MGT621 — Midterm Summary (Lectures 1–22)

📘 Lecture 1 — Introduction

📖 Overview: This lecture introduces the foundational concepts of Administrative Law & Accountability, focusing on the definitions of law from various legal philosophers, the nature of justice, and the constitutional framework. It matters because it establishes the core vocabulary and philosophical underpinnings needed to understand how law governs both rulers and citizens, forming the basis for the entire course.

🗂️ Topics Covered

The lecture begins by outlining the course objectives, including the phenomena of law, justice, and the constitution, the separation of powers, delegated legislation, and basic rights of Pakistani citizens. It then explores the meaning of philosophy and definition, defines "Law" through Austinien (John Austin) and simple definitions, distinguishes between de-jure and de-facto sovereigns, covers Aristotle’s definition of law, a classical definition of law, explains why and who makes laws, the supreme advantage of law, the concept of supreme law via the Latin maxim, provides a definition of justice, and concludes with a quote on the relationship between law and justice.

📝 Lecture Summary

Introduction

This lecture presents the main objectives of the entire course. Primarily, the phenomena of Law, Justice, and Constitution will be discussed. Secondly, the separation of powers between the three pillars of state, delegated legislation, and the basic rights of the citizens of Pakistan will also be covered. Before defining law, the terms "philosophy" (the art of reasoning) and "definition" (a one-sentence statement describing a thing by its properties) are clarified.

What is ‘Law’?

Austinien’s definition of law:

John Austin, a renowned 19th-century British jurist and Professor of Jurisprudence at the University of London, defined law in his book "the Province of Jurisprudence Determined" as: “Law is the command of the sovereign”

🔑 Definition — Command: order. 🔑 Definition — Sovereign: ruler. Thus, law is the order of the ruler.

Simple definition of law

“Law is the right of one, obligation of the other, maintained by law enforcing authority”

🔑 Definition — Right: sheltered and recognized interest. 🔑 Definition — Obligation: duty. 🔑 Definition — Maintained: managed. 🔑 Definition — Enforcing authority: implementing power. Thus, law is the sheltered and recognized interest of one, duty of the other, managed and controlled by law implementing power.

🔑 Definition — Kinds of sovereign: (1) de-jure sovereign: Constitutional ruler. (2) de-facto sovereign: Unconstitutional ruler. Aristotle defines a constitution as "an arrangement of office" and "a manner of life."

Aristotle’s definition of law:

“Law is the experience, developed by reason and reason, tested by experience”.

🔑 Definition — Experience: knowledge. 🔑 Definition — Reason: rationale. 🔑 Definition — Tested: checked. Thus, law is knowledge developed by rationale, and rationale checked by knowledge. 📌 Relevant quotation: "Experience is a very hard teacher; she gives the test first, the lesson afterwards."

Classical definition of law:

Law is the ‘dispassionate reason’ and its content is the same as that of morality.

🔑 Definition — Dispassionate: unemotional. 🔑 Definition — Reason: rationale. 🔑 Definition — Content: substance.

Why laws are made?

Laws are made to regulate human actions.

Who makes laws?

Laws are made by super human wisdom. In a modern political state, they are made by Parliament.

Advantage of law

The supreme advantage of law is peace and harmony. Law governs both the ruler and the ruled.

Concept of supreme law

“Salus est populi suprema lex” (Latin Maxim)

🔑 Definition — Salus: welfare 🔑 Definition — est: is 🔑 Definition — Populi: people 🔑 Definition — Suprema: supreme 🔑 Definition — Lex: law Thus, welfare of people is the supreme law.

What is justice?

Justice means every man given his legal right.

Relevant quote on relationship of law and justice

“Justice is an ideal like truth just as a sculptor tries to achieve beauty with his mallet and chisel, so law is the tool of a judge in the pursuit of justice.”

🔑 Definition — Ideal: model 🔑 Definition — Beauty: splendor or prettiness 🔑 Definition — Mallet: hammer 🔑 Definition — Chisel: shape 🔑 Definition — Tool: instrument 🔑 Definition — Pursuit: search Thus, justice is a model like truth; just as a sculptor tries to achieve prettiness with his hammer and a shape, so law is the instrument of a judge in the search of justice. 💡 Why this matters: This quote establishes the aspirational role of law as a tool for achieving justice, a core theme for the course.

⭐ Key Takeaways

A student must remember that "Law" has multiple definitions, including Austin's "command of the sovereign" and Aristotle's "experience developed by reason." The simple definition of law establishes a relationship of rights and obligations enforced by authority. The welfare of the people ("Salus est populi suprema lex") is the supreme law, and justice is defined as giving every person their legal right. Finally, law is understood as a tool (like a sculptor's chisel) used by a judge to pursue the ideal of justice.

🧠 Quick Revision Questions

1. According to John Austin, what is the definition of law?
2. What are the two kinds of sovereign mentioned in the lecture, and how do they differ?
3. State the simple definition of law, explaining its three key components: right, obligation, and enforcing authority.
4. What is the Latin maxim for the supreme law, and what does it mean in English?
5. How does the lecture describe the relationship between law and justice, using the sculptor analogy?

📘 Lecture 2 — What are the kinds of justice?

📖 Overview: This lecture explores the fundamental concepts of justice, its various kinds, and the nature of law. It explains the difference between natural and legal justice, and delves into the sub-categories of legal justice, including civil and criminal justice. The lecture also defines what law is, who makes it, and discusses its advantages, disadvantages, and the different kinds of law.

🗂️ Topics Covered

The lecture begins by defining two kinds of justice: natural and legal. It then divides legal justice into private and public justice, and further breaks down public justice into civil and criminal justice, detailing their differences. The discussion then shifts to who makes laws (Parliament), the definition of justice itself, and the characteristics of effective law. Finally, the lecture covers the advantages and disadvantages of law and lists the different kinds of law, including common law, equity, statute law, substantive and procedural law, private and public law, and criminal and civil law.

📝 Lecture Summary

Justice is of following two kinds: (1) Natural justice (2) Legal justice

Natural justice deals with the enforcement of rights and punishments of wrongs according to moral standards as they appeal to the mind of human beings. It stands independent of recognition by the state. Legal justice denotes justice according to what the law declares to be just (right). Legal justice can be divided into two kinds: (a) Private justice & (b) Public justice. Private or personal justice is what the person whose right is violated wants from the counter party. Public or community justice is what a plaintiff demands and receives from the community through a court if his counter parties have denied him personal justice. Private Justice is the object for which the public justice exists.

Kinds of public justice:

Following are the two kinds of public justice: (a) Civil justice (b) Criminal justice

The two kinds can be well understood by understanding their following points of difference:

Who makes laws?

Laws are made by super human wisdom. In modern political state they are made by Parliament of a state.

What is Parliament?

The supreme legislative body of a country. The parliament of Pakistan consists of: National Assembly, Senate and the President.

Supreme advantage of law:

The supreme advantage of law is peace and harmony. Law governs both the ruler and the ruled.

What is justice?

Justice means giving every man his legal rights. It is said that justice is the daughter of law.

What law is considered effective law?

Law that has the following characteristics is known as effective law:

• Issued by the un-commanded commander—the sovereign;
• The commands are backed by threats of sanctions; and
• The sovereign is habitually obeyed.

Some important quotations relating law

(1) United States is the greatest law making factory the world has ever known. (2) Laws are imperative in nature. (3) Law helps the vigilante not the indolent; it means law comes to the assistance of the vigilant, not of sleepy. (4) Violence is inimical (against) to law. It means law does not like violence but peace. (5) People follow truth; truth makes public opinion; public opinion makes law.

Advantages of law

(1) Uniformity and certainty (2) Equality & impartiality (3) Protection from errors

Uniformity and certainty The first advantage is that the law imparts uniformity and certainty to the administration of justice. This advantage enables the people to know what the law is and what would be the decision of the court.

Equality and impartiality The law is made for no particular person or for no individual case and so admits no respect of person which is incompatible with justice. None can escape from the clutches of law.

Protection from errors: The law serves to protect the administration of justice from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the society at large for those of the individual to whom judicial functions are entrusted. Aristotle observes: “to seek to be wiser than the laws is the very thing forbidden by good law itself.”

Disadvantages of law

The law is without doubt a remedy for greater evils, yet it brings with it the evils of its own. The evils are discussed as under:

Rigidity: The first disadvantage of law is its rigidity. Because of its rigidity, it applies without any allowance for special circumstances and without turning to the right hand or to the left. Rigidity is the failure of law to conform itself to the requirements of special circumstances.

Conservatism: Conservatism is law's failure to conform itself to those changes in circumstances and in men’s views of truth and justice. Progressive societies are in advance of law. The existing body of rules may be found inapplicable to such changed circumstances.

Formalism: Another vice of the law is formalism. This means the tendency to attribute more importance to technical requirements than to substantive rights and wrongs. In modern times, registration and attestation are examples of formalities.

Needless complexities: The fourth defect of law is undue and needless complexity. The law becomes more and more complex due to the excessive development of legal system and it becomes too difficult to understand the law.

Kinds of Law

(1) Common law (2) Equity (3) Statute law (4) Substantive law (5) Procedural law (6) Private law (7) Public law (8) Criminal law (9) Civil law

Common law: The term ‘common law’ is derived from the French law word ‘common ley’ which means ‘the body of law derived from judicial decisions, rather than from statutes or constitutions.’ It is said that reason is the life of law and the Common law itself is nothing else but a reason.

🔑 Definition: Statute: a law passed by a legislative body. 🔑 Definition: Constitution: the fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.

Blackstone says: ‘Common law is the municipal law of England or the rule of civil conduct prescribed to the inhabitants of the kingdom.’ About common law it is also said that: ‘Common law is the experience expressed in law.’

Equity: Equity is not part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigor, hardness, and edge of the Common law. Equity does not destroy the law nor create it but assists it. Underbill says: ‘Equity was originally the result of common sense against the pedantry of law and trammels of the feudal system; it became a highly artificial and refined body of legal principles and it is at the present day an amendment and modification of the Common law.” Aristotle provides a comprehensive definition, stating that equity looks to the spirit and not the letter, to the intention and not the action, and prefers arbitration to judgment.

🔑 Definition: Equitable: consistent with principles of justice and right.

Statute law A law passed by the parliament of England. (English parliament = House of Commons + House of Lords + Crown).

Substantive law The part of the law that creates, defines, and regulates the rights, duties and powers of parties.

Procedural law The body of rules governing procedures and practices.

Private law Private law is the body of law dealing with private persons and their property and relationships.

Public law The body of law dealing with the relations between private individuals and the government, and with the structure and operation of the government itself; constitutional law, criminal law, and administrative law taken together.

Criminal law The body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders. In a criminal case the state is the prosecutor because it is the community as a whole which suffers. The burden of proof to convict the accused is on the prosecution, which must prove its case beyond reasonable doubt.

🔑 Definition - Reasonable doubt: the doubt that prevents one from being firmly convinced of a defendant’s guilt—‘beyond a reasonable doubt’ is the standard used by a jury to determine whether a criminal defendant is guilty. 📌 Example: Crime: an act that the law makes punishable.

Civil law Civil law deals with disputes over the rights and obligations of persons dealing with each other. It is a form of private law. In civil proceedings, the case is proved on the balance of probability. The claimant must convince the court that it is more probable than not that their assertions are true.

🔑 Definition - Balance of probabilities: the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.

⭐ Key Takeaways

For an exam, you must first be able to distinguish between natural and legal justice and then clearly differentiate between civil and criminal justice based on all nine points. Second, remember the definition of an effective law (issued by sovereign, backed by sanctions, habitually obeyed) and the supreme advantage of law (peace and harmony). Third, master the three advantages of law (uniformity and certainty, equality and impartiality, protection from errors) and the four disadvantages (rigidity, conservatism, formalism, needless complexities). Fourth, you must be able to define and distinguish between the nine kinds of law, with special attention to the definitions of Common law, Equity, Substantive law, Procedural law, Private law, Public law, Criminal law, and Civil law. Finally, understand the key differences in the burden of proof (beyond reasonable doubt for criminal, balance of probabilities for civil) and the role of the state (prosecutor in criminal, not in civil).

🧠 Quick Revision Questions

1. What is the fundamental difference between natural justice and legal justice?
2. List four key differences between civil justice and criminal justice regarding their purpose, nature of wrong, how liability is measured, and prosecution.
3. According to the lecture, what three characteristics define an "effective law"?
4. Explain the four main disadvantages of law as discussed in the lecture (rigidity, conservatism, formalism, and needless complexity).
5. What is the difference between "beyond a reasonable doubt" and "on the balance of probability," and to which kind of justice (civil or criminal) does each standard apply?

📘 Lecture 3 — Court System of Pakistan

📖 Overview: This lecture provides a comprehensive overview of the hierarchical structure of Pakistan's court system, ranging from the Supreme Court at the apex down to the lowest tiers of civil and magistrate courts. It explains the jurisdiction, composition, and key functions of each court, including specialized tribunals, making it essential for understanding the legal framework of Pakistan.

🗂️ Topics Covered

The lecture begins with a list of all courts in Pakistan, from the Supreme Court to Civil Judge courts. It then details the Supreme Court of Pakistan as the final arbiter, followed by the Federal Shariat Court's role in scrutinizing laws against Islamic injunctions. The High Courts of Pakistan are discussed with their constitutional jurisdiction under Article 199 of the Constitution. The lecture concludes with District & Sessions Courts, Civil Judge Cum Judicial Magistrates' Courts, and a list of Special Tribunals and Boards.

📝 Lecture Summary

Court system of Pakistan

The court system of Pakistan consists of courts diverse in echelons of legal superiority and jurisdiction. The hierarchy includes the Supreme Court of Pakistan, Federal Shariat Court of Pakistan, High Courts of Pakistan (one in each province and in the Federal Capital), District Courts of Pakistan (one in each district), Judicial Magistrate Courts (with power of Section 30 of Cr.PC only in criminal trials), Judicial Magistrate Courts (in every town and city), Executive Magistrate Courts (summary trial court), and Courts of Civil Judge (judges with power of 1st class and 2nd class cases).

The Supreme Court of Pakistan

The Supreme Court stands at the top of Pakistan's judicial hierarchy; it is the final arbiter of legal and constitutional disputes. It has 17 permanent judges and a permanent seat in Islamabad. It has its Branch Registries in Lahore, Peshawar, Quetta, and Karachi. Besides exercising appellate and constitutional jurisdiction and suo moto power, the court has also established itself as a de facto check on military power.

The Federal Shariat Court of Pakistan

The Federal Shariat Court was established by the Presidential Order in 1980 to scrutinize all laws of Pakistan which are repugnant to Islamic injunctions. Repugnant means contrary. If a law is found repugnant, the Court is bound to provide notice thereof to the government. Thereof means of that. The court also exercises jurisdiction to examine any decision of any criminal court relating to application of Islamic Hudd penalties. Jurisdiction means a court’s power to decide a case.

The court consists of 8 Muslim judges including the Chief Justice. The Judges are appointed by the President of Pakistan in consultation with the Judicial Committee consisting of the Chief Justice of Pakistan (Federal Shariat Court) and the Chief Justice of Pakistan.

The Federal Shariat Court, on its own motion or through petition by a citizen or a government, has the power to examine and determine as to whether or not a certain provision of law is repugnant to the injunctions of Islam. Against the orders or decisions of the Federal Shariat Court, an appeal may be preferred to the Shariat Appellate Bench of the Supreme Court. Preferred means filed.

The court also exercises revisional jurisdiction over the criminal courts that decide Hudood cases. The decisions of the court are binding on the High Courts and subordinate judiciary.

Following are High courts in Pakistan

The High Courts in Pakistan include the Lahore High Court, Lahore, Punjab; Sindh High Court, Karachi, Sindh; Peshawar High Court, Peshawar, Khyber Pakhtunkhwa; Balochistan High Court, Quetta, Balochistan; and Islamabad High Court, Islamabad, ICT.

The High Courts are the appellate courts for all civil and criminal cases in each respective province. The High Courts' jurisdiction is mentioned in the Constitution of Pakistan, 1973, Article 199.

🔑 Definition — Article 199 of the Constitution of Pakistan 1973: Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (a) on the application of any aggrieved party, make an order- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where- (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and (b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorized by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order- (i) would not have such effect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made: Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made. (4B) Every case in which, on an application under clause (1), the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded. (5) In this Article, unless the context otherwise requires,- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means (a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and (b) in any other case, the Advocate-General for the Province in which the application is made.

District & Sessions Courts

District courts exist in every district of each province, and have civil and criminal jurisdiction. In each District Headquarters, there are numerous Additional District & Session Judges who usually preside over the courts. The District & Sessions Judge has executive and judicial power all over the district under his jurisdiction. The Sessions court is also a trial court for heinous offences such as Murder, Rape (Zina), Haraba offences (armed robbery where a specific amount of gold and cash is involved), and is also an appellate court for summary conviction offences and civil suits of lesser value. Each town and city now has a court of Additional District & Sessions judge, which possesses equal authority over its jurisdiction. When hearing criminal cases, it is called the Sessions Court, and when it hears civil cases, the District Court. Executive matters are brought before the relevant District & Sessions Judge.

Civil Judge Cum Judicial Magistrates' Courts

In every town and city, there are numerous Civil and Judicial Magistrates' Courts. A Magistrate with the powers of Section 30 of the Criminal Procedure Code has the jurisdiction to hear all criminal matters other than those which carry the death penalty such as attempted murder, dacoity, robbery, extortion, etc., but may only pass a sentence of up to seven years' imprisonment. If the court thinks the accused deserves more punishment than seven years in jail, then it has to refer the matter to a higher court, with its recommendations to that effect. Every Magistrate’s Court is allocated a local jurisdiction, usually encompassing one or more Police Stations in the area. Trial of all non-bailable offences, including police remand notices, accused discharges, arrest and search warrants, and bail applications, are heard and decided by Magistrate Courts. Most Judicial Magistrates may hear civil suits as well. If they do so, they are usually called a Civil Judge Cum Judicial Magistrate.

Special Tribunals and Boards

The following are the special tribunals in Pakistan: Banking Courts, Services Tribunals, Income Tax Tribunals, Anti Corruption Courts, Anti Narcotics Courts, Anti terrorist Courts, Labor Relations Court, Board of Revenue, Special Magistrate courts, and Consumer Courts - drug courts.

⭐ Key Takeaways

The court system of Pakistan is a strict hierarchy, with the Supreme Court at the top possessing final appellate and constitutional jurisdiction. The Federal Shariat Court has the unique power to examine laws for repugnancy to Islamic injunctions, with appeals going to the Supreme Court's Shariat Appellate Bench. The jurisdiction of the High Courts is constitutionally defined in Article 199, which allows them to issue orders for the enforcement of Fundamental Rights and act as the primary appellate courts for their provinces. The District & Sessions Judge has both executive and judicial authority over a district, while Civil Judge Cum Judicial Magistrates handle most routine criminal and civil matters, with a sentencing limit of seven years.

🧠 Quick Revision Questions

1. What is the highest court in Pakistan and what are its main functions?
2. What is the primary purpose of the Federal Shariat Court, and what happens if it finds a law repugnant?
3. Under which Article of the Constitution is the jurisdiction of a High Court defined?
4. What is the sentencing limit for a Magistrate with powers under Section 30 of the Criminal Procedure Code?
5. Name the trial court for heinous offenses like murder and rape in a district.

📘 Lecture 4 — Sources of Law & Delegated Legislation in Pakistan

📖 Overview: This lecture examines the two primary sources of law in Pakistan: legislation and judicial precedent. It details the legislative process for ordinary and money bills in Parliament and explores the concept of delegated legislation, including its types, advantages, disadvantages, and controls. The lecture also provides a comprehensive analysis of judicial precedent, its binding authority, kinds, and how it is applied or disregarded.

🗂️ Topics Covered

The lecture begins by defining "sources of law" and introducing legislation as a primary source, detailing parliamentary sovereignty in Pakistan and the procedure for ordinary and money bills, including their key distinctions. It then transitions to delegated legislation, explaining its definition, various types (Orders, Regulations, Rules, Directions, Byelaws), and its advantages and disadvantages, along with parliamentary and judicial controls. The final major section addresses judicial precedent, covering its definition, the doctrine of stare decisis, kinds of precedent, the concepts of ratio decidendi and obiter dicta, how to read law reports, and the circumstances that affect a precedent's authority.

📝 Lecture Summary

Sources of Law & Delegated Legislation in Pakistan

The terms ‘sources’ and ‘law’ respectively mean ‘a point that something comes from’ and ‘rule’. Thus the phrase: ‘sources of law’ means the point where rules come from. Legislation and Precedent are the two main sources of law.

Legislation

The term ‘legislation’ has its etymology in the Latin words: ‘Legis’ & ‘Latum’, respectively meaning ‘law’ & ‘to make’. Thus, ‘legislation’ means ‘to make law’. In Pakistan, the legislative sovereignty belongs to Parliament, meaning only the National Assembly, Senate, and the President can pass, amend, or repeal laws. The constitution provides the legislative procedure in part III, chapter 2. Articles 70-89 of the constitution empower Parliament to make laws. A bill is a proposal for a new law or for amending or repealing an old one.

There are three kinds of bills: (i) Public Bill: Relates to the public at large. (ii) Private Bill: Relates to the interest of private individuals. (iii) Money Bill: Relates to finance matters.

🔑 Definition — Bill: A proposal for a new law for amending or repealing an old one.

I. Legislative procedure for ordinary and non-money bill: (i) Introduction of Bill: May be introduced in either of the two houses. If introduced by a government minister, it is a government bill; otherwise, it is a private bill. (ii) First Reading: The member who introduces the bill explains the causes of its presentation. (iii) Reference to committee: The bill is examined in detail. The committee hears evidence from experts and any objections from interested persons. (iv) Second reading: The bill is discussed clause by clause, and amendments may be made. (v) Third reading: After the second reading, it is read a third time and sent to the other house, where the same procedure is adopted. If passed in a joint sitting by a majority vote of the total membership, it is presented to the president for assent. (vi) President's assent to bills: If passed, it shall be presented to the president for assent.

📌 Example: Relevant case law: P.L.D. 2001. Kar. 415 — It was held that a bill would become law when assented to by the president or the governor, as the case may be.

II. Legislative procedure in money bill: Article 73 of the constitution states that a money bill shall originate in the National Assembly. After being passed by the National Assembly, without being transmitted to the Senate, it is presented to the president, who will assent within thirty days; otherwise, the bill is deemed to have been assented to and becomes law.

(a) Features of money bill: A bill or amendment is deemed a money bill if it contains provisions dealing with the following matters: (a) imposition, abolition, remission, alteration of any tax; (b) borrowing of money or giving any guarantee by the Federal Govt; (c) custody of the Federal Consolidated Fund; (d) imposition of a charge upon the Federal Consolidated Fund; (e) receipt of money on account of the public accounts of the federation; (f) audit of the accounts of the Federal Govt; (g) any matter incidental to any of the specified matters.

(b) Dispute regarding determination of money bill: If any question arises whether a bill is a money bill or not, the decision of the Speaker of the National Assembly shall be final.

7. Distinction between money bill and ordinary bill: (i) As to Nature: Money bill relates to finance matters; ordinary bill relates to the interest of private or public persons. (ii) As to origin: Money bill can be originated only in the National Assembly; ordinary bill can be originated in either house. (iii) As to transmission: Money bill is not transmitted to the other house; ordinary bill is transmitted to the other house when passed by one house.

Delegated Legislation in Pakistan

In Pakistan, delegated legislation is legislation that is passed otherwise than an Act of Parliament. An enabling Act or the parent Act confers a power to make delegated legislation on a Government Minister or another person or body. For example, section 506 of the Companies Ordinance 1984 confers delegated powers on the federal government to make relevant rules. Delegated legislation can be used for a wide variety of purposes, from fixing the date an Act comes into force to filling in the detail of how an Act will be implemented in practice.

🔑 Definition — Enabling Act or Parent Act: A law that creates new powers, especially a statute conferring powers on an executive agency to carry out various delegated tasks.

Types of delegated legislation: (1) Orders: Made by the president on the advice of the Federal Cabinet, used for matters of constitutional significance. Orders are usually made by Ministers. Commencement Orders are used to set the date an Act comes into force. (2) Regulations: Usually made by Ministers, they are the means by which substantive and detailed law is made, e.g., regulations under the Income Tax Ordinance 2001. (3) Rules: Set out procedures, e.g., rules governing court procedures. They may be made by Ministers or a senior judge. (5) Directions: A means by which Ministers give legally binding instructions to a public body about how it exercises its functions. (6) Byelaws: Laws of limited application, usually restricted to certain places, made by local authorities or other bodies to control activities.

Advantages: Allows laws to be enacted without using scarce Parliamentary time; allows laws on technical matters to be prepared by experts; is flexible enough to deal speedily with changing circumstances and is invaluable in emergencies.

Disadvantages: Subject to less parliamentary scrutiny and can potentially be used in ways Parliament had not intended. The sheer volume of laws means there is little publicity about changes.

Controls over delegated legislation: There are both parliamentary and judicial controls. Parliamentary controls require delegated legislation to be approved by a vote of each House or be subject to a veto. Judicial control is exercised through judicial review. The courts can strike down delegated legislation if it is ultra vires (beyond the power), meaning the Government used it for a purpose not envisioned by the parent Act or if pre-conditions were not satisfied.

🔑 Definition — Ultra Vires: Beyond the power; an act by a person or body that goes beyond the legal authority given to them.

Precedent

According to Black’s law dictionary, ‘precedent is the making of law by a court in recognizing and applying new rules while administering justice’. The doctrine of judicial precedent is the rule that precedents not only have persuasive authority but also must be followed when similar circumstances arise. This is based on the principle of ‘stare decisis’, which means ‘stand by things decided’.

🔑 Definition — Stare Decisis: The principle that courts should follow the precedents established by previous decisions.

Precedents are contained in Law Reports. A precedent is a ‘considered decision’ of a court which provides a rule for the determination of an identical or similar question of law.

Kinds of Precedent: (1) Declaratory Precedent: Merely an application of an already existing rule. (2) Original Precedent: Creates and applies a new legal rule. (3) Authoritative Precedent: An applicable holding of a higher court binding upon lower courts. (4) Persuasive Precedent: Not binding but entitled to respect and careful consideration, e.g., a case from a neighboring jurisdiction. (5) Precedent of Absolute Authority: Absolutely binding, however unreasonable it may be. (6) Precedent of Conditional Authority: Binding but not absolutely.

Ratio Decidendi’: The ratio for the decision of a particular case or the principle of law on which the decision is based. Salmond defines it as the abstract ratio which alone has the force of law as regards the world at large.

Obiter dicta: Statements of law made by the court by the way that go beyond the requirements of the particular case. These are not directly connected with the case but when made by superior courts are binding on subordinate courts.

🔑 Definition — Ratio Decidendi: The principle of law on which a court's decision is based.

How to Read a Law Report Example: Best v Samuel Fox & Co. Ltd 1952 2 All ER 394

• Best = Claimant
• Samuel Fox & Co. = Defendant
• 1952 = Year of report
• 2 = Volume 2
• All = All
• ER = England Law Reports This means the report is published at page 394 of Volume 2 of All England Reports for 1952.

How is precedent disregarded? (1) It may be overruled by a court of superior jurisdiction, causing it to lose all its force with retrospective effect. (2) Circumstances lessening authority include lack of unanimity, failure to notice a contrary decision, decisions based on compromise, or decisions given in haste.

Difference between legislation and precedent:

⭐ Key Takeaways

For the exam, you must remember the definition of a bill and its three kinds (Public, Private, Money), and the distinct legislative procedures for an ordinary bill (which goes through both houses) versus a money bill (which originates in the National Assembly only). Understand the concept of delegated legislation, its types (Orders, Regulations, Rules, etc.), and its key advantage (saving parliamentary time) and disadvantage (less scrutiny), as well as the judicial control of ultra vires. For precedent, master the principle of stare decisis, the difference between ratio decidendi (binding principle) and obiter dicta (persuasive statements), and the distinction between authoritative (binding on lower courts) and persuasive (not binding) precedents. Finally, memorize the points of difference between legislation and precedent.

🧠 Quick Revision Questions

1. What are the two main sources of law discussed in this lecture?
2. What is the main difference in the legislative procedure for a money bill compared to an ordinary bill?
3. What does the term ultra vires mean, and how is it used to control delegated legislation?
4. Explain the difference between ratio decidendi and obiter dicta.
5. What is the principle of stare decisis, and why is it important for the authority of judicial precedent?

📘 Lecture 5 — Interpretation of Statutory Law

📖 Overview: This lecture explores the process of determining the meaning of legal texts, distinguishing between grammatical and logical interpretation. It explains the rules, presumptions, and aids used by courts to understand statutes, making it essential for legal reasoning and statutory analysis.

🗂️ Topics Covered

The lecture covers the etymology and meaning of interpretation of law, John Salmond's classification into grammatical and logical interpretation, factors affecting grammatical interpretation (ambiguity, inconsistency, incompleteness), detailed rules of grammatical interpretation including Latin maxims like Ejusdem generis and Expressum facit cessare tacitum, rules of logical interpretation including the golden rule, mischief rule, last antecedent rule, and four corner rule, presumptions applied in statutory interpretation, and intrinsic and extrinsic aids to interpretation with relevant case law.

📝 Lecture Summary

Etymology of the Term 'Interpretation'

The term 'interpretation' is derived from Latin Interpres-pretis, which means 'to explain the meaning of words'. Etymology means origin, derive means originate or grow, and term means word or expression.

Meaning of the Phrase 'Interpretation of Law'

The terms 'interpretation' and 'law' respectively mean 'understanding' and 'rule'. Thus the phrase 'interpretation of law' means 'understanding of rule'.

Meaning of the Term 'Interpretation' According to Black's Law Dictionary Edition 8th

Interpretation is the process of determining what something, especially the law or legal document, means.

John Salmond & Concept of 'Interpretation of Law'

According to John Salmond, the phrase 'interpretation of law' means 'the process by which court seeks to decide the meanings of law'. According to him there are two kinds of interpretation:

1. Grammatical Interpretation
2. Logical Interpretation

(1) Grammatical Interpretation

The term 'grammatical' refers to the 'rules of language that govern the structure of a sentence'. In grammatical interpretation of law, language rules are applied to understand the meaning of law.

What Factors Affect Grammatical Interpretation of Law:

Following factors affect the process of true grammatical interpretation:

(a) Ambiguous Language: The term 'ambiguous' means 'doubtful' or 'unclear'. Sometimes, a sentence or part of a sentence produces two or more different meanings causing vagueness or elusiveness in understanding the law; under such situation, it is the duty of the court to logically determine the real meaning of the sentence by establishing the more natural, consonant and obvious meaning of the sentence.

(b) Inconsistency in the Construction of Law: The term 'inconsistency' means 'contradiction' or 'discrepancy'. Where different parts of law are in contradiction with one another in such a manner that they destroy and nullify the spirit of law, it becomes the duty of court to logically discover the true intention of the legislature and make the parts of law consistent with one another.

(c) Incompleteness of Law: The term 'incompleteness' means 'lacking something' or 'having some flaw'. Sometimes there exists a kind of flaw in the law that whole meaning of law cannot be understood. Under such circumstance, the defect is cured by doing logical interpretation.

Rules of Grammatical Interpretation:

Following are the rules of grammatical interpretation:

(1) The words are understood according to their definitions prescribed in the relevant enactment.

(2) If required, legal meanings of the words may be consulted from authentic legal dictionaries like Black's Law dictionary, Osborn Law dictionary etc.

(3) If required, meaning of word may be judged by the company it keeps (company means context).

(4) Words are understood in the sense that they possess since the time of enactment of law.

(5) The rule: 'mentioning of one person is the exclusion of other' is applied in a situation where the subject matter of law consists of two subjects and there exists a provision that makes reference to only one of the two subjects; the provision is construed without making the reference to the other subject. For example: where the statute has two subject matters: 'building' and 'land'. The enactment contains along with other provisions the law regarding land. Here the provision is construed without including the term 'building' even though in normal circumstances the term land includes the term 'building'.

(6) 'Expressum facit cessare tacitum' is a rule of interpretation of law which states: 'express words die down chance of implied interpretation of law'.

(8) 'Ejusdem generis' is a Latin rule of interpretation which means 'of the same kind or class'. The rule states: 'when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed'.

📌 Example: In the phrase horses, cattle, sheep, pigs, goats, or any other farm animal, the general language used is 'any other farm animal', despite its seeming breadth, would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens.

(2) Logical Interpretation

The term 'logical' means 'rational' or 'based on reason'. Where grammatical interpretation is impossible, logical interpretation takes its course and the true intention of the legislature is discovered by referring the surrounding facts. Professor Allen Grey says, 'logical interpretation calls for the comparison of the statutes with each other and with the whole system of law and with the consideration and circumstances in which the statute was passed.

Rules of Logical Interpretation:

(1) Golden Rule: Where court finds clerical mistake in the statute, to rectify the errors it introduces saving clause therein for the following purposes:

• (a) To effectuate the intention of the legislature.
• (b) To avoid absurd, unjust or immoral interpretations.
• (c) To uphold the principles of law.

(2) Mischief Rule: It states where a statute has been clearly enacted to suppress mischief of one sort, the interpretation must not be sought to suppress mischief of different sort falling outside the intention of the legislature.

📌 Relevant Case Law: In Cokery v Carpenter 1950, it was held that a bicycle was a 'carriage' for the purpose of the Licensing Act 1872 where a defendant was charged with cycling whilst intoxicated. The purpose of the Act was to prevent people who are in a state of intoxication from operating any form of transport on public roads.

(3) Last Antecedent Rule: This rule states that relative words or phrases are to be applied to the words or phrases immediately preceding, and as not extending to or including other words, phrases or clauses more remote unless such extension or inclusion is clearly required by the intent and meaning of the context, or disclosed by an examination of the entire Act.

(4) Four Corner Rule: The rule states that intention of the legislature must be gathered from the statute as a whole and not from the isolated part thereof.

Conclusion

Interpretation of enactments is necessary as they are not flawless.

What are the Presumptions Applied in Interpretation of Statute?

Presumption is a legal inference that something exists. It is understood, except the statute contains express words to the contrary, that the following presumptions of statutory interpretation apply:

(1) A statute cannot be enforced with retrospective effect. (2) A statute does not bind the crown. (3) A statute cannot impose criminal liability without proof of guilty intention. However certain statutes rebut this presumption and impose strict liability without proof of guilty intention. For example strict liability for dangerous driving under the Road Traffic Act. (4) A statute does not have the effect of repealing the other statutes. (5) The scope of a statute is limited to the territorial boundaries of UK, however, statute involving international contents must be construed in harmony with the International law. (6) A statute does not intend to deprive a person of his liberty, however, if it wants to than clear words must be used to make clear the situation and intention of the legislature. Example of such legislation is legislation for mental health and immigration. (7) On the plea of nationalization if a statute deprives a person from his property, the government is supposed to compensate him. (8) A statute does not alter the existing common law.

Intrinsic & Extrinsic Aid in Interpretation of Statutes

Intrinsic Aid: The word intrinsic means built-in; inherent; basic. Thus the intrinsic aid is a built-in aid within the statute. It consists of:

• (1) The title of the Act helps in determining the general objective of the enactment.
• (2) The preamble of the Act usually contains information regarding the objective of the enactment.
• (3) Interpretation sections of an act are also helpful in interpreting the statutes.
• (4) Summary notes given in the margin are also helpful in interpreting the statute.

Extrinsic Aid: The term extrinsic means coming from outside; not built-in. Thus the extrinsic aid is an aid which is not available within the statute. It consists of:

• (1) Reports of the Law Commission
• (2) Reports of the Royal Commissions
• (3) Reports of the Law Reform Committee
• (4) Hansard; the UK Journal of UK Parliamentary debates. This follows a decision of the then House of Lords in Papper v. Hart 1992 where it was decided that it is acceptable to look at the original speech which first introduced a bill to ascertain its meaning, but only if the statute is ambiguous or obscure or its literal meaning would lead to absurdity.

💡 Why this matters: Hansard provides access to legislative intent directly from parliamentary debates, but its use is restricted to avoid undermining the plain meaning of statutes.

⭐ Key Takeaways

Statutory interpretation is essential because laws are not flawless and require courts to determine their true meaning. There are two main approaches: grammatical interpretation (using language rules) and logical interpretation (using reasoning and context). Key rules include the golden rule, mischief rule, Ejusdem generis, and the last antecedent rule. Courts apply presumptions such as no retrospective effect, no binding of the crown, and no criminal liability without guilty intention. Interpretation is aided by intrinsic sources (title, preamble, interpretation sections) and extrinsic sources (law commission reports, Hansard).

🧠 Quick Revision Questions

1. What are the two kinds of interpretation according to John Salmond?
2. Explain the Ejusdem generis rule and provide an example.
3. What is the mischief rule and how was it applied in Cokery v Carpenter 1950?
4. List three presumptions applied in statutory interpretation.
5. What is the difference between intrinsic and extrinsic aids to interpretation?

📘 Lecture 6 — State’s Primary & Secondary Functions

📖 Overview: This lecture defines the state through the perspectives of Aristotle and Salmond, explaining its purpose and essential functions. It distinguishes between the primary duties of a state, such as administering justice and conducting war, and its secondary, more modern functions like taxation, infrastructure, and public welfare. Understanding these functions is crucial for grasping the fundamental role and responsibilities of a political state.

🗂️ Topics Covered

The lecture begins by presenting and analyzing three definitions of the state: Aristotle's, a simple definition, and Salmond's. It then discusses why a state is created and categorizes state functions into primary and secondary. The primary functions examined in detail are the administration of justice (including its historical evolution, pillars, and kinds) and the state's duty to protect citizens through war. Secondary functions cover various public services and welfare activities.

📝 Lecture Summary

Definitions of State

Aristotle’s definition of state: “State is a name of such organized congregation of families and villages which aims to provide facilities to lead free and prosperous life.”

• Organized (=well thought out or planned or structured)
• Congregation (=assemble or bring together or accumulate)
• Free (=liberated or enlightened or open)
• Prosperous (=flourishing or well-to-do) Thus, state is a name of such well-thought assembling of family units and rural community which aims to provide services to live enlightened and well-to-do life.

Simple definition of state: “State is an association of human beings established for the attainment of certain ends from certain means”.

• Association (=union or alliance or society)
• Ends (=objectives or purposes)
• Means (=ways or resources) Thus, state is an alliance or union of human beings known for the achievement of definite objectives from certain ways or resources.

Definition of state by Salmond: “A state is a society of men established for the maintenance of order and justice within a determined territory by way of force”

• Society (=union or civilization or culture)
• Maintenance (=protection and continuation)
• Order (=command or arrangement)
• Justice (=fairness)
• Force (=power) Thus, state is a union of men established for the protection and continuation of command and fairness within a determined area by way of power.

Why a state is created?

State is created to satisfy the desire of being sheltered and have harmony, order and progress in life.

• Sheltered (=protected or cushy or cozy)
• Harmony (=agreement or synchronization)
• Order (=arrangement or command or control)
• Progress (=advancement or growth)

Functions of a state

Functions are of two kinds: (1) Primary and (2) Secondary

Primary Functions

(a) Administration of justice: The terms ‘administration’ and ‘justice’ respectively means ‘practical management’ and the ‘giving every man what he deserves as per law’. Thus, the phrase ‘administration of justice’ means practical management by which every man is given what he deserves as per law.

State’s administration of justice - ‘a substitute for private vengeance’: Administration of justice by state is a civilized substitute for private vengeance.

• Civilized (=sophisticated or educated or cultured)
• Substitute (=alternate)
• Private (=personal)
• Vengeance (=revenge) Thus, administration of justice by state is a cultured alternative for personal revenge.

Historical Evolution of ‘Administration of justice’: In ancient times, man used to take revenge violently by self-help or with the help of his associates and relatives. As society grew up, the disputes were styled settling with the help of the person of position, influence and social status. Later, the institution of Kingship replaced this method and administered justice through appointed jurists. In modern world administration of justice is done by political state through Magistrates and judges.

Salmond and ‘state’s administration of justice’: “Law may be defined as body of principles recognized and applied by the state in the administration of justice”

Lord Bryce and ‘administration of justice’: “There is no better test for the excellence of a government than the efficiency of its judicial system.”

• Better (=superior)
• Test (=examination or inspection)
• Efficiency (=good organization or effectiveness)
• Judicial (=relating to court) Thus, there is no superior test for the fineness of a government than the effectiveness of its judicial system.

Pillars of modern system of administration of justice: The modern system of administration of justice stands on the following pillars:

1. State’s Physical force
2. Organized political society
3. Maintenance of rights as the object
4. Public opinion

In equation form: Modern system of Administration of Justice = Physical force of the state + politically organized society + Maintenance of rights as the object + public opinion.

Kinds of justice or theories of justice: Justice is of two kinds:

1. Natural justice: deals enforcement of rights and punishments of wrongs according to moral standards.
2. Legal justice: denotes justice according to what the law declares to be just (=right). Legal justice may be divided into:
   • (i) Private justice
   • (ii) Public justice

Private or personal justice is demanded by an aggrieved party from the wrong doer. Public or community justice is demanded where private justice is not given to aggrieved party. For public justice, case is filed in court of law. Private Justice is the object of public justice.

Kinds of public justice: Public justice is of two kinds viz. civil & criminal. Criminal justice is dispensed for public wrongs; purpose of criminal justice is to punish the offenders. Civil justice is dispensed for private wrongs; purpose of civil justice is to compensate the aggrieved party.

(b) War & state: It is the duty of a state to protect the citizens from the external aggression of other countries. The Israelites are of the view that a King must have the following qualities to rule:

1. He must have power to dispense justice among the citizens of a state. (Dispense = give out)
2. He must be courageous enough to go out and fight battle for the protection of the citizens. (Courageous = brave or daring)

Secondary functions of a state

Following are the secondary functions:

1. Dispensation of justice among the citizens through legislation.
2. Establishing effective system of taxation for the collection of revenue.
3. Establishing effective transportation system.
4. Supply of water for all purposes.
5. Supply of electricity for all purposes.
6. Scientific research for the economic development of economy.
7. Establishing educational institutions.
8. Establishment and maintenance of hospitals.

⭐ Key Takeaways

The state is fundamentally an organized society established to maintain order and justice, with Salmond's definition emphasizing the use of force within a determined territory as its key characteristic. The primary and most critical function of a state is the administration of justice, which evolved from private vengeance to a system resting on four pillars: state force, organized political society, maintenance of rights, and public opinion. Justice is categorized into natural (moral) and legal justice, with legal justice further divided into private and public, and public justice split into civil (for compensation) and criminal (for punishment). The other primary function is protecting citizens from external aggression through war, while secondary functions (like taxation, infrastructure, and public services) support the modern state's broader welfare role. A government's true excellence is measured by the efficiency of its judicial system.

🧠 Quick Revision Questions

1. According to Salmond's definition, what four key elements constitute a state?
2. How did the administration of justice evolve from ancient times to the modern political state?
3. What are the four pillars upon which the modern system of administration of justice stands?
4. What is the key difference between the purpose of civil justice and criminal justice?
5. List at least four of the secondary functions of a state as described in the lecture.

📘 Lecture 7 — Definition of Constitution & Nature & Scope of Administrative Law

📖 Overview: This lecture defines the constitution as the fundamental law of a state and establishes the rationale for Administrative Law as a mechanism to control government power. It explores various scholarly definitions of Administrative Law, its basic objectives, and the nature and scope of this field in reconciling governmental authority with individual rights.

🗂️ Topics Covered

The lecture begins with a detailed definition of a constitution, explaining its key components and linking the growth of governmental power to the need for Administrative Law. It then outlines the four basic objectives of Administrative Law, followed by definitions from noted scholars including Maitland, Wade, Davis, Jennings, Dicey, and Wade & Philips. The discussion concludes with an examination of the mechanisms for controlling administrative agencies and an analysis of the nature and scope of Administrative Law, including discretionary, quasi-legislative, and quasi-judicial powers.

📝 Lecture Summary

Definition of Constitution according to Garner's Black's Law Dictionary Edition 9th

Constitution is the fundamental and organic law of a state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign power and guarantees individual civil rights and civil liberties.

Key terms defined:

• Fundamental (= basic; elemental)
• Organic (= natural; logically accepted or endorsed)
• State (= a politically organized body of people in a defined territory)
• Institutions (= established organizations of a public character)
• Apparatus (= tools; machinery)
• Government (= rule; command; regime)
• Scope (= range; extent; capacity)
• Sovereign power (= ruling power)
• Guarantee (= assurance; promise)
• Civil rights (= private rights of citizens)
• Civil liberties (= civil freedom from arbitrary and undue government restraints)

Thus, the constitution is the basic and natural law of a state that establishes organizations of a public character and the machinery of government, defines the range of governmental ruling power, and assures individuals of civil rights and civil liberties.

🔑 Definition — Constitution: The fundamental and organic law of a state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign power, and guarantees individual civil rights and civil liberties.

💡 Why this matters: Most of the rights guaranteed are criminal procedural rights. In incorporating these rights, Pakistan has, like many other countries, followed the American Constitution, the oldest written constitution of the world.

The lecture explains that the phenomenal growth of government ruling power, a by-product of government actions that negate people's civil rights and civil liberties, is the logical reason for the existence of Administrative Law. Administrative law maintains just and equitable growth of society, maintains social order, and focuses on the welfare of mankind by reconciling government administrative power with civil rights and civil liberties. Without an effective administrative law, society would suffer from administrative atrocities. Administrative Law is a body of logical limitations and affirmative actionable parameters developed and operationalized by the legislature and the courts to maintain and establish a rule of law society.

Basic objectives of Administrative Law

The four basic objectives of Administrative Law are:

1. To check abuse of power by government (here abuse means a departure from legal and reasonable use; also termed cruel and abusive treatment; cruelty)
2. To ensure impartial resolution of disputes by court (impartial means without prejudice)
3. To protect citizens from the unauthorized encroachment on their civil rights and civil liberties
4. To make government accountable for their actions

🔑 Definition — Abuse of power: A departure from legal and reasonable use of power; also termed cruel and abusive treatment; cruelty. 🔑 Definition — Impartial: Without prejudice.

💡 Why this matters: A student of Administrative Law is not concerned with how a minister is appointed, but only with how he discharges his duties.

Definition of Administrative Law

It is impossible to give a precise and exact definition of Administrative Law; nevertheless, attempts have been made by many learned scholars.

Maitland's comments on Administrative Law: In England in 1887-8, he commented: constitutional law deals with structure, administrative law deals with function.

Professor H.W.R Wade's statement on Administrative Law: Administrative Law is the body of general principles which govern the exercise of powers and duties by public authorities.

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 of Administrative Law by Ivor Jennings: Administrative law is the law relating to administration. It determines the organization, powers, and duties of the Administrative authorities.

Definition of Administrative Law by Dicey: Administrative Law relates to that portion of a nation's legal system which:

1. Determines the legal status and liabilities of all state officials
2. Defines the rights and liabilities of private individuals in their dealings with public officials
3. Specifies the procedure by which those rights and liabilities are enforced

💡 Why this matters: Administrative law is the study of the pathology of power in a developing society. Accountability of the holders of public power for the ruled is thus the focal point of Administrative Law.

Definition of Administrative Law by Wade & Philips: Administrative Law is the law relating to the control of Government power. This definition focuses on the fact that the powers of government must be in legal bounds and not at all be abused.

Conclusion on Definition: To sum up all the above discussion, it may be said that Administrative law is the branch of public law that deals with the organization, powers of administrative agencies, and principles by which an official action is reached and reviewed in relation to individual liberty and freedom.

Mechanism by which Administrative agencies are kept under control

This control mechanism is called the review process. Administrative actions may be controlled by the following:

1. Through writs i.e. writ of habeas corpus; writ of mandamus; writ of certiorari; writ of prohibition; writ of quo warranto
2. Through filing suits in ordinary courts
3. By involving higher authorities
4. Through public opinion and mass media
5. Consumer protection societies
6. Through the office of Ombudsman
7. Right to know, right to reply, and discretion to disobey are indirect methods of controlling and checking maladministration

💡 Why this matters: The study of Administrative law is not an end in itself but a means to an end.

Nature & Scope of Administrative Law

Nature is a fundamental quality that distinguishes one thing from another. Scope means range, extent, or capacity. The scope of Administrative law includes administrative authorities and the manner they exercise their power, and when they abuse their powers, the remedies available to an aggrieved person.

Abuse of power by administration is considered evil in a progressive society. Since government functions have increased manifold and due to delegated legislation, administrative agencies make a plethora of rules, regulations, bye-laws, and notifications that substantially affect the rights of citizens. Administrative authorities also exercise judicial powers for adjudication of disputes by establishing numerous tribunals. In many statutes, provisions have been made taking away jurisdiction of traditional courts and virtually giving powers to these tribunals. Hence, administrative authorities, besides exercising wide discretionary power, have also been exercising quasi-legislative and quasi-judicial powers.

🔑 Definition — Discretionary power: Power to make a decision without anyone else's advice or consent. 🔑 Definition — Quasi-legislative power: An administrative official's power of law-making. 🔑 Definition — Quasi-judicial power: An administrative official's power of adjudication.

Under the preventive detention laws, they can detain and put behind bars citizens and subjects even without regular trial and deprive them of their freedom and liberty. Lord Denning states: properly exercised, the new powers of the executive lead to the welfare state; but abused, they lead to the totalitarian state.

🔑 Definition — Totalitarian state: A government that subordinates the individual to the state and strictly controls all aspects of life by coercive measures.

Pakistan is a welfare state and has a constitution. It, besides maintaining law and order, also engages in numerous commercial activities. It runs PIA, Pakistan Railways, universities, and financial institutions.

Conclusion

According to Schwartz, there is a basic inequality between the private party and the government agency, and the goal of Administrative Law is to ensure that the individual and the state are on a plane of equality before the bar of justice.

⭐ Key Takeaways

The most critical thing to remember is that Administrative Law exists precisely because of the phenomenal growth of government power, which necessitates checks to prevent abuse and protect individual civil rights and civil liberties. All definitions of Administrative Law—from Maitland, Wade, Davis, Jennings, Dicey, and Wade & Philips—converge on the core idea that it governs the powers, procedures, and duties of public authorities and provides mechanisms for judicial review. The four basic objectives are to check abuse of power, ensure impartial dispute resolution, protect citizens from encroachment on their rights, and make government accountable. Finally, the scope of Administrative Law is vast, covering not only executive action but also quasi-legislative and quasi-judicial functions exercised by administrative agencies, and the ultimate goal, as stated by Schwartz, is to place the individual and the state on equal footing before the law.

🧠 Quick Revision Questions

1. According to the lecture, what is the logical reason for the existence of Administrative Law?
2. List the four basic objectives of Administrative Law as taught in this lecture.
3. How did Professor H.W.R Wade define Administrative Law, and what key idea does his definition focus on?
4. Name at least four of the seven mechanisms listed for controlling administrative agencies.
5. According to Lord Denning, what is the consequence of the new powers of the executive being "properly exercised" versus "abused"?

📘 Lecture 8 — Distinction between Administrative Law & Constitutional Law

📖 Overview: This lecture establishes the fundamental differences between Administrative Law and Constitutional Law across multiple dimensions. It then thoroughly examines the concept of administrative action, classifying it into quasi-legislative, quasi-judicial, and purely administrative actions, while explaining the attributes that distinguish a true judicial decision from a quasi-judicial one. Understanding these distinctions is critical for grasping the scope, sources, and supremacy of administrative law within a legal system.

🗂️ Topics Covered

The lecture begins with a detailed comparison of Administrative Law and Constitutional Law across nine points of distinction, including definition, nature, scope, sources, and supremacy. It then defines administrative action and classifies it into three kinds: quasi-legislative action, quasi-judicial action, and administrative action. The Donoughmore Committee’s four requisites for a true judicial decision are presented to differentiate quasi-judicial from judicial decisions, followed by an explanation of the finality of administrative action through finality clauses.

📝 Lecture Summary

Distinction between Administrative Law & Constitutional Law

Administrative Law and Constitutional Law are distinguished across several points. As to definition, Administrative Law deals with administration and determines administrative powers and duties, whereas Constitutional Law relates to the composition and powers of organs of a state and regulates the relation of various state organs to one another and to the private citizen. As to nature, Administrative Law is flexible, while Constitutional Law is rigid. As to scope, Administrative Law deals with details, while Constitutional Law deals with fundamentals as it is the organic law of a state. As to sources, the sources of Administrative Law are statutes, statutory instruments, precedents, and customs, whereas the source of Constitutional Law is the constitution itself.

As to the state of rest and motion, Administrative Law describes various organs of the government at motion, while Constitutional Law describes various organs of the state in a state of rest. As to supremacy, Administrative Law is subsidiary law because it is derived from the constitution, whereas Constitutional Law is the supreme law of the land with overriding effects. As to division of power, the subject matter of Administrative Law is the executive and executive action, while Constitutional Law divides powers between the three organs of a state—legislature, executive, and judiciary. As to amendment, Administrative Law is easy to amend, whereas Constitutional Law is not easy to amend due to difficult procedures. As to right and remedy, Administrative Law provides specific rights for a specific person or class of persons, whereas Constitutional Law provides fundamental and substantive rights with remedies available through courts of law.

Kinds of Administrative Action

Administrative action includes administrative direction, administrative instructions, and administrative functions. In other words, whatever stems from the administrative process is known as administrative action. Under administrative law, administrative actions are divided into three kinds: (1) quasi-legislative action or rule-making action, (2) quasi-judicial action or decision-making action, and (3) administrative action or rule application action.

🔑 Definition — Administrative Action: whatever stems from the administrative process, including administrative direction, instructions, and functions.

Quasi-Legislative Action: As per the Constitution of Pakistan, it is the duty of the legislature to make laws, but due to the vast area of legislation, it is not possible for the federal legislature to provide qualitative and quantitative legislation for all walks of life. Therefore, delegated legislation emerges. Whenever an administrative agency under delegated legislation makes rules, it is considered an exercise of quasi-legislative power by the administrative agency.

Quasi-Judicial Action or Decision-Making Action: As per the constitution, traditional courts are tasked with dispensing justice, but they cannot do so in every walk of life. Hence, tribunals are given the task of dispensation of justice. Consequently, the majority of decisions affecting citizens are given by administrative agencies. Dispensation of justice means the bestowing of justice.

In 1932, the Donoughmore Committee on Minister’s Power critically analyzed the characteristics of a true judicial decision. The committee prescribed that a true judicial decision presupposes a list between two or more parties and involves the following four requisites: (1) presentation of facts. (2) ascertainment of facts by means of evidence given by the parties. (3) ascertainment of questions of law on the basis of submission of legal arguments. (4) a decision which disposes of the whole matter by applying the law to the facts.

The commission prescribed that a quasi-judicial decision involves the first two determinants, may or may not involve the third, but never involves the fourth determinant. Instead of applying law to the facts, the administrative agencies apply policy, expediency, or discretion. This means there is less of law and more of discretion or policy. Policy means strategy.

Administrative Action or Rule Application Action: Administrative action is neither legislative nor adjudicatory. Examples include issuing directions to a subordinate officer not having the force of law, making a reference (the act of sending) to a tribunal for adjudication (the act of deciding the dispute judicially) under the law of Industrial Relations, or actions related to preventive detention, internment, externment, deportation, fact-finding, requisition, acquisition, and allotment.

Administrative action may be statutory (having the force of law) or non-statutory (not having the force of law). Majority of administrative action is statutory as statute gives force of law. For non-statutory actions, such as issuing directions to a subordinate not having the force of law, violation may be treated as disciplinary action.

Finality of Administrative Action

Generally, to make an administrative action final, a clause is inserted in a statute by which the action of an administrative authority is made final. Such a clause is also named a finality clause, exclusion clause, ouster clause, or conclusion clause.

💡 Why this matters: Finality clauses effectively bar judicial review of administrative decisions, making it crucial for students to understand how the legislature seeks to limit court interference in administrative matters.

⭐ Key Takeaways

The most critical exam points are the nine clear distinctions between Administrative Law and Constitutional Law, particularly regarding definition, nature, scope, sources, and supremacy. The classification of administrative actions into quasi-legislative, quasi-judicial, and administrative is essential, as is the precise definition of each type. The Donoughmore Committee’s four requisites for a true judicial decision must be memorized, along with the critical fact that quasi-judicial decisions lack the fourth requisite (applying law to facts) and instead apply policy or discretion. Finally, understand that finality clauses (also called ouster or exclusion clauses) are statutory provisions intended to make administrative actions conclusive and immune from challenge.

🧠 Quick Revision Questions

1. State four points of distinction between Administrative Law and Constitutional Law.
2. What are the three kinds of administrative action?
3. List the four requisites of a true judicial decision as prescribed by the Donoughmore Committee.
4. Why is a quasi-judicial decision different from a true judicial decision?
5. What is a finality clause and what are its other names?

📘 Lecture 9 — Rule of Law

📖 Overview: This lecture explores the concept of the rule of law, tracing its evolution from Aristotle to the modern administrative state. It examines Dicey's three senses of the rule of law and analyzes both the advantages and limitations of traditional judicial control over administrative action, making it foundational for understanding administrative law.

🗂️ Topics Covered

The lecture begins by defining the rule of law through various historical sources, including Black's Law Dictionary, Aristotle, and Bracton. It then delves into Dicey's three distinct senses of the rule of law: absence of arbitrary power, equality before the law, and the judge-made nature of constitutional liberties. The effects of these theories on legislation, judicial interpretation, and evidence are discussed, followed by an analysis of the advantages of the rule of law, particularly its role in promoting judicial review. Finally, the negative side of the rule of law is examined, highlighting the limitations of traditional courts and the need for alternative control mechanisms.

📝 Lecture Summary

Meaning of Rule of law according to Black’s law dictionary edition 9th

Rule of law means supremacy of law as opposed to arbitrary power. Arbitrary means illogical or capricious.

🔑 Definition — Rule of law: supremacy of law as opposed to arbitrary power.

Rule of Law & Aristotle

According to Aristotle, rule of law means rule of divine or natural law as opposed to rule of law promulgated by human rulers. Promulgated means proclaimed or declared.

Rule of law according to Bracton

In the 13th century, Bracton said that the world was governed by law, human or divine, and the king was subject to God and to the law because the law makes him king. It is also said that rule of law means preclusion of arbitrary action on the part of rulers. Preclusion means avoidance.

🔑 Definition — Preclusion of arbitrary action: the principle that rulers must not act on whim or caprice but must follow established law.

Another sense in which 'rule of law' may be used is that all citizens in a parliamentary democracy obey the law unless changed by due process. The expression "all citizens" includes the common man, administrative agencies, and judges.

Dicey’s three different senses of rule of law

First sense: that no man is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, rule of law is contrasted with the system of government based on wide arbitrary or discretionary power. Contrast means dissimilarity.

📐 Formula: Rule of law (first sense) = No punishment without distinct breach of law proven in ordinary courts → This means citizens are protected from arbitrary prosecution.

Second sense: that every man, whatever his rank or condition, is subject to the ordinary law of the land and amenable to the jurisdiction of ordinary courts. This means equality before law; no man is above the law.

📐 Formula: Rule of law (second sense) = All persons subject to ordinary law + jurisdiction of ordinary courts → This guarantees equality regardless of rank.

Third sense: that the general principles of the British Constitution, especially the liberties of the individual such as personal liberty, freedom of speech, and public meeting, are the result of judicial decisions in particular cases. The constitution is judge made.

📐 Formula: Rule of law (third sense) = Constitutional liberties = Result of judicial decisions → This means judges, not Parliament, are the primary guardians of liberty.

Effects of the theories of law

(1) These theories may influence legislators.
(2) The courts will interpret legislation keeping in view the theories of rule of law. For example, courts presume that Parliament does not intend to restrict private rights.
(3) The rule of law may act as a rule of evidence in order to give rise to a presumption that everyone is prima facie equal before the law. Prima facie means apparent from the face.

🔑 Definition — Prima facie equality: the legal presumption that all persons are equal before the law unless proven otherwise.

Advantages and Disadvantages of Dicey's Concept

Dicey’s concept of rule of law has had its advantages and disadvantages. Although complete absence of discretionary power or absence of inequality are not possible in this administrative age, yet the concept of rule of law has been used to spell out many propositions and deductions to restrain an undue increase in administrative powers and to create control over it. The rule of law has given philosophy to curb the government’s power and to keep it within bounds. It has provided a touchstone to judge and test administrative law prevailing in the country at a given time. Proposition means proposal; deduction means inference; curb means control; denounce means condemn. Traditionally, rule of law denotes absence of arbitrary powers, and therefore one can denounce increase of arbitrary or discretionary power.

💡 Why this matters: Dicey's concept, while criticized for being rigid, provides the philosophical foundation for limiting government power in a democracy.

Advantage of rule of law

Rule of law substantiates supremacy of courts, hence the courts have power to control administrative action through judicial review. The judicial control of administrative action is the focal point of administrative law. The cardinal principle of administrative law is that the executive must rule under the rule of law and not by its own decree or fiat. The executive is deemed not to have any own inherent power but all its power flows from law. It is a principle that plays a vital role in democracies. When it is said that executive should run the affairs of government as per law and if it does not, then its action may be brought to judicial review. By all means, administrative law promotes rule of law.

Negative side of rule of law

The negative side of rule of law depicts that the traditional courts will control all administrative action through judicial review. Faith in the courts has stood as a hurdle to adopt some other more efficacious methods of controlling administrative actions. The Whyatt Report 1971 suggested that the setting up of an administrative division in the High Court is necessary to control administrative action. New Zealand, a country with the Common Law system, has established a separate administrative division in the Supreme Court to control administrative actions. In Australia, the Commonwealth Administrative Committee in its report published in 1971, suggested the establishment of an Administrative Tribunal to review administrative decisions involving discretion on merits.

It is aptly clear that mere judicial review cannot provide an effective mechanism to control the actions of the administration. Therefore, some other control mechanism should be incorporated.

💡 Why this matters: This highlights the practical limitation of Dicey's theory — traditional courts alone cannot effectively handle the complexity of modern administrative actions.

⭐ Key Takeaways

The rule of law, as defined by Dicey, has three core components: no punishment without a distinct breach of law proven in ordinary courts, equality of all persons before the law, and constitutional liberties being judge-made. While Dicey's concept provides a vital philosophical basis for controlling government power through judicial review, it also has limitations — traditional courts cannot effectively handle all administrative actions. Modern administrative law requires supplementary control mechanisms, such as specialized administrative divisions in courts or administrative tribunals, as suggested by the Whyatt Report (1971) and Australian recommendations. The rule of law ultimately means the supremacy of law over arbitrary power, and its effectiveness depends on both judicial oversight and institutional adaptations to meet the demands of the modern administrative state.

🧠 Quick Revision Questions

1. What are the three distinct senses of the rule of law according to Dicey?
2. How did Bracton's 13th-century statement relate the king to the law?
3. What is the "negative side" of the rule of law as discussed in the lecture?
4. What specific reform did the Whyatt Report 1971 recommend?
5. What is the cardinal principle of administrative law regarding the executive?

📘 Lecture 10 — Rule of Natural Justice

📖 Overview: This lecture explains the fundamental principles of natural justice, which are essential for fair decision-making in judicial, quasi-judicial, and administrative proceedings. It covers the two traditional rules, a newly evolved third principle, and the exceptions to these rules, emphasizing their role in preventing miscarriage of justice.

🗂️ Topics Covered

The lecture begins by defining the Rule of Natural Justice and its two core principles: "No one should be made a judge in his own cause" and "No one can be condemned unheard." It then discusses the relationship between natural justice and statutory provisions, including key case law. The lecture introduces a third principle—the requirement for speaking orders or reasoned decisions—and delves into the concept of bias, including its kinds (pecuniary, personal, official). Finally, it outlines the exceptions to the rule of natural justice.

📝 Lecture Summary

What is Rule of Natural Justice?

The Rule of Natural Justice is founded on two principles: (1) Nemo in propria causa index ess debet (No one should be made a judge in his own cause) and (2) Audi alteram Partem (no one can be condemned unheard). It is described as a sound product of human civilization, a high law of nature, and intelligent common sense. In American Jurisprudence, it is called due process of Law. De Smith states that the rule expresses the close relationship between common law and moral principles distinguishing right from wrong. Megory J. describes natural justice as simple and elementary, distinct from complex, sophisticated, and technical justice. The aim of natural justice is to prevent miscarriage of justice. These two basic principles form the superstructure of judicial control of administration and are usually not made part of statutory laws. In the case Al Hya Noor-ul-Zaman v. AJ & K Zakat Council (NLR 1987 Civil 341), it was held that the principles of natural justice shall be presumed to be incorporated in every statute unless their application is excluded by express words.

Natural Justice & Statutory Provisions

Generally, no provision is found in any statute for the observance of the principles of Natural Justice by adjudicatory authorities. The question arises: whether the adjudicating authority is bound to follow these principles? The law became well-settled after the powerful pronouncement of Byles J. in Cooper v. Wandsworth Board of Works (1863) 14CB (NS) 180, wherein his Lordship observed: "A long course of decisions... establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." De Smith also states that where a statute authorizing interference with property or civil rights is silent on notice and hearing, courts will apply the rule as it is of universal application. It is against the rule of natural justice if the complainant, the judge, and the prosecution are one and the same person (PLD 1965 SC 64).

🔑 Definition — Natural Justice: The principle that no one should be a judge in their own cause and no one can be condemned unheard; aimed at preventing miscarriage of justice. 💡 Why this matters: Even if a statute is silent, courts will supply the requirement of a fair hearing to prevent injustice.

Professor H.W.R Wade’s view on rule of Natural Justice: Breach of natural justice will produce void decisions.

Against whom rule of Natural Justice can be enforced

The principle of natural justice is binding on all courts, judicial bodies, and quasi-judicial bodies. However, the important question is whether it applies to administrative authorities. The answer is: where the duty is merely administrative and not judicial or quasi-judicial, it is erroneous to say that the principle of natural justice will apply. The compulsion of hearing before passing an order, implied in the maxim Audi Alteram Partem, applies only to judicial or quasi-judicial proceedings. In Pakistan, courts have opined that unless the authority concerned is required by the law under which it functions to act judicially, there is no room for the application of the rule of natural justice.

🔑 Definition — Quasi-judicial body: An authority that is required to act judicially, even if not a formal court, and must follow principles of natural justice.

Third principle of Natural Justice

Traditional English Law recognizes two principles: (1) Nemo in propria causa index ess debet and (2) Audi alteram Partem. However, due to the rapid growth of 'Administrative Law' and 'Constitutional Law', a third principle has evolved: (3) Speaking order or reasoned decision. A speaking order means an order speaking for itself; every order must contain reasons in its support. According to this principle, the party affected must know why and on what grounds the order was passed against him. There are three reasons why reasons for a decision are required to be disclosed: (1) The aggrieved party has a right to appeal to an appellate court on the ground that the decision is based on erroneous reasons. (2) The obligation to record reasons is a deterrent against arbitrary action taken by executive authority invested with judicial power.

🔑 Definition — Speaking order: An order that contains the reasons for the decision, allowing the affected party to understand the basis of the order.

Bias or interest

The first requirement of the rule of natural justice is that a judge must be impartial, neutral, and free from bias. Bias is an intention to decide for or against one party without proper regard to the true merits of the case. Kinds of bias include: (1) Pecuniary bias (2) Personal bias (3) Official bias

Pecuniary bias: The least pecuniary interest in the subject matter of litigation disqualifies a person from acting as a judge. Griffeth and Street state that a pecuniary interest, however slight, will disqualify the judge. 📌 Example: Dr. Bonham, a doctor of Cambridge University, was fined by the College of Physicians for practicing in London without a license. The statute provided that fines should go half to the King and half to the college. Coke C.J. disallowed the claim because the college had a pecuniary interest in its own judgment and was a judge in its own cause.

Personal bias: Personal bias arises due to some relationship between the authority deciding the issue and the party, inducing him to favor the case. The Supreme Court held in a case that a manager cannot conduct an inquiry against a worker arising from an allegation that the worker had beaten the manager.

Official bias: A mere general interest in the general object pursued will not disqualify a judge from deciding the matter. It is necessary that the judge must have a direct connection in the litigation. According to Griffeth and Street, only rarely will this bias invalidate proceedings.

🔑 Definition — Bias: An intention to decide for or against a party without proper regard to the true merits of the case.

What are the exceptions to the rule of natural justice?

The rule of natural justice shall not be applied in the following situations: (1) Statutory exclusion (2) Exclusion in case of emergency (3) Exclusion in case of confidential inquiries (4) Exclusion in case of preventive action (5) Exclusion in case of necessity (6) Exclusion where no right of any person is infringed

Conclusion

It may be said that the rule of natural justice is beyond doubt a humanly principle intended to require law with the flare of fairness and to secure justice. Over the years, it has grown widely into a pervasive rule affecting a vast area of administrative action.

⭐ Key Takeaways

The core of natural justice rests on two principles: no one can be a judge in their own cause (absence of bias) and no one can be condemned unheard (right to a fair hearing). These principles are presumed to be part of every statute unless expressly excluded. Courts have added a third requirement: that decisions be reasoned or speaking orders. Bias can be pecuniary (any financial interest disqualifies), personal (relationships bias), or official (only if there is a direct connection). Exceptions to natural justice include statutory exclusion, emergencies, and where no rights are infringed.

🧠 Quick Revision Questions

1. What are the two traditional principles of natural justice?
2. In which landmark case was it established that courts will supply the omission of the legislature regarding a hearing?
3. What is a "speaking order" and why are reasons for a decision required?
4. What is the difference between pecuniary bias and personal bias? Provide an example of each.
5. List three exceptions where the rule of natural justice will not be applied.

📘 Lecture 11 — Administrative Adjudication

📖 Overview: This lecture examines the growing phenomenon of administrative adjudication, where executive bodies rather than traditional courts resolve disputes between the state and individuals or between private parties. It explains why this shift is necessary in modern governance and balances the benefits against the significant harms and procedural shortcomings of such systems.

🗂️ Topics Covered

The lecture first defines administrative adjudication and explores multiple reasons for its growth, including the overload of traditional courts, the need for specialized expertise, lower costs, and flexibility to apply policy considerations. It then systematically presents eleven distinct harms or problems associated with administrative adjudication, such as lack of uniform procedures, absence of natural justice, official bias, political influence, anonymity of decisions, and unpredictability.

📝 Lecture Summary

Administrative Adjudication

As per the constitution, it is the duty of the traditional courts to dispense justice, but the courts cannot do this in every walk of life. Hence, tribunals are given this task of dispensation of justice. Therefore, we see that the majority of the decisions affecting citizens are given by administrative agencies.

Reasons for the growth of administrative adjudication

Adjudication on a question of law or question of fact between individuals or between the state and an individual is the core business of traditional courts. But due to the increase in the role of modern government, the executive organ of a state also exercises adjudicating power. Therefore, it is a wrong notion that traditional courts have monopolistic adjudicating power in a state.

These days, by the side of traditional courts, there are many administrative bodies that are exercising adjudicating power in a state. Administrative adjudication is now an inevitable part of modern government. The trend is functionally useful, hence being practiced in Britain, USA, and in all democratic states including Pakistan.

Modern government has increased its governance role manifold, trying to control labor, taxation, excise, financial, health, corporate, and all other like issues. When modern government handles these areas, it comes into conflict with individuals or corporate entities — for example, taxation issues. To resolve these issues, the executive itself gives an executive adjudication mechanism, and traditional courts are not involved. Thus, circumstances necessitate the growth of administrative adjudication.

The administrative adjudication system is a relatively low-cost, easily accessible mechanism of speedy administrative justice. Another cogent reason for its growth is that traditional courts are already stuffed with a huge stock of pending cases, and the adjudication process is already very slow. Had the other administrative adjudication matters been sent to the system of traditional court adjudication, the traditional courts would have collapsed.

It is indeed the expansion of technical, scientific, economic, and other similar growth of civilized society that government's functions have increased manifold. Hence, without administrative adjudication, a state cannot now run its affairs nor do good governance.

Another reason in favor of administrative adjudication is that in traditional courts, the ordeal of litigation is very high, while in administrative adjudication it is relatively low. Political philosophers also give a reason for growth: sometimes a situation arises which is resolved not by applying law but by applying consideration of policy. Such questions arise in relation to taxation, labor, excise, foreign exchange, and preventive detention. As a matter of fact, such policies cannot be applied in traditional courts but only under administrative adjudication, as administrative tribunals are somewhat under the influence of government.

Judges of traditional courts do not entertain the idea of policy conflicting with law; they always follow law. Administrative adjudication is also favored on the ground that a judge of a traditional court is a generalist, while in a modern state, due to administrative process, expert knowledge is required to handle issues involving special knowledge like taxation and accounting. Hence, administrative adjudication is inevitable. An expert is in a better position to handle such kinds of issues.

Other reasons for the growth of administrative adjudication are that they are less expensive, more expeditious, and free from procedural technicalities. Finally, it may be said that administrative adjudicatory bodies have grown not from political philosophy but from practical necessity. Therefore, to cater to the need of civilized modern society where the role of government has increased manifold, the role of administrative adjudication is practically beneficial.

Harms of administrative adjudication

Following are the harms or problems of administrative adjudication:

(1) Ordinary citizens fear that all tribunals dispensing administrative adjudication are anti-legal in mindset.

(2) A variety of procedures are adopted by a variety of tribunals; there is no uniform procedure adopted in all administrative tribunals. Sometimes procedure is laid in the Act, or sometimes it is left to be determined by the administrative agency.

(3) Sometimes an administrative agency is given the power of a civil court to compel attendance and production of documents.

(4) In some cases, an administrative agency does not follow the rule of natural justice, which is a wrong deviation from a universal principle based on or derived from human nature.

(5) In administrative tribunals, no uniform system of appeal is applicable. Every tribunal has its own procedure — sometimes appeal is preferred to a higher authority, or sometimes appeal is made to the traditional High Court.

(6) Not all administrative tribunals publish their decisions; therefore, they avoid public criticism.

(7) It is a rule of natural justice that in litigation there must be a clear aspect of predictability of judicial decision. Administrative adjudication lacks this predictability.

(8) There is also a glaring factor of anonymity of decision involved in administrative adjudication. No one knows where the decision will come from. Sometimes it is seen that one fine morning a litigant receives a communication or notice that the President or the Governor is pleased to give this decision.

(9) Under administrative adjudication, the law of evidence is not strictly applied. Usually, no statement and cross-examination is done on witnesses.

(10) Under administrative adjudication, official bias also works at its peak. It is seen that if there is a case between an individual and an administrative agency, the result is normally seen in favor of the agency.

(11) In administrative adjudication, there is always political influence on judges of the tribunal.

⭐ Key Takeaways

Administrative adjudication has grown out of practical necessity because traditional courts are overburdened, expensive, and lack the specialized expertise needed for modern technical disputes like taxation and labor issues. However, this system comes with serious drawbacks: there is no uniform procedure or appeal system, rules of natural justice are often ignored, decisions are unpredictable and anonymous, and official bias and political influence frequently tilt outcomes in favor of the state. Students must remember that while administrative adjudication is inevitable for efficient governance, it fundamentally compromises traditional legal safeguards such as predictability, public scrutiny, cross-examination, and judicial independence.

🧠 Quick Revision Questions

1. What are the main reasons why traditional courts cannot handle all disputes in a modern state, necessitating the growth of administrative adjudication?
2. Explain why "consideration of policy" can be applied in administrative tribunals but not in traditional courts.
3. List at least four specific harms of administrative adjudication mentioned in the lecture.
4. What does the lecture mean by "anonymity of decision" in the context of administrative adjudication?
5. What is the difference between a "generalist" judge in a traditional court and the expertise found in administrative tribunals?

📘 Lecture 12 — Delegated legislation

📖 Overview: This lecture explains delegated legislation — laws made by bodies other than Parliament under powers granted by an enabling Act. It covers why such legislation is necessary in modern governance, its various forms, advantages and disadvantages, and the controls that exist to prevent misuse of delegated powers.

🗂️ Topics Covered

The lecture covers the definition and purpose of delegated legislation, its six types including Orders in Council, regulations, rules, schemes, directions, and byelaws, followed by the advantages and disadvantages of using delegated legislation, the factors responsible for its growth in modern states, and finally the parliamentary and judicial controls over delegated legislation with particular emphasis on the doctrine of ultra vires.

📝 Lecture Summary

Delegated legislation:

Delegated legislation is legislation that is passed otherwise than in an Act of Parliament. An enabling Act or the parent Act confers a power to make delegated legislation on a Government Minister or another person or body. Several thousand pieces of delegated legislation are made each year, compared with only a few dozen Acts of Parliament.

Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical matters such as fixing the date on which an Act of Parliament will come into force, or setting the level of fees payable for a public service, e.g. the issue of a passport, to filling in the detail of how an Act setting out broad principles will be implemented in practice.

🔑 Definition — Delegated Legislation: legislation passed otherwise than in an Act of Parliament, made by a person or body under powers conferred by an enabling Act. 📐 Formula: Enabling/Parent Act → Confers Power → Minister/Body → Makes Delegated Legislation 📌 Example: Fixing the date an Act comes into force or setting passport fees are matters dealt with by delegated legislation rather than a full Act of Parliament.

Types of delegated legislation

(1) Orders in Council are made by the Queen on the advice of the Privy Council. These are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers.

Orders of Council are made by the Lords of the Privy Council in their own right and most commonly relate to the regulation of professional bodies and the higher education sector, over which the Privy Council exercises a supervisory function.

Orders are usually made by Ministers and are an exercise of executive powers, for example to create or dissolve a public body. Commencement Orders are used to set the date on which an Act, or part of an Act, comes into force.

🔑 Definition — Orders in Council: delegated legislation made by the Queen on advice of the Privy Council, used for matters of constitutional significance or emergencies.

(2) Regulations are also usually made by Ministers. Regulations are the means by which substantive and detailed law is made, for example setting out in detail how an Act is to be implemented. Regulations made under the European Communities Act 1972 are the means by which the Government most often implements European law within the United Kingdom.

🔑 Definition — Regulations: the means by which substantive and detailed law is made, showing how an Act is to be implemented.

(3) Rules set out procedures, for example rules governing court procedures, or the way in which the Patent Office deals with applications. Rules may be made by Ministers or, if specified in the parent Act, a senior judge.

(4) Schemes: for example, schemes made by the Charity Commission to amend how a charity is governed.

(5) Directions are a means by which Ministers give legally binding instructions to a public body about the way it exercises its functions.

(6) Byelaws are laws of limited application, usually restricted to certain places, made by local authorities or certain other bodies (for example, train operating companies or the National Trust for Places of Historic Interest or Natural Beauty) to control the activities of the people in public spaces, such as in public parks or on board public transport.

🔑 Definition — Byelaws: laws of limited application, usually restricted to certain places, made by local authorities or certain bodies to control activities in public spaces.

Advantages and disadvantages of delegated legislation

Advantages:

Firstly, it allows laws to be enacted without using up scarce Parliamentary time on technical matters, for example the fine detail of a public sector pension scheme or the precise design of traffic signs, thereby freeing Parliament to discuss matters of broad principle and policy.

Secondly, it allows laws relating to technical matters to be prepared by those with the relevant expert knowledge.

Thirdly, delegated legislation is flexible enough to deal speedily with changing circumstances, for example increasing costs of services, developments in scientific knowledge or minor changes in policy. This also makes it invaluable in emergencies when very swift action is required – delegated legislation made under emergency powers can be drafted, enacted and brought into force in a matter of hours rather than the days, weeks or months that would be required to pass an Act of Parliament.

Disadvantages:

Delegated legislation can be criticized on the grounds that it is subject to less parliamentary scrutiny than primary legislation and thereby may potentially be used by the Government in ways which Parliament had not intended or appreciated when it conferred the power.

Another disadvantage is in the sheer volume of laws that are passed as delegated legislation. Because of this bulk, there is normally little publicity or knowledge about the changes that are being made.

💡 Why this matters: While delegated legislation saves Parliamentary time and allows expert, flexible law-making, it risks being used beyond what Parliament originally intended and often escapes public attention due to its sheer volume.

Why delegated legislation is need of a modern state?

The need of delegated legislation is based on the fact that the scope of modern government has been widened extensively. Urgencies, complexities and details of governance are so complicated and manifold that delegated legislation seems pragmatic and practicable. It is said that law making is not a turn key project, ready made in all details and to grasp the dynamics of legislation, delegated legislation is the real solution.

Factors responsible for the growth of delegated legislation:

(1) Even if members of Parliament work day and night they cannot meet the legislative need of the society, hence delegated legislation is a compulsive necessity of a modern state.

(2) Modern day government goes through perplexed and technical issues; they are close to ground realities which the legislature is not; therefore legislature keeps itself to just policy making and delegates the power of legislation to government or executive.

(3) Parent legislation is not easily amendable whereas delegated legislation is easily amendable or tailorable according to the practical needs of the society.

(4) Delegated legislation is an easy source of legislation in crisis situations.

Controls over delegated legislation

There are both parliamentary and judicial controls over delegated legislation. The parliamentary controls, by which delegated legislation made by Statutory Instrument may either need to be approved by a vote of each House of Parliament before it is made, or be subject to a veto by either House within a certain period of time after it is made.

Judicial control is exercised through the means of judicial review. Because delegated legislation is made by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than by Parliament exercising its sovereign law-making powers, it can be struck down by the courts if they conclude that it is ultra vires. This would be the case if the Government attempts to use delegated legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation with certain organizations) have not been satisfied.

🔑 Definition — Ultra Vires: beyond the power; a legal doctrine allowing courts to strike down delegated legislation made for a purpose not envisioned by the parent Act. 🔑 Definition — Judicial Review: a court’s power to review the actions of the other branches of government.

📌 Example: If a Minister uses delegated legislation to impose taxes when the parent Act only allowed regulation of public health, the courts would strike it down as ultra vires.

Note: There is a constitutional convention that the House of Lords does not vote against delegated legislation.

⭐ Key Takeaways

Delegated legislation is law made by government ministers or other bodies under powers granted by a parent Act, not by Parliament directly. The six types are Orders in Council, regulations, rules, schemes, directions, and byelaws — each serving different purposes from constitutional orders to local byelaws. Its main advantages are saving Parliamentary time, using expert knowledge, and handling emergencies swiftly; its main disadvantages are reduced scrutiny and risk of misuse. Delegated legislation has grown because Parliament cannot handle all legislative needs, government has technical expertise, and delegated law is easily amendable. Controls exist through parliamentary approval/veto and judicial review under the ultra vires doctrine, where courts strike down delegated legislation used beyond the parent Act's purpose.

🧠 Quick Revision Questions

1. What is the difference between an Order in Council and an Order of Council?
2. Name three advantages and two disadvantages of delegated legislation.
3. What does "ultra vires" mean in the context of delegated legislation?
4. List four factors responsible for the growth of delegated legislation in modern states.
5. What are the two main types of controls over delegated legislation and how do they work?

📘 Lecture 13 — Controls & Safeguards as Regard Delegated Legislation

📖 Overview: This lecture examines how delegated legislative powers are controlled to prevent abuse by the executive. It explores judicial, legislative, and other controls, emphasizing that while delegated legislation is a practical necessity, safeguards are essential to protect civil liberties and ensure the lawful exercise of power.

🗂️ Topics Covered

The lecture begins with definitions of delegation doctrine, delegate, delegator, and delegated legislation, then discusses the modern acceptance of delegated legislation alongside the risk of executive abuse. It covers the finding of a middle course between two conflicting principles, and then details three main categories of control: judicial control (substantive and procedural ultra vires), legislative control (laying on the table and scrutiny committees), and other controls (precise limits and trustworthy authorities).

📝 Lecture Summary

Introduction

The delegation doctrine is the principle that legislature has the ability to transfer its legislative power to another government branch, especially the executive. A delegate is an organ of a state who acts for another organ of a state. A delegator is one who delegates a responsibility to another. Delegated legislation is a rule or order, having legal force, usually issued by an administrative agency or executive organ of a state.

In modern world, it has been accepted that legislative power can validly and legitimately be delegated to the executive within permissible limits. However, there is a clear danger that the executive may abuse these powers for illegal or unreasonable purposes and may usurp civil rights and civil liberties of individuals. The Committee on Minister's powers stated: "though the practice of delegated legislation is not bad, risk of abuse are incidental to it and therefore safeguards are required if the country is to continue the advantages of the practice without suffering from its inherent dangers."

It is important to note that there is no inherent power of delegation in the legislature. The constitution simply confers power and imposes a duty on the legislature to enact laws. If the legislature delegates and crosses the implied limits, failing to perform essential legislative functions by determining legislative policy, it risks the enabling Act being declared ultra vires the constitution.

Finding Middle Course between two Conflicting Principles

Two basic principles conflict: one permitting wide delegation power for practical reasons to the executive, while the other argues that no new legislative bodies should be set up by transferring essential legislative functions to administrative authorities. Finding a middle course between these two is the need of the day.

Controls on Delegated Legislation

Control on delegated legislation is divided into three categories: (1) Judicial control, (2) Legislative control, and (3) Other control.

Judicial Control

Delegated legislation falls under the purview of judicial review. Courts are competent to decide the validity of delegated legislation. Two sets are applied: (i) Substantive ultra vires (ii) Procedural ultra vires

Substantive ultra vires: When a subordinate legislation goes beyond what the delegate is authorized to make law, it is known as substantive ultra vires. Powers delegated by statute are limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the powers granted, and on relevant consideration of material facts.

🔑 Definition — Ultra vires: [Latin for "beyond the powers"] An action that exceeds the legal authority or power granted to a person or body.

Grounds of Substantive ultra vires: Delegated legislation may be challenged on these grounds: (1) Where parent Act is unconstitutional (2) Where delegated legislation is unconstitutional (3) Where delegated legislation is inconsistent with the parent Act (4) Unreasonableness (5) Malafide (bad faith) (6) Exclusion of judicial review (7) Retrospective operation

📌 Example: In a case, certain employees were promoted to high post in accordance with the rule. Thereafter, a correction slip was added with retrospective effect, wiping out not only the promotion of the employee but even length of service for about nine years. The rule was held to be arbitrary (illogical; capricious; founded on prejudice rather than on reason) since it was not made to meet exigencies (a state of emergency) of service and there was no real objective or purpose behind it.

Effect of ultra vires act: An ultra vires action is null and void once the court declares that some administrative act is legally zero.

Procedural ultra vires: When a subordinate legislation does not comply with certain procedural requirements prescribed by the parent or enabling Act, it is known as procedural ultra vires. Where the enabling act requires the delegate to observe a prescribed procedure (such as holding consultation with particular bodies, publication of draft rules, or laying them before Parliament), it is obligatory on the delegate to comply. Failure may invalidate the rule.

Procedural requirements: Two basic procedural requirements exist: (1) Publication (2) Consultation

Publication: It is a fundamental principle of law that ignorance of law is no excuse (ignorantia juris non excusat), but there is an equally established principle that the public must have access to the law. Domatt's observation: "All laws ought to be known or at least laid open to the knowledge of the world in such a manner that no one may claim that he was ignorant of the law." For Acts made by Parliament, sufficient publicity occurs through bill introduction, printing, select committee reference, and mass media coverage. Jain & Jain stated: "it is essential that people are not caught on the wrong foot in ignorance of the rules applicable to them in a given situation."

💡 Why this matters: Without proper publication, citizens cannot know their legal obligations, making the principle "ignorance of law is no excuse" fundamentally unfair.

Legislative Control on Delegated Legislation

Where Parliament delegates legislative powers to the executive, it must also see that those powers are properly exercised. Jain & Jain stated that since it is the legislature which delegates power, it is primarily for it to supervise and control the actual exercise of those powers and ensure against the danger of objectionable, abusive, and unwarranted use.

The underlying object of parliamentary control is to keep watch over rule-making authorities and provide an opportunity to criticize them if there is abuse of power.

Legislative control can be effectively exercised by: (1) Laying on the table (2) Scrutiny committee

Laying on the table: In almost all Commonwealth countries, this procedure is followed. It serves two purposes: firstly, it informs the legislature as to what rules have been made; secondly, it provides an opportunity for legislators to question or challenge the rules already made or proposed.

Scrutiny committees: Since laying on the table has not always been mandatory, scrutiny committees are established to strengthen parliamentary control. The committee's function is to scrutinize and report to the respective houses whether the delegated legislation was done according to the law or constitutional parameters.

Conclusion: Parliamentary control is not entirely effective. Wade says: "one of the features of the 20th century has been a shift of the constitutional centre of gravity away from Parliament and towards the executive."

Other Controls on Delegated Legislation

Besides judicial and parliamentary control, other controls include:

• Precisely limiting the power of the delegate: The precise limits of law-making power should be expressly defined in clear and express language by the statute conferring it. When discretion is conferred, its limits should be defined with equal clearness.
• Court interpretation: Courts should interpret the law so that no blanket powers can be exercised by the executive while making rules, regulations, or bye laws.
• Trustworthy authorities: Only trustworthy authorities (e.g., Federal Government, Provincial Government) should be delegated power, as these authorities will exercise the power in a reasonable manner.

⭐ Key Takeaways

The lecture establishes that while delegated legislation is a practical necessity in modern governance, it carries inherent risks of executive abuse. Three main categories of control exist: judicial control through substantive and procedural ultra vires review, legislative control through laying procedures and scrutiny committees, and other controls including precisely defining limits of power and delegating only to trustworthy authorities. The effect of any ultra vires action is nullity. Ultimately, despite these safeguards, parliamentary control is not entirely effective, as constitutional power has increasingly shifted from Parliament to the executive over the 20th century.

🧠 Quick Revision Questions

1. What is the distinction between substantive ultra vires and procedural ultra vires in delegated legislation?
2. What are the seven grounds on which delegated legislation may be challenged for substantive ultra vires?
3. What are the two basic procedural requirements that must be complied with to avoid procedural ultra vires?
4. What are the two main methods of exercising legislative control over delegated legislation?
5. What is the legal effect of an ultra vires act once declared by a court?

📘 Lecture 15 — Distinction between Administrative Functions

📖 Overview: This lecture examines the three fundamental organs of state—Legislature, Executive, and Judiciary—and their respective functions. It explores the practical difficulties in clearly distinguishing between legislative, executive, and judicial functions, and analyzes the legal consequences that flow from such classifications, particularly concerning administrative, quasi-judicial, and quasi-legislative acts.

🗂️ Topics Covered

This lecture begins by introducing the three organs of state and their relationship, using the example of taxation to illustrate their distinct functions. It then examines the difficulty of precisely distinguishing between administrative, quasi-judicial, and quasi-legislative functions, providing definitions from scholars like Willis and Justice Holmes. The lecture further distinguishes legislative from judicial functions, legislative from administrative functions using tests by Griffith and Street, and quasi-judicial from judicial functions. Finally, it distinguishes administrative from quasi-judicial functions, providing examples of each.

📝 Lecture Summary

Three organs of state:

There are three basic organs of a state: (1) Legislature, (2) Executive, and (3) Judiciary. These three organs perform three kinds of functions; the ordinary function of the legislature is law-making or enactment of laws; the executive is to administer the law; and the judiciary is to interpret the law and to dispense justice to the masses.

🔑 Definition — Legislature: The organ of state responsible for making or enacting laws. 🔑 Definition — Executive: The organ of state responsible for administering the law. 🔑 Definition — Judiciary: The organ of state responsible for interpreting the law and dispensing justice.

Relationship between legislature, executive and judiciary:

The relationship between the three organs of state may be understood through the comments of Wade & Phillips. They narrate the relationship by quoting the example of taxation:

• "The enactment of a law authorizing a new tax is a legislative function."
• "The provision of machinery assessing and collecting the tax payable by each taxpayer is an administrative or executive function."
• "The determination of dispute between the taxpayer and the tax collector as to tax due in a particular case is a judicial function, involving the interpretation of law and its application to the facts of the case."

Similarly, in criminal law: the creation of a new offence is legislation, the enforcement of law is an executive function, and the trial of an alleged offender is a judicial function.

It was held in a case that it cannot be assumed that legislative functions are exclusively performed by the legislature, executive functions by the executive, and judicial functions by the judiciary. In Halsbury's Law of England, it is stated that there is no implication that the functions of the executive are confined exclusively to those of an executive. Today, the executive performs different functions, for example: it investigates, prosecutes, prepares and adopts schemes, issues and cancels licenses, adjudicates on disputes, and imposes fines.

Whether the functions performed by the executive are purely administrative, quasi judicial or quasi legislative?

It is very difficult to give a precise and clear-cut answer to this question. There is no scientific principle to distinguish these three functions from one another, yet the classification is necessary as many consequences flow from it. For example, if the executive authority performs quasi-judicial functions, then it has to follow the principle of natural justice.

Distinction between legislative, Executive and Judicial functions

Willis, in his treatise on Constitutional Law, states definitions by Mr. Green:

• Legislative power: The power to create rights, powers, privileges or immunities and their correlatives, as well as status, not dependent upon any previous rights, duties, etc.
• Judicial power: The power to create some rights or duties dependent upon a previous right or duty—the power to create remedial legal capacities and liabilities.
• Executive power: Power including all governmental power which is not part of the process of legislation or adjudication; the power concerned mostly with the management and execution of public affairs.

Distinction between legislative and judicial function:

In a case, Justice Holmes made the distinction between legislative and judicial functions as follows:

• "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end."
• "Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power."

According to Justice Holmes, a legislative function prescribes a future pattern of conduct and creates new rights and liabilities, whereas a judicial function determines rights and liabilities on the basis of present or past facts.

Professor Dickinson says: "What distinguishes legislation from adjudication is that the former affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely touched by it; while adjudication operates concretely upon individuals in their individual capacity."

Distinction between legislative and administrative functions.

To draw a distinction between the two, Griffith and Street have given two tests:

1. Institutional test: That which the legislature enacts is legislation, but the word 'enacts' includes all kinds of action taken by parliament; thus, this test is not appropriate.
2. Second test (Extent of applicability): A power to make rules of general application is a legislative power, and the rule is a legislative rule. A power to give an order in specific cases is an executive power, and the order is an executive action.

De Smith also says that a legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases, while an administrative act is the application of a general rule to a particular case. However, this test is also not complete; the difficulty is in distinguishing what is 'general' from what is 'specific,' as the difference is only a matter of degree.

In a case, Union of India versus Cynamide India Ltd., the Supreme Court observed: "With proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion."

Legal consequences flow from the distinction:

De Smith states that the following legal consequences flow from the distinction:

1. If an order is legislative in character, it must be published in a certain manner, but this is not necessary if it is of an administrative nature.
2. If an order is legislative in character, the court will not issue a writ of certiorari to quash it. If an order is an administrative order and the authority was required to act judicially, the court can quash it by issuing a writ of certiorari.
3. The duty to give reasons applies to administrative orders but not to legislative orders.
4. Only in most exceptional circumstances can legislative powers be sub-delegated, but administrative powers can be sub-delegated.

Distinction between quasi judicial function from judicial function.

Judicial function: According to the Committee on Ministers' Power, a pure judicial function presupposes an existing dispute between two or more parties and involves four requisites:

1. The presentation of the case by the parties to the dispute.
2. If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the dispute, often with the assistance of argument by or on behalf of the parties on evidence.
3. If the dispute is a question of law, the submission of legal argument by the parties.
4. A decision which disposes of the whole matter by finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.

Thus, in a pure judicial function, all four requisites must be present. If these requisites are present, the decision is a judicial decision even though it might have been made by an authority other than a court (e.g., a minister, board, executive authority, or administrative tribunal).

🔑 Definition — Quasi-judicial function: The word "quasi" means 'not exactly.' A quasi-judicial function presupposes a dispute between the parties and involves only two requisites:

1. The presentation of the case by the parties to the dispute.
2. If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties.

It does not necessarily involve the third requisite and never involves the fourth requisite.

A quasi-judicial function differs from a purely judicial function in the following respects:

1. A quasi-judicial authority has some of the trappings of a court but not all of them; nevertheless, there is an obligation to act judicially.
2. A lis inter partes (a controversy between two parties) is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function.
3. A court is bound by the rules of evidence and procedure, while a quasi-judicial authority is not.
4. A court cannot be a judge in its own cause, while an administrative authority vested with quasi-judicial power may be a party to the controversy but can still decide it.

Distinction between Administrative and quasi judicial function

Acts of an administrative authority may be purely administrative, legislative, or judicial. Decisions which are purely administrative stand on a wholly different footing from judicial as well as quasi-judicial decisions and must be distinguished. To make a distinction between administrative and quasi-judicial function, understanding of the two expressions 'Lis' and 'Quasi lis' is necessary:

• Lis: A piece of litigation; a controversy or dispute.
• Quasi lis: A piece of litigation which is the subject matter of administration.
• Lis inter partes: A controversy between two parties.

A function can be called quasi-judicial as distinguished from pure administrative when there is a lis inter partes and the administrative authority is to decide it between the parties and to adjudicate upon the lis. In such a situation, the authority will be acting as quasi-judicial.

There may be cases in which an administrative authority is to decide a lis not between two parties but between itself and another party. For example, where an authority makes an order granting legal aid, dismissing an employee, refusing to grant, revoking, suspending, or cancelling a license, cancelling examination results of a student for using unfair means, or rusticating a student—such decisions are judicial in nature. In all these cases, there are no two parties before the administrative authority (the other party to the dispute, if any, is the authority itself), yet there is a situation resembling a lis. In such situations, the administrative authority must decide the case objectively after taking into account the objections of the party before it. If such authority has exceeded or abused its power, a writ of certiorari can be issued against it.

📌 Example — Administrative functions:

1. Order setting up a commission of inquiry
2. Order for acquisition of property
3. Order of preventive detention
4. Order of assessment under the Sales Tax Act
5. Power to issue a license or permit

📌 Example — Quasi-judicial functions:

1. Dismissal of an employee on the ground of misconduct
2. Disciplinary proceeding against a student
3. Confiscation of goods under the Customs law
4. Forfeiture of pension or gratuity
5. Determination of citizenship

💡 Why this matters: The distinction between administrative and quasi-judicial functions determines which procedures must be followed (e.g., natural justice) and what remedies are available (e.g., writ of certiorari). Misclassifying a function can invalidate a decision or leave an affected person without recourse.

⭐ Key Takeaways

Students must remember that the three organs of state—legislature, executive, and judiciary—perform functions that are not always exclusive; the executive today performs quasi-legislative and quasi-judicial functions. The key tests for distinguishing functions include the future-oriented nature of legislation versus the past/present fact-based nature of adjudication, and the general applicability of legislative rules versus the specific applicability of administrative orders. A pure judicial function requires four requisites (presentation of case, ascertainment of facts, legal argument, and a final decision), whereas a quasi-judicial function requires only the first two. The legal consequences of classifying an action as legislative, administrative, or judicial are significant, affecting publication requirements, availability of writs, duty to give reasons, and the ability to sub-delegate power.

🧠 Quick Revision Questions

1. According to Wade & Phillips, what are the three different functions performed by the state in the context of taxation, and which organ of state typically performs each?
2. What is the difference between a legislative function and a judicial function as described by Justice Holmes?
3. According to Griffith and Street, what is the test to distinguish a legislative function from an administrative function?
4. What are the four requisites of a pure judicial function as per the Committee on Ministers' Power?
5. In what four ways does a quasi-judicial function differ from a purely judicial function?

📘 Lecture 16 — Public Interest Litigation

📖 Overview: This lecture introduces the concept of Public Interest Litigation (PIL), a legal mechanism that allows individuals or groups to seek judicial redress for the benefit of the public, especially for marginalized and disadvantaged sections of society. It explores the evolution, nature, and global application of PIL, focusing on its critical role in Pakistan for ensuring access to justice and upholding fundamental rights, while also addressing its inherent pitfalls.

🗂️ Topics Covered

The lecture begins with an introduction to Public Interest Litigation, defining it through various sources like the Ford Foundation and Black's Law Dictionary, and justifying its need in Pakistan due to widespread poverty and illiteracy. It then explains the nature of PIL as a participative and cooperative process for social welfare. The lecture provides a comparative overview of PIL in the USA, UK, China, and Pakistan, detailing its specific applications and importance in the Pakistani context. Finally, it discusses the evolved doctrine of locus standi in PIL cases and highlights the critical pitfalls and shortcomings courts must guard against when dealing with such petitions.

📝 Lecture Summary

Introduction to Public Interest Litigation

The Supreme Court and High Courts of Pakistan now entertain petitions filed pro bono publico (for the public good), marking a new chapter in the judicial system. The Ford Foundation USA defined 'Public Interest Law' as efforts to provide legal representation to previously unrepresented groups, such as the poor, environmentalists, consumers, and racial minorities, because the ordinary legal market fails them. In America, it gives a voice to those who cannot afford lawyers. In Pakistan, it is justified by the population's poverty and illiteracy, which denies millions access to justice.

🔑 Definition — Public Interest Litigation (PIL): A legal action initiated in a court of law for the enforcement of public interest or general interest, where the public or a class of the community has a pecuniary interest or some interest by which their legal rights or liabilities are affected. It provides all citizens with inviolable access to justice for the protection of fundamental human rights.

Nature of ‘Public Interest Litigation’

Public interest litigation focuses on social welfare and humanitarianism, evolving a new form of jurisprudence. It is part of participative justice and a legal aid movement to bring justice to the poor masses. PIL is not for enforcing one individual's right against another, but to promote public interest and address the violated rights of large, ignorant, and socio-economically poor groups.

💡 Why this matters: PIL is a cooperative effort between the petitioner, the state, and the Court, ensuring the rule of law protects not just the fortunate few but also the deprived. It offers the government a chance to assure social and economic justice, the "signature tune" of the constitution. Courts entertain PIL to ensure the observance of social and economic rescue programs, not in a confrontational manner.

Public Interest Litigation in Different Countries of the World

Public Interest Litigation in United States of America: After the 1960s social turmoil, the term 'Public Interest Law' became widely used. Louis Brandies, a future Supreme Court Judge, advocated for the public's interest, criticizing that "able lawyers... have neglected their obligation to use their powers for the protection of the people." During the 1960s and 70s, law graduates defined themselves as “Public Interest Lawyers” to distinguish themselves from “Corporate Adjuncts”.

Public Interest Litigation in United Kingdom: In the UK, "Public Interest" is used as a defense against certain lawsuits (e.g., libel) and as an exemption from laws (e.g., freedom of information). Under Common law, judges can make judgments on grounds of public policy.

Public Interest Litigation in China: While China does not follow the Common Law system, a small community of lawyers has gained acceptance for PIL as a legitimate means to resolve social issues. Chinese reformers believe that implementing an associational standing rule—allowing organizations to instigate lawsuits to protect members' interests—could speed up the development of public interest law.

Public Interest Litigation in Pakistan: PIL in Pakistan is interpreted by judges for the intent of the public at large, as it is not defined in any statute. Areas for PIL include: · Violation of basic human rights of the poor or vulnerable groups · Content or conduct of government policy · Compelling public authorities to perform a public duty · Violation of basic fundamental rights PIL is a selfless and noble undertaking to deliver civic justice through speedy redress of violated rights. It strengthens the rule of law, furthers justice, secures civil liberties, and accelerates constitutional objectives, as seen in the Supreme Court's suo moto actions. However, courts must be careful not to overstep into the executive or legislative domains.

Locus Standi & Public Interest Litigation

The traditional rule of locus standi requires a petitioner to be an "aggrieved person" who suffered a wrong. This rule has been evolved in countries with poverty, illiteracy, and ignorance that impede access to justice. Blindly following the Anglo-Saxon rule would close the doors of justice to the poor and deprived.

🔑 Definition — Evolved Locus Standi: Any public-spirited citizen, even with no greater interest than a regard for the due observation of the law, may move the courts if public authorities transgress any law or constitutional directive. The court can grant an appropriate legal remedy in its discretion. 📌 Example: In Muhammad Bin Ismail v. Tan Sri Hajji Othman Satt (1982-2 MLJ133), Justice Wan Yahya of Malaysia laid down this dictum, allowing any public-spirited citizen to challenge a public authority's transgression.

Pitfalls in Public Interest Litigation

Despite its cogent justification, PIL has grave pitfalls that courts must consider: (1) The court must verify the petitioner is a bona fide person or group, not acting for personal gain, and must not allow politicians to abuse the process for delaying lawful action or gaining political advantage. (2) Courts must distinguish between locus standi and justifiability, as not every default by a public authority is justifiable. (3) Courts must not overstep their judicial function and trespass into areas reserved for the executive and legislature. (4) Courts must consider the impact of their relief on the rights of persons not before the court. (5) While a court can treat a letter as a writ petition, it is not every letter that qualifies. It must be from an aggrieved person or a public-spirited individual where the communication carries a sense of responsibility. The danger is inherent when a letter is from a person with unknown antecedents and uncertain status.

⭐ Key Takeaways

The most critical point is understanding Public Interest Litigation (PIL) as a legal tool designed to provide access to justice for the poor and marginalized, moving beyond the traditional rule of locus standi which required a direct personal injury. Students must remember the evolved definition of locus standi from the Muhammad Bin Ismail case, which allows any public-spirited citizen to challenge a public authority's violation of law. The lecture also emphasizes the global recognition of PIL, particularly its growth in Pakistan via suo moto actions by the Supreme Court. Finally, it is crucial to remember the inherent pitfalls of PIL, especially the court's duty to ensure the petitioner is bona fide and to avoid encroaching on the executive and legislative domains.

🧠 Quick Revision Questions

1. According to the Ford Foundation, what is the primary goal of 'Public Interest Law'?
2. Explain the "evolved" doctrine of locus standi as it applies to Public Interest Litigation.
3. What are the key pitfalls a court must consider before entertaining a Public Interest Litigation petition?
4. Name one country besides Pakistan discussed in the lecture, and briefly describe how Public Interest Litigation is practiced there.
5. Why does the lecture state that the traditional Anglo-Saxon rule of standing is insufficient for countries like Pakistan?

📘 Lecture 17 — Introduction to Constitution

📖 Overview: This lecture defines the concept of a constitution as the supreme law of the land, distinguishing between written and unwritten constitutions and their legal consequences. It explains why written constitutions were historically demanded, their objectives, and the specific features of Pakistan’s constitutional framework, including the role of the Objective Resolution of 1949.

🗂️ Topics Covered

The lecture covers the definition of constitution by Bolingbroke, the narrower and wider meanings of constitution, kinds of constitution (written vs. unwritten), reasons for enacting written constitutions, legal consequences of written versus unwritten constitutions, the distinction between flexible and rigid constitutions, the scope of constitutional law in Pakistan, the three components of the Objective Resolution of 1949, the subjects of the Constitution of Pakistan 1973, and the distinction between constitutional law and administrative law.

📝 Lecture Summary

What is constitution?

Constitution is defined by Bolingbroke as “that assemblage of laws, institutions and customs, derived from certain fixed principles of reason... that compose the general system, according to which the community has agreed to be governed.” It is the Supreme law of the land, from which all public authorities derive their powers, all laws their validity, and all subjects their rights.

Kinds of constitution

The word ‘Constitution’ has two meanings: a narrower meaning (concrete sense) given to a written constitution, and a wider meaning (abstract sense) covering an unwritten constitution. The narrower meaning refers to a document with special legal sanctity (legal force) that sets out the framework and principal functions of the organs of government and declares the principles governing their operation. All private rights are determined according to constitutional law, and if there is a conflict between the Constitution and ordinary law, the latter must yield to the former. Administrative acts conflicting with the constitution and fundamental rights may be declared without lawful authority. In Pakistan, the Supreme Court is empowered with judicial review of administrative and legislative acts. The unwritten constitutions of the United Kingdom, New Zealand, and Israel are not covered by the narrower definition because they cannot be derived from a single document.

Why written constitutions are enacted?

Demand for written constitution arose after the American and French Revolutions. The objective of the written constitution was to meet two objectives:

1. The entrenchment (firmly established) of the principles of constitutionalism and limited government to control the three organs of the state.
2. The guaranteeing of basic human rights to the citizens.

🔑 Definition — Entrenchment: The process of firmly establishing constitutional principles so they cannot be easily changed or violated by ordinary legislative processes.

Tom Pain described: “A constitution is a thing antecedent to a government and a government is only the creature of a constitution... a constitution is not the act of a government but of a people constituting a government; and government without a constitution is a power without a right.” 🔑 Definition — Antecedent: Precursor or forerunner.

Legal consequences of the unwritten constitution

In Pakistan, the spirit of the constitution introduced a federal form of government whereby executive and legislative fields are divided into Federal and Provincial categories, with constitutional limits binding both. By virtue of a written constitution, certain rights of citizens described as basic or fundamental rights are placed beyond the reach of the three organs of state. Fundamental rights may be entrenched by requiring a special legislative procedure for amendment, or even by rendering them unalterable, as in the Federal Republic of Germany. Many written constitutions avoid concentration of power by adopting the principle of separation of powers, vesting legislative power in the legislature, executive power in the executive, and judicial power in the courts. The unwritten constitution cannot secure these objectives. For the establishment of a Federal system, a written constitution is necessary. The function of protecting the rights of individuals and minorities against legislative infringement cannot be accomplished in an extremely flexible unwritten constitution.

🔑 Definition — Separation of Powers: The principle of vesting legislative power exclusively in the legislature, executive power in the executive, and judicial power in the courts to avoid concentration of power in any one organ of state.

A flexible constitution is one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body. A rigid constitution is one under which certain laws (constitutional or fundamental laws) cannot be changed in the same manner as ordinary law. Under the Pakistan Constitution (Article 239), a bill to amend the constitution may originate in either house and when passed by the votes of not less than two-thirds of the total membership of the house, is transmitted to the other house where it is passed with or without amendment by the same majority. Where the constitution is written, it is easy to distinguish constitutional law from the rest of the legal system; but where the constitution is unwritten, there is no scientific distinction.

The constitutional law deals with the distribution and exercise of the functions of the government and the relations of government authorities to each other and to the individual citizen.

Subjects of the Constitution of Pakistan 1973

The scope of Constitutional law in Pakistan can only be determined with reference to the Objective Resolution of 1949. The Objective Resolution appeared as a preamble in all constitutions of Pakistan (1956, 1962, Interim 1972, and the present 1973 Constitution). The preambles are verbatim et literatim reproduction of the Objective Resolution with minor alterations.

The Objective Resolution has three distinct components:

1. Structural feature: The sovereignty of Almighty Allah descending on the people of Pakistan constituting the State of Pakistan is to be exercised through their chosen representatives. Individuals, authorities, institutions, and courts do not figure in this structure.
2. Qualitative feature (good): The sovereignty delegated by the Almighty to the chosen representatives is further delegated by them to the individuals, institutions, authorities, courts, and other instrumentalities of the State.
3. Normative feature (describing or setting standards): The norms, goals, and ideals of the state have to be spelt out with particularity for their achievement in the constitution.

The Constitution of Pakistan 1973 reflects the commands intended by the Objective Resolution and recounts to the following topics:

• Fundamental Rights, violation of which is redressable by the High Courts under Article 199 and by the Supreme Court under Article 184(3), and the limitations on Fundamental Rights.
• Principles of Policy for the general guidance of the Legislature, which are not cognizable by any court of law. 🔑 Definition — Cognizable: Capable of being judicially tried.
• The method of election of the President, terms and conditions of office, impeachment, and executive, legislative, and other powers. 🔑 Definition — Impeachment: The act of calling an official to remove him from office.
• The constitution of both Houses of Parliament, their relations, qualifications for membership, and privileges of members.
• The authority, powers, and working of the Federal Government, the Prime Minister, his Cabinet, and the status of Ministers, and similar matters relating to provincial government.
• The position of the Civil Servants, Armed Forces, the general system of Courts, their judicial power and jurisdiction, and the tenure and immunities of judges.
• The mode of amendment of the Constitution.

Note: Under unwritten constitutions, it is difficult to make a distinction between Constitutional law and Administrative law. In continental countries, a distinction is commonly drawn. The subject matter of Administrative law is public administration. Administrative law determines the organization, powers, and duties of administrative agencies. An important aspect is the control exercised by courts or tribunals over those powers, especially in relation to citizens’ rights. These tribunals or administrative courts may be established in respect of: (i) matters relating to terms and conditions of persons in service of Pakistan (including disciplinary matters), (ii) matters relating to claims arising from tortuous acts of government or any person in service of Pakistan, and (iii) matters relating to acquisition, administration, and disposal of enemy property.

⭐ Key Takeaways

A constitution is the supreme law of the land, and the key distinction is between written (narrower meaning, single document) and unwritten (wider meaning, derived from multiple sources) constitutions. Written constitutions were historically demanded to entrench constitutionalism, limit government power, and guarantee fundamental rights, which unwritten constitutions cannot fully secure. Pakistan has a written, rigid, and federal constitution whose scope is defined by the Objective Resolution of 1949, which has three features: structural (sovereignty from Allah to people through representatives), qualitative (delegation to state organs), and normative (setting state ideals). The 1973 Constitution covers fundamental rights, principles of policy, government structure, courts, civil service, armed forces, and amendment procedures, with a clear distinction between constitutional law and administrative law being possible only under written constitutions.

🧠 Quick Revision Questions

1. What are the two meanings of the word ‘Constitution’ and how do they differ?
2. What were the two main objectives behind the demand for written constitutions after the American and French Revolutions?
3. What are the three distinct components of the Objective Resolution of 1949?
4. Under which articles of the Constitution of Pakistan 1973 are fundamental rights violations redressable?
5. What is the difference between a flexible constitution and a rigid constitution, and how does Pakistan’s amendment procedure (Article 239) illustrate a rigid constitution?

📘 Lecture 18 — Right to Life & Liberty

📖 Overview: This lecture introduces the concept of fundamental rights, focusing on the right to life and liberty as enshrined in the Constitution of Pakistan 1973. It explores the definition of nationality, the scope of human rights in international law, and the specific constitutional protections and case law that define and expand these fundamental rights.

🗂️ Topics Covered

The lecture begins by defining a fundamental right and explaining nationality under Pakistani law, listing the ten kinds of citizenship under the Pakistan Citizenship Act 1951. It then discusses human rights in international law, emphasizing the Universal Declaration of Human Rights. The lecture covers the constitutional inviolability of human dignity under Sharia and Articles 14 and 3 of the Constitution, before providing a detailed analysis of Article 9 on the right to life and liberty, including its scope and relevant case law.

📝 Lecture Summary

What is fundamental right?

A right derived from Constitutional law is known as a fundamental right.

What is nationality or citizenship?

According to Black’s Law Dictionary (8th edition), nationality is "the relationship between a citizen of a nation and the nation itself, customarily involving allegiance by the citizen and protection by the state; membership in a state." Nationality is important as it relates to diplomatic protection abroad, immigration, deportation, and the negotiation of treaties. Nationality law is based on the doctrine of allegiance, which Blackstone defines as "the tie, or ligament which binds the subject to a state, in return for that protection which the state affords to the subject."

Under the Pakistan Citizenship Act 1951, there are ten kinds of Pakistan citizenship: (1) By birth in Pakistan before 14 August 1947. (2) By birth in India having domicile in Pakistan. (3) By naturalization as a British subject in Pakistan. (4) By migration to Pakistan from India before 13 April 1951, proved by a certificate issued under the Rules. (5) By birth in Pakistan after 13 April 1951. (6) By descent if born after 13 April 1951, if the father was a citizen of Pakistan at the time of his birth. (7) By migration from India between 13 April 1951 and 1 January 1952, acquired by registration granted by the Federal Government. (8) By migration to India from Pakistan after 1 March 1947 and returning to Pakistan under a permit for resettlement. (9) By registration of a person whose father or father’s father was born in India and was resident outside Pakistan before 13 April 1951 and has obtained a certificate of domicile. (10) By naturalization under the Naturalization Act, 1926 and registration as a citizen of Pakistan.

Human Rights in International Law

Human rights were introduced by the United States Declaration of Independence, 1776 and the Declaration of the Rights of Man and Citizen, 1789 of the French Revolution. The United Nations lists 19 major conventions of Human Rights and over 20 Declarations. The most important of all is the Universal Declaration of Human Rights, adopted by the General Assembly in 1948.

Dignity of man is inviolable

According to Sharia, it is the state’s duty to enhance human dignity and alleviate conditions. Article 14 of the Constitution of Pakistan 1973 lays down that the dignity of man is "inviolable". Article 3 lays down: "the State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of fundamental principle, from each according to his ability and to each according to his work." Article 39 sets down that the state shall secure the well-being of the people, irrespective of sex, caste, creed, or race, by raising their standard of living, preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest, and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants.

Right to Life & Liberty

Lord Atkin said that "right to life and liberty" is "one of the pillars of liberty". Article 9 of the Constitution of Pakistan 1973 provides that "No person shall be deprived of life or liberty save in accordance with law." This is the first fundamental right, found in Chapter 1 of Part II of the Constitution, in which 20 fundamental rights are enumerated. The provision of Article 9 is a declaration that no person is to take the life or liberty of another person except under a law authorizing him to do so. The person whose life and liberty is threatened is therefore entitled to require the person seeking to deprive him of the right to live or move freely to show the legal authority under which he is purporting to act.

The Lahore High Court, in Sakhi Daler Khan vs. Superintendent, set the petitioner at liberty as the respondent was arrested and detained in flagrant violation of the law. The High Court held that no authority can deprive a person, whether a citizen or not, of his liberty in violation of law, and the deprivation of liberty of the petitioner had to be declared without lawful authority and of no legal effect because it was not in accordance with the law.

🔑 Definition — Fundamental Right: A right derived from Constitutional law.

📐 Formula: Article 9 (Right to Life & Liberty): "No person shall be deprived of life or liberty save in accordance with law." → This means the state can only take a person's life or restrict their freedom if a law specifically allows it.

📌 Example: Sakhi Daler Khan vs. Superintendent: The respondent was arrested and detained in flagrant violation of the law. The Lahore High Court set the petitioner at liberty, holding that no authority can deprive a person of liberty in violation of law.

Scope of right to life

The right to life does not mean "restricted to mere vegetative life or animal existence." It means something more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing, and shelter, and other facilities necessary for life. The right to life includes the right to live with human dignity and all that goes along with it, namely, the facilities for reading, writing, and expressing in diverse forms, freely moving about and mingling and comingling with fellow human beings. It was held in a case that the right to life includes access to road in hilly areas.

Relevant Case Law

The Supreme Court of Pakistan in Shela Zia vs. Wapda (P.L.D. 1994 S.C. 693) held that environmental pollution caused by electromagnetic radiation of high voltage transmission lines of electricity posed a serious health hazard to the quality of life and was therefore violative of the right to life guaranteed by Article 9 of the Constitution of Pakistan 1973. The right to life includes the right to rehabilitation of bonded laborers who had been earlier released in pursuance of an order of the concerned court. In Article 9, deprivation of liberty means deprivation of the right to eat and sleep when one lies or to work or not work as and when one pleases, etc., and includes any assault on the body of a person for example, whipping, torture, blind folding, fettering, house arrest, solitary confinement, preventing a person from reading a book, religious or non-religious. In the absence of law or rule having the force of law authorizing it, such an act of invasion would be violative of Article 9.

💡 Why this matters: This expansive interpretation of the right to life and liberty means that a wide range of state actions, from pollution to poor prison conditions to lack of basic necessities, can be challenged as constitutional violations, making Article 9 a powerful tool for protecting citizens' rights.

🔑 Definition — Doctrine of Allegiance: The tie or ligament which binds the subject to a state, in return for that protection which the state affords to the subject.

⭐ Key Takeaways

The most critical takeaway is that a fundamental right is derived from Constitutional law, and the primary focus is Article 9, which guarantees that no person shall be deprived of life or liberty except in accordance with law. This right is not limited to mere survival but includes the right to live with human dignity, encompassing necessities like nutrition, shelter, and freedom of movement. Students must remember the ten kinds of Pakistani citizenship under the Pakistan Citizenship Act 1951 and the sources of human rights in international law. The landmark case of Shela Zia vs. Wapda is crucial for understanding how the right to life extends to environmental protection, while Sakhi Daler Khan vs. Superintendent reinforces that any deprivation of liberty must be strictly in accordance with the law. Finally, deprivation of liberty includes physical assaults like torture, whipping, and solitary confinement, all of which violate Article 9 if not authorized by law.

🧠 Quick Revision Questions

1. What is the definition of a fundamental right as taught in the lecture?
2. According to Article 9 of the Constitution of Pakistan 1973, under what condition can a person be deprived of life or liberty?
3. List three of the ten kinds of Pakistani citizenship under the Pakistan Citizenship Act 1951.
4. In the case of Shela Zia vs. Wapda, what specific activity was held to be a violation of Article 9?
5. Does the right to life, as defined in the lecture, only mean protection from being killed? Explain its scope.

📘 Lecture 19 — Definition of Arrest: Fundamental Right: Safeguards as to Arrest & Detention

📖 Overview: This lecture defines the concept of arrest and outlines the constitutional protections afforded to arrested persons under Pakistani law. It explains the distinction between arrest with and without a warrant, details the rights of the accused under Article 10 of the Constitution of Pakistan 1973, and covers the provisions related to preventive detention. Understanding these safeguards is crucial for ensuring that the fundamental right to liberty is not arbitrarily violated.

🗂️ Topics Covered

This lecture begins with a formal definition of arrest and its explanation, tracing its historical roots back to the Magna Carta and Petition of Rights. It then distinguishes between arrest with a warrant and arrest without a warrant, specifying what constitutes an arrestable offence. The core of the lecture details Article 10 of the Constitution of Pakistan 1973, covering the rights of arrested persons, the law of preventive detention, the definition and role of the appropriate Review Board, communication of grounds, furnishing of documents, maximum detention periods, and the constitutional right to file a writ of habeas corpus against illegal detention.

📝 Lecture Summary

Definition of arrest

"Arrest is the restraint of a man's person or liberty, obliging him to be obedient to law." Explanation: Arrest involves the physical seizure of a person's liberty by using force. Normally, Police or FIA has powers to arrest a person on account of some criminal offence done by a person. The provisions of Magna Carta 1215 and Petition of Rights 1627 provide that no man may be arrested or imprisoned except under due process of law.

🔑 Definition — Magna Carta 1215: (Latin for 'Great Charter') The English Charter that King John Granted to the Barons in 1215, generally regarded as one of the great Common Law documents and as the foundation of constitutional liberties.

🔑 Definition — Petition of Rights 1627: One of the great charters of English Liberty establishing that no man be compelled to make any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament.

🔑 Definition — Due Process of Law: The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights.

Usual course for the Police making arrest

Usually before making arrest, Police formally applies to a concerned Magistrate for issuance of a warrant for a person's arrest; the warrants are granted by the Magistrate on solid grounds and not otherwise. A 'general warrant' which does not contain the name of a person to be arrested is illegal.

🔑 Definition — Warrant: to authorize.

Arrest without warrant

The Police and Criminal Evidence Act 1984 provides a distinction between arrestable offences for which no warrant of arrest is necessary and non-arrestable offences for which a warrant of arrest is necessary. An arrestable offence is: (i) Any offence for which the sentence is fixed by law; that is, murder and treason; (ii) Offences carrying a penalty of five years or more imprisonment; (iii) Various listed statutory offences.

Article 10 of the Constitution of Pakistan 1973

(1) No person shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor shall be denied the right to consult, and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before a Magistrate within twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate. (3) The conditions contained in clauses (1) and (2) of Article 10 do not apply to any person who is arrested or detained under any law providing for preventive detention.

Persons to be dealt under the law of preventive detention

Clause 4 of Article 10 provides that no law providing for preventive detention can be made except "to deal with persons acting in a manner prejudicial to the integrity, security or defense of Pakistan or external affairs of Pakistan or public order or the maintenance of supplies or services." The article further provides that no such law shall authorize the detention of a person for a period exceeding three months unless the appropriate Review Board has afforded him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention. If the detention is continued after the period of three months, the Review Board must review his case and report before the expiration of each period of three months that there is sufficient cause for such detention.

🔑 Definition — Prejudicial: detrimental; harmful. 🔑 Definition — Integrity: honor.

Definition of appropriate Review Board

A Board, in the case of a person detained under Federal Law, appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court. In the case of a person detained under Provincial Law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons each of whom is or has been a Judge of a High Court. The opinion of the Review Board is "expressed in terms of the views of the majority of its members".

Communication of grounds of preventive detention

Under clause (5) of Article 10, when any person is detained under a law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. However, the authority may refuse to disclose facts which it considers to be against the public interest to disclose.

Furnishing of documents to Review Board

Under clause (6) of Article 10, it is incumbent on the authority making the order to furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.

Maximum limit for period of detention

Clause (7) of Article 10 provides that within a period of twenty four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained for more than a total period of eight months in the case of a person acting in a manner prejudicial to public order and twelve months in any other case. However, this condition does not apply to any person who is employed by, or works for, or acts on instructions received from the enemy or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or who commits or attempts to commit any act which amounts to an anti-national activity as defined in Federal Law or is a member of any association which indulges in any such anti-national activity.

Rights of arrested persons

There are four constitutional rights of an accused person: (1) He shall not be detained in custody without being informed, as soon as may be, of the grounds of his arrest. (2) He shall have the right to consult and to be represented by a lawyer of his own choice. (3) He has a right to be produced before the nearest Magistrate within 24 hours of his arrest, excluding the time spent on journey. (4) He is not to be detained in custody beyond the said period of 24 hours without the authority of the court.

Writ of habeas corpus against the persons found illegally detained by public authority

The High Court can issue directions in the nature of habeas corpus if a person is found to be illegally detained by Police. An order in the nature of habeas corpus is intended to preserve the liberty of the subject and is a safeguard against unlawful or improper manner of detention. This applies where no criminal case is registered against the detainee, he is handcuffed and fettered without any entry in the Roznamcha relating to his arrest, or he is not the accused in an FIR or is found confined in the precinct of the Police Station without entering his arrest in the daily diary. Proceedings in a habeas corpus petition are summary in character.

Who can file writ of habeas corpus?

Article 199 of the Constitution makes clear that a writ of habeas corpus need not necessarily be sought by an aggrieved person. A petitioner being an Advocate and a Director of a Human Rights Organization was even competent and had locus standi to file a writ of habeas corpus.

⭐ Key Takeaways

The fundamental right of an arrested person includes being informed of the grounds of arrest, consulting and being defended by a lawyer of his choice, and being produced before a Magistrate within 24 hours. Article 10 provides a comprehensive framework for both ordinary arrests and preventive detention, with mandatory review by a Board of senior judges for detentions exceeding three months. The maximum period of preventive detention is strictly limited, with an eight-month cap for public order cases and a twelve-month cap for others, though exceptions exist for anti-national activities. The writ of habeas corpus is a powerful remedy against illegal detention and can be filed by any concerned person, including advocates and human rights activists, not just the aggrieved party.

🧠 Quick Revision Questions

1. Define an arrest under law and identify the two key historical documents that established the principle of "due process of law" for arrests.
2. What is the primary distinction between an arrest with a warrant and an arrest without a warrant according to the Police and Criminal Evidence Act 1984?
3. According to Article 10(2) of the Constitution of Pakistan 1973, within what time frame must an arrested person be produced before a Magistrate, and what time is excluded from this calculation?
4. Describe the composition of the appropriate Review Board for a person detained under a Federal law providing for preventive detention.
5. Under Article 10(7), what are the maximum total periods of preventive detention for a person acting prejudicial to public order and for other cases?

📘 Lecture 20 — Fundamental Rights — (1) Protection Against Double Punishment

📖 Overview: This lecture explains the constitutional principle that no person can be prosecuted or punished more than once for the same offence, as enshrined in Article 13(a) of the Pakistan Constitution 1973. It also explores the related legal doctrines, statutory provisions, and judicial interpretations that define the scope and limits of this protection, establishing it as a fundamental right.

🗂️ Topics Covered

The lecture covers the protection against double punishment under Article 13(a) of the Pakistan Constitution, explaining the principle of autrefois convict and autrefois acquit from the Code of Criminal Procedure 1898. It also examines the related provision in Section 26 of the General Clauses Act 1897, the rule against double jeopardy (based on the Common Law maxim), and clarifies that subsequent trial for a "distinct" or "different" offence is not barred. Judicial interpretation through the case of Alamdar Hussain v. Abdul Baseer Qureshi (PLD 1978 SC 121) and commentary by Muhammad Munir are also included.

📝 Lecture Summary

Article 13 (a) — Protection Against Double Punishment

Article 13 (a) of the Pakistan Constitution 1973 provides that “no person shall be prosecuted or punished for the same offence more than once”. The word Prosecuted means to put on trial. The lecture explains that Article 13 (a) raises to constitutional status the principle of “autrefois convict” and “autrefois acquit” embodied in Section 403 of the Code of Criminal Procedure 1898.

🔑 Definition — Prosecuted: to put on trial 🔑 Definition — Convicted: found guilty 🔑 Definition — Acquitted: not found guilty 🔑 Definition — Bar: stop

Section 403 of the Code of Criminal Procedure 1898

This section of the Cr.P.C. 1898 provides the statutory basis for the protection. It states that a person who has once been tried by a Competent Court for an offence and convicted or acquitted of such offence, shall while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence (for which a different charge might have been made under Section 236, or for which he might have been convicted under Section 237 of the Cr.P.C. 1898).

Section 26 of the General Clauses Act, 1897

The principle also appears in a modified form in Section 26 of the General Clauses Act, 1897. This section provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any one of those enactments but shall not be liable to be punished twice for the same offence.

🔑 Definition — Act: do something 🔑 Definition — Omission: lapse; slip 🔑 Definition — Enactments: Laws made by Parliament

Exception — Subsequent Trial for a Distinct Offence

These provisions, however, do not bar subsequent trial for a ‘distinct’ or ‘different’ or ‘other’ offence as described in subsections (2) & (3) of Section 403 of the Criminal Procedure Code 1898. This means that the protection only applies when the second trial is for the same offence; a different offence can still be tried.

Rule Against Double Jeopardy

This principle is described by Americans as the rule against double jeopardy, which is based on the Common Law maxim: ‘nemo debet bis vexari pro una et eadem causa’. This means "no one should be troubled twice for the same cause." When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it takes the form of an acquittal or a conviction.

🔑 Definition — Jeopardy: trouble 🔑 Definition — Adjudicated: decision given

Judicial Interpretation (Alamdar Hussain v. Abdul Baseer Qureshi)

Dr. Nasim Hassan Shah, J. of the Supreme Court of Pakistan in Alamdar Hussain v. Abdul Baseer Qureshi PLD 1978 S.C. 121 held that the word ‘prosecution’ in Article 13 (a) of the Pakistan Constitution includes ‘punishment’. The result is that fresh prosecution for the same offence would be barred only where the prosecution was finally concluded and ended either in acquittal or conviction. 💡 Why this matters: This interpretation confirms that both being tried again and being punished again for the same offence are prohibited, but the prohibition only applies after the first prosecution has been completed with a final verdict.

Commentary by Muhammad Munir

According to Muhammad Munir (Constitution of the Islamic Republic of Pakistan Ed. 1975 p.128), Article 13 (a) “raises to a constitutional status the principle of autrefois convict and autrefois acquit embodied in section 403 of the Code of Criminal Procedure 1898 and a part of Section 132 of the Evidence Act 1872.” He further states, “the present Article prohibits both double prosecution and double punishment for the same offence.”

⭐ Key Takeaways

The most critical point is that Article 13(a) of the Pakistan Constitution establishes a fundamental right against being prosecuted or punished twice for the same offence. This right is based on the autrefois convict/acquit principle from the Cr.P.C. and the common law rule against double jeopardy. However, a key exception is that this bar does not apply if the subsequent trial is for a distinct or different offence. Finally, the Supreme Court in Alamdar Hussain clarified that the word "prosecution" in Article 13(a) includes "punishment," and the bar only applies once the first prosecution has concluded in a final verdict (acquittal or conviction).

🧠 Quick Revision Questions

1. What does Article 13(a) of the Pakistan Constitution 1973 provide regarding double punishment?
2. Explain the legal terms autrefois convict and autrefois acquit.
3. What is the exception to the rule against double punishment, as mentioned in the lecture?
4. What does the Common Law maxim 'nemo debet bis vexari pro una et eadem causa' mean?
5. According to the case of Alamdar Hussain v. Abdul Baseer Qureshi, when is a fresh prosecution for the same offence barred?

📘 Lecture 21 — Fundamental Rights ---- Protection Against Self Incrimination

📖 Overview: This lecture examines the constitutional protection against self-incrimination under Article 13(b) of the Constitution of Pakistan 1973. It explains who qualifies as an accused person entitled to this protection, and discusses how fundamental rights are enforced through the superior courts under Articles 184 and 199.

🗂️ Topics Covered

The lecture covers the principle of protection against self-incrimination as embodied in Article 13(b), its comparison with the American Fifth Amendment, the conflict between Article 13 and Article 44 of Qanun-e-Shahdat 1984, the definition of who is an "accused person" entitled to this protection, the enforcement of fundamental rights through High Court jurisdiction under Article 199, and the conditions under which courts must grant relief for violations of fundamental rights.

📝 Lecture Summary

Protection against Self Incrimination

Article 13 (b) of the Constitution of Pakistan 1973 provides that “no person shall, when accused of an offence, be compelled to be a witness against himself”. This provision embodies the principle of protection against compulsion, which is one of the fundamental canons of the British system of criminal jurisprudence. The same principle has been adopted by the American system and incorporated in the Federal Constitution; the Fifth Amendment of the American Constitution provides that “no person shall be compelled in any criminal case to be a witness against himself”.

Article 44 of Qanun-e-Shahdat, 1984 lays down that “all accused, including an accomplice, shall be liable to cross-examination”. Both these provisions, in so far as they make an accused person compellable witness and liable to compulsory cross examination, are ultra vires (going beyond the limit) Article 13 of the Constitution. For if any law compels an accused person to give evidence and such evidence will tend directly or indirectly to be self incriminatory, that law to that extent will be unconstitutional by reason of this Article.

🔑 Definition — Ultra vires: going beyond the limit or scope of legal authority 🔑 Definition — Prosecution: trial; hearing before a court 🔑 Definition — Accused: person on whom blame is laid upon

Who is given protection under Article 13?

The protection conferred by Article 13 is confined only to an accused person, that is a person against whom a formal accusation relating to the commission of an offence has been leveled, which in the normal course may result in the prosecution. The mere lodging of information or conducting investigation against a person does not make him an accused person.

It is not necessary, in order to avail the protection, that actual trial should have commenced before the Court. A person against whom an F.I.R. (First Information Report) has been lodged and investigation ordered can claim the benefit of the protection because he is an accused person.

💡 Why this matters: This distinction is critical — a person under investigation alone (without formal accusation) cannot claim the protection against self-incrimination, but once an FIR is lodged, that person becomes an "accused" and the protection applies.

Enforcement of Fundamental Rights

Provision of Article 199 (2) and 184 of the Constitution have set the superior courts with the responsibility to enforce the fundamental rights in case of complaint about their violation. Aggrieved (distressed; upset; annoyed) citizens, on the basis of the rule ex debito justitiae as a matter of right, can claim the redress of his grievance and for the enforcement of his fundamental rights, and there is little room for the discretion left in such cases.

The aim of having declaration of fundamental rights in the Constitution is that such rights should be regarded as inviolable under all conditions. According to Clause (1) (C) of this Article, the fundamental rights guaranteed in the Constitution are not mere a pious (virtuous) enunciation (articulation) of the principle on which the constitution is based but are made specifically justifiable in the clause under reference. They are not liable to be abridged (shortened) by any legislative or executive orders except by virtue of the provisions of the Constitution.

🔑 Definition — Ex debito justitiae: as a matter of right; without discretion

Law denying fundamental right

Where an order is passed by the Government which amounts to denial of fundamental rights, the court must grant proper relief to the party. It cannot refuse relief on the ground that the Government could amend the law to bring it in conformity with fundamental rights.

The power of the High Court to issue directions, orders and writs is not limited to the writs but extends to making of order restraining or directing any authority or Government discharging executive function. The High Court, while enforcing fundamental rights, is competent to direct that monetary compensation be paid to the victim of violation of Fundamental Rights.

Constitutional jurisdiction of High Court under Article 199 could not be invoked by anyone who was guilty of bad faith and of unconscionable conduct. The right was in the nature of ex debito justitiae, but would only be granted if the petitioner could show that their conduct was not such as to disentitle him of such relief.

⭐ Key Takeaways

Article 13(b) protects only an accused person from being compelled to be a witness against himself — mere investigation without formal accusation does not qualify. Article 44 of Qanun-e-Shahdat 1984 is ultra vires Article 13 because it compels accused persons to give evidence and submit to cross-examination. Superior courts under Articles 199 and 184 have the duty to enforce fundamental rights, and aggrieved citizens can claim redress as a matter of right (ex debito justitiae). Courts must grant relief for denial of fundamental rights and cannot refuse on the ground that the government could amend the law. Monetary compensation can be awarded to victims of fundamental rights violations, but the petitioner must not be guilty of bad faith or unconscionable conduct.

🧠 Quick Revision Questions

1. What does Article 13(b) of the Constitution of Pakistan 1973 specifically prohibit?
2. Why is Article 44 of Qanun-e-Shahdat 1984 considered ultra vires Article 13?
3. At what point does a person become an "accused person" entitled to the protection against self-incrimination?
4. What remedy can the High Court grant under Article 199 for violation of fundamental rights besides issuing writs?
5. Under what condition can a court refuse to grant relief under Article 199 despite a violation of fundamental rights?

📘 Lecture 22 — Fundamental Right — Inviolability of Dignity of Man

📖 Overview: This lecture examines Article 14 of the Pakistan Constitution of 1973, which declares the dignity of man and privacy of home as inviolable. It explains the constitutional protection against torture for extracting evidence, and explores how cruel, inhuman, and degrading punishments violate human dignity under both domestic and international law.

🗂️ Topics Covered

The lecture covers the three parts of Article 14, including the absolute guarantee of dignity of man, the qualified protection of privacy of home subject to law, and the prohibition of torture for evidence extraction. It discusses what constitutes violation of dignity through punishments like whipping, solitary confinement, and public hanging, referencing Supreme Court judgments and international declarations including the Universal Declaration of Human Rights and the Universal Declaration of Human Rights in Islam.

📝 Lecture Summary

Fundamental Right — Inviolability of Dignity of Man

Article 14 of the Pakistan Constitution of 1973 provides that “the dignity of man and, subject to law, privacy of home, shall be inviolable.” Dignity means self-respect. Subject to law means having regard to the law. Inviolable means sacred, unchallengeable, or unbreakable. The Article further provides that “no person shall be subjected to torture for the purpose of extracting evidence.” Torture means pain or suffering. Extract means take out or pull out. Evidence means something that tends to prove or disprove the existence of an alleged fact.

The Article is divided into three parts. The first part declares the dignity of man to be unbreakable. The second part makes the privacy of home inviolable, but this part is subject to law whereas the first part is not. The third part prohibits torture for the purpose of extracting evidence. Prohibit means ban.

🔑 Definition — Inviolable: sacred, unchallengeable, unbreakable; meaning the right cannot be violated or challenged. 📌 Example: The dignity of man under Article 14(1) is absolute and not subject to any legal limitation, unlike privacy of home which is subject to law.

Dignity of Man

Any law that violates the dignity of man will be unconstitutional. What law amounts to violation of the dignity of a man? Every law which provides inhuman and cruel punishments is violative of dignity of man, as for instance, whipping, solitary confinement, barbarous invasion on human personality. Even hanging may be considered a violation of human dignity. Note: In some countries, capital punishment has been abolished on the ground that it is inhuman.

The Supreme Court held that the dignity and self-respect of every human being has become inviolable and this guarantee is absolute. Chief Justice Supreme Court Dr. Nasim Hassan Shah in the matter of public hanging held in a case that “executing in public even the worst criminal violates the dignity of man, and therefore a law authorizing public hanging is unconstitutional.”

💡 Why this matters: This establishes that even the most serious criminal punishments must respect basic human dignity, and public execution is unconstitutional regardless of the crime.

🔑 Definition — Dignity of man: self-respect and inherent worth of every human being, protected as an absolute and unbreakable constitutional right.

Continuation on Dignity of Man

In every system of law, all unusual, cruel, and inhuman punishments are constitutionally declared as violative of human dignity. Unusual means strange or odd. Cruel means unkind or malicious. Violative means against. Thus in every system of law, all strange, unkind, and inhuman punishments are constitutionally declared as against human dignity.

On the view that the contemporary society takes of such punishments, the chopping off the hands and feet of convicts is considered cruel and inhuman because it involves torture, acute pain, and lingering death. Contemporary means present day. Convict means judicially pronounced guilty. Lingering means lasting.

The Universal Declaration of Human Rights of 10 December 1948, to which Pakistan is a party, provides in its Article 5 that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Universal Declaration of Human Rights in Islam Relating Dignity of Man

The Universal Declaration of Human Rights in Islam of 12 April 1980 states in its Article 7 that “it is not permitted to torture the criminal, still less the suspect: God will inflict punishment on those who have inflicted torture in the world.”

⭐ Key Takeaways

Article 14 of the Pakistan Constitution contains three distinct protections: the absolute and unqualified right to dignity of man, the qualified right to privacy of home (subject to law), and the prohibition of torture for extracting evidence. Any law providing cruel, inhuman, or degrading punishments like whipping, solitary confinement, or public hanging violates constitutional dignity and is therefore unconstitutional. The Supreme Court has held that even executing the worst criminal in public violates dignity of man, making such laws invalid. International human rights instruments, including the Universal Declaration of Human Rights and the Universal Declaration of Human Rights in Islam, reinforce this prohibition against torture and degrading treatment. The guarantee of dignity is absolute and not subject to any legal limitation, while the privacy of home may be restricted by law.

🧠 Quick Revision Questions

1. What are the three parts of Article 14 of the Pakistan Constitution of 1973?
2. Why is the privacy of home protection qualified by "subject to law" while the dignity of man protection is not?
3. According to the Supreme Court judgment by Chief Justice Dr. Nasim Hassan Shah, why is public hanging unconstitutional?
4. What does Article 5 of the Universal Declaration of Human Rights state regarding torture and punishment?
5. Why is chopping off hands and feet of convicts considered violative of human dignity under contemporary standards?