topic of the assignment: problem of administrative law in Bangladesh
Contents of the assignment:
1. Introduction.
2. Objects of the assignment.
3. Definition of administrative law.
4. Constitution of Bangladesh and administrative law.
5. Rule of law in Bangladesh reality and prospects.
a. Meaning of rule of law.
b. Dicey,s theory of rule of law.
c. Rule of law in Bangladesh constitution.
d. Rule of law in Bangladesh and reality.
e. Observation.
6. Separation of power in Bangladesh.
a. Meaning of separation of power.
b. Reality of separation of power.
7. Ombudsman for Bangladesh theory, reality and prospects.
a. Meaning of ombudsman.
b. Ombudsman in Bangladesh constitution.
c.
Ombudsman Act' 1980.
d. Appointment
of the Ombudsman:
e. Qualification
of the Ombudsman.
f. Tenure of the Ombudsman.
g. Privileges of
Ombudsman.
h. Functions of
the Ombudsman.
i. Jurisdictions
of the Ombudsman.
j. Removal of
the Ombudsman.
k.
Organizational Structure.
l.
Specialization of Ombudsman.
m. Ombudsman –
Prospect.
8. Administrative
tribunal in Bangladesh.
9. Limitation 0f
administrative tribunal.
10. What are the problems created by
the administrative and solution?
11. Conclusion.
12. Bibliography.
Introduction:
The most significant and
outstanding development of the twentieth century is the rapid growth of
administrative law. It raise important questions about some
fundamental premises upon which the study and evaluation of administrative
has been based. Today Administration is not concerned with only pure
administrative function but also involved with a large number of
quasi-legislative and quasi-judicial Functions. Democracy is preferred to
any other system of governance because of its adherence to, rule of law,
fair dealing of good administration. In Bangladesh application of administrative law is big challenges although it has
some prospects. So we will try to discuss in this assignment what are the
challenges faces the administrative law in Bangladesh as well as prospects of the administrative law.
Object of the assignment:
·
The main object of the assignment to find out problem of
administrative law in Bangladesh.
·
What are the prospects of those problems?
·
What are the
problems created by the administrative and solutions?
Definition of administrative law:
According to Ivor Jennings:- Administrative law is the law relating
to the administration. It determines the organization, powers and duties of
the administrative authorities.
[The law and the constitution (1959) at
p.217]
According to 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.
[Administrative law Text (1959) at p. 1]
According to Wade: - administrative law is the; relating to
the control of governmental power. According to him, the primary object of
administrative law is to keep powers of the government within their legal
bounds so as to protect citizens against their abuse. The powerful engines
of authority must be prevented from running amok.
[Wade & Forsyth, administrative law
(2005) at pp.4-5]
According to Jain and Jain:- administrative law deals with the
structure, powers and functions of the organs of administration, the limits
of their powers, the methods and procedures followed by them in exercising
their powers and functions, the methods by which their powers are
controlled including the legal remedies available to a person against them
when his rights are infringed by their operation.
[Principles of administrative law (vol. 1, 1966) at pp.
12- 13]
At last we can say that administrative law is the slaw
governing the organization and operation of administrative agencies and
relations of administrative agencies with the legislature, the executive,
the judiciary and the public.
Constitution of Bangladesh and administrative law:
·
Preamble Bangladesh constitution states that, nationalism, democracy, socialism and
secularism shall be fundamental principles of the Constitution;
·
Further pledging that it shall be a fundamental
aim of the State to realize through the democratic process to socialist
society, free from exploitation-a society in which the rule of law,
fundamental Human rights and freedom, equality and justice, political,
economic and social, will be secured for all citizens.
· Article 14, states that, it shall be a fundamental responsibility of the State to emancipate
the toiling masses the peasants and workers and backward sections of the
people from all forms and exploitation.
·
Article 16 states that, it shall be a
fundamental responsibility of the State to attain, through planned economic
growth, a constant increase of productive forces and a steady improvement
in the material and cultural standard of living of the people, with a view
to securing to its citizens-
(a) The provision of the basic necessities of life, including food, clothing, shelter,
education and medical care.
· Article 17 states that, the State shall adopt effective measures for
the purpose of –
(a) Establishing a uniform, mass-oriented and universal system
of education and extending free and compulsory education to all children to
such stage as may be determined by law ;
(b) Relating education to the needs of society and producing
properly trained and motivated citizens to serve those needs; removing
illiteracy within such time as may be determined by law.
·
Article 19 states that, the State shall
endeavor to ensure equality of opportunity to all citizens.
The State shall adopt effective measures to remove social and
economic inequality between man and man and to ensure the equitable
distribution of wealth among citizens, and of opportunities in order to
attain a uniform level of economic development throughout the Republic.
· Article (26-47) all fundamental rights.
All of these above articles are regarding the administrative
law.
Rule of law in Bangladesh reality and prospects:
The term 'Rule of Law' is derived from the French phrase 'La Principe the legality' (the
principle of legality) which refers to a government based on principles of
law and not of men. In this sense the concept of 'La Principe the Legality'
was opposed to arbitrary powers.
The rule of law is old origin. In thirteenth century Bracton,
a judge in the reign of Henry III wrote-
"The
king himself ought to be subject to God
and the law, because law makes
him king."
Edward Coke is said to be the originator of this concept, when he
said that the king must be under God and law and thus vindicated the
supremacy of law over the pretensions of the executives. Professor A.V.
Dicey later developed on this concept in his classic book 'The Law Of The
Constitution.' published in the year 1885. Dicey's concept of the rule of
law contemplated the absence of wide powers in the hands of government
officials. According to him wherever there is desecration there is room for
arbitrariness.
The rule of law is a viable and dynamic concept and like many other
such concepts, is not capable of any exact definition. Its simplest meaning
is that everything must be done according to law, but in that sense it
gives little comfort unless it also means that the law must not give the
government too much power. The rule of law is opposed to the rule of
arbitrary power. The primary meaning of rule of law is that the ruler and
the ruled must be subject to law and no one is above the law and hence
accountable under the law. It implies the supremacy of law and the
recognition that the law to be law can not be capricious.
DICEY'S THEORY OF RULE OF LAW
According to Dicey, the rule of law is one of the fundamental
principles of the English constitution he gave three meanings of the
concept of rule of law.
1.
Absence of Arbitrary Power or Supremacy of Law
Explain the first principle, Dicey states that rule of law means the
absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power or wide discretionary power. According to him
Englishmen were ruled by the law and by the law alone; a man with us may be
punished for breach of law, but can be punished for nothing els.6 In this
sense the rule of law is contrasted with every system of government based
on the exercise by person in authority of wide arbitrary or discretionary
powers of constraint.
2. Equality Before Law
Rule of law, in the second principle, means the equality of law or
equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts. In this sense rule of law conveys
that no man is above the law; that officials like private citizens are
under a duty to obey the same law, and there can be no Special court or
administrative tribunal for the state officials.
3.
Constitution is the result of the ordinary law of the land
The rule of law lastly means that the general principles of the
constitution are the result of judicial decision of the courts in England. In many countries right such as right to personal liberty, freedom
from arrest, freedom to hold public meeting are guaranteed by a written
constitution; in England, it is not so. Those rights are the result of
judicial decisions in concrete cases which have actually arisen between the
parties. The constitution is not the source but the consequence of the
rights of the individuals. Thus, dicey emphasized the role of the courts of
law as grantors of liberty.
RULE OF LAW AND THE
CONSTITUTION OF BANGLADESH
The rule of law is a basic feature of the constitution of Bangladesh. It has been pledged in the preamble to the constitution of Bangladesh that –
"It
shall be fundamental aim of the state to realize through the democratic
process a socialist society, free from exploitation - a society in which
the rule of law, fundamental human rights and freedom, equality and
justice, political economic and social, will be secured for all
citizens."
In accordance with this pledge the following positive provisions for
rule of law have been incorporated in the constitution:
Article 27 guarantees that all citizens are equal before law and are
entitled to equal protection of law. Article 31 guarantees that to enjoy
the protection of the law, and to be treated in accordance with law, is the
inalienable right of every citizen, wherever he may be and of every other
person for the time being with in Bangladesh, and in particular no action
detrimental to the life, liberty, body, reputation or property of any
person shall be taken except in accordance with Law.18 fundamental rights
have been guaranteed in the constitutional arrangement for their effective
enforcement has been ensured in Articles 44 and 102. Article 7 and 26
impose limitation on the legislature that no law which is inconsistent with
any provision of the constitution can be passed. In accordance with Article
7, 26 and 102(2) of the constitution the supreme court exercise the power
of judicial review whereby it can examine the extent and legality of the
actions of both executive and legislative and con declare any of their
actions void if they do anything beyond their constitutional limits. Right
to be governed by a representative body answerable to the people have been
ensured under Articles 7(1), 11, 55, 56,
57 and 65(2) of the constitution.18 All these provisions of
constitution are effective for ensuring rule of law in Bangladesh. But facts on the ground tell a different s a different story
altogether.
RULE OF LAW IN BANGLADESH
Laws, rules and procedures framed under them exist to cover every
walk of our national life, though there may be parities in number and
shortcomings in scope. Our constitution contain plethora of laws while
institutions like courts, ministries and departments have been set up to
dispense justice and decisions in accordance with the present state of the
rule of law revels the riddle of having a body of law and at the same time
not having it. It is like a person who is brain dead. Some aspects of the
rule of law in our society and polity should be mentioned as under:
First, access to law as well as equality before it, are reserved for only
those who are privileged. For the rest of the population, more or less the
Hobbsian law of nature prevails. They are the helpless victims of as unjust
society that sets great story by privileges.
Second, all government in this country since the fall of Ershad have claimed
that there is independence of judiciary. The claim is only partially true,
while the higher courts enjoy a certain measure of independence; the lower
courts are under the direct control of the law ministry. The judges look up
to the Ministry for everything infect they are obliged to. The principle of
separation of judiciary from executive is being violated in two ways -
1. Magistrates are performing dual function of both executive and
judiciary which is not desirable in the interest of justice.
2. The service of district and session judges, their transfer,
promotion etc. are controlled not by the supreme court but by the law
ministry.
Third, The government of Bangladesh continued to use the Special Power Act of 1974 and section 54 of
the criminal code which allow for arbitrary arrest and preventive
detention, to harass political opponents and other citizens by detaining
them without formal charges.
Fourth, The very principle that law should take its own course requires that
in investigation and preparation and submission of the charge sheet, the investigating
agency should be free from, encumbrances influences and threats of all
kinds. Unfortunately, that situation does not obtain in today's Bangladesh. In recent years a large number of political killings have taken
place. The national dailies have carried the stories of all the gruesome
murders and the whole nation has been out raged. What is however deplorable
is that in most of these highly publicized cases the culprits have not been
brought to justice. The reason is not far to seek. It is the interference
by high ups in the political ladder.
Fifth, Another aspect of rule of law relates to the limits of law making power of the
parliament itself. Our constitution quite rightly declares the people as
the repository of all power and they use it through their elected
representatives. However, the question arises whether the parliament can
make laws curbing the democratic rights the people, which are generally
considered as unreasonable. The special power Act of 1974 the public safety
Act passed former Awami Liege Government etc. which are used to put
political opponents behind the bars, deserve special mention, so,
the question arises can such pieces of legislation promote rule of law?
Obviously, not. One the other hand the government always with a view to
avoiding debates make laws by ordinances and later gets them appointed
under the sweeping power of article 70 of the constitution.
Sixth, Rule of law postulates intelligence without passion and reason free
from desire in any decision regarding matters concerned with governance. In
our society, the principle is being ignored on many grounds as quotas for
political activists by the name of honor to freedom fighters, special
provision for individual security etc.
Seventh, Police is no doubt a very powerful institution for the endorsement
of the rule of law. But in Bangladesh, the police has never been friendly with the public. The police
serve the government and enjoys, in exchanges, the freedom to act
arbitrarily and in the material interests of its own members.
Eighth, Ordinance making power can be supported only in emergencysituation
like national crisis, national calamity severe economic deflection etc.
demanding for immediate legislative actions. But article 93 of the
constitution allows the president to promulgate ordinances anytime during
the recesses of parliament session.
On the other hand Article 141(A) empowers the president to declare
emergency whenever he wishes. By declaring emergency in peace time the
government can suspend fundamental rights and suppress the opposition
movement. This mounts to avowed arbitrary exercise of power on the part of
the government which is contradictory to the concept of rule of law.
Ninth, Another disgusting aspect of our judicial system is that there is
the charge of corruption against our judiciary. Moreover, justices oftener
than not, a costly commodity in our country. The poor people could not
reach before the judges only because of mobility to meet the charge
required for going through the complicated process of litigation. Thus,
they prefer injustice than fatigue.
Tenth, In order to provide quick relief and avoid lengthy proceedings of
litigation providing for the creation of Administrative Tribunal
particularly for service matters which needs special treatment and
experience is not undemocratic something.
But this tribunal has been kept outside the writ jurisdiction of the
High Court Division under article 102(5). Also it has been kept out of the
supervisory jurisdiction of the High Court Division. This provision has
therefore, been contradictory to the concept of integrated judicial system
and also contrary to the concept.
OBSERVATION
The above discussion makes it clear that though there are some
positive provisions for ensuring rule of law in Bangladesh Constitution, they
are being outweighed by the negative provisions. Though our constitution
provides for 18 fundamentals rights for citizens, these remain meaningless
version to the masses because due to poverty and absence of proper legal
aid the poor people cannot realize them .22 It also clear that the
application of the principle of the rule of law is merely a farce in our
country. However, prospects for establishing society purely based on the
democratic principle of the rule of law is not totally absent from the
polity. We have a constitutional government elected through a free and fair
election. But what is needed for the very cause of the principle of
democratic rule of law is-
To separate the judiciary immediately from the executive ;
To appoint an ombudsman for the sakve of transparency and
democratic accountability ;
To make the parliament effective and to let the law making body to
do its due business in cooperation with each other government and opposition;
To reform the law enforcing agencies and police force to rid them
out of corruption and to free them from political influence so that they
could truly maintain the rule of law;
To forge national unity and politics of consensus built around the
basic values of the constitution, namely democracy, respect for each others
human rights, tolerance, communal harmony etc.
Ombudsman for Bangladesh theory, reality and prospects:
The term Ombudsman was derived from the Germanic language and has
its roots from the early days of Germanic tribes. The person who was chosen
from a neutral group to collect blood money (Wergild) on behalf of the
wrongdoer was called Ombudsman (Chowdhury, 1996: 7). But the modern office
of Ombudsman was first conceived in Sweden by the Swedish Constitution Act 1and09, over 193 year ago. It has
an even earlier prototype, the King's Chancellor of Justice, which extends
far back into Swedish history (Rowat, 1967: 135). Today, however, the
experienced persons having authority to inquire into and pronounce upon
grievances of citizens against public authority are entitled as Ombudsman.
The Swedish word "ombuds" means "officer" or
"spokesman" or "representative" (Wade, 1967:12) It also
connotes "attorney, solicitor, deputy, proxy, delegate and
representative agent."
Many scholars defined Ombudsman in different perspective. Now, I
give some important definitions given by famous writers and scholars.
According to Davis Ombudsman "-- occupies a position of high prestige
in the Government and his job is to handle complaints from any citizen who
displeased with the action or in action of any administration or civil
servant." (Davis, 1961 : 1057-1076). Justice report defined Ombudsman
as "an officer of parliament be appointed who has as his primary
function the duty of acting, as an agent for parliament for the purpose of
safeguarding citizens against abuse or misuse of administrative power by
the executives." (1961; Para:2). According to Bernard Frank, "Ombudsman means an office
established by constitution or statute headed by an independent, high level
public official who is responsible to the legislature, who receives
complaints from aggrieved persons against government agencies, officials
and employees or who acts on his own motion, and has power to investigate,
recommend corrective action and issue reports". (Frank, 1986:11)
According to oxford dictionary "Ombudsman is an official
appointed by a government to investigate and report on complains made by
citizens against public authorities".
Professor Rowat in his famous book "The Ombudsman: Citizen's
Defender" wrote that,"Ombudsman is an independent and politically
neutral officer of the legislature who receives and investigates complains
from the public against administrative action and who has the power to
criticize and publicize but not the reverse such action." (Rowat,
1986:1X).
According to Loewenstein, "Ombudsman is an independent official
chosen by Parliament to watch over the administrative services in whose
practices the general public is interested."(Loewenstein, 1965:403).
Professor Cutchin Defined Ombudsman as," a respected, a
political individual outside the bureaucracy who is empowered to
investigate citizen's complaints about government services and recommend
rectification. Usually he has the power to investigate, criticize and
publicize administrative actions, but can't reverse them". (Cutchin,
1981:68 ).
According to professor Garner, "Ombudsman is an officer of
parliament, having as his primary function, the duty of acting as an agent
for parliament, for the purpose of safeguarding citizens against abuse or
misuse of administrative power by the executive."(Garner, 1981:92)
Reviewing the above-mentioned definitions, it can be ascertained
that Ombudsman is an independent and nonpartisan officer of the
legislature, provided for by law, who an experienced person is having
authoring to inquire into pronounce upon grievances of citizens against
public authorities.
Constitutional Provision On
Ombudsman:
After the independence of Bangladesh the framers of the constitution adopted in 1972 the concept of
Ombudsman or Naypal (Islam, 1994:208). Article 77 of the constitution
provides:
(i) Parliament may, by law, provide for the establishment of
Ombudsman.
(ii) The Ombudsman shall exercise such powers and perform such
functions as parliament may by law, determine, including the power to
investigate any action taken by ministry, a public officer or a statutory
public authority.
(iii) The Ombudsman shall prepare an annual report concerning the
discharge of function and such report shall be laid before parliament
(Constitution, 1972). Being persuaded by the fact that an institution like
the Ombudsman would be essential for safeguarding the interest and rights
of the public in Bangladesh from mal administration or administrative excesses.
Ombudsman Act' 1980
The main characteristics of Ombudsman Act 1980 are:
(a) There shall be an Ombudsman who shall be appointed by the
president on the recommendation of the parliament.
(b) Parliament shall recommend for appointment as Ombudsman a person
if known legal or administrative ability and conspicuous integrity.
(c) It shall come into force on such date as the Govt. may, by
notification in the official Gazette, appoint.
(d) The Ombudsman shall, subject this section, hold office for a
term of three years from the date on which he enters upon his office, and
shall be eligible for reappointment for one further term.
(e) The Ombudsman shall not be removed from his office except by an
order of the president passed pursuant to a resolution of parliament
supported by majority of not less than two thirds of the total numbers of
parliament on the ground of proved misconduct or physical incapacity.
(f) The Ombudsman may investigate action taken by a ministry, a
statutory public authority, or a public officer in case where a complaint
in respect of such action is made to him by a person.
(g) Ombudsman shall have the power to punish any person who, without
lawful excuse obstructs him in the performance of his functions with simple
imprisonment, which may extend to three months, or with fine which may
extend to two thousand taka, or with both.
In the following discussions, an attempt has been taken to
critically assess the various provisions of the act and for success full
efficient functioning of the system, some proposal have also been put
forward.
Appointment
of the Ombudsman:
Theoretically there are three available modes of appointment of
Ombudsman in the world:
1. Appointment by the National Assembly or Legislature;
2. Appointment by the Head of the State;
3. Appointment by the Head of the State on the recommendation of
Parliament.
In Bangladesh, the Ombudsman Act 1980 provides for the third type of appointment,
which sounds logical and rational, because the political system based on
the parliamentary spirit is yet to develop in our country. But in the Act,
nothing is mentioned regarding the role of the opposition parties in
molding the recommendations to be sent to the President. In such a
situation, the Ombudsman would certainly be recommended by the ruling
party, which, in the long run ruin the independence, accountability and
impartiality of the institution. Therefore, in the context of Bangladesh polities Ombudsman should be appointed by the President on the
consensus of all parties in parliament to ensure acceptability of the
Ombudsman to all.
Qualification of the
Ombudsman
As regards the qualifications of the Ombudsman, the Act only states
that, "the Ombudsman shall be a person of known legal or
administrative ability and conspicuous integrity." But a person with
legal capability may not have the requisite administrative ability and
similarly a person with administrative capability may not have the legal
ability, which is more essential for the post of Ombudsman (Ahmed,
1993:48).
But only law is not enough. The Ombudsman also requires substantive
experiences and insight into public administration. Thus the provision
regarding qualification requires little modification. Another defect with
the act of 1980 is that it is completely silent regarding the age of the
Ombudsman, which is an integral aspect of its qualification. Besides, the
term 'conspicuous integrity' should be defined precisely within the Act.
Tenure of the Ombudsman:
According to the provision of the act, "the Ombudsman shall
hold office for a term of three years from the date on which he enters upon
his office and shall be eligible for reappointment for one further
term." It seems that three years are not adequate to be efficient and
successful in handling the affairs, which will fall within his domain. It
is therefore desirable that the Ombudsman's tenure of office should also be
equal to that of the President and parliament and be renewable for a
further term depending upon his performance of the pervious term.
Privileges
of Ombudsman
The remuneration, privileges and other conditions of service of the
Ombudsman shall be the same as are admissible to a judge of the Appellate
Division of the Supreme Court. The conditions of the service of a judge of
the Appellate Division of the Supreme Court have been enumerated into the
Constitution of the People's Republic of Bangladesh.
Functions of the Ombudsman
Generally, an Ombudsman may receive complaints from three sources:
i. Complaints sent to him by the members of the people (MPs);
ii. Complaints made to him by any person; and
iii. The Ombudsman may, on the basis of the newspaper comment or
otherwise, proceed suo motu. (Halim, 1998:291)
Besides these, the Ombudsman can undertake periodic tours of
inspection in various regions of the country to see for himself the state
of affairs. The act of 1980 is not very clear regarding the Ombudsman's
procedure of work in our country. In a populous country like ours, whatever
method may be used, there will be numerous cases to investigate. Thus,
identifying a particular one or two is not desirable. Because, one or two
may have 'in-built' shortcomings with them.
The Ombudsman can also act as an agency to suggest administrative
and law reforms. He may assume the role of a legislative advisor. He may
call attention of the legislature to the desirability of reconsidering any
law he believes has produced unreasonable, unjust, oppressive or
discretionary results. (Ahmed, 1993:59).
Jurisdictions of the Ombudsman
The Ombudsman Act 1980, narrows down the Jurisdictions of the
Ombudsman in Bangladesh by precluding the President, Prime Minister, Judges of the Supreme
Court including High Court, Magistrates, the Chairman and Members of the
Public Service commission and the Comptroller and Auditor General from his
supervision. But since independence, the charges of corruption against
President, Prime Minister and Cabinet Ministers are higher than those of
the administrative officials.
Therefore, for ensuring transparency of the administration everybody
in the service of the Republic should be open to investigation by the
Ombudsman in Bangladesh irrespective of his status and position.
Removal of the Ombudsman
The Ombudsman Act 1980, states that the Ombudsman shall not be
removed from his office except by an order of the President pursuant to a
resolution of the Parliament supported by a majority of not less then two-
thirds of the total number of members of the Parliament on the ground of
proved misconduct or psychological incapacity. Provided that on such
resolution shall be passed until the Ombudsman has been given reasonable
opportunity of being heard in person. He may resign his office by writing
his hand addressed to the president.
Organizational Structure
Organizational structure of the office of the Ombudsman may be determined
with reference to his functions and workload. But it can be predicted that
in the land of 120 million people the workload is likely to be enormous.
Therefore, there should be reasonable number of personnel within the office
of Ombudsman. Six divisional Ombudsmen may also be appointed by the
Ombudsman s his deputy with sufficient staff under them to deal primarily
with their respective divisional complaints. They will make preliminary
checks on the physical existence of the complaint and the bonafide of the
case for investigation and forward the complaint with their preliminary
comments to the Ombudsman. However, the personnel required to carry out the
functions of the Ombudsman should not be too large in number.
At the initial stage an organizational framework containing 35
personnel have been recommended by PARC for the Office of the Ombudsman
which is showed by the following organ gram:
Source
: Public Administration for 21st Century, Report
of the Public Administration Reform Commission (PARC) vol-2, June-2000.
Ombudsman
Director General
Manpower-7
1× Ombudsman
1× Private Secretary
1× Personal Officer
1× Computer Operator
1× Driver
2× MLSS
Director
Information and
Complaints-2
Manpower-6
1× Director General
1× Personal Officer
1× Computer Operator
1× Driver
2× MLSS
Director
Administration
Director
Information and
Complaints-1
Director
Enquiry-1
Director
Enquiry-2
Manpower-3
1×Director
1×Computer Operator
1× MLSS
Manpower-3
1×Director
1×Computer Operator
1× MLSS
Manpower-3
1×Director
1×Computer Operator
1× MLSS
Manpower-3
1×Director
1×Computer Operator
1× MLSS
Manpower-10
1×Director
1× Administrative Officer
2× Computer Operator
1× Accountant
2× Telephone Operator
1× Driver
2× MLSS
Specialization
of Ombudsman:
The Bangladesh Ombudsman Act 1980 is silent as its number and area
of specialization. Following the other countries, Bangladesh can adopt four types of Ombudsman according to the varied type of
work (i.e. specialization) they are called upon to perform.
♦ The Ombudsman (general) to investigate into mal-administration
president, Prime Minister, Cabinet Ministers, MPs and central bureaucracy.
♦ The Ombudsman (local) to investigate complaints of
mal-administration committed by local authorities, representatives and
officials.
♦ The Ombudsman (military) to investigate in discipline of military
personnel and officers employed by the ministry of defense.
♦ The Ombudsman (judicial) to deal with the matters of legality of the
judicial divisions, without having power to influence the court
proceedings. (Ahmed, 1993:53)
Ombudsman – Prospect: There is a
considerable difference in the functioning of such an official in a small
country as compared with a large one, for obvious reasons.
First, there is a possibility for the Ombudsman to receive a
volume of complaints from the citizens because of our large population.
Second, Ombudsman's function can be obstacled also by the accused
organizations, agencies or persons in some technical ground as Ombudsman
has some restrictions of his investigation.
Third, bureaucracy exists here, as one of the vital forces of
governmental policy making process.
They have better cohesiveness and maturity than any other groups
participating in administrative policy making process. As Ombudsman will go
against their interest they may resist it establishment and effective
ness(Islam, 1996: 48).
Separation of power in Bangladesh and reality:
The concept of separation of
powers has played a major role in the formation of constitutions. The
extent to which powers can be and should be separate and distinct was a
central feature in formulating, for example, both the American and French
revolutionary constitutions. In any state, three essential bodies exist:
the executive, the legislature and the judiciary. It is the relationship
between these bodies which must be evaluated against the backcloth of the
principle. The essence of the doctrine is that there should be, ideally, a
clear demarcation in function between the legislature, executive and
judiciary in order that none should have excessive power and that there
should be in place a system of checks and balances between the
institutions.
In The Politics, Aristotle proclaimed that: "There are three elements
in each constitution in respect of which every serious lawgiver must look
for what is advantageous to it; if these are well arranged, the
constitution is bound to be well arranged, and the differences in
constitutions are bound to correspond to the differences between each of
these elements. The three are, first, the deliberative, which discusses
everything of common importance; second, the officials; and third, the
judicial element."
The constitutional seeds of the doctrine were thus sown early,
reflecting the need for government according to and under the law, a
requirement encouraged by some degree of a separation of functions between
the institutions of the state.
Baron Montesquieu (1689-1755, living in England from 1729-31)
stressed the importance of the independence of the judiciary in the
following manner: "When the legislative and executive powers are
united in the same person, or in the same body of magistrates, there can be
no liberty ... Again, there is no liberty if the power of judging is not
separated from the legislative and executive. If it were joined with the
legislative, the life and liberty of the subject would be exposed to
arbitrary control; for the judge would then be the legislator. If it were
joined to the executive power, the judge might behave with violence and
oppression. There would be an end to everything, if the same man or the
same body whether of the nobles or the people, were to exercise those three
powers that of enacting laws, that of executing public affairs, and that of
trying crimes or individual causes."
Throughout history, there has been exhibited a tension between the
doctrine of separation of powers and the need for balanced government -- an
arrangement depending more on checks and balances within the system than on
a formalistic separation of powers.
Political thinkers did not mean that the legislature and the
executive should have no influence over the other but rather that neither
should exercise the power of the other. It was considered that the
executive and the legislature should be sufficiently separate to avoid
'tyranny', and that their total separation may potentially lead to the
domination of the executive by the legislature. It was opined that partial
separation of powers was required to achieve a mixed and balanced
constitutional structure. It was thought that constitutional arrangements
characterized by powers and personnel being largely -- but not totally --
separated with checks and balances in the system to prevent abuse, that is,
mixed government and weak separation of powers would be desirable.
The executive may be defined as that branch of the state which
formulates policy and is responsible for its execution. In formal terms,
the sovereign is the head of the executive. The judiciary is that branch of
the state which adjudicates upon conflicts between state institutions and
individuals. The judiciary is independent of both parliament and the
executive. It is this feature of judicial independence which is of prime
importance both in relation to government according to law and in the
protection of liberty of the citizen against the executive.
Bangladesh scenario: "The
Constitution of Bangladesh exhibited a very impressive, pragmatic and sound
system of governance of which the Supreme Court was a valiant guardian. A
testimony to this is the case of Secretary of Finance vs. Masder Hossain
(20BLD[2000] [AD] 141) where the Supreme Court painstakingly laid down
twelve directions to give meaning, shape and thrust to the requirements of
the Constitution in the matter of separating the judiciary from the
executive."
The historic twelve directions
(1) It is declared that the
judicial service is a service of the Republic within the meaning of Article
152(1) of the Constitution, but it is functionally and structurally
distinct and separate service from the civil executive and administrative
services of the Republic with which the judicial service cannot be placed
on par on any account and that it cannot be amalgamated, abolished,
replaced, mixed up and tied together with the civil executive and
administrative services.
(2) It is declared that the word
"appointments" in Article 115 means that it is the President who
under Article 115 can create and establish a judicial service and also a
magistracy exercising judicial functions, make recruitment rules and all
pre-appointment rules in that behalf, make rules regulating their
suspension and dismissal but Article 115 does not contain any rule-making
authority with regard to other terms and conditions of service and that
Article 133 and Article 136 of the Constitution and the Services
(Reorganization and Conditions) Act, 1975 have no application to the above
matters in respect of the judicial service and magistrates exercising
judicial functions.
(4) The appellant and the other
respondents to the writ petition are directed that necessary steps be taken
forthwith for the President to make Rules under Article 115 to implement
its provisions which is a constitutional mandate and not a mere enabling
power. It is directed that the nomenclature of the judicial service shall
follow language of the Constitution and shall be designated as the Judicial
Service of Bangladesh or Bangladesh Judicial Service. They are further
directed that either by legislation or by framing Rules under Article 115
or by executive order having the force of Rules a Judicial Services
Commission be established forthwith with majority of members from the
Senior Judiciary of the Supreme Court and the subordinate courts for
recruitment to the judicial service on merit with the objective of
achieving equality between men and women in the recruitment.
(5) It is directed that under
Article 133 law or rules or executive orders having the force of Rules
relating to posting, promotion, grant of leave, discipline (except
suspension and removal), pay, allowances, pension (as a matter of right,
not favour) and other terms and conditions of service, consistent with
Articles 116 and 116A as interpreted by us, be enacted or framed or made
separately for the judicial service and magistrates exercising judicial
functions keeping in view constitutional status of the said service.
(6) The impugned orders in the
writ petition dated 28. 02.94 and 2.11.95 are declared to be ultra vires of
the Constitution for the reasons stated in the judgment. The appellant and
the other respondents to the writ petition are directed to establish a
separate judicial Pay Commission forthwith as a part of the rules to be
framed under Article 115 to review the pay, allowances and other privileges
of the judicial service which shall convene at stated intervals to keep the
process of review a continued one. The pay etc. of the judicial service
shall follow the recommendations of the Commission.
(7) It is declared that in
exercising control and discipline of persons employed in the judicial
service and magistrates exercising judicial functions under Article 116 the
views and opinion of the Supreme Court shall have primacy over those of the
Executive.
(8) The essential conditions of
judicial independence in Article 116A, elaborated in the judgment, namely,
(1) security of tenure, (2) security of salary and other benefits and
pension and (3) institutional independence from the Parliament and the
Executive shall be secured in the law or rules made under Article 133 or in
the executive orders having the force of Rules.
(9) It is declared that the
executive government shall not require the Supreme Court of Bangladesh to
seek their approval to incur any expenditure on any item from the funds
allocated to the Supreme Court in the annual budgets, provided the
expenditure incurred falls within the limit of the sanctioned budgets, as
more fully explained in the body of the judgment. Necessary administrative
instructions and financial delegations to ensure compliance with this
direction shall be issued by the government to all concerned including the
appellant and other respondents to the writ petition by 31.05.2000.
(10) It is declared that the
members of the judicial service are within the jurisdiction of the
administrative tribunal. The declaration of the High Court division to the
opposite effect is set aside.
(11) The declaration by the High
Court Division that for separation of the Subordinate Judiciary from the
executive no further constitutional amendment is necessary is set aside. If
the Parliament so wishes it can amend the Constitution to make the separation
more meaningful, pronounced, effective and complete.
(12) It is declared that until
the Judicial Pay Commission gives its first recommendation the salary of
Judges in the judicial service will continue to be governed by status quo
ante as on 8.1.94 vide paragraph 3 of the order the same date and also by
the further directions of the High Court Division in respect of Assistant
Judges and Senior Assistant Judges. If pay increases are affected in
respect of other services of the Republic before the Judicial Pay
Commission gives its first recommendation, the members of the judicial
service will get increases in pay etc. commensurate with their special
status in the Constitution and in conformity with the pay etc. that they
are presently receiving.
The ground reality, in Bangladesh, is that the judiciary
possesses neither the financial resource nor the power to extract the
allegiance of the other organs of the State to the constitution and the
implementation of its decision in so far as it relates to the separation of
the judiciary from the executive. As such, in spite of public declarations
and commitments to judicial separation from the executive branch, political
groups and the administration have maintained the status quo. Thus the
intentions of our constitution have not been carried through. Therefore,
although the judiciary is in the process of separation of late, the civil
society and the political class of Bangladesh should relentlessly pursue the
issue until the constitutional dignity and effectiveness of the supreme
judiciary is fully and credibly established.
Administrative
tribunal in Bangladesh:
In accordance with the provision of article 117 of
the Bangladesh constitution with the regard to administrative
tribunals the Administrative tribunals Act1980 was passed.
It has exclusive jurisdiction to hear and determine application made by any
person in the service of the republic and any statutory public authority
specified in the schedule (all govt. bank) in respect of the terms and
condition of his service.
A person in the service of republic or in any statutory public authority
has right apply to the Administrative Tribunal against an order or decision
or action of the departmental authority relating to any terms and
conditions of this service.
Limitation: No such application shall be entertained by the
Administrative Tribunal unless it is made within six months from the dates
of making or taking of the order, decision on the matter by the higher
administrative authority. Where no decision an appeal or application for
reviews in respect of an order, decision or action referred to in the
preceding. provision has been taken by the higher administrative authority
within a period of two month from the date on which the appeal or
application was preferred or made, it shall on the expiry such period be
deemed for the purpose of making an application to the Administrative
Tribunals under this section, that such higher authority has disallowed the
appeal or application.
What are
the problems created by the administration?
There are many ways in which administration can interfere with the
liberty of people. Friedman cites three typical examples (Obaidullah,
1999). In the first
place, the state interferes with the free and
untrammeled conduct of individuals through a multitude of restrictive
instruments. Second types of interference consist of orders for the
compulsory acquisition of land. A third type of
administrative interference is the fixing of minimum standards and
inspections.
The problem of administrative discretion is complex. It is true that
in any intensive form of government, the government cannot function without
the exercise of some discretion by the officials. It is necessary not only
for the individualization of the administrative power but also because it
is humanly impossible to lay down a rule for every conceivable eventually
in the complex art of modern government. But it is equally true that
absolute discretion is a ruthless master. It is more destructive of freedom
than any of man's other inventions.1 Therefore; there has been a constant
conflict between the claims of the administration to an absolute discretion
and the claims of subjects to a reasonable exercise of it. Discretionary
power by itself is not pure evil but gives much room for misuse (Massey,
2001). There fore, remedy lies in tightening the procedure and not in
abolishing the power itself. Decision taken by the administration, in the
context of America are to some undefined extent final. The courts have no concern with
the conduct of government provided that it proceeds with in its legal
powers. Any misuse of power within the law is a political matter, and for
discussion in parliament or reference to the Ombudsman. The courts of law
are not general courts of administrative justice.2 Hence, the greatest
problems is the control of administrative discretion. Despite discretion
has been described by enthusiastic administrators as the life blood of
administrative process, it is viewed with less enthusiasm by the courts in
all countries of the world which regard it as a virus which may infect the
whole process (cooper, 1965; 32). The broader the discretion the greater
the chance of its abuse. In the words of Justice of the U.S. Supreme
Court "where discretion is absolute, man has always suffered
... Absolute discretion is more destructive of freedom than any of man's
other investigations. And also, absolute discretion, like corruption, makes
the beginning of the end of liberty (Obaidullah, 1999).
On the other hand there is no set pattern of conferring discretion
on an administrative officer. Modern drafting technique uses the words,
'adequate, 'advisable' , 'appropriate', 'beneficial', 'competent',
'convenient', 'detrimental', 'expedient', 'equitable', 'reputable', 'safe',
'sufficient', 'wholesome', 'deem fit', 'prejudicial to safety and security,
'satisfaction' 'belief' 'efficient', 'public purpose', etc. or their
opposites. It is true that with the exercise of discretion on a
case-to-case basis, these vague generalizations are reduced into more
specific moulds, yet the margin of oscillation is never eliminated.
Therefore, the need for judicial correction of unreasonable exercise of
administrative discretion cannot be overemphasized.
Citizens also suffered in various ways by the administrator when
they exercise their
power of delegated legislation. 1) The first charge
against delegated legislation is that so wide a discretion given to the
officials may lead to despotism and turn a democracy into an arbitrary
rule. Some English and American Jurists are very much alarmed at the
development of this new form of despotism. Lord Hewerd in his book entitled
'New Despotism' argued that the characteristics feature of the old time
despotism was a combination of all powers executive, legislative and judicial,
in the hands of the monarch. Constitutional government separated these
powers into three distinct organs to safeguard the liberty of the
individuals. Growth of delegated legislation and administrative
adjudication has again combined the three powers into the hand of
administration and thus a 'New Despotism' has come into being. Lord Heward,
the chief
Justice of England bitterly criticizes that, "It is tolerably
obvious that the system of delegation by parliament of power of legislation
is within certain limits necessary, at least as regards matters of details
because it is impossible, if only for want of time, for Parliament to deal
adequately and detail with all matters calling or supposed to call for
legislation."
2) The true constitutional problem presented by delegated
legislation is not that it exists, but that its enormous growth has made it
difficult for parliament to watch over it. "(Wade, 1971). Acts of
parliament might be passed skeleton form, containing only the barest
general principles and omitting certain matters of great importance. This
practice was suggested be some to have assumed the character of a serious
invasion of the sphere of parliament by the executive" and to endanger
our civic and personal liberties. On the other hand there was inadequate
scrutiny by parliament of the rules of regulations made.
There is a danger that the servant may be transformed the master or
create new despotism.
3) The advantages of flexibility in law may bring about instability
and chaos by too frequent changes in rules. As a result the power might be
so wide as to deprive the citizen of the protection of the courts from
harsh or unreasonable action by the administration.
4) Another problem is some power was too loosely defined and the
arrangements for publication of the rules may be inadequate and
unsatisfactory with result that the average man may be ignorant of them.
Even sometime full publicity and consultation with affected is not always
practicable.
5) In the case of England the privileged position of the crown made the obtaining of redress
difficult.
6) Rule making by administrative officers may overlook what is
politically feasible. The official may not be able to see what the people
will not want to have.
7) A great power rulemaking into the hands of officials may corrupt
the administration and ultimately the whole society. Rule makers may be
subjected to political pressure and turn the rules special or private
instead of public purpose.
Generally taxation power is also delegated: such a delegation undermines
that famous principle -'No taxation without representation.
8) The criticism of the view that even if judicial remedies are
available the citizens cannot expect a fair deal from the courts especially
when they are pitched against the state. These laws are sometime applied
with retrospective effect. This is rather unfair.
9) Finally delegation may result in excluding the control of the
courts and thus depriving the citizens of the protection by the courts.
Moreover even where the courts have the power to protect the citizen, he
may find it difficulties and cost and delay involved.
On the other hand citizen also suffers in various ways. When the
administration exercise their power of administrative adjudication by the
administrative tribunals.
Administrative adjudication means the determination of question of
judicial nature by administrative departments of agencies. According to Dr.
white it means, "the investigation and settling of a dispute involving
a private party on the basis of law and facts by administrative agencies
little issues arising in the course of their work, when legal rights are in
question' (Sachdeva & Gupta, 1995). There are a lot of complaints made
by people whose livelihoods were greatly affected by tribunal decisions.
For instance it may be cited the following comments on rent tribunals which
were made to the Franks committee by the justice for landladies Association
(wade, 1971).
There is no appeal against the tribunal's decision. 1) Tremendous
power, which can ruin a person's life, has been put into the hands of three
men. Yet there is no higher court in which their decisions can be tested.
2) The three on the bench of the tribunal need have no proper legal
qualifications. A court of no appeal has been put into the hands of men who
are generally neither qualified lawyers, magistrates nor judges.
3) There is no evidence on oath, and there fore there can be no
proper cross examination as in a court of law. Statements are made on both
sides, but the time honored method of getting to the truth cannot' be used.
4) Procedure is as the tribunal shall determine. No rules hearing
witnesses may be heard or not heard at their pleases. Mr. Sachdevas Gupta
(1995) has also identified some problems of administrative adjudication to
their book "A simple study of Public Administration" which are
below:
i. Administrative adjudication does not inspire public confidence if
the rules of procedure of administrative tribunals do not provide for the
publicity of proceedings.
ii. Oral hearing, lack of information and settled law of procedure,
absence of publicity, secret proceedings all are not in consonance with the
principles of fair and natural justice.
iii. Another defect is the poor quality of investigation into
questions of fact. To rely on unworn written statements unsupported by
verbal testimony subject to no cross-examination is not a judicial way to
reach true facts.
iv. Combination of power to make rules, to investigate alleged
violations there of, to prosecute offenders and to render decision, all in
a single agency violets the sprit of the theory of separation of powers.
Unless investigation and prosecuting functions are separated from quasi
judicial function, a fair hearing and decision are difficult to be
obtained.
Under administrative ad v. judication there is no provision for
independence review. The opportunity for adequate judicial review is
restricted, this may result in miscarriage of justice.
vi. Tribunals are not manned by judicial luminaries. Hence they do
not have the impartial control. They become the limbs of the execution and
dance to its tune.
vii. It is connected that administrative law administered by their
courts today is a needy of confusion. It is neither written nor definite or
known. Lastly these courts do not observes uniform procedures. It leads to
inconvenient and arbitrary discussions.
It has been bitterly criticized by lord Heward in his book “The New
Despotism”.
He says, "It is the abuse of the system that calls for
criticism and perhaps the greatest abuse and one most likely to lead to
arbitrary and unreasonable legislation is the ousting of the jurisdiction
of the courts."4
However, these defects are not such which may not be eliminated from
the system of administrative adjudication. In the united states proper safeguards have been provided by the administrative
procedure Act, 1946. The problem is to strike a balance between the
requirements of individual liberty and rights and needs of cheapness,
quickness and flexibility of administrative justice.
Solution of these problems:
Judicial Control Over
Administration: -
Judicial review of administrative action is perhaps the most
important development in the field of public Law in the second half of this
century. Judicial review is a great weapon in the hands of judges. It
comprises the power of a court to hold unconstitutional and unenforceable
any law or order based upon such law or any other action by a public
authority which is inconsistent or in conflict with the basic law of the
land (Takawani, 2001; 236).
By judicial control is meant the power of the courts to examine the
Legality of the officials act and thereby to safeguard the fundamental and
other essential rights of the citizens. The underlying object of judicial
review is to ensure that the authority does not abuse its power and the
individual receives just and fair treatment and not to ensure that the
authority reaches a conclusion, which is correct in the eye of law. The
role of judiciary in protecting the citizens against the excess of
officials has become all the more important with the increase in the powers
and discretion of the public officials in the modern welfare states. But
the courts cannot interfere in the administrative activities of their own
accord. They can intervene only when they are invited to do so by any
person who feels that his right has been abrogated or are likely to be
abrogated as a result of some action of the public official. Secondly, the
courts cannot interfere in each and every administrative act, as too much
of Judicial action may make the official too much conscious and very little
of it may make them negligent of the rights of citizens. In the words of
Mr. L.D. White, "At one extreme, the vigour of judicial control may
paralyze effective administration, at the other the result may be offensive
bureaucratic tyranny, exactly where the balance may be best struck is a
major problem of judicial administrative relationship. Now we discuss the
judicial control system in USA, U.K. and then Bangladesh.
Conclusion:
Above discussion clearly shows that the present condition of
administrative law in Bangladesh is not satisfactory due to the unexpected political situation,
corruption, lacking of the application of rule of law and unconsciousness
of people. But democracy is preferred to any other system of governance
because of its adherence to, rule of law, fair dealing of good
administration. It is opposed to arbitrariness, unreasonableness and
malafid exercise of power. At last we can say that there many barrier of
administrative law in Bangladesh although we are trying to overcome this problem day by day.
Bibliography:
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on Administrative Law, Eastern law book company Lucknow.
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3. Freeman, J. Lepier (1952; 10-19), The Bureaucracy in Pressure
Politics. Annals of the Academy of Political and Social
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4. Griffith, L.A.G & Street, H. (1967; 19), Principle of Administrative Law. London: Sir Isaac Piton and Sons Ltd.
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