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.
6. Separation of
power in Bangladesh.
7. Ombudsman for Bangladesh
theory, reality and prospects.
8. Administrative
tribunal in Bangladesh.
9. What are the problems created by the
administrative and solution
10. Conclusion.
11.
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 emergency
situation 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.
|
very well.....stay blessed!
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