Good Governance And Administrative Law Go Hand-In-Hand

Good Governance And Administrative Law Go Hand-In-Hand

“Good Governance is not a phenomenon which can be described in words, it is rather a phenomenon which can be felt by people.”
- S.L Goel: Good Governance – An Integral Approach

Governance is not government itself as such. It is one of the characteristics of an institution that is concerned with governance or management of government. In most countries, it is the administrative or executive authority that caters to the management of government. Administrative law is the body of law which regulates the powers and functions of administrative authorities. It is first and foremost concerned with the discretion that normally accompanies the grant of power to authorities.

According to Dicey:

Administrative Law determines:

  • the position and liabilities of all state officials;
  • the civil rights and liabilities of private individuals in their dealings with officials as representatives of the state; and
  • the procedure by which these rights and liabilities are enforced.

The functions and objectives of today’s state, being a welfare state, have become wide and complex. Resultantly, wide discretionary powers have been granted to the executive organ of the state which has led to the development of Administrative Law. Administrative Law, being Public Law, aims to achieve the following objectives:

  • to keep watch on administrative authorities by making them act in accordance with the law;
  • to work in accordance with the principles of rule of law;
  • to work for public welfare; and
  • for better management of the government.

Good Governance – Concept And Object Of Administrative Law

Good governance is better management of the government. This concept relates to the quality of relationship between the government and citizens for whom it exists to “serve” and “protect” i.e. it is citizen-centric. To put it simply and more precisely, governance means the way that authority given to the government is used. Good governance implies the utmost concern for people’s welfare wherein public functionaries follow policies and discharge their duties with a deep sense of commitment, respecting the rule of law in a manner that is transparent, ensuring human rights and dignity, probity and public accountability.

In particular, Administrative Law governs the relation between the state and the individual. The following are elaborate functions of Administrative Law:

  • it regulates the relationship between state agencies and individuals;
  • it concerns the preservation of order and good administrative practices;
  • it concerns the welfare of public by curbing state authorities and preserving rights of individuals; and
  • it provides effective remedies through a proper mechanism.

Thus, good governance finds its origin from the development and growth of Administrative Law and becomes one of its primary objectives.

Characteristics Of Good Governance

According to the Annual Report of the Asian Development Bank in 1998, there are four pillars of governance: accountability, transparency, predictability and participation.

According to the UN Economic and Social Commission for Asia and the Pacific (UNESCAP), good governance has 8 major characteristics:

  • Participation by both men and women
  • Consensus oriented
  • Accountability of authorities
  • Transparency of system
  • Responsiveness of institutions
  • Effectiveness and efficiency
  • Equity and inclusiveness
  • Rule of law.

Good Governance As A Right

“Good governance was not a favor to be bestowed on the people; it was their right.”
– 2017 SCMR 683 (Suo Moto Case No. 19 of 2016)

Duties of Public Functionaries/ Executive Authorities With Respect To Good Governance

A state consists of three wings: the executive, the legislature and the judiciary. The executive is the strongest wing and runs the administration of the country. In parlance, the executive and administration have become synonymous.

“In a broad and collective sense, the executive organ embraces the aggregate or totality of all the functionaries which are concerned with the execution of the will of the state as that will has been formulated and expressed in terms of law.”
- J.W. Garner

As executive authorities play a vital role in the promotion of good governance, it is necessary for them to act in a fair and reasonable manner as highlighted by jurists and judges.

“The Administrative Authorities must act fairly, reasonable and according to law. This is the essence of administrative law.”
– Sir Robin Coke
_____

“Principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership as provided in Lord Nelson’s Report titled “Standard in Public Life” have to be applied in Pakistan.”
- Khan AsfandYar Wali vs. Federation of Pakistan (PLD 2001 SC 607)
_____

“Government should be upright, honest and there should be a strong bureaucracy which does not yield to their boss’s action.”
- Zaid Akhtar vs. Government of Pakistan (PLD 1995 SC 530)

According to Ali Azhar Khan Baloch vs. Province of Sindh 2015 SCMR 456, public functionaries had to reinforce good governance, observe rules strictly and adhere to rule of law in public service – public functionaries were not obliged to follow illegal orders of higher authorities.

Good Governance And Administrative Discretion

“Power tends to corrupt and absolute power corrupts absolutely.”
- Lord Acton

The same principle has been envisaged by Justice Douglas of the US Supreme Court in US vs. Wunderlich 342 US 89 (1951):

“Where discretion is absolute, man has always suffered. Absolute discretion is more destructive of freedom than any of man’s other inventions.”

Assurance of good governance is the duty of the administrative authorities. The underlying objective behind discretion is to promote justice and good governance by comprehension of a variety of facts in individual cases so as to avoid complications of general applications of rules and provisions of law. There are criterions laid down by the judiciary in order to exercise those discretionary powers:

“Object of good governance could not be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind—Such objective could be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Arts. 4 & 25 of the Constitution—Obligation to act fairly on the part of the administrative authority had been evolved to ensure the rule of law and to prevent failure of the justice.”
- 2015 SCMR 1257; 2011  PLC (CS) 1130

“Whenever discretion is to be given to the administrative authorities it should be structured by laying down the rules, conditions or parameters or by giving some remedies against its misuse. This can be done by the Parliament as well as the delegated authorities. There must be certain principles and policies for exercise of discretion. Objective of law must be taken into consideration providing viable a manner to achieve the objective. So, the administrative authorities should make exhaustive rules regarding the regulation of discretion.”
- PLD 1990 SC 1092

Judicial Control Is Paramount To Good Governance

“The administration of justice is the first pillar of good governance.”
- George Washington

For good governance, people’s faith in the judiciary is essential. According to Lord Bryce, “There is no better test of the excellence of a  government than the efficiency of a judicial system; for nothing more clearly touches the welfare and security of the average citizen than the feeling that he can rely on the certain and prompt administration of justice.”

As judiciary is the guardian of the rights of individuals, the welfare of the citizens greatly depends upon speedy, timely and impartial justice. Grant of administrative discretion to the administrative authorities has inevitably led to the abuse of discretion. It always needs to be checked by the courts as they are the efficacious state machinery to redress the grievances of the public against government officials. In Pakistan, the Constitution of Pakistan, by means of writs i.e Mandamus, Prohibition, Habeas Corpus, Quo-Warranto and Certiorari under Article 184(3) and 199, empowers the court to review orders of administrative authorities on the following grounds:

  • Malafide;
  • Improper purpose;
  • Irrelevant considerations;
  • Colourable exercise of power;
  • Non-compliance with procedural requirements; or
  • Infringement of fundamental rights. 

“If the court finds the existence and exercise of discriminatory, unreasonable, arbitrary and whimsical use of discretion against judicial norms and is exercised by the person other than the authority in whom the discretion is vested, the court can interfere and review such decisions.”
- 1999 SCMR 979

Good governance and Administrative Law go hand-in-hand. Good governance can be achieved by an efficacious, fair and responsible mechanism of administration which is regulated by Administrative Law. So, good governance requires effective working and implementation of Administrative Law, thereby also making the administration responsive, citizen-friendly, transparent and ethical.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Baran Khan Sherwani

The writer is an Advocate of the High Court, a Visiting Lecturer at the School of Law and a student of LL.M at Punjab University.



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