territory.
4. All local or other authorities under the control of the Government.

Delay and Laches

Under Article 226, the power of the High Court to issue a writ is discretionary. The relief cannot be claimed as of right; however, where the relief claimed is one relating to enforcement of a fundamental right, the court must grant it.

One of the grounds for refusing relief is that the petitioner is guilty of delay and laches. If the petitioner intends to take relief, it is imperative that he comes to the court at the earliest reasonable opportunity.

Inordinate delays in filing the writ will be a sufficient ground for refusing to exercise the discretion. It is essential that the person aggrieved of an action of the government or any executive action should come to the High Court with utmost expedition.

In an appropriate case, the High Court may not exercise its discretion and may refuse to grant relief if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances.

As a general rule, the Superior Courts are averse to granting relief in the exercise of their extraordinary power of judicial review to parties who are guilty of laches or delays in invoking the jurisdiction. The reason is that by their omission to act promptly, such parties may be deemed to have accepted the orders of the administrative authorities, and it would be unfair to disturb, at their instance, rights and obligations which had been settled and finalized long ago under the relevant law.

Difficulty arises as to measures of delay since the Limitation Act 1908 does not apply to writ petitions, and no period of limitation is prescribed by the Constitution of Pakistan 1973 to move the Supreme Court and High Court; the matter is more or less left to judicial discretion.

📌 Example: In a case, it was held that no hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favor of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court, and like all matters left to the discretion of the Court, in this matter too, discretion must be exercised judiciously and reasonably.

Alternative Remedy

Article 32 confers powers on the Supreme Court to issue certain writs, directions, and orders for the enforcement of fundamental rights conferred by the Constitution.

The Constitution of Pakistan 1973 empowers the High Court to issue such writs, directions, or orders for enforcement of fundamental rights or "for any other purpose." It is well established that the remedy provided for in the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant such relief in certain circumstances even though a legal right might have been infringed. Availability of an alternative remedy is one of such considerations which the court may take into account to refuse to exercise its jurisdiction.

The writ of mandamus, certiorari, and prohibition, and for that matter, all high prerogative writs, are not issued where there exists an alternative remedy equally efficient and adequate.

Whether the alternative remedy is equally efficacious or adequate is a question of fact to be decided in each case.

When there is violation of fundamental rights of the petitioner, the Supreme Court as well as the High Court have to exercise their extraordinary jurisdiction to issue appropriate writs.

When the question raised in the petition is constitutional or of public importance and the general public is interested, it is desirable for the High Court to entertain the petition.

When once a High Court entertains a petition under the Constitution, it would not be proper to dismiss it only on the ground that an alternative remedy is available to the applicant.

⭐ Key Takeaways

The most critical points for exam preparation are: (1) Prerogative writs—habeas corpus, mandamus, prohibition, quo warranto, and certiorari—are the primary judicial remedies against administrative action, with Article 199 of the Constitution of Pakistan 1973 empowering High Courts to issue them; (2) Locus standi is essential—only an aggrieved or interested person can file a writ petition, though citizens may raise voice against illegal government actions; (3) Writs are ordinarily issued against the State (including government, parliament, provincial governments, and local authorities) and not private persons except in exceptional circumstances; (4) The writ jurisdiction is discretionary, and courts may refuse relief on grounds of delay and laches or if an equally efficacious alternative remedy exists, though this does not apply when fundamental rights are violated; (5) The fundamental principle is ubi jus ibi remedium—where there is a right, there is a remedy—and the purpose of judicial review is to control executive action and bring it in conformity with law.

🧠 Quick Revision Questions

1. What is the meaning of the Latin maxim "ubi jus ibi remedium" and why is it fundamental to administrative law?
2. List the five types of prerogative writs that the High Court and Supreme Court can issue under the Constitution of Pakistan 1973.
3. Under which Article of the Constitution of Pakistan 1973 does the High Court obtain its writ jurisdiction, and what is the purpose of this Article?
4. What is "locus standi" and why is it important for filing a writ petition before the High Court?
5. Explain the doctrines of "delay and laches" and "alternative remedy" as grounds for refusing the exercise of writ jurisdiction by the High Court.

📘 Lecture 34 — Kinds of Writ

📖 Overview: This lecture provides a comprehensive explanation of the various kinds of writs available under constitutional law, with specific reference to the Constitution of Pakistan 1973. It details the meaning, purpose, and legal principles governing each writ, which are essential remedies for enforcing fundamental rights and ensuring lawful exercise of public office and judicial authority.

🗂️ Topics Covered

The lecture covers five main kinds of writs: Writ of Quo Warranto (challenging the authority to hold a public office), Writ of Habeas Corpus (securing personal liberty against illegal detention), Writ of Certiorari (review of inferior court/tribunal proceedings), Writ of Prohibition (preventing a court from exceeding its jurisdiction), and Writ of Mandamus (compelling performance of a public duty). It also discusses the powers of the High Court under Article 199 of the Constitution of Pakistan 1973.

📝 Lecture Summary

Kinds of Writ

Meaning of the writ of Quo Warranto as per Black’s Law Dictionary Edition 9th:

Writ of Quo Warranto is Law Latin for "by what authority". It is a common law writ used to inquire into the authority by which a public office is held. It is an action by which the state seeks to revoke a corporation’s charter.

The writ is a remedy whereby the Court enquires into the legality of the claim which a party assumes to an office, and to oust him from that office if the claim is not well founded, or to have it declared forfeited and to recover it.

The High Court, in exercising its constitutional jurisdiction, is competent to enquire from a person holding the public office as to under what authority of law he claims to hold the office.

The writ of Quo Warranto was in its nature an information, lying against a person who claimed and usurped an office, franchise or liberty and was intended to enquire by what authority he supported his claim in order that the right to the office or franchise or liberty may be determined. It is necessary for the issue of writ that the office should be one created by the state, by charter or by statute and that the duty attaching to the office should be of a public nature. It is also necessary that the respondent should be in possession and user of the particular office in question. The office must be substantive in character, that is, an office independent in title and not being terminable at pleasure.

Under Article 199 of the Constitution of Pakistan 1973, the High Court in exercise of its constitutional jurisdiction is competent to inquire any person holding public office as to show under what authority he is holding the office. Under such situation it is the duty of the petitioner to provide information before the court that such officer has no legal authority to retain the office. For a petitioner who acts as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. The writ can be moved by a person who even is not an aggrieved party. Meaning thereby any person can move the High Court to challenge the unauthorized occupation of a public office.

Relief in Writ of Quo Warranto is confined to:- (i) issuing an injunction to a person holding the office not to act therein. (ii) where necessary to declare the office to be vacant.

🔑 Definition — Writ of Quo Warranto: A remedy whereby the Court inquires into the legality of a claim to an office and ousts the holder if the claim is not well founded.

🔑 Definition — Locus Standi: The right or capacity to bring an action or to appear in a court. For Quo Warranto, the petitioner does not need to establish this.

📌 Example: Any person can move the High Court to challenge the unauthorized occupation of a public office, even if that person is not personally aggrieved.

Writ of Habeas Corpus

Meaning of the Writ of Habeas Corpus as per Black’s Law dictionary Edition 9th: Law Latin "that you have the body". It is a writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal.

Generally the writ of Habeas Corpus is issued in case of illegal and improper detention in public or private custody. Writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty.

In other sense it may be said that the writ is issued to test the validity of any detention whether by the executive or by a private individual or by any other authority exercising judicial or quasi judicial powers.

The writ of Habeas Corpus may be used to obtain judicial review of the: (i) regularity of the extradition process; (ii) right to bail etc. (iii) jurisdiction of a court that has imposed a criminal sentence

Halsbury in his Laws of England 4th Edition states: The writ of Habeas Corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from the unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the Queen has a right to inquire into the laws for which any of her subjects are deprived of their liberty.

The writ of Habeas Corpus is also known as "the Great Writ of Liberty".

Kinds of Habeas Corpus Writ: Following are the kinds of Writ of Habeas Corpus:

(1) Habeas Corpus ad subjiciendum: It means that you have the body for submitting to and receiving. (2) Habeas Corpus ad testificundum: The object of this writ is to bring a legally detained person before the court for purpose of giving evidence. (3) Habeas Corpus ad deliberandum and recipiendum: The object of this writ is to remove a prisoner from one's custody to another for the purpose of his trial in the proper jurisdiction. (4) Habeas Corpus ad respondendum: The object of this writ is to bring a prisoner detained under civil or criminal processes, before a magistrate or court for trial or examination on any charge other than for which he has been imprisoned.

🔑 Definition — Writ of Habeas Corpus: A prerogative writ employed to bring a person before a court to ensure that their imprisonment or detention is not illegal, also known as "the Great Writ of Liberty".

📌 Example: A person illegally detained by a private individual or by the executive can seek this writ to test the validity of their detention.

Writ of Certiorari

Law Latin word which means "to be more fully informed". It is an extraordinary writ issued by an appellate Court, at its discretion, directing a lower court to deliver the record in the case for review.

Halsbury states: "The order of Certiorari issues out of High Court, and is directed to the judge or officer of an inferior tribunal to bring proceeding in a cause or matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be had in either civil or criminal proceedings."

As observed by Mr. Justice Secrutoon: "the writ of Certiorari is a very old and high prerogative writ drawn up for the purpose of enabling the court of King's Bench to control the action of inferior courts and to make it certain that they shall not exceed their jurisdiction."

The Court issuing a Writ of Certiorari acts in exercise of a supervisory jurisdiction, not appellate jurisdiction. As regards the character and scope, certiorari will be issued for correcting error of jurisdiction: (1) When an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it. (2) When the court or tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard, or violates the principle of natural justice. (3) If there is an error apparent on the face of the record.

A writ of Certiorari is undoubtedly available to correct errors in the exercise of quasi judicial appellate powers. High Court can issue a Writ of Certiorari to inspect the proceedings of a subordinate Court to determine whether there has been any irregularity.

A person invoking discretionary power of court is bound to show that some injustice has been done to parties.

🔑 Definition — Writ of Certiorari: An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review, to correct errors of jurisdiction.

📐 Principle: The writ is issued in exercise of supervisory jurisdiction (not appellate) to correct errors of jurisdiction, violations of natural justice, or errors apparent on the face of the record.

📌 Example: If an inferior tribunal decides a case without giving the parties an opportunity to be heard, the High Court may issue a Writ of Certiorari to quash that decision.

Writ of Prohibition

Meaning of "Writ of Prohibition" as per Black's Law Dictionary Edition 9th: "An extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non judicial officer or entity from exercising a power."

Prohibition is an original remedial writ, as old as Common Law itself. The writ is so ancient that forms have been given in Glanvile, the first book of English Law, written in 1189.

Prohibition is the converse of a "Writ of Mandamus" in the mandatory form, as the Writ of Prohibition is issued to prevent a court from doing something which it has no power to do. A "Writ of Prohibition" is an order directing an inferior tribunal to refrain from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the lands, and the proceeding may be without jurisdiction if it contravenes some enactment or some principles of Common Law.

Grounds on which "Writ of Prohibition" may be issued:

Want of Jurisdiction: The "Writ of Prohibition" lies only when it is intended to restrain a court or tribunal from assuming a jurisdiction which it does not possess. The writ lies not only for excess of jurisdiction but also for the contravention of some statute or principles of Common Law. A statutory functionary acting malafide or in a partial and unjust or apprehensive manner is amenable to the writ jurisdiction of the High Court. A "Writ of Prohibition" is justified only where there is an unlawful assumption of jurisdiction as distinguished from an erroneous and improper exercise of it.

Violation of Principle of Natural Justice: A "Writ of Prohibition" may be issued when it is found that the action was in violation of principles of natural justice. The procedure adopted without issuing a show cause notice was held to be against all principles and canons of justice, fair play and equity.

According to the Constitution of Pakistan 1973, a "Writ of Prohibition" may be issued against any person performing within the territorial jurisdiction of the court, functions in connection with the affairs of the Federation or Province or a local authority.

🔑 Definition — Writ of Prohibition: An extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a non-judicial officer or entity from exercising a power.

📌 Example: If a lower court assumes jurisdiction over a matter it has no legal authority to hear, the High Court may issue a Writ of Prohibition to stop the proceedings.

Meaning of the term: "Writ of Mandamus" as per Black's Law Dictionary edition 9th:

Latin "We Command". The writ is issued by a Court to compel performance of a particular act by a lower court or a government officer or a body to correct a prior action or failure to do some act.

"Writ of Mandamus" is a command issued by the High Court directing any person to do any particular act therein specified which appertains to his office and is in the nature of a public duty.

A "Writ of Mandamus" cannot be issued without a right; absence of a clear right in writ petitioner would denude him to invoke the writ jurisdiction.

Writ of Mandamus is not issued against Government in discretionary matters. Writs of prohibition and writ of certiorari can be issued.

It is a well settled principle of law that a proceeding in the writ jurisdiction is more in the nature of a "Summary Proceedings" in which examination of disputed questions of fact is taken.

High Court on application of any aggrieved party has power to make an order directing a person performing within territorial jurisdiction of High Court functions in connection with affairs of Federation, Province or a Local authority to refrain from doing anything he was not permitted by law to do or to do anything he is required by law to do or make an order giving such directions to any person or authority exercising any power or performing any function in relation to any territory within the jurisdiction of that High Court as could be appropriate for enforcement of any fundamental rights conferred by the Constitution of Pakistan.

Mr. Justice Cornelius' Observation on the "Writ of Mandamus": The writ of mandamus is a direction issued to any natural person, corporation or inferior court within the jurisdiction requiring them to do some specific thing therein and which appertains to their office or duty.

🔑 Definition — Writ of Mandamus: Latin for "We Command". A writ issued by a court to compel performance of a particular act by a lower court or a government officer or a body, which appertains to their office and is a public duty.

📌 Example: If a government officer is legally required to issue a license but refuses to do so without lawful justification, the High Court may issue a Writ of Mandamus compelling the officer to perform that duty.

Power of High Court under Article 199 of the Constitution of Pakistan 1973

Authorities performing judicial, quasi judicial and administrative functions fall under the jurisdiction of High Court. Article 199 makes no distinction between administrative, judicial or quasi judicial bodies.

Article 199 is wide in scope and has been introduced to correct the actions of Government functionaries which suffer either from lack of jurisdiction or excess of jurisdiction.

Right to file petition under Article 199 has been given to an "aggrieved person".

A writ petition under this Article is not maintainable if the petitioner has come for some indirect purpose.

A petitioner acting malafide is not entitled to relief by the High Court.

While exercising jurisdiction under Article 199, the court is not to treat the matter as if it were a court of further appeal.

🔑 Definition — Aggrieved Person: A person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived them of something or wrongfully refused them something.

💡 Why this matters: Article 199 provides a broad constitutional remedy to correct illegal actions by government functionaries, but it requires the petitioner to be genuinely aggrieved and not acting with improper motives.

⭐ Key Takeaways

This lecture covers five distinct kinds of writs, each serving a specific legal purpose. The Writ of Quo Warranto challenges the authority to hold a public office and can be moved by any person without requiring locus standi. The Writ of Habeas Corpus is the "Great Writ of Liberty" used to secure release from illegal detention. The Writ of Certiorari is a supervisory writ to correct errors of jurisdiction or violations of natural justice by inferior tribunals. The Writ of Prohibition stops a court from exceeding its jurisdiction. The Writ of Mandamus compels performance of a public duty. Article 199 of the Constitution of Pakistan 1973 empowers the High Court to issue these writs to enforce fundamental rights, but only an aggrieved person acting in good faith can invoke this jurisdiction, and the court will not act as a court of further appeal.

🧠 Quick Revision Questions

1. What is the meaning of "Quo Warranto" and who can file a petition for this writ?
2. Why is the Writ of Habeas Corpus called "the Great Writ of Liberty" and what are its four kinds?
3. On what three grounds can a Writ of Certiorari be issued?
4. What is the key difference between a Writ of Prohibition and a Writ of Mandamus?
5. Under Article 199 of the Constitution of Pakistan 1973, who is entitled to file a writ petition and what is the limitation on the High Court's power while exercising this jurisdiction?

📘 Lecture 35 — Judicial Review

📖 Overview: This lecture examines the concept of judicial review of administrative action as a mechanism to check excesses of governmental power and protect private rights. It explores the historical development, purpose, grounds, and scope of judicial review across different legal systems including Britain, USA, and Pakistan, emphasizing its constitutional significance.

🗂️ Topics Covered

The lecture covers the definition and rationale for judicial review of administrative action, the historical practice and concept of judicial review in Britain, USA and Pakistan, the duty of courts in exercising judicial review, the purpose and object of judicial review, the grounds of judicial review including proportionality, unreasonableness, procedural impropriety, illegality and irrationality, and the powers and jurisdiction of courts under the Constitution of Pakistan 1973.

📝 Lecture Summary

Judicial Review of Administrative Action

Judicial Review acts as a check against excess of power in derogation of private right. The functionaries of state derive their powers from the constitution or laws and are required to act clearly within the defined parameters of law. Exercising governmental power is a sacred trust, and functionaries must perform their duties as trustees. They are required to act reasonably (logically; sensibly), impartially (neutrally), without arbitrariness (randomness), and within the defined sphere (area; field) of their power.

The development of administrative process poses many serious problems as it affects the relationship between public power and personal rights. It magnifies the problem of reconciling freedom and justice for the private citizen with the necessities of modern government demands regarding the promotion of far-reaching social or economic policies. The extended powers and functions of the modern state hold potential threats to justice and freedom. Properly exercised, the new powers of the executive lead to the welfare state, but abused they lead to the totalitarian state.

It has been established through experience that if administrative authorities are allowed to function unfettered of judicial control, then exercise of authority is likely to become colorable through arbitrariness, capriciousness, political influence, policy consideration and such other expediencies. This is the historical rationale for the introduction of judicial review of the administrative actions of authorities.

In strict sense, judicial review means that the Superior Courts can strike down a law on the touchstone of the Constitution. Moreover, it is inherent in the nature of Judicial Review that the Constitution is regarded as the supreme law, and any law or Act contrary to it or infringing its provisions is to be struck down by the court.

🔑 Definition — Judicial Review: The power of Superior Courts to strike down a law on the touchstone of the Constitution; a mechanism to check that administrative authorities act within their defined legal parameters.

Practice and Concept of Judicial Review of Administrative Action in Britain, USA & Pakistan

In Britain, Administrative Law was not being studied as a separate branch of law due to the influence of A.V. Dicey. The idea of administrative adjudicatory authority entrusted with the power to determine private rights was anathema (abhorrence) to English Lawyers. Administrative Law was thought to be inconsistent with the maintenance of the rule of law. However, today the study of Administrative Law in Britain has recovered fully from Dicey's denial of its existence. The post-war period in Britain saw a steady rise in the number of Tribunals to deal with the problems following the war. Attempts have been made to regulate the working of such tribunals by the creation of the office of Parliamentary Commissioner under the Parliamentary Commissioner Act 1967.

In the USA, the creation of administrative bodies was also faced with initial resistance from the legal profession and influential writers. But the growth of administrative agencies has been accepted as inevitable. It was recognized that in a government of limited powers, these agencies of regulations must themselves be regulated. Judicial review has been found as an effective manner of regulating administrative agencies. The controversies about the powers of the administrative agencies and the scope of judicial review have clarified the issues and paved the way for a reasonable amount of judicial control over the agency actions.

In Pakistan, the development of judicial review of administrative action has followed the pattern of Britain and USA. There has been marked no opposition to the administrative process, but it has been accepted as an inevitable consequence of national planning and growth of the welfare state. Judicial review of the administrative action is commonly exercised through writ jurisdiction of the superior courts.

Duty of Court & Judicial Review

The duty of court in exercising the power of judicial review is to confine itself to the following questions:

(1) Whether a decision-making authority exceeded its powers? (2) Whether the authority has committed an error of law? (3) Whether the authority has committed a breach of the principle of natural justice? (4) Whether the authority has reached a decision which no reasonable person would have reached? (5) Whether the authority has abused its power?

It is to be noted that the power of judicial review is not directed against the decision but is confined to the decision-making process. Therefore, courts generally do not appreciate evidence or enter into determination of questions which demand elaborate examination of evidence or interference in the punishment imposed unless the administrative action is malafide.

💡 Why this matters: This distinction — reviewing the process, not the decision itself — is fundamental to understanding the limited yet powerful scope of judicial review. Courts do not substitute their own judgment but ensure fairness in how decisions are reached.

Purpose & Object of Judicial Review

The purpose and object of judicial review is to keep various functionaries of State within the ambit of their authority. Firstly, Superior Courts check the functioning of the legislature — whether laws made by it are in conformity with the constitution. Secondly, it checks the quasi-legislative and quasi-judicial functions of the administration.

Delegated legislation i.e., rules, regulations, bye laws etc. made by the administration can be judicially reviewed by Superior courts to determine whether powers conferred on administration by the legislature have been properly exercised. Similarly, propriety of quasi-judicial action can also be subject to judicial review. Where any law made by the legislature is found in conflict with any provision of the constitution, or where any rule, regulation or bye law made or action taken by the administrative authorities are found to be violative of any provision of the constitution or any other law, the same is declared as ultra vires and invalid.

Though some discretion is necessary to keep the giant wheels of administration moving in this age of an intensive form of government, if the power is misused, the arms of the court are long enough to reach to pull the administration and compel it to obey the mandates of the constitution.

Grounds of Judicial Review

Following are the grounds of judicial review:

(1) Proportionality (2) Unreasonableness (3) Procedural impropriety (4) Illegality (5) Irrationality

Proportionality

Proportionality means that action should not be more drastic than it ought to be for obtaining the desired results. It covers some common ground with reasonableness. Proportionality is a course of action which could have been reasonably followed and should not be excessive or severe. The legal principle of proportionality acts in favor of reliability and predictability. This means that administrative action should be proportionate to the end pursued by the law.

🔑 Definition — Proportionality: The principle that administrative action should not be more drastic than necessary to achieve the desired results; action should be proportionate to the end pursued by law.

Unreasonableness

Unreasonableness means that either the facts do not warrant the conclusion reached by the authority or the decision is partial and unequal in its operation. Unreasonableness of an action as a ground cannot be passed in the sense that it is not reasonable but in the sense that it is discriminative or partial or operates unequally between different classes or is manifestly unjust or malafide or oppressive or gross interference with the rights of the people that no justification can be found in the mind of a reasonable man.

🔑 Definition — Unreasonableness: A ground of judicial review meaning the decision is partial, unequal, discriminatory, manifestly unjust, malafide, oppressive, or such that no reasonable person could justify it.

Procedural Impropriety

Procedural impropriety means that the procedure for taking administrative decision and action must be fair, reasonable and just. When a legislative, quasi-legislative, judicial or quasi-judicial action is called in question before any superior Court for judicial review, the court is quite competent to examine whether such actions suffer from any procedural infirmity of such a grave nature that it goes to the very root of validity of such action. Such actions are always liable to judicial review.

🔑 Definition — Procedural Impropriety: A ground of judicial review where the procedure followed in taking administrative decisions or actions is not fair, reasonable, or just, and such procedural infirmity goes to the very root of validity of the action.

Illegality

Illegality as a ground for judicial review means that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.

🔑 Definition — Illegality: A ground of judicial review where the decision-maker fails to understand correctly or give effect to the law that regulates his decision-making power.

Irrationality

Irrationality means the decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.

🔑 Definition — Irrationality: A ground of judicial review where the decision is so outrageous in defiance of logic or accepted moral standards that no sensible person could have reached it.

Powers and Jurisdiction of Courts

Judicial Review is an essential feature and signature tune of our constitution. Administrative actions are subject to judicial control. Legislative power to make law is confined within the limit prescribed by the constitution. No law can be made which is in conflict with any constitutional provision or which may violate or take away or even abridge the Fundamental Rights that have been guaranteed in Part II of the Constitution of Pakistan 1973. If the legislative or executive authorities trespass in the sphere of Fundamental Rights or transgress beyond the limits prescribed by the Constitution, any law made or action taken can be struck down as usurpation and unconstitutional exercise of powers.

The High Court under Article 199 and the Supreme Court of Pakistan under Article 184 of the Pakistan Constitution have vast powers to entertain and adjudicate constitutional petitions. Such jurisdiction of the Superior court is known as Constitutional Jurisdiction. In the ancient English Judicial system, this system was known as writ jurisdiction which empowered the court of King's Bench to issue writs in the name of the sovereign.

Pakistan has a hierarchical judicial system in which the Supreme Court of Pakistan is the Apex Court. It is the final interpreter of law and the ultimate court of appeal in all civil, criminal and constitutional matters. It is also the protector of people's Fundamental Rights.

Judicial review is not only an integral part of the Constitution of Pakistan but is also a basic structure of the Constitution which cannot be abolished. In any democratic society, judicial review is the soul of the system because without it democracy and the rule of law cannot be maintained.

💡 Why this matters: The recognition of judicial review as part of the "basic structure" of the Constitution means it cannot be removed even by constitutional amendment, making it an unassailable feature of Pakistan's legal system.

⭐ Key Takeaways

Judicial review serves to keep all state functionaries within the ambit of their constitutional and legal authority, reviewing the decision-making process rather than the decision itself. The duty of the court is confined to five key questions: whether the authority exceeded powers, committed an error of law, breached natural justice, reached an unreasonable decision, or abused its power. The five grounds of judicial review — proportionality, unreasonableness, procedural impropriety, illegality, and irrationality — provide a comprehensive framework for challenging administrative actions. In Pakistan, judicial review is exercised through the writ jurisdiction of the High Court (Article 199) and the Supreme Court (Article 184), and it forms part of the basic structure of the Constitution that cannot be abolished. Understanding these grounds and their application is essential for analyzing any administrative action's legality.

🧠 Quick Revision Questions

1. What is the difference between reviewing a decision itself and reviewing the decision-making process, and why does this distinction matter in judicial review?

2. What were the five specific questions that a court must consider when exercising the power of judicial review?

3. Explain how the principle of proportionality differs from unreasonableness as grounds for judicial review.

4. Under which articles of the Constitution of Pakistan 1973 do the High Court and Supreme Court exercise their constitutional jurisdiction for judicial review?

5. Why is judicial review considered part of the "basic structure" of the Constitution of Pakistan, and what does this status mean for its abolishment?

📘 Lecture 36 — Ombudsman

📖 Overview: This lecture introduces the concept of the Ombudsman (or Mohtasib), tracing its roots from Islamic tradition through the Quranic concept of Ihtesab to modern global administrative practice. It examines the salient features of an effective Ombudsman system, provides an international historical overview, and details the establishment and functioning of the Ombudsman system in Pakistan, including its powers to combat mal-administration.

🗂️ Topics Covered

This lecture begins by defining the Ombudsman from multiple sources including Black's Law Dictionary, Encyclopedia Islam, and Sir Edmund Compton, establishing its role as a citizen's representative against government. It then outlines the ten salient features of an ideal Ombudsman system, from independence to publicizing reports. The historical development is traced from Prophet Muhammad (PBUH) as the first Ombudsman, through the Swedish model influenced by the Dewan-e-Mazalim, to its adoption in Denmark, Finland, New Zealand, and the UK. The lecture concludes with a detailed section on the Ombudsman system in Pakistan, the concept of mal-administration, and the specific powers of the Mohtasib.

📝 Lecture Summary

Meaning of the word: "Ombudsman" as per Black's Law Dictionary

"An official or semi official office or person to which people may come with grievances connected with government. The Ombudsman stands between and represents the citizen before the government."

Meanings of the word: "Ombudsman" as per Thomas Patric

"Muhtasib is the public censor of religion and morals who is appointed by a Muslim ruler to punish Muslim for neglecting the rules of their religion."

Meanings according to Encyclopedia Islam

The word ‘Ihtesab’ has two meanings. On one hand, it means "it is the duty of every Muslim to promote good and forbid evil." On the other hand, it means "the function of the person who is effectively entrusted in a town with the application of this rule in the supervision of moral behavior and more particularly of the markets"; the person entrusted with the ihtesab is called "Muhtasib".

Meaning of the word: "Muhtasib" according to Advanced Learners Dictionary

"A government official who examines and reports on complaints made by ordinary people about the government or public authorities."

Role of Ombudsman defined by Sir Edmund Compton

The Ombudsman function is to investigate the action taken by a department and decide whether there has been mal-administration by the department or not. Primarily, the Ombudsman is an investigator.

Meaning of the word: Ombudsman as per Encyclopedia Americana

"Ombudsman, an independent public officer, appointed to receive complaints from citizens about abuses, unreasonable acts, or delays by government agencies. He investigates and reports his findings and recommends solutions."

In Islam the theoretical foundation of Muhtasib lie in the following Quranic verses:

Let there arise out of you a band of people inviting to all that is good, enjoining what is right and forbidding what is wrong. They are the ones to attain felicity. (Al-Quran (3:104)

Salient features of Ombudsman system

For a perfect Ombudsman system, the following are the glaring features:

1. The Ombudsman exercises surprising amount of independence even from the legislature. Meaning thereby independence is fundamental to the ombudsman system.
2. The ombudsman receives complaint about government action or inaction from the public or he sets on at his own initiatives.
3. The ombudsman system involves speedy, inexpensive, and formal procedure.
4. Ombudsman generally conducts an impartial investigation; he calls upon all persons for information, requires the production of documents and gets access to government record subject to specific limitations.
5. He has no right to quash or reverse a decision or order of any official and can only make a report, recommendation or suggestion even in Sweden and Finland. His most potent weapon is an expression of his opinion.
6. Ombudsman is easily accessible.
7. He gives reasons for the dismissal of a complaint.
8. An advocate is not required once a complaint is filed, the Ombudsman himself becomes the moving party.
9. Ombudsman may suggest changes or improvements in administrative procedure or change in legislation.
10. The Ombudsman publicizes his opinions and issue reports.

First Ombudsman of the world & the office of Ombudsman in different countries

Prophet Muhammad (Peace be upon him) was the first Ombudsman of the world who introduced the institution of Muhtasib and provided justice to the down trodden people of Arabia. The institution of Muhtasib is one of the most distinctive features of the socio-administrative history of Islam. It ceased to exist by the end of the 19th century as an office of public conscience and morality, but left behind a trail of golden traditions.

The office of the Swedish Ombudsman is the long established and the most powerful of all contemporary ombudsman offices. Public Administration books reveal that the office was the outcome of a historical event in the era of King Charles XII when there was a rebellion against him. The King sought refuge in Turkey where he observed the working of Dewan-e-Mazalim. The King learnt the concept and established the institution of Ombudsman in Sweden in 1713.

Denmark has had an office of Ombudsman since 1966 when a new constitution was being planned after the First World War. The committee on the constitution proposed that Parliament should elect one or two persons from outside the Parliament whose function would be to supervise the administrative system and the armed forces. The committee gave its opinion that such increased guarantees could be through the office of Ombudsman similar to the Swedish prototype.

Following the Swedish example, the institution of parliamentary ombudsman was included in the Constitution Act of 1919 in Finland. Credit goes to Finland for having adopted the institution of Ombudsman long before the idea became popular in the rest of the democratic world.

New Zealand established the institution of Ombudsman by enacting the "Parliament Commissioner (Ombudsman) Act 1962". The Commissioner was appointed by the Governor General.

In the late fifties and the beginning of the sixties in the U.K., the view gained ground that there was a need for a citizen's grievance against administration. The emerging belief that the minister's own accountability to Parliament was no longer sufficient to protect the victim of departmental error and mal-administration led to the establishment of the office of Parliamentary Commissioner in 1967.

Ombudsman system in Pakistan

In Pakistan, the establishment of an Ombudsman institution had been advocated for some time before Article 276 of the interim Constitution of 1972 provided for the appointment of a Federal Ombudsman and Provincial Ombudsman. In Urdu, this institution is called "Wafaqi Mohtasib" or "Sobaei Mohtasib". The Constitution of Pakistan 1973 also provided for a Federal Ombudsman, and the institution was eventually created through the Establishment of the Office of Wafaqi Mohtasib Order 1983, which is now part of the Constitution of Pakistan 1973 by virtue of Article 270-A.

The Ombudsman has its Head Quarter in Islamabad and Regional offices in Lahore, Sukkur, Quetta, Faisalabad, Multan, Dera Ismail Khan, Peshawar, and Karachi. Other Ombudsman agencies in Pakistan include Provincial Ombudsman offices in Punjab, Balochistan, and Sindh. There are also a Banking Ombudsman, Federal Insurance Ombudsman, and a Federal Tax Ombudsman. The disputed region of Azad Jammu Kashmir also has an Ombudsman Office. Under the Protection of Woman at Work Place Act 2010, Musarat Hilali was appointed in the same year to be the first Ombudsman for the protection of women against harassment at the workplace.

The various Ombudsman agencies participate in a forum of Pakistan Ombudsman, and the Federal bodies are affiliated to the Asian Ombudsman Association and the International Ombudsman Institute.

Mal-administration, a persistent evil of the executive organ of a state

The dictionary meaning of the term mal-administration is 'faulty administration'. Sir K.C. Wherare asserts that mal-administration is a very large subject; it occurs wherever social organization exists, and it is not confined to the operation of the government or the state alone. It is not eccentric (strange) to conclude that if there is more administration, there will be more mal-administration. Nobody can define mal-administration in plain terms, said Sir Edmund Compton.

Maladministration can be divided into three parts: firstly, mal-administration connected with the executive actions of government; secondly, mal-administration connected with the discretionary decisions of government; and thirdly, mal-administration arising out of faulty laws. Maladministration in different departments of government takes place in the following form:

1. Abuse of powers
2. Biased attitude
3. Misconduct
4. Undue delays in proceedings
5. Inability of the staff in comprehending the relevant laws
6. Negligent behavior
7. Adoption of defective procedure
8. Wrong adjudication by the department
9. Arbitrary decisions

Powers of Mohtasib

If the Mohtasib finds an element of mal-administration in a matter, he can, after investigating the matter, ask the agency concerned to consider the matter further, to modify or cancel its decision, to take disciplinary action against any public servant, to dispose of the case within a specified time, or to improve the working of the agency, or to take any other specified steps.

Failure on the part of an agency to comply with the Ombudsman’s recommendation is treated as "Defiance of Recommendations", which may lead to reference of the matter to the President of Pakistan, who in his discretion may direct the Agency to implement the recommendations.

The Mohtasib is empowered to award compensation to an aggrieved person for any loss or damage suffered by that person on account of maladministration. But if the complaint is found to be false, or frivolous, he can also award compensation to the agency or the functionary against whom the complaint was made.

The Mohtasib has the same powers as a civil court under the Civil Procedure Code for production of documents and receiving evidence on affidavits. He also has powers identical to that of the Supreme Court of Pakistan to punish any person for contempt.

From the complaints against Federal agencies, 50 percent were admitted for thorough investigation, and the remaining were not entertained due to the reason that either they were subjudice service matters or no mal-administration was found apparently. During the year 1993, the highest number of complaints — i.e., 20,934 out of 44,578 complaints after scrutiny — were admitted for investigation, and 79 percent of them were disposed of resulting in relief to the aggrieved. Since its establishment, the most significant impact of this institution is that it has revived the concept of administrative accountability in Pakistan, which is both an Islamic tenet (principle) and a democratic obligation.

⭐ Key Takeaways

The Ombudsman is an independent public officer who receives and investigates citizen complaints against government mal-administration, but whose primary power is recommendation rather than direct reversal of decisions. The concept has deep Islamic roots in the Quranic principle of "enjoining good and forbidding evil" and was historically institutionalized as the Muhtasib, while also being influenced by the Dewan-e-Mazalim observed by the Swedish King. In Pakistan, the Federal Ombudsman (Wafaqi Mohtasib) was established by the 1983 Order and possesses civil court powers for investigation and can award compensation, but relies on the President for enforcement against defiant agencies. Mal-administration is defined broadly to include abuse of power, bias, negligence, delays, and arbitrary decisions, and it is the central evil the Ombudsman system is designed to address.

🧠 Quick Revision Questions

1. What is the fundamental characteristic of an Ombudsman system, and what is the Ombudsman's "most potent weapon" since he cannot quash official decisions?
2. According to the lecture, who is considered the first Ombudsman of the world, and which historical Islamic institution influenced the creation of the Swedish Ombudsman?
3. What is the definition of "mal-administration," and list at least four of its specific forms as mentioned in the lecture.
4. Under the Establishment of the Office of Wafaqi Mohtasib Order 1983, what actions can the Mohtasib take if he finds an element of mal-administration?
5. What happens when a government agency fails to comply with the Ombudsman's recommendation, and what power does the Mohtasib have regarding compensation?

📘 Lecture 37 — Definitions of Administrative Law

📖 Overview: This lecture explores the fundamental definitions of Administrative Law as provided by two prominent legal scholars, Sir Ivor Jennings and K.C. Davis. It breaks down the core components of these definitions, including the concepts of "administration" and "administrative agencies," as well as the critical process of "judicial review," explaining why this branch of law is essential for regulating government power.

🗂️ Topics Covered

The lecture begins by acknowledging the difficulty in precisely defining Administrative Law, then presents and explains the definition by Sir Ivor Jennings, focusing on the meaning of "administration." It then presents the definition by K.C. Davis, explaining the terms "administrative agencies" and "judicial review." The lecture concludes by synthesizing Davis's definition into a comprehensive statement.

📝 Lecture Summary

Definitions of Administrative Law

It is impossible to give a precise definition of Administrative Law; nevertheless the following definitions of Administrative Law are discussed:

Definition of Administrative Law by Sir Ivor Jennings

“Administrative Law is the law relating to the administration”.

🔑 Definition — Administration: It is the management of the executive duties of government institutions. Thus it may be said that “Administrative Law” is the law relating to the management of the executive duties of a government institutions.

Definition of Administrative Law by K.C Davis

Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.

🔑 Definition — Administrative Agencies: It means a governmental body with the authority to implement and administer particular legislation for example Police, F.I.A. & FBR etc.

🔑 Definition — Judicial Review: It is a court’s power to review the actions of other branches of government i.e. legislature and executive.

Thus it may be said that ‘Administrative Law’ is the ‘law’ concerning the powers and procedures of governmental bodies with the authority to implement and administer particular legislation for example F.I.A and Police etc. including especially the law governing court’s power to review the action of other branches of government i.e. legislature and executive.

⭐ Key Takeaways

This lecture presents two key definitions of Administrative Law. Sir Ivor Jennings' definition is broad, framing it as the law relating to the management of executive duties of government institutions. K.C. Davis' definition is more specific, focusing on the powers and procedures of administrative agencies (like the Police or FBR) and the crucial role of judicial review, which is the court's power to oversee actions of the legislature and executive. For an exam, a student must be able to state both definitions and explain the core components: administration, administrative agencies, and judicial review.

🧠 Quick Revision Questions

1. What is Sir Ivor Jennings' definition of Administrative Law?
2. According to the lecture, what is meant by "administration"?
3. In the context of K.C. Davis's definition, what is an "administrative agency"?
4. What does the term "judicial review" mean?
5. How does K.C. Davis define Administrative Law?

📘 Lecture 38 — Administrative Justice

📖 Overview: This lecture examines the evolution of administrative justice as a response to the modern welfare state's expanded functions. It explores the shift from traditional judicial processes to administrative adjudication through tribunals and the Ombudsman, and concludes by discussing legislative supremacy and the separation of powers under Pakistan's constitutional framework.

🗂️ Topics Covered

The lecture covers the rise of administrative justice due to increased state activism and executive hegemony, including the emergence of administrative tribunals and the Ombudsman (Wafaqi Mohtasib) in Pakistan. It then defines the administrative process of rule/policy making, highlighting its advantages over traditional judicial processes. Finally, it explores the concept of legislative supremacy in Pakistan, noting the constitutional principle of checks and balances and the ongoing debate over the primacy of the judiciary.

📝 Lecture Summary

Administrative Justice

To become a welfare state, the state has assumed more and more powers and functions. A state consists of three organs: legislature, executive, and judiciary. Increase in state activity means increased work for all organs, yet the largest extension has taken place in executive powers and functions, meaning the administrative organ has become predominant and an all-pervading feature of life today. The administration makes policies, provides leadership to the legislature, and takes manifold decisions. The administration has acquired powers of adjudication over disputes between itself and private individuals, leading to the emergence of a plethora of tribunals and quasi-judicial bodies. In the words of Robson: "the hegemony of the executive is now an accomplished fact."

Extension in functions and powers of the executive has replaced normal legislative or judicial administration of justice. The legislature now only lays down broad policies, leaving the rest to the administration, thus creating the need for delegated legislation. Administrative justice through administrative adjudication under modern legislation needs to be provided expeditiously with the least formality and technicality, at the minimum cost. The courts are not in a position to fulfill these conditions, so administrative tribunals have come into vogue. In the quest of administrative justice, if a certain rule is found unsuitable in practice, a new rule incorporating lessons learned can be supplied, a flexibility not available in ordinary judicial processes.

The main causes for the evolution of administrative justice are the same as those for delegated legislation. Along with expanded governmental operations, the tax base has broadened, resulting in new taxes and a vast proliferation of assessing authorities. This creates the need to provide administrative justice for disputes between citizen and government. Another important reason is that ordinary courts deal with cases primarily according to law, while the exigencies of modern administration require that some controversies be decided by applying considerations of policy rather than strict law.

Administrative accountability means administrative answerability or responsibility. To ensure this, the office of Ombudsman (Wafaqi Mohtasib) was established in Pakistan to make the administration answerable for its actions. Steps towards this office were taken by the Martial Law Regime of General Zia-ul-Haq through President’s Order 1 of 1983. The objective, stated in the Preamble, was: "to diagnose, investigate, redress and rectify any injustice done to a person through mal-administration."

💡 Why this matters: This section explains why modern states cannot rely solely on courts for all disputes. The need for speed, low cost, and policy-based decisions has led to a parallel system of administrative justice, fundamentally changing how citizens interact with the state.

Administrative Process: Rule/ policy making

State activism, meaning the state assuming more and more powers and functions, has become a result of improving the physical and economic welfare of people. The administration today makes policies, provides leadership to the legislature, executes law, and takes manifold decisions. It also exercises legislative power by issuing rules, bye-laws, and orders of a general nature, known as delegated legislation. The administration has also acquired powers of adjudication over disputes, leading to a plethora of tribunals with diverse structures, jurisdictions, and procedures.

Furthermore, the administration has extensive power to grant, refuse, or revoke licenses, impose sanctions, and take various kinds of actions in its discretion. To discharge its rule-making, adjudicating, and regulatory functions effectively, it has been given vast powers of inspection, inquiry, investigation, search, and seizure. The legislature now only sets broad policies, leaving the rest to the administration.

Administrative adjudication has arisen because the multitude of cases under modern legislation needs to be decided expeditiously, with minimum formality and cost, by persons with specialized skills. Courts are not in a position to fulfill these conditions, so administrative tribunals have come into vogue. Another advantage of the administrative process is its ability to evolve new techniques and acquire expertise to handle new complex problems of modern society.

💡 Why this matters: This section details the practical tools and powers of the modern administration beyond just making decisions, including its ability to create rules (delegated legislation) and conduct investigations.

Legislative Supremacy

Legislative supremacy means that the President, National Assembly, and Senate can pass, amend, or repeal laws to any extent without checks and balances on them. Pakistan is a Federal parliamentary democracy, which requires a written constitution and a division of governmental functions into three main organs: legislature, executive, and judiciary.

Under the Constitution of Pakistan 1973, the system of government works on the principle of checks and balances, meaning no state organ enjoys supremacy over the others. All powers of the governmental organs are defined in the constitution. The only thing supreme in a federal democracy is the constitution, which divides legislative and executive functions between the center and provinces. A governmental organ claiming any power must claim it from the constitution.

The legislative activities of the parliament are subject to judicial review by the Supreme Court. Any law violative of constitutional provisions may be declared void. However, parliament has the power to amend the constitution, including provisions that form the basis for judicial review. As per Article 239(6), the parliamentary power of amending the constitution is unfettered by limitations. However, the recent short order of the Supreme Court over the 18th Amendment changed the literal meaning of this provision.

The superstructure of Pakistan's legal system is based on the constitution, which is supreme. Parliament and judiciary are creatures of the constitution. In matters that are purely judicial, the supremacy of parliament cannot be invoked as it would affect the working of the Superior Courts. The system works on the principle of separation of powers and checks and balances. However, the writer concludes that the superior judiciary has a degree of primacy over other institutions, not only because of the nature of its function but also because it demands high esteem and respect.

🔑 Definition — Judicial Review: The power of the judiciary to review laws and executive actions to determine if they are in accordance with the constitution. 📐 Principle: Checks and Balances → No single organ of the state exercises absolute power; each organ has the ability to limit the others. 📌 Example: The Pakistan Supreme Court's short order on the 18th Amendment, where it made recommendations to parliament, demonstrates the judiciary's role in interpreting and setting limits on legislative power, even on a constitutional amendment.

💡 Why this matters: This final section clarifies that Pakistan operates under constitutional supremacy, not parliamentary or judicial supremacy. It highlights the constant dynamic between the legislature and judiciary, especially regarding constitutional amendments, which is a key feature of the country's legal and political system.

⭐ Key Takeaways

The lecture establishes that the modern welfare state's expanded role has necessitated a shift from traditional judicial processes to administrative justice, characterized by tribunals and the Ombudsman, which offer speed, flexibility, and policy-based decision-making. It defines the administrative process as encompassing rule-making, adjudication, and other discretionary functions, all supported by extensive investigative powers. Crucially, the concept of legislative supremacy in Pakistan is constrained by the principle of constitutional supremacy and checks and balances, with the judiciary possessing the power of judicial review over legislative acts. The office of the Ombudsman was established to ensure administrative accountability by rectifying injustices from mal-administration. Ultimately, while no single organ is supreme, the lecture suggests the superior judiciary holds a degree of primacy due to its function and esteem.

🧠 Quick Revision Questions

1. What are the two primary reasons explained in the lecture for the evolution of administrative justice outside the regular court system?
2. Define the term 'Administrative Process' as it is discussed in this lecture, listing at least three functions it encompasses.
3. What is the literal meaning of Article 239(6) regarding parliamentary power, and how did the Supreme Court's decision on the 18th Amendment affect this interpretation?
4. What was the specific objective for establishing the office of the Federal Ombudsman (Wafaqi Mohtasib) in Pakistan under President's Order 1 of 1983?
5. Explain how the principle of 'checks and balances' operates among the three organs of the state in Pakistan, and which document is declared to be supreme.

📘 Lecture 41 — Non-Judicial Review; Non Adjudicative Control

📖 Overview: This lecture explores the various non-judicial and non-adjudicative controls available to individuals aggrieved by administrative action. It covers statutory, equitable, common law, parliamentary remedies, self-help, and the Ombudsman, explaining how these provide avenues for redress outside of traditional court review.

🗂️ Topics Covered

The lecture examines non-adjudicative controls over administration, beginning with an overview of six categories. It then details statutory remedies including civil suits, appeals to courts and tribunals, and the High Court's power of superintendence. Equitable remedies such as declaration and injunction are explained, alongside common law remedies, parliamentary remedies, self-help, and the role of the Ombudsman.

📝 Lecture Summary

Non-Judicial Review; Non Adjudicative Control

Administrative Law provides for control over the administration by an outside agency strong enough to prevent injustice to the individual while leaving the administration adequate freedom to enable it to carry on effective government. In addition to judicial review, the following are non-adjudicative controls:

1. Statutory remedies
2. Equitable remedies
3. Common law remedies
4. Parliamentary remedies
5. Self help
6. Ombudsman

Statutory Remedies

In addition to the prerogative remedies available to an individual under the Constitution of Pakistan, remedies are also provided by different statutes to aggrieved persons. They are as follows: (a) Civil Suits (b) Appeals to Courts (c) Appeals to Tribunals (d) High Court’s power of superintendence (e) Special Leave to Appeal to the Supreme Court

Civil suit: This is the traditional remedy available to an aggrieved person against an administrative authority. Section 9 of the Code of Civil Procedure 1908 provides that Civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits in which their cognizance is either expressly or impliedly barred.

🔑 Definition — Remedy: the means of enforcing a right 🔑 Definition — Cognizance: power to take judicial notice

Appeals to courts: In a number of statutes provisions are given for filing appeals or revisions to ordinary courts of law against decisions taken by administrative authorities. For example, under the provisions of the Workman Compensation Act 1932, a person aggrieved of the order passed by the Commissioner may file an appeal in the High Court on a substantial question of law.

Equitable remedies

Ordinary equitable remedies can be obtained against the administration; and equitable remedies mean remedies usually a non-monetary one such as an injunction or specific performance. Under this head the following remedies are available to an aggrieved person against administration: (a) Declaration (b) Injunction

Declaration: In a declaratory action, the rights of the parties are declared without any further relief. The essence of a declaratory judgment is that it states the rights or legal position of the parties as they stand. Meaning thereby, a declaratory judgment by itself merely states some existing legal position.

Injunction: An injunction is an order of a court addressed to a party to proceeding before it requiring him to refrain from doing, or to do a particular act. Injunction is of following two types:

1. Prohibitory injunction — orders a party to refrain from doing an act
2. Mandatory injunction — orders a party to do a particular act

Generally, injunction is a negative remedy and in Administrative Law, it is granted when an administrative authority does anything ultra vires (beyond its legal power).

💡 Why this matters: Understanding these non-judicial remedies is crucial because they provide alternative, often faster, and more accessible ways for citizens to challenge administrative decisions without needing to file a constitutional petition.

⭐ Key Takeaways

The lecture establishes that administrative control extends beyond judicial review to include six categories of non-adjudicative remedies. Statutory remedies, particularly civil suits under Section 9 CPC, appeals to courts and tribunals, and High Court superintendence power, form the primary legal avenues. Equitable remedies like declarations (which state legal rights without further relief) and injunctions (both prohibitory and mandatory) are available when administrative action is ultra vires. Students must remember that these remedies provide flexible, non-monetary relief and that the Ombudsman and parliamentary remedies offer additional oversight mechanisms outside the court system.

🧠 Quick Revision Questions

1. List the six categories of non-adjudicative controls over administration mentioned in this lecture.
2. Under which section of the Code of Civil Procedure 1908 are civil suits against administrative authorities allowed, and what is the exception?
3. What is the difference between a declaratory judgment and an injunction?
4. Under the Workman Compensation Act 1932, on what basis can an appeal be filed in the High Court?
5. What does "ultra vires" mean, and when is an injunction typically granted in Administrative Law?

📘 Lecture 42 — Tort Liability of Public Authority

📖 Overview: This lecture defines the concept of tort as a civil wrong distinct from breach of contract or trust, then examines how tort liability applies to public authorities. It explains the legal distinction between proprietary and governmental functions and the implications for negligence claims against public bodies.

🗂️ Topics Covered

The lecture begins by defining tort in detail, breaking down each component of the definition including civil wrong, remedy, common law action, unliquidated damages, breach, contract, trust, and equitable obligations. It then defines public authority and provides examples of negligence application to proprietary functions such as public transport, gas, health, electricity, water, and sewerage services.

📝 Lecture Summary

What is Tort?

Tort is a civil wrong for which the remedy is a Common law action for un-liquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligations.

🔑 Definition — Tort: a violation of non-criminal law for which the means of redressing the wrong is a civil judicial proceeding at common law for damages that cannot be determined by a fixed formula and must be established by a judge or jury, and which is not entirely the breach of contract or the violation of trust or other obligations existing under the principles of equity.

The lecture breaks down each component:

• Civil wrong = a violation of non-criminal law
• Remedy = the means of redressing a wrong
• Common law action = a civil judicial proceeding at Common law
• Unliquidated damages = damages that cannot be determined by a fixed formula and must be established by a judge or jury
• Exclusively = entirely
• Breach = violation
• Contract = an agreement between two or more parties creating obligations that are enforceable at law
• Trust = the right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title
• Equitable obligation = just; existing under the principles of equity

💡 Why this matters: The definition makes clear that tort law fills gaps not covered by contract law or equity, providing a distinct remedy for civil wrongs.

Public Authority

Public Authority is defined as an authority or governmental agency that administers a public enterprise.

🔑 Definition — Public Authority: an authority or governmental agency that administers a public enterprise.

Many examples can be found of the application of the law of negligence to public authorities engaged in providing services such as public transport, gas, health and electricity, water and sewerage, all of which are classed as "proprietary" functions.

📌 Example: A public transport authority that negligently causes an accident while operating buses would be subject to tort liability for negligence. Similarly, a public gas company that fails to properly maintain its pipelines, causing an explosion and property damage, could be sued in tort.

⭐ Key Takeaways

Tort is a civil wrong distinct from breach of contract or breach of trust, remedied by unliquidated damages determined by a judge or jury in common law proceedings. Public authorities administering public enterprises can be held liable in tort for negligence when performing proprietary functions like providing transport, gas, health, electricity, water, and sewerage services. The key distinction is that these are "proprietary" functions, meaning they involve operating commercial-type services as opposed to strictly governmental or policy-making functions. Understanding this distinction is critical for determining when a public body can be sued in tort.

🧠 Quick Revision Questions

1. What are the five key components of the definition of tort?
2. How does tort differ from breach of contract and breach of trust?
3. What are unliquidated damages, and how are they determined?
4. What is a public authority, and what types of functions does it perform?
5. Give two examples of proprietary functions for which a public authority could be sued in negligence.

📘 Lecture 43 — What is Negligence?

📖 Overview: This lecture defines the legal concept of negligence, explaining it as a failure to give proper care or attention that results in harm. It explores the essential components of negligence—duty of care, breach of that duty, and consequential damage—along with key legal definitions, including Salmond's definition and the landmark case of Donoghue versus Stevenson.

🗂️ Topics Covered

The lecture introduces the term 'negligence' and its synonyms, presents Salmond's definition with word-by-word explanation, and then delves into the concept of negligence with particular emphasis on 'duty of care' and 'standard of care'. It explains the three essential elements of negligence as a legal duty to take care, breach of that duty, and consequential damage, illustrated through the famous case Donoghue versus Stevenson and the analysis of reasonable standard of care using examples like train speeding.

📝 Lecture Summary

Introduction

The term 'negligence' is a noun meaning 'failure to give somebody or something care or attention'. Care means to be concerned or be bothered. The synonyms of negligence are carelessness and inattentive omission.

Salmond's Definition of 'Negligence'

"Negligence is the state of mind of undue indifference towards one's conduct and its consequences"

🔑 Definition — Key terms explained:

• State: condition; position
• Undue: excessive; unjustified; too much
• Indifference: lack of interest; unresponsiveness
• Towards: in the direction of
• Conduct: behavior
• Consequences: results; penalty

Thus, in other words, negligence is the condition of mind of excessive unresponsiveness towards one's behavior and its results.

Concept of Negligence with Particular Emphasis on 'Duty of Care' and 'Standard of Care'

The concept of negligence has the following contents:

1. A legal duty to take care
2. Breach of the duty
3. Consequential Damage

In equation form, negligence may be described as: Negligence = a legal duty to care > breach of the duty > consequential damage

💡 Why this matters: This equation shows that negligence is not simply carelessness—it requires a proven chain of legal obligation, failure to meet that obligation, and actual harm resulting from that failure.

Duty to Take Care

No one can be proved negligent unless in limine (at the outset; preliminary) facts establish that there exists, on the part of the other, 'a legal duty to take care'. Duty means when circumstances place one individual in such a position with regard to another that thinking persons of ordinary sense would recognize the danger of injury to the other if ordinary skill or care were not used.

📌 Example: The facts of the case Donoghue versus Stevenson [(1932) AC.562] were that the defendant was a manufacturer of ginger beer. He supplied the retailer 'an opaque ginger beer bottle' containing a decomposing snail. A lady consumed it and fell seriously ill. She filed a suit against the defendant alleging that the defendant owed her a duty to take care. The court held the defendant negligent.

🔑 Definition — Key terms:

• Ginger: carroty; auburn; red
• Opaque: dense; thick; solid; not clear

Standard of Care

'Standard of care', in the perspective of negligence, means 'the degree of care that a reasonable person should exercise' in a given situation. As per English law, a person under a 'duty to take care' is bound to adopt reasonable standard of care. The expression 'reasonable' is an abstract term which means 'based on the rules of logic in which ideas or facts are based on other true ideas or facts'. The reasonableness of standard of care varies from situation to situation and time to time.

To determine what will be the reasonable standard of care in a given situation requires determination of the following two points:

• The magnitude of risk to which others are exposed
• The importance of the object to be obtained by the dangerous form of activity

The reasonableness of standard of care depends upon the fair relationship of these two points. To expose others to danger for an unfair object is unreasonable.

📌 Example: A train that speeds 80 KM per hour gets the others exposed to a risk of accident, but the object of getting the passenger to the destination, within minimum time, is considered public convenience. Thus, speeding at 80 Km per hour is the reasonable standard of care observed by train drivers.

Damage

The third essential of tort of negligence is causation of damage to the aggrieved. A compensation claim based on tort of negligence cannot succeed unless proved that the damage actually happened to the aggrieved.

💡 Why this matters: Without actual damage, there is no legal claim for negligence—showing carelessness alone is not enough; the plaintiff must prove they suffered real harm.

⭐ Key Takeaways

Negligence is legally defined as a state of mind showing undue indifference toward one's conduct and its consequences, but proving it requires three essential elements: a legal duty to take care, breach of that duty, and consequential damage. The landmark case of Donoghue versus Stevenson established that manufacturers owe a duty of care to consumers, even without direct contractual relationship. The standard of care is measured by what a reasonable person would do in a given situation, balancing the magnitude of risk against the importance of the objective. Damage must be actually proven for a negligence claim to succeed—hypothetical or potential harm is insufficient.

🧠 Quick Revision Questions

1. What are the three essential elements required to prove negligence according to this lecture?
2. According to Salmond's definition, what specific state of mind constitutes negligence?
3. In the case of Donoghue versus Stevenson, who was the defendant and what duty did the court find they owed?
4. What two factors must be considered when determining the reasonable standard of care in a given situation?
5. Why is the train speeding at 80 KM per hour used as an example of reasonable standard of care?

📘 Lecture 44 — The ‘But for’ test

📖 Overview: This lecture explains the "but for" test used to determine causation in negligence claims against public authorities. It examines situations where public authorities may avoid liability by proving that damage would have occurred regardless of their actions, or that the injury was caused by other factors such as employee fault or third-party negligence.

🗂️ Topics Covered

This lecture covers the application of the 'but for' test to assess causation of damage, including examples where the patient would have died anyway, where multiple probable causes exist, where the employee is at fault, and where a third party causes the accident. It also defines causation as the process of one event causing another.

📝 Lecture Summary

The ‘But for’ test

To gauge the cause of damage, the test: 'but for test' is applied. The respondent can prove that it was not his fault and the damage would have happened to the aggrieved any way.

🔑 Definition — 'but for test': A legal test to determine causation by asking whether the damage would have occurred "but for" the respondent's actions. If the damage would have happened anyway, the respondent is not liable.

📐 Formula: "But for the defendant's act, would the damage have occurred?" → If yes (damage would have occurred anyway), then no causation exists.

📌 Example: A patient suffering arsenic poisoning was brought to a casualty doctor of a government hospital who did not give him treatment rather send him to his own doctor. The patient died. It was alleged that the patient died due to the negligence of the casualty doctor. It was held that the death was not caused by the doctor's negligence; he had to die anyway.

A direct relationship between cause and damage must exist to hold a public authority negligent.

📌 Example: A premature baby, after birth, suffered blindness. It was alleged that the government doctor was responsible for the blindness as he gave the baby high doses of oxygen. The respondent provided the court six probable causes for the blindness of the baby. It was held that it was very difficult to determine as to what caused blindness to the baby. Therefore, the doctor employed by the Public authority could not be held negligent.

💡 Why this matters: When multiple potential causes exist, and the plaintiff cannot prove a direct causal link to the defendant's act, negligence cannot be established.

Public authority is not held negligent, where, it is proved that the injury was caused due to the fault of the employee.

📌 Example: The claimant, a handicapped of leg, while working as an employee did not ask for a flight of stairs; consequently he fell down and got injured. He brought an action of negligence against the employer Public authority. It was held that his failing to ask for the assistance was a sufficient evidence as to prove that he was himself responsible for the injury.

A public authority is not negligent when accident is caused by the negligence of third party.

📌 Example: In a road accident a Police officer colliding with the defendant vehicle was killed. The respondent argued successfully that the accident was caused as the other Police inspector was negligently handling traffic control. The defendant was held not negligent as there was no causation between the death and the defendant's acts.

🔑 Definition — Causation: The process of one event causing or producing another event. In negligence law, the plaintiff must prove causation exists between the defendant's act and the damage suffered.

⭐ Key Takeaways

The most critical point from this lecture is that the 'but for test' is the primary method to establish causation: if the damage would have occurred regardless of the defendant's actions, no liability arises. Public authorities are not negligent when multiple probable causes exist and causation cannot be pinpointed, when the employee's own fault caused the injury, or when a third party's negligence caused the accident. A direct relationship between cause and damage must always exist. Additionally, employees are expected to take reasonable steps for their own safety, and failing to do so may break the chain of causation.

🧠 Quick Revision Questions

1. What is the 'but for test' and how is it applied in negligence cases?
2. In the arsenic poisoning example, why was the casualty doctor not held negligent?
3. For the premature baby blindness case, why was the government doctor not liable despite giving high doses of oxygen?
4. How did the handicapped employee's own failure to ask for assistance affect the negligence claim against the public authority?
5. In the road accident example, why did the defendant successfully avoid liability even though a police officer was killed?

📘 Lecture 45 — Defenses to Negligence

📖 Overview: This lecture introduces the two primary defenses available to a defendant in a negligence claim: contributory negligence and volenti non fit injuria. Understanding these defenses is crucial because they can completely bar a plaintiff from recovering damages, even if the defendant was negligent.

🗂️ Topics Covered

This lecture covers the two main defenses to negligence: Contributory negligence, defined as the plaintiff's own negligence that contributed to their injury and bars recovery of damages, supported by the case of Sayers v Harlow UDC; and Volenti non fit injuria, meaning 'there is no injury to one who consents', supported by the case of ICI v Shatwell.

📝 Lecture Summary

Defenses to Negligence

The lecture presents two key defenses that a defendant can raise to avoid liability in a negligence claim: (1) Contributory negligence and (2) Volenti non fit injuria. These defenses shift the focus from the defendant's conduct to the plaintiff's own actions or consent.

Contributory negligence

Contributory negligence is a plaintiff’s own negligence that played a part in causing the plaintiff’s injury and that is significant enough to bar the plaintiff from recovering damages. This means that if the plaintiff failed to take reasonable care for their own safety and that failure contributed to the accident, they may be prevented from receiving any compensation from the defendant.

🔑 Definition — Contributory Negligence: A plaintiff’s own negligence that played a part in causing the plaintiff’s injury and that is significant enough to bar the plaintiff from recovering damages.

📌 Example — Sayers v Harlow UDC 1958: The claimant got injured while trying to climb out from a public toilet having a defective lock. It was held that the claimant contributed to her injuries by climbing from the toilet. 💡 Why this matters: This case shows that even if the defendant (the local council) was negligent for having a defective lock, the claimant's own unreasonable act of climbing out contributed to the injury, thus barring her claim.

Volenti non fit injuria

Volenti non fit injuria means ‘there is no injury to one who consents’. This defense applies when the plaintiff voluntarily assumed the risk of harm. The defendant must prove that the plaintiff knew of the risk and freely accepted it.

🔑 Definition — Volenti non fit injuria: Meaning 'there is no injury to one who consents'.

📌 Example — ICI v Shatwell 1965: The claimants, while using detonators, did not observe statutory safety precautions and got injured. The defendant’s defence of ‘volenti non fit injuria’ (there is no injury to one who consents) was upheld. The term "upheld" means endorsed by the court. 💡 Why this matters: This case demonstrates that when a plaintiff knowingly and voluntarily engages in a dangerous activity, ignoring safety rules, they are deemed to have consented to the risk of injury, and the defendant is not liable.

⭐ Key Takeaways

The two main defenses to negligence are contributory negligence and volenti non fit injuria. Contributory negligence bars recovery when the plaintiff's own failure to take care contributed to the injury, as illustrated in Sayers v Harlow UDC. Volenti non fit injuria, meaning "no injury to one who consents," applies when the plaintiff knowingly and voluntarily accepted the risk of harm, as seen in ICI v Shatwell. A successful defense means the plaintiff cannot recover damages from the defendant. Understanding these defenses is essential for analyzing liability in any negligence scenario.

🧠 Quick Revision Questions

1. What are the two defenses to negligence discussed in this lecture?
2. Define contributory negligence in your own words, using the definition from the lecture.
3. What is the meaning of the Latin term "volenti non fit injuria"?
4. In which case did the court hold that the claimant contributed to her injuries by attempting to climb out of a defective toilet?
5. In ICI v Shatwell, why was the defendant's defense of volenti non fit injuria upheld?