CONSEIL D'ETAT CONSEIL D'ETAT By SH. ABDUL HALIM JUDGE IN OWN CAUSE Nemo debet esse judex in propria causa.‑---(No one can be judge in his own cause). The maxim has been widely accepted as a rule of universal legal application, but a French experiment has put up a, successful challenge to the universality of this rule. In France the Executive acts as a judge in its own cause and in a manner inspiring the fullest confidence of the citizens. In the French system of Government, as in other systems also, the various wings of Government‑the Executive, the Judicial and the Legis lative‑have been given full independence and autonomy, but the French notion of such independence varies a great deal from that of other systems. In that country independence of each tier of Government means that each wing should be self‑contained and not liable to be interfered within its work ing by the other sections. The Executive is thus kept beyond the pale of the scrutiny of the Courts of law and is not amenable to their jurisdiction in respect of its administrative actions. FRENCH EXECUTIVE UNDER GREATER CHECKS But the Executive, as it would appear is not, in that country, allowed a free hand to exercise its discretion in an arbitrary manner and is the least autocratic of all other countries. It is, on the other hand, put under greater checks than in any other system and its administration is subjected to the sort of scrutiny which is perhaps unique in the history of advanced countries. This onerous and most responsible job is performed by a body of men gene rally recruited from amongst the ablest and most experienced civil servants of France, who form into a council known as the Conseil d'Etat. It belongs entirely to the Executive, regards itself as their protagonist, is their confidential and trusted adviser, and shares their inmost secrets. It does not, however, directly share in administration. Its primary assignment is to plan and prepare policies and to advise the Executive in matters of administration. CONSEIL'S POWERS Since efficient administration is not compalible with a disregard for the rights and prime liberties of the common man, the conseil claims and exercises direct authority over all members of the administration, including the Ministers, in respect of their administrative acts and has power to set them at naught by declaring them to be ultra vires. It is not subservient to Government and can call even, the Ministers to account as peremptorily as any ordinary citizen. The French view is that a Minister must be satisfied as to the correctness of the orders passed by him and that if he is so satisfied he must as Minister have to produce reasonable grounds upon which his satisfaction is based before any competent authority calling into question such orders and once he is possessed of such grounds he is automatically bound in duty to disclose them to the Conseil d'Etat, if so required. In other words, the mere subjective satisfaction of the Executive would not be enough, as in countries following the British system of law, to preclude the jurisdiction of the Conseil. The mere satisfaction of the administrator would not tie the hands of the Conseil nor can its jurisdiction be ousted on the plea of "reasons of state". All executive actions must be justified before it not merely in cause but also in effect. In short, every executive action must be supported by some reason and further that reason must also be true as a fact. Thus the Conseil has jurisdiction to inquire why a passport was not issued to a certain person, why certain persons were not taken up for appointment to a civil service, or even as to why a certain alien's property had been confiscated. It is through the instrumentality of this power that the Conseil prevents official injustice. The Conseil has thus aptly been described by Hamson as "the pledge of the possibility of administrative justice". The French citizen is at liberty to arraign the executive officers of the Government and even the ministers for their administrative acts to bring such acts to the test of reason. The Conseil, it will thus be seen, while belonging as it does wholly and entirely to the Executive, sharing their inner most secrets, framing their policies and lines of action, acting as their advisers and consultants, is yet, at the instance of the citizen, in its other function, the impartial and uncommitted judge of the executive action under challenge and admirably enough exercises both these apparently opposite and contra dictory functions. PROCEDURE FOLLOWED The French citizen, as already noticed, cannot only question official decisions and require their justification before the Conseil d'Etat but he is also relieved of all responsibility to prove his case to the hilt if only he can make out a prima facie case. Once the complainant could establish a prima facie case and maintain the balance of presumption in his favour, the sense of duty of the Conseil that it has as great an interest in due administration as the complainant himself and has personal responsibility to let no wrong order go unamended, would be provoked, and, thereafter, the Conseil will itself take up preparation of the case and move to obtain all required material, including secret files, without further reference to the complainant, leaving him as a mere spectator of the fight now taken up by the Conseil with the administrative authorities. The Conseil's function is not thus limited, as that of our Courts, to decision upon evidence produced by the parties but it acts as an active complainant, leaving the real complainant in the back ground. The Conseil will go still further. It is also anxious, in order to inspire public confidence, to transact business, not in camera, but in public. The complainant can attend the proceedings at all stages and the parties' counsel can address arguments on finalisation of the case. The decisions are also not kept sealed up in files but are reported in the press and kept by way of precedents in appropriate journals. In. this manner a system of law known as' the Administrative law is evolved and uniformly in adminis trative procedure and decisions is ensured. With the growth of this law, the discretionary powers of the executive are being gradually reduced so that in no long time the French administrator will be working, not as an administrator, but as a machine. The law thus produced is highly respected by all and sundry because it .emanates from a body of men well versed in administration and conversant with all of its ins and outs. Sweden is also following a similar example in its "Ombudsman". The Ombudsman is a Commissioner for grievances. It is his duty to investigate into complaints made against Government and its officers. The citizen may simply write, verbally complain, or even telephone to the Ombudsman to bestir his immediate necessary action. The Officer has wide powers of annulling executive decisions and can, pass orders with full effect like those of a Court of law. ADMINISTRATIVE LAW IN PAKISTAN In Pakistan, Administrative law is yet in the making. Its evolution was taken up by the superior Courts of the country only after the introduction into the Constitution of the basic rights of citizens known as the Fundamental Rights. The bureaucratic traditions left by one hundred years of colonial rule are now being gradually wiped out and the administration is being brought in line with the needs of the developing society. Let us hope that in the interest of just administration the superior Courts of our country, in whom the public have full faith, confidence, and pride, will extend the catchment area of their jurisdiction further into the adminis trative field. The Constitution has declared the rule of law for the country and where a matter has been left by the Legislature to the discretionary exercise of the Executive, the Courts can well require to be satisfied that the executive authority has acted as an executive authority, as contemplated by the Legislature, ought to have acted, namely, correctly and with natural justice. Power of superior Courts to do complete justice all round cannot, however, be adequately exercised unless their authority to issue directions, orders, or writs is extended to all matters And not limited merely to the enforcement of Fundamental Rights or to guard against violation of the Constitution or the law. Readers who desire to go into a comprehensive and fundamental study of the subject are advised to refer to Hamson's "Executive Discretion and Judicial Control" (Hamlyn Lecture Series) (Stevens publication) and Dr. S. M. Haider's scholarly thesis entitled, "Judicial Review of Administrative Discretion in Pakistan" to be published by the All Pakistan Legal Decisions: