Corruption in judiciary is minimal and not very serious: CJI

His admission of corruption is sufficent to establish that the position is very serious and faith of common man from this last pillar of hope is eroding day by day. It is the need of hour to take strict actions against the corrupt judicial officers and their actions should be transparent.

Yes, in this process, the corruption level should be zero, and zero is the mininum bar here. Only after this , the other sector of society can be made corruption free.

BIILI KE GALE MAIN GHNTI KAUN BANDHEGA?

1 Lecturer, Dept. of Public Administration, Rajshahi University, Rajshahi-6205, Bangladesh.

Judicial Control over Administration and Protect the Citizen's

Rights: An Analytical Overview

Md. Awal Hossain Mollah1

Abstract: Public administration exercises a large volume of power to

meet the citizens need in modern democratic welfare state. Today

administration is not concerned with only pure administrative function but

also involved with a large number of quasi-legislative and quasi-judicial

functions. For this respect they have a number of chances to become

arbitrary or master of the citizens. So it is very necessary to control them.

The existing control systems are legislative, executive and judicial. This

paper include only judicial control over administration. To analyse judicial

control over administration to this paper firstly, I have been seeking to

what extent administration exercise its power? What are the sources of its

power? And what are the problems created by administration in exercising

its power? Then I have try to seek what are the judicial remedies available

against administration in USA, UK, and lastly in Bangladesh? In

Bangladesh context I have also try to find out what are the limitations are

exist? And recommends how to over come this problems. This paper is

basically based on secondary sources of information, which include books,

journals and research report.

Key words: Administration, Citizen's Rights, and Judicial Control.

To what extent power is exercised by the Administration?

In modern times the administrative process as a by product of intensive form of government

cuts across the traditional forms of governmental powers and combines into one all the

powers which were traditionally exercised by three different organs of the state.

In Halsbery's Laws of England also it is stated that howsoever the term the Executive' or

'the Administration' is employed, there is no implication that the functions of the

executive are confined exclusively to those of an executive or administrative character.

Today, the executive performs variegated functions, viz. to investigate, to prosecute, to

prepare and to adopt schemes, to issue and cancel licences, etc. (administrative); to

adjudicate on disputes, to impose fine and penalty, etc. (Judicial); to make rules,

regulations and bye laws, to fix prices etc. (Legislative). Schwartz rightly states that

rulemaking (quasi-legislative) and adjudication (quasi-judicial) have become the chief

weapons in the administrative armoury (Takwani, 2001; 39).

Thus, Speaking generally, an administrative action can be classified into four categories;

Rule - m (i) aking action or quasi-legislative action;

(ii) Rule decision action or quasi-judicial action;

(iii) Rule-application action or administrative action; and

(iv) Ministerial action.

We can define the above forms of administrative action by the way: The

legislative power as the power to create rights, powers, privileges or immunities and

2

their correlatives as well as status, not dependent upon any previous rights, duties etc. (or

for the first time), that is apparently, the power of certain antecedent legal capacities and

liabilities. Judicial power as the power to create some right or duty dependent upon a

previous right or duty, that is apparently the power to create remedial legal capacities

and liabilities. Administrative power is the power, which is concerned mostly with the

management and execution of public affairs. And the Ministerial power is that power of

the administration which is taken as a matter of duty imposed upon it by the law devoid

of any discretion or judgment. Therefore a ministerial action involves the performance of

a definite duty in respects of which there is no choice. Collection of revenue may be one

such ministerial action.

The above functions or power exercised by the following four ways mainly:

Rule making or Quasi-legislative i) action is exercised by the power of

delegated legislation.

ii) Rule decision or Quasi judicial action is exercised by the administrative

adjudicating power.

iii) Rule application or pure administrative action is exercised by the

discretionary power.

iv) On the other hand ministerial power is one where law prescribes that the duty

will be performed in certain and specific terms and leaves nothing to

discretion (Jain and Jain, 1981; 273 & Obaidullah, 1999; 141).

What is discretion and why?

Discretion is very necessary to accomplish administrative power because

administrative responsibility is also bound up with discretion. When an official has no

power to choose among alternatives, he cannot be held personally responsible because he

has exercised no freedom of choice (Pfiffner & Presthus, 1953; 523). Discretion mean

choosing from amongst the various available alternatives but with reference to the rules

of reason and justice and not according to personal whims. Such exercise is not to be

arbitrary, vague and fanciful, but legal and regular (Massay, 2001; 54).

In the context of welfare state exercise of administrative powers, more

particularly, administrative discretion, constitute the lifeblood of the whole

governmental, functions. Administrative power is what administrators think fit to do, it is

administration own idea of expediency, and it is incapable of being declared wrong in

law by any higher authority (Obaidullah, 1999; 148).

As government concern itself with the detailed ordering of the individuals in the

society, with the supply of services, with control of industry, and with particular

circumstances of children, of the aged, of the sick and of the unemployed, then a large

amount of discretionary power becomes necessary (Griffith & Street, 1967; 19 &

Obaidullah, 1999; 142). It is realized that a government having only ministerial duties

with no discretionary functions, will be extremely rigid and unworkable and that, to

some extent officials must be allowed a choice as to when, how and where to act. The

reason for this attitude is that more often than not, the administration is required to

handle intricate problems which require investigation of facts, making choices and

exercise of discretion before deciding upon what action to be taken.

3

More often, the legislation is sketchily, leaving many gaps and conferring powers

on the administration to act in a way it deems “necessary” or “reasonable” or “if it is

satisfied” or “if it is of the opinion”. The need for discretion arises because of the

necessity to individualise the exercise of powers by the administration, i.e. the

administration has to apply vague or indefinite statutory provisions, from case to case

(Jain and Jain, 1981; 273 & Obaidullah, 1999; 142).

What are the Sources of Administrative Power?

Since World War II, American administration has acquired increasing authority

and power in the formulation and implement of public policy (Lutrin & Settle, 1980;

297). Administration derives its power from five major sources: 1) Public constituents

and Interest group, 2) The legislature branch of government, 3) The executive branch of

government, 4) The Expertise of its personnel, and 5) A massive, multilevel civil service

system. (Some writers suggest, in addition, the strategic position of public administration

and its discretionary powers in carrying out policy). These are not mutually exclusive

categories; an administrative agency can use any combination of them to further its

growth and goals. Moreover, sources of power vary from agency to agency and at

different levels of government.

1) Constituency and interest group support: A government agency must have the

support, or at least the acquiescence, of some constituency to become established and

to service. The constituency may consist of the general public, of special interest

groups, or of both. A public, constituency provides administration with power at any

level of government as long as citizens demand an increasing number of services

from government agencies. Discovery that use of the drug thalidomide by pregnant

women can causes fetal deformities, for example, aroused a tremendous public

outcry against the dangers of improperly tested drugs. While this, event not only

justified the existence of food and Drug Administration (FDA) but also helped it to

obtain a large budget for drug testing, it is among the rare instances in which

regulatory activity has gained widespread popular attention. More often, the public’s

attitude toward individual government agencies is merely vague and apathetic.

Special interest groups, on the other hand are issue oriented, react selectively to

government policy, and frequently have a far greater effect than the public utility

commissions, for example, experience considerable pressure from local utility companies

to set favourable rates. Independent agencies, such as the small Business Administration

and Farm credit. Administration, perform services that benefit special interest groups and

other governmental bureaus alive, Government corporations such as the Federal Home

lone Bank Board title wise perform specific tasks that arouse support or opposition

among as issue oriented segment of the business community.

The public can be a source of major support of opposition to almost any

administrative organization or program. According to Philip Selznick, for example, in

order to gain the seaport of Tennessee valley residents, without which its agricultural

program would have been delayed or diminished in effectiveness the Tennessee valley

Authority (TVA) was forced to modify program objectives that had elicited local

opposition.

2) Legislative Support: Several competent writers have described how bureaucracy

4

obtains legislative support is its ratio of success in gaining desired budget allocations.

An agency like the FBI, which is highly regarded by congress, is likely to receive,

necessary allocations of money, although high visibility is not required for agencies

to enjoy congressional respect; the Treasury Department’s Bureau of Customs and

Bureau of Public Debt both have strong congressional support.

For administrative agencies, some evidence of legislative support is to be found

in the enabling law, the Legislative grants of power that serves at the same time as a

controlling device. Control is exercised by the agency’s awareness that congress can

withdraw legal or monetary support, delay funds or nomination approvals, or initial

potentially embarrassing investigations of agency activities still strong. Support from

appropriations committees helps to ensure an agency’s survival in the face opposition

from other agencies, loss of constituency support or loss of support from other branches

of government.

Executive Support: Concerned as they are with the control 3) of resources, agencies

within the executive branch generally possesses considerable power. The civil

service commission controls personnel regulations. The General Services

Administration constructs and operates the majority of government buildings. The

office of management and Budget (OMB) not only controls major resources but has

substantial power owing to the size and expertise of its staff. Reorganized from the

Bureau of the Budget in 1970, the OMB serves as presidential aide in budget

preparation and guardian of the federal budget. Its public administration specialists,

lawyers, economists and political scientists act as presidential shock troops in

modifying or eliminating federal programs. Because other executive agencies must

clear their communications with congress through the OMB to assure their

consistency with the president’s policy goals, these other agencies may be said to

constitute the OMB’s constituency.

4) Personnel Expertise: Concentrated with in the administrative agencies of

government is a vast reservoir of technical expertise that legislators and the president

use for advice in making policy decisions. The experts who provide this advice

acquire power in a number of ways.

First, offering technical advice that makes the results of decisions more

practicable, thereby reducing uncertainty about policy out comes, places experts in a

highly advantageous position. Although they are not automatically guaranteed ready

access to centres of power and control, as a rule powerful decision makers want to know

what they recommend in order to avoid making important decisions, however, providing

or limiting access to this information can be used as an instrument of political pressure.

Second, because experts know that disagreement among themselves and division or

conflict within major department of government can greatly weaken their power they seek

to consolidate their position by gaining professional consensus within their own ranks. To

implement certain policies, coalitions are formed with experts in other government

departments, and the informal but solid network of information exchange among them may

have the effect of keeping outsiders firmly out. Key Nixon staff members, such as H. R.

Haldeman and John Ehrlichman (respectively chief or staff and chief assistant to the

president), Presidential counsel John Deau, and Attorney General John Mitcheel,

constituted such a closely Kuit group that investigation of government expense by external

5

experts or groups would have been very costly and difficult to carry out.

Issue-oriented coalitions may not be permanent, in addition, any coalition may

cause one department to become dependent on another. Neverthless, a group of experts

such as that reprinted by the Council of Economic Advisers, the Joint Chiefs of Staff, or

the National Security Council finds the president relying increasingly on its advice,

Relying on a committee of expert advisers affords the president greater sources of

information and advice as well as a greater array of alternatives from which to choose.

The president should not, however, allow any one adviser or group of advisers to

exercise monopolistic influence over his decisions but must always keep them under

control. As Watergate demonstrated, experts can be pre-empted by none experts who

nevertheless almost totally control access to policy makers. Haldeman and Ehrlichman

held enough administrative and political power within the Nixon white House to force

professional consensus because experts depended upon them for assignments in

conducting research and carrying out policy.

Civil Service Support: The pion 5) eers of public administration believed that

administrators should carry out policy but have no discretion to judge or act on their

own. With the increase in governmental autonomy, expertise, and constituency

support, however, bureaucratic discretion has now extended to deciding which new

goals and policies should be formulated as well as carried out. The civil service

system has supported this tendency by instituting better employee training for job

qualification and promotion which has in turn affected employee attitudes and

discretion.

Some agencies, such as the Army corps of Engineers and the central Intelligence

Agency have long permitted considerable employee discretion on important policy

matters, although congress can intervene when policy out comes seem likely to elicit an

unfavourable public response. Since 1964, for example, congress has required from the

secretary of defence a thirty day notice on the phasing out of military installations. Other

agencies can influence policy goods through their employee training programs. As

Herbert Kaufmans study of the U.S. Forest Service indicates, the goals of this agency are

carried out against a background of in-service training and manuals of such uniformity as

to guarantee that agency politics will not be modified.

By allowing administrators to become entrenched in their positions, thereby

protecting bureaucracy from radical change the civil service system provided another

source of agency power. Because new officials all too often become dependent upon

older, more experienced civil servants, ways must be found to override entrenched

elements. For this reason may highly placed Republicans were recruited for federal

service during the Eisenhower administration to curb the influence of Roosevelt and

Truman administrators whose positions had been protected by the civil services

(Freeman, 1952).

Studies on power structure by Robert Dahl and M. Kent Jennings show that

bureaucracy exercise varying degrees of policy-making power in different cities.

Although administrators are always present, their influence in most directly felt when

policy makers depend upon them for expertise or when issue oriented problems arise. In

the latter case, and especially when public employee labour disputes are involved, an

entrenched administration can be a powerful force either for good or for ill.

6

The above sources of administrative power is available in USA and also in

Bangladesh.

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 untrammelled 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 overemphasised.

Citizens also suffered in various ways by the administrator when they exercise

7

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 criticises 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."3

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 were 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 critism 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.

8

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 suffer 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*xamination

as in a court of law. Statements are made on both sides, but the

time honoured 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 quasijudicial

function, a fair hearing and decision are difficult to be

obtained.

9

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.

Judicial Control Over Administration: An Overview

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 have 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 paralyse

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.

10

and then Bangladesh.

Judicial Control of Administrative Action in USA

In the United States there is in theory almost no limit upon the right of courts to

review the decisions of administrative tribunals. Pfiffner & Presthus (1953) state their book

"Public Administration in the Modern state" that the doctrin of constitutional supremacy is

such that the judiciary can question almost every administrative act. They also discuss the

whole process of judicial review of Administrative action in USA in this book.

I will try to discuss in briefly the process in this paper by the light of their

discussion. In USA only infrequently do legislatures insulate administration against

judicial review by including in statutes clauses designed to prevent review. Even if a

state constitution at tempted to set up an administrative commission whose acts were not

subject to review by the state courts judicial review could be accomplished in the federal

courts under the due process clause of the fourteenth Amendment. Speaking very

generally and subject to many exceptions, the substance of the situation is,

that the courts may rev 1) iew to the extent they deem desirable,

2) that there is no method whereby one may know whether they will or will not

review in individual cases and,

3) that administrative decisions are to some undefined extent final,

Now I will discuss the details of judicial review in USA.

Finality of Administrative Decisions: Although the Supreme Court has been

content to permit a large degree of administrative finality in old and tested fields where

accepted principles and techniques of regulation prevail, it maintains a watchful eye even

on such venerable agencies as the Interstate commerce commission. For example in a

session the court consistently upheld administrative determinations in the tried and tested

area of railroad regulation. The court have, never the less been reluctant to relinquish

their right to exercise a final scrutiny of administrative action.

The administrative procedure Act (1946) particularly has expanded the scope of

judicial review. A complainant cannot ordinarily resort to the courts until he has

exhausted all administrative remedies. This is quite properly so, because to have

recourse to the courts for purposes of mere delay would soon deprived the administrative

process of the dispatch which is one of its major virtue. Section 10 of the administrative

procedure Act, however, has a provision for "interim relief" which apparently aims at

undercutting this doctrine of the exhaustion of administrative remedies.

To avoid "irreparable harm" every reviewing court is authorized to issue all

orders necessary to post pone the effective date of agency action or to preserve status or

rights until conclusion of the review proceedings. This complicities the administrative

process and places a new emphasis upon review by making it easier for individuals to go

to the courts for declaratory judgments or order before exhausting the remedies available

through administrative action.

Questions of Law and Fact: Courts have usually not examined questions of fact

unless they also involved question of law or questions of constitutional or statutory

authority. Under the provisions of the Johnson Act, for example, a federal district court is

11

denied the power to issue an injunction against a state administrative order when

such an order (1) affects rates chargeable by a public utility, (2) des not interfere with

interstate commerce, (3) has been made after reason able notice and hearing, and (4) where

a plain, speedy, and efficient remedy may by had at law or in equity in the courts of such

state.5 This doctrine as applied to judicial review of tax errors, where there has been a

failure to resort to administrative remedies, has tended to expand the field of administrative

finality.

As a general rule, courts have attempted to distinguished between questions of

law and fact and have reviewed the former but not the Later. Dickinson's conclusion is

still useful: "when the courts are unwilling to review, they are tempted to explain by the

easy device of calling the question one of 'fact'; and when otherwise disposed, they say

that is a question of 'law'."6

Jurisdictional Facts: The decision in a celebrated Supreme Court case (crowell v.

Benson, 285 U.S. 22; (1932) present the doctrine of "Jurisdictional fact", also referred to as

a basic or fundamental fact. For example. A federal started gives the U.s. employees'

compensation commission authority to make awards to certain persons coming under the

statute. However the relation of employer and employee must, among other things, exist

before the commission has jurisdiction to make a award. Since the fact or the employeremployee

relation is the one, which determines the jurisdiction, or power of the

commission to act it is referred to as a jurisdictional fact, which presents a question of law.

In this case, the commission decided that such a relation existed, and made an

award of compensation to the injured employee. The employer appealed, and Supreme

Court held that the commission had no authority to make an award unless the injured

party actually was an employee. Since that fact was a jurisdictional one, the commission

should not be permitted to decide it for itself, for to do so would be to allow the

commission to lift itself by its own bootstraps in deciding that it had jurisdiction. The

court in deciding against the commission held that the person seeking the award was not

infact an employee and prevented enforcement of the award. In spite of the well reasoned

and vigorous dissent of justice Louis Brandlis, the majority of the court held that the

question of the existence of the jurisdictional fact must be determined by evidence

presented in a court of law.

The practical result of the doctrine or jurisdictional fact is to permit a complete

judicial re-examination, or trial de novo, of facts which other wise would have been

conclusively determined by the administrative agency. A decision of the Interstate

commerce commission, made after a formal hearing and protected by procedural safe

guards, should be considered differently from a decision of fact made by a meat

inspector relative to summary destruction of food, It the former case, the doctrine of

jurisdictional fact does not have the strong reasons for its application. Where a case can

be tried again on new evidence before another tribunal and there delay the final

settlement the result is to deprive the administrative agency appear ineffectual. Yet the

Crowell v. Benson doctrine has never been specially abandoned by the Supreme Court,

although subsequent decisions have restricted its scope.7

Other Factors Affecting Administrative Finality: The adequacy of the administrative

hearing sometimes determines whether the courts will review. Adequacy is tied up with

12

the question of whether the hearing satisfies due process. All though the courts will

normally refuse to interfere with immigration orders for deportation, they will set aside

orders based on an arbitrary hearing. The courts will review and hold void administrative

acts which are found in excess (ultravires) of the powers conferred by statute.

Probably the safest guide as to whether the courts will review is the nature of the subject

matter. In this respect it is necessary to distinguish between a legal right that is a

privilege, and a legal right that is not so clearly a privilege. In the former instance,

including mainly cases where an individual has sought some gratuity or benefit from the

government such as grants of public hand, the courts have been reluctant to review.

Similarly, the courts have refused to reverse Post office Department fraud orders,

because here also the government is performing a business service to individuals on

favourable terms. The courts are equally averse to reviewing cases involving a necessary

function of government, such as the collection of revenue, draft cases, civil service, and

cases involving military or naval regulations.

The Due Process Clauses: In cases involving the police power, or where

individual freedom is restricted in the interest of society as a whole, the situation is

different. Here the due process clause of the fourteenth Amendment frequently enters to

question or nullify the administrative acts of the states. Our courts sometimes interpret

due process to include matters of substantive law as well as procedure. It is under the

guise of due process that the courts sometimes express disapproval of new social and

economic concept by reading their own philosophy into a section of the constitution

originally designed to protect free Negro slaves. As noted earlier, the section of the

fourteenth Amendment, which says that no state shall “deprive any person of life, liberty,

or property, without due process of law”, has, been interpreted as a bar to arbitrary

government in general. Toward the end of the nineteenth century the Supreme Court

began to use this clause to nullify administrative acts and legislation which seemed to

them contrary to “good” social, economic, and political policy. Judicial review under this

clause has had a widespread effect on administrative practice and findings.8

Additional Avenues of Appeal: The are several ways whereby an administrative

action may be brought before a court for review. An aggrieved party may bring an action

for damages. Sometimes as in the case of the Interstate commerce commission, the

administrative agency must resort to the courts to enforce it orders. The so-called

extraordinary writs also serve to bring administrative acts before the regular courts.

These include certiorari, prohibition, mandamus, injunction, quo-warranto, and

habeascorpus. Then there are express statutory provisions for appeal, for instance, the

provision allowing appeal from the California Railroad commission direct to the state

supreme court. Another opportunity for judicial review occurs when an administrative

agency is permitted by statute to sue for the expense of executing an order after its

nonobservance. The question of the validity of the order may be raised in such a suit.

As indicated previously, under our system of law it is within the power of the

courts to review administrative acts to the extent that they deem desirable. There are no

ironclad rules, which will enable one to forecast with accuracy how far a court will

review in a given case. James M. Lendis would determine the basis of judicial review or

administrative finality upon such factors as competence and expertness. He would leave

question involving strictly legal interpretation to the courts, whereas matters of

13

technology would nest with administrative officials who are experts in that field.

Difficulties have arisen in the past because the courts have been prove to discard their

true competence and cloak themselves in an aura of expertness “in matters of industrial

health, utility engineering, railroad management, even bread making.9 The courts,

according to landis, should retreat from fields of expertness in which they have no claim

to fitness and leave final determination of such problems to administrators.

In actual practice, however, consider able leeway is permitted administrative officers

and tribunals in reaching final decisions on matters coming before them. As long as this

situation exists, ordinary courts that can correct improper illegal or arbitrary administrative

acts can handle infringements on the principle of the supremacy of law. At the present time,

there may be a feeling on the part of those who desire more social justice that unsympathetic

judges, have used review to thwart administrative regulation designed to act as an

instrument of socialization. On the other hand, corporation lawyers can usually place an

abiding trust in the safety of their cause before the courts as opposed to administrative

commissions. The fact remains that the best solution is an arrangement by which both

private interest and social justice will be reasonably well served. It appears now that events

working to ward that end. The experience of the Supreme Court during the New Deal period

suggests that judges educated in the principles of the common law may not be altogether

impervious to social change.

Judicial Control of Administrative Action in UK

In UK the general theory of judicial control is correspondingly simple. It is

commonly called the doctrine of ultra virus. Administrative power derives from statute.

The statute gives power for certain purpose only, or subject to some special procedure, or

with some other kind of limits. The limits are to be found not only in the statute itself,

but in the general principles of construction which the courts apply, provided, of course,

that the statute has not expressly or impliedly modified them for every statute is an act of

sovereign legislation and can abnegate all principles of administrative law if parliament

so wishes. But in Practice all statutory powers have statutory limits; and where the

expressed limits are indefinite, the courts are all the more inclined to find that limits are

implied. The notion of unlimited power has no place in the system.

It then follows that any act outside the defined limits (ultravire) is an act

unjustified by law, which can have no legal validity. The court will accordingly declare

it to be quashed or to be a nullity. If it is also a wrongful act by the ordinary law (such as

a trespass to person or property), damages may also be awarded; and in a suitable case

the court may prohibit the wrongful act in advance. In granting these remedies the court

is enforcing the rule of law, which requires that public authorities of all kinds should be

able to show legal warrant for what they do, and that if legal warrant is lacking their

action should be condemned. As a general rule the legality of their acts is always open to

attract, and there is no resumption in their favour (wade; 1971). The general ground of

judicial control of UK is discussed bellow:

Doing the wrong things: This is the most obvious category of error, although the

cases may involve difficult points of statutory construction. For instance, a local

authority had power under the Housing Act 1936 to acquire land compulsorily for

housing provided that it was not part of any ‘park, garden or pleasure ground’, and the

owner of land affected by an order succeeded in invalidating it by showing that the land

14

was infact parkland, although the order had been confirmed by the minister of

Health after a public inquiry.10 In such a case the court will quash the compulsory

purchase order, which is tantamount to declaring that in law it is a nullity because of noncompliance

with the Act.

Acting in the wrong manner: There have been many cases where the thing done

is ostensibly within the statutory power, but, never theses, contravenes it because some

false step is taken or some condition is ignored. Several different types of cases may be

instanced like as:

Breach of mandatory condition: Very often the empowering statute will require

some procedure to be followed. The court will then normally conclude that the power is to

be exercised in accordance with that procedure but not otherwise, so that any departure from

it will invalidate the action. For example, a local education authority was prohibited by

injunction from preceding with a scheme for comprehensive schools, since this involved

ceasing to maintain some of their former schools and they had not first given public notice

and opportunity for objection as required by the Education Act 1944. In another cases after

receiving a report from an Agricultural land tribunal recommending that a farmer be

disposed from 151 acres, the Minister of Agriculture made a dispossessions order covering

155 acres. This was held wholly invalid, since part of the land comprised init had never been

referred to the tribunal under the statutory procedure.11

Normally the court requires every statutory condition to be properly fulfilled,

since where the law requires such and such steps to be taken it is to be implied that the

action is valid only if they are duly taken.

The rule against negligence: Powers must be exercised with reasonable care. A

statutory power to do something is not a charter of exemption from all ordinary law, and in

particular it does not justify negligence. In one case a local council built an air raid shelter in

a road and left it until at night, so that a motorist collided with it and was injured. The

council had power to build shelters on high ways but it was held that this did not aloud it

from the general duty of taking reasonable steps to make such erections as safe as possible

(wade, 1971; 57). During the war, therefore, when normal street lighting was prohibited, the

shelter should have been lit with small red lamps so as to make it as safe as conditions

permitted. The shelter was, infact, provided with such lamps, but on the night in question no

one had turned them on. The council were accordingly liable in damage. Lord Black burn

had said in an earlier case: … it is now thoroughly well established that no action will lie for

doing that which the legislative has authorized, if it be done without negligence, although it

does occasion damage to any one; but an action does lie for doing with the legislature has

authorized, if it be done negligently.12

Other injurious act : Just as power do not justify acts of negligence, So they do

not justify other injuries such as nuisances, unless it seems that parliament must have

intended to authorize them. Thus where power was given to build hospitals in London

for the benefit of the poor, it was held not to authorize a small pox hospital in Hampstead

where the hospital was a nuisance to the neighbour hood (wade, 1971).

Since the statutory power gave discretion as to the sites of the hospitals, it was

presumed that parliament did not intend to permit the violation of private rights. There is

therefore a presumption that discretionary power shall, if possible, be exercised to as to

15

respect the rights of other people.

Breach of statutory duty: Although as has been seen, there is no namely for the

no exercise of a discretionary power, it might be thought that there must always be a

remedy for the non-performance of a duty. But this is not so, for the courts may interpret

the statutory duties of public authorities as owed to the public generally, and not to

particular persons.

The rule against delegation: There is a maxim delegates non protest delegare –

the maxim perhaps justifies its existence by hinting that there is some judicial bias

against allowing delegation (wade, 1971). The very object of conferring a power on a

particular administrative authority is that the power must be exercised by that authority

and cannot be sub delegated to any other authority or official.13 “Delegation may be the

result of honest misapprehension by the authority concerned of the legal position. It

sometimes arises out of desire to expedite official business. But still will be invaded if it

is not legally permitted.14 For instance, under the defence regulations, the Minister of

Agriculture delegated to War Agricultural Executive committees the power of directing,

what crops farmers should grow. This delegation was expressly authorized by statute.

But the Bedfordshire Committee, having resolved that a farmer should grow 8 acres of

sugar bat left it to their executive officer to specify on which field it should be grown.

This he had no power to do, for the power belonged only to the committee, and

accordingly a prosecution for disobedience of the directions failed (wade, 1971).15

Surrender or abdication of discretion: A kindred method of vitiating the

exercise of a discretion is where the person entrusted with it, instead of delegating it,

exercises it at the dictation of some other person. For although he is then acting himself,

it is not his own discretion which governs the act, as the legislative intended that it

should be. On this ground the court quashed a minister refusal of refusal of planning

permission for gravel working on top class agricultural land, since the minister was

acting on a rigid policy of refusing permission whenever the application was opposed by

the Ministry of Agriculture. The wrong minister thus made the effective decision, and

the right minister had never genuinely considered the case or exercised a proper

discretion. The courts are distinctly strict in invaliding decisions made in such a manner.

Fettering of powers by contract: This branch of the doctrine of ultra vires may

impinge on private law where the statutory discretion conflicts with the terms of a

contract. Just as a statutory authority has no power to abdicate the discretion entrusted to

it by contract. The leading case concerned the trustees of Ayr Harbour, Who had power

under their Act to acquire land and build upon it. The House of Lords decided that the

trustees had no power, on acquiring. Land, to undertake not to obstruct the former

owner’s use of it for access to the harbour. This would have been to fetter the power of

building on the land in the future, so that the trustees would have been able to prevent

their successors from exercising the power to build which Act conferred for the public

good (wade, 1971).

Estoppel and consent: The principle that statutory powers cannot be artificially

fettered appears again in connection with estoppel. As a general rule, a man is estopped from

denying facts, which he has caused some one to believe, are true, if reliance has been placed on

the misrepresentation. He may not deny what he has asserted even though the assertion is

16

wrong. But a public authority cannot abdicate its duty to exercise an unhindered discretion on

the true facts in the public interest. This may produce hard results. In one notable case an

officer of a planning authority told a firm that if they bought certain property they would not

need planning permission to use it as a builders yard since it had already been used for his

purpose so that the purchaser would have the benefit of the existing use right.’ In fact this

proved to be wrong information, and planning’s permission was subsequently refused. It was

held that the planning authority were not estopped from relying on the true facts, and could

enforce their refusal of permission.

For similar reasons a statutory authority cannot obtain power which does not

belong to it merely because the parties consent. It a tenant successfully applies to a rent

tribunal for a reduction of rent, but later discovers that the house was outside the

tribunal’s jurisdiction, the tenant may treat the tribunal’s award as a nullity and pursue

other remedies. Thus the question of jurisdiction is not res judicata between the parties,

as it would be if determined by the High Court. ‘It is a fundamental principle that no

consent can confer on a court or tribunal with limited statutory jurisdiction any power to

act beyond that jurisdiction, or can estop the consenting party from subsequently

maintaining that such court or tribunal has acted without jurisdiction.

Disregarded of natural justice: Failure to give proper hearing may also quite

properly be regarded as one of the varieties of abuse of power. There are many where

either common law or statute makes the exercise of a owner illegal if the person who will

suffer has not first been fairly heard in his own defence. But this opens the whole subject

of natural justice, which needs chapter to it. It is indeed, full of examples of the right

thing being done in the wrong manner. But it also has wider aspects, and will be best

treated independently.

The House of Lords decided the Hampstead case – This leading case in 1914.

The Hampstead Borough council made a closing order against a house as being unfit for

human habitation. The owner appealed, as the Act allowed, to the local Government

Board, and the usual public local inquiry was held though the owner did not attend it.

The appeal failed and the owner then took his case to the courts. He complained that the

board had not given him a fair hearing on his appeal because he was not allowed to

appear before the officer who actually decided the matter and because he was not

allowed to see the report of the inspector who held the inquiry, which of course, was the

principal document in the proceedings. These complaints succeeded in the court of

Appeal but failed in the House of Lords.16

Motives reasonableness good faith: In all the law of judicial control perhaps the

central topic is the question how far the courts will go in investigating the motives and

merits of government action.

Abuse of power is not confined to cased where the wrong thing is done or the

right thing is done by the wrong procedure: the right thing may be done by the right

procedure, but on the wrong grounds. Connected with this is the question of

reasonableness: can the law prevent powers being exercised unreasonably? Here the

courts meet many difficult conundrums. The doctrines of law are once again, easy to

state. The difficulty lies in applying them. One the other hand when the administrator act

they must have motive in good faith or bonafide not malafide. If the it is clear that the

17

motive is not good or bad faith the decision will be quashed by the court.

In a leading case of 1948 an attack was made on conditions attached to a license

for Sunday showings at a cinema. The cinematograph Act 1909 empowered the local

council to Sunday opening of cinemas subject to such conditions as the authority think fit

to impose’. A license was granted subject to the condition that no children under fifteen

years of age should be admitted, whether accompanied by an adult or not. This total ban

on children and indirectly (in effect) on parents was attacked as being unreasonable and

there fore ultra vires.

Abuse of discretion: Abuse of discretion is also the ground of abuse of power or

ultravires. It any administrative authority abuse the discretion to exercise their power the

decision would be illegal or unreasonable. For example: The famous decision of the

House of Lords in the Poplar case, In 920 the Poplar Borough council, wishing to set an

example as model socialist employers, instituted a minimum weekly wage for all their

employers of £ 4 for men and women alike. The minimum wage had previously been £ 3.

4s. For men and £ 2.9s. 9d For women. In 1921-2 there was a sharp fall in the cost of

living and in ways but the minimum wage of £4 was left uncharged. The council’s

statutory power was to pay their servants ‘such salaries and wages as [they] may think

fit’. It would be difficult for Parliament to confer a wider discretion. But the House of

Lords upheld a complaint that the weekly minimum of £4 was so excessive, in relation to

the labour market, that it amounted to a gratuitous subsidy to the employees and

contained and element, which was not ‘wages’ at all.17 The Legislature must have

intended that in fixing wages the council should have regard to the labour market, By

retying without regard to it, and for extraneous reasons which lord Atkinson described as

‘eccentric principles of socialistic philanthropy’ and ‘feminist ambition, The council had

abused their powers.

Ulterior objects and mixed motives: Many cases raise the questions where an

authority is motivated by a proper purpose in one, which came to the Privy council from

New South Wales the city of Sydney had acted under’ a power to acquire land

compulsorily for making streets and also for ‘carrying out improvements in or

remodelling any portion of the city’. A landowner threatened with a compulsory

purchase order succeeded in obtaining an injunction to prohibit it, since it appeared that

the Municipal council had in fact no plan for improving or remodelling that part of city,

but were merely trying to acquire as much as possible of an area which was due for a rise

in site values owing to the extension of a street.18 The council was in fact making use of

its power to carry out schemes of improvement for what was really quite a different

purpose namely, the expropriation of the ‘betterment’, which the new street would

create. This is a strict for word example, since the purposes of the statutory power were

expressed, and the purposes of the council were manifestly different. It is comparable

with the case mentioned below, where land was acquired ostensibly for a scheme of

coast protection works but in fact for other purpose which were not authorized. Wade,

1971; 81).

Malice: Occasionally it is alleged that a public authority has with held some

permission or done some other act out of mere malice or spite. This is hardly

distinguishable from a charge of bad faith, for if malice were proved it would obviously

show that the power was not exercised reasonably and in good faith, Thus where

18

building and drainage plans were rejected by a by a sanitary authority and they

were alleged to have acted out of spite, because they had previously been

litigation with the applicant it was held that his proper remedy was to apply for a

mandamus ordering the sanitary authority to determine the application properly.19

Although in this cases a claim for damages failed, the Privy Council has since indicated

that damages might be awarded for malicious refusal of a license, apparently on the

ground that it might be an actionable breach of statutory duty.

Jurisdictional questions: It is sometimes said that the only logical way of escape

from the problem of deciding whether any given question is jurisdictional’ is to be found

in the ‘theory or jurisdiction’. According to this, an administrative authority or tribunal

ought to have jurisdiction to determine conclusively elements in it final decision.20 Thus

if a rent tribunal has power to fix the rents of furnished house must, if disputed, be

decided by the tribunal before it can tell whether it has jurisdiction over the case. The

decision on this point ought, it is argued, to be subject’ to no greater degree of control

than the decision as to the proper rent, since the jurisdiction over the latter questions

impliedly requires an equal jurisdiction over the former.

Judicial Control of Administrative Action in Bangladesh

Constitutional Aspect: The constitution of Bangladesh like USA and UK the

doctrine of judicial review can be explained from different perspectives it attaches,

particularly both from the viewpoint of constitutional law and administrative law.

Firstly, the strict of substantive meaning of judicial review has been ensured in

articles 7.26 and 102(2) of the constitution of Bangladesh. Article 7 declares the core of

constitutional supremacy. It says- “This constitution is, as the solemn expression of the

will of the people, the supreme law of the Republic, and if any other law is consistent

with this constitution that other law shall, to the extent of the inconsistency, be void.

“Though the provision of article 7 gives an umbrella-coverage of constitutional

supremacy to the whole constitution, article 26 gives a double sanctity on the provision

of fundamental rights. It says-

“26. (1) All existing law in consistent with the provisions of this part

(Fundamental Right) shall, to the extent of such inconsistency, become void on the

commencement of this constitution.

(2) The state shall not make any law inconsistent with any provisions of this part,

any law so made, shall, to the extent of such inconsistency, be void (Halim, 1998).

Articles 7 and 26, therefore, give the substantive law of judicial review and

article 102 (2) gives the implementing law of it, for it provides for the procedure how a

law which is inconsistent with the provisions for the constitution can be declared

unconstitutional by issuing prohibition, mandamus and certiorari (Halim, 1998, p. 71).

That means a person complaining of abridgement of his rights could under clause (i) of

Article 102 move the High Court Division for an appropriate writ to order, and, if

successful, could be granted a declaration that the imputed provision of law is

enforceable, and such consequential relief as the case demands. The combined effect of

Articles 44(i) and 102(i) of the constitution is to make the guarantee of the constitutional

rights a reality and not a mere expression of noble sentiments. (obaidullah, 1999; 144).

19

Secondly, for the enforcement of fundamental right specific provisions have been

inserted in the constitution. Part III of the constitution provides for 18 fundamental rights

and under article 102 (i) the High Court Division of the Supreme Court can issue

direction and orders for enforcement of these rights. It is pertinent to mention here that in

Britain there is nothing as fundamental right because it has no written constitution. All

rights are ordinary rights which are protected under statutory law and common law; not

by any constitutional guarantee like Bangladesh.

However, the enforcement of fundamental rights in Bangladesh is not absolute.

Under article 114 (B) of the constitution “while proclamation of emergency is in

operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the state

to make any law of take any executive action which the state would but for the provision

contained in Part I of this constitution, be competent to make or to take, but any law so

made shall, to the extent of the inconsistency, ceases to have effect as soon as the

proclamation ceases to operate except in respect of things done before the law so ceases

to have effect. And 141C(i) state that:

While a proclamation of Emergency is in operation, the president may [on the

written advice of Prime Minister, by order] declare that the right to move any court for

the enforcement of such rights conferred by Part III of this constitution as may be

specified in the order, and all proceedings pending in any court for the enforcement the

rights so specified shall remain suspended for the period during which the proclamation

is in force or for such shorter period as may be specified in the order. An order made

under this article may extend to the whole of Bangladesh and any part thereat

(Obaidulhah, 1999, 145).

Thirdly, administrative actions may be reviewed under constitutional provisions.

Because under article 102 (2) of the constitution the Supreme Court can examine the

validity of actions performed by any public officials or bodies.

Fourthly, a large number of administrative actions are reviewed uder statutory law.

Because constitutional review of administrative actions under article 102(2) is possible only

when “no other equally efficacious remedy is provided by law (statutory law).” Under

various Acts of parliament higher courts i.e. the Supreme Court as well as lower courts and

tribunals have power to review the administrative action (Halim, 1998; 72).

The courts suggested the doctrine that power exercised arbitrarily and

capriciously amounted to denial of fundamental rights. A doctrine emerged from the

pronouncement in sultan Ali Naghiana V. Mian Nur Hossain that when by law

something is left to be done according to the discretion of the authority legally

embowered u to do so,” such discretion must be exercised in the spirit of the statute. It

may be assumed that no discretion vasted in an executive officer is an absoute and

arbitrary discretion. The High Court in Abdul Majid V. West Pakistan.21 Suggested that

“every administrative power … was always in the last resort subject to fundamental

principles of fair play. Discretion vested in him for a public purpose must be exercised

for the attainment of that purpose.” Even though there be no express words in the

relevant legal provision to that effect, the discretion is always circumscribed by the

scope and object of law that creates it and has, at the same time, to be exercised justly

and fairly22 (Obaidullah, 1999; 145).

20

Just and fair procedure means adherence to the principles of Natural Justice and

Due Process of law in the United Kingdom and United states respectively. The essence

of natural justice is, no man should be judge in his own cause, and (b) no man should be

condemned unheard. Due process of law in the American Constitution clearly states that

“no man shall be deprived of his life, liberty and property without due process of law.

And the Due Process of Law is in essence, adherence to the principles of adequate notice

and hearing.

Fifthly, like in Britain judicial review of delegated law is possible in Bangladesh.

It is a general rule that a delegated law must not be inconsistent with its parent law. If

any delegated law is proved to be inconsistent with the parent act, the court can declare

that delegated law illegal and ineffective.

Practice of Judicial Review by Supreme Court in Bangladesh: Article 94(i) of

the constitution provides that there shall be a Supreme Court for Bangladesh (to be

known as the Supreme Court of Bangladesh) comprising the Appellate Division and

High Court Division. According to Article 101 there are two sources of power and

Jurisdiction of High Court Division the constitution and ordinary law. Hence the

jurisdiction of the High Court Division may be divided into two categories – ordinary or

general jurisdiction and constitutional jurisdiction.

Ordinary Jurisdiction: Jurisdiction conferred on the HCD by ordinary law is its

ordinary jurisdiction which may be of various ways like as : (i) Original jurisdiction, (ii)

Appellate jurisdiction, (iii) Provisional jurisdiction and (iv) Reference jurisdiction. Our

subject matter is control system of Supreme Court. So here we sketch the revision and

reference jurisdiction. Provisional jurisdiction of HCD means the power whereby it

examines the decisions of its subordinate courts, for example, section 115 of the CPC has

conferred on the HCD the revision power. Reference jurisdiction Reference jurisdiction

means the power whereby the HCD can give opinion and order on a case referred to it by

any subordinate court. For example, section 113 of the CPC gives the HCD reference

jurisdiction.

Constitutional Jurisdiction of the HCD: The constitution itself has conferred

on the HCD the following three types of jurisdictions: A) writ jurisdiction; B)

Jurisdictional as to superintendence and control over courts; and C) jurisdiction as to

Transfer of cases.

Writ Jurisdiction: The constitution has conferred on the HCD original

jurisdiction only in one case and that case is the field of writ matters. The basis of writ

jurisdiction is Article 102 of the constitution. Writ jurisdiction means the power of

jurisdiction of the HCD under the provisions of the constitution whereby it can enforce

fundamental rights as guaranteed in part III of the constitution and can also exercise its

power of judicial review.

Jurisdiction as to Superintendence and Control: Article 109 of the

constitution says that the HCD shall have superintendence and control over all courts and

tribunals subordinate to it. This power is also called the supervisory power of the HCD.

So the condition for supervisory power is that the court or tribunal must be subordinate

to the HCD. Now a question necessarily arises – when a court or tribunal is said to be

subordinate to the HCD? To be subordinate to the HCD the court or tribunal must be

21

subject to its either appellate or revision jurisdiction. In other words, the courts and

tribunals against whose decision either appeal or revision lay before the HCD are called

subordinate courts and tribunals to the High Court Division.

Nature of the Supervisory Power of the HCD: The supervisory power of the

HCD as conferred by Article 109 is a constitutional power. And this power of

superintendence is in addition to the power conferred upon the HCD under section 115

of the C.P.C. and Cr. P.C. are only statutory supervisory powers whereas power under

article 109 of the constitution is a constitutional supervisory power. Statutory

supervisory power extends to judicial but not to administrative matters, while the

constitutional supervisory power extends to both judicial and administrative matters.23

The statutory supervisory power covers only courts but article 109 covers court as well

as tribunals subordinate to the HCD. The statutory power under article 109 cannot be

curtailed except by an amendment to the constitution.

2. The supervisory power under article 109 is a discretionary power and so no

litigant can invoke this power as of right.

3. Being a supervisory power the HCD can apply it Suo Motu; again it can be

exercised on application by a party.

4. Under this supervisory power HCD can interfere in the functioning of

subordinate courts or tribunal in the following circumstances (Halim; 1998; 325)

i) Want or excess of jurisdiction.

ii) Failure to exercise jurisdiction.

iii) Violation of procedure or disregard of principles of natural justice.

iv) Findings based or no materials, or order resulting in manifest injustice.

Jurisdiction as to Transfer of Cases: Under article 110 of the constitution the

HCD may transfer a case form subordinate court to itself (Halim, 1998; 328). But

condition is that the HCD is to be satisfied that

i) a substantial question of law as to interpretation of the constitution is

involved in the case; or

ii) a point of general public importance is involved in the case.

If the HCD, on being so satisfied, with draws a case from a subordinate court, it

will take following three alternatives;

i) It may dispose of the case itself; or

ii) It may determine the question of law and return the case to the court from

which it has been withdraw together with a copy of the judgment of the

division on such question, and the court to which the case is so returned, on

receipt thereof proceed to dispose of the case in conformity with such

judgments; or

iii) It may determine the question of law and transfer it to another subordinate

court together with a copy of the judgment of the division on such question

and the court to which the case is so transferred shall, on receipt thereof,

proceed to dispose of the case in conformity with such judgment.

22

The power of transfer under article 110 is a discretionary power and so no litigant

can invoke this power as of right, This power can be exercised Suo Motu by the HCD or

it may be exercised on an application by party.

Or the subordinate court before which the case is pending may also refer the case

to the HCD. It is to be mentioned here that the HCD has been given power of transfer of

civil suits and criminal cases by the C.P.C. and Cr. P.C. under certain circumstances, But

this latter power of transfer is a statutory power where as the power under article 110 is a

constitutional power.

Jurisdiction of the Appellate Division: The Appellate Division of the Supreme

Court has no original Jurisdiction. As like as the High Court Division the source of

jurisdiction of the Appellate Division is also two (i) the constitution and (ii) ordinary

law. But an ordinary law can give the Appellate Division only appellate jurisdiction as

stated in Article 103 (4) of the constitution. The constitution itself has conferred on the

Appellate Division the following four types of jurisdiction.

A. Appellate Jurisdiction;

B. Jurisdiction as to issue and execution of process;

C. Jurisdiction as to review; and

D. Advisory Jurisdiction.

Here, we discussed only jurisdiction as to review. Article 105 of the constitution

empowers the Appellate Division to review its own judgment or order but this power is

to be exercised -

i) Subject to the provision of an Act of parliament; and

ii) Subject to the rules made by the Appellate Division.

Accordingly, the Supreme Court of Bangladesh (Appellate Division) Rules were

frame by the Appellate Division in 1988. (Halim 1998; 342) According to this Rules, the

Appellate Division may either of its own motion or on the application of a party to a

preceding, review its, own judgment or order in a civil proceeding on grounds similar to

those mentioned in Order XLVII Rule 1 of the code of civil. Procedure and in a criminal

proceeding on the ground of error apparent on the face of the record (Rule 1 of Order

XXVI).

From the above discussion, we can summarise on judicial review of

administrative action in Bangladesh by various aspects, the general grounds of judicial

review are bellow:

Lack of jurisdiction: Every officer has to act within limits of authority given to

him and also within a specified geographical area. If he acts beyond his authority or out

side the geographical limits of his powers, his act will be declared by the courts as

ultravires and hence ineffective. As, for example, the minister had no power to revoke

the license, he passed an order of revocation. The action was held ultra vireos and

without jurisdiction. Similarly, if the appropriate government has power to refer an

“industrial disputes” to a tribunal for adjudication, it cannot refer a dispute which is not

an industrial disputes. Again, if a taxing authority imposes tax on a commodity exempted

under the Act, the action is without authority of law (Takwani, 2001; 255).

23

Exceeding jurisdiction: An administrative authority must exercise the power

with in the limits of the statute and if it exceeds those limits, the action will be held

ultravires. A court whether the authority acted within the limits of its power or exceeded

it can always decide a question. For example, if an officer is empowered to grant a loan

of Tk. 10,000 in his discretion for a particular purpose and if he grants a loan of Tk.

20,000 he exceeds his power (jurisdiction) and the entire order is ultravires and void on

that ground.

In London country council V. Attorney General, the local authority was

empowered to operate tramways. The local authority also carried on a bus service. An

injunction against the operation of buses by the council was duly granted (Takwani,

2001; 255).

Irrelevant consideration: A power conferred on an administrative authority by a

statute must be exercised on the considerations relevant to the purpose for which it is

conferred. Instead, if the authority takes into account wholly irrelevant or extraneous

considerations the exercise of power by the authority will be ultravires and the action

bad. It is settled law that where a statute requires and authority to exercise power, such

authority must be satisfied power, such authority must be satisfied about existence of the

grounds mentioned in the statute. The courts are entitled to examine whether those

ground existed when the action was taken. A person aggrieved by such action can

question the legality of satisfaction by showing that it was based on irrelevant grounds.

Thus, the existence of the circumstances is open to judicial review.

Error of law: A public servant may misinterpret the law and may impose upon

the citizen’s duties and obligations which are not required by Law. A citizen who has

suffered on account of this has the right to approach the court for damages.

Error of fact-finding: There may be cases in which the official has erred in

discovering facts. He may wrongly interpret facts or ignore them and thus may act on

wrong presumptions. This may affect a citizen adversely and so there may be ground for

bringing a case in a court of law.

Abuse of authority: If a public official uses his authority vindictively to harm

some person. The courts can intervene and punish him if he is found guilty of using his

authority to take a personal revenge.

Error of authority: Above all, public officials have to act according to a certain

procedure as laid down by laws and if they do not follow the prescribed procedure the

court have a right to question the legality of their action, on appeal from the party

affected. For example, law requires that an employee should be served with the notice of

the charges before any action of suspending or dismissing him can be taken against him.

Suppose the officer takes action against him without serving a proper notice, them his

action shall be declared null and void by the court.

Sub-delegation: A discretionary power must, in general, be exercised only by

the authority to which it has been committed. It is well known principle of law that when

a power has been confined to a person in circumstances indicating that trust is being

placed in his individual judgment and discretion, he must exercise that power personally

unless he has been expressly empowered to delegate it to another.” The very object of

24

conferring a power on a particular administrative authority is that the power must

be exercised by that authority and cannot be sub delegated to any other authority or

official. “Delegation may be the result of honest misimpression by the authority

concerned of the legal position. It sometimes arises out of a desire to expedite official

business. But still it will be invalid if it is not legally permitted.24

Non-observance of Natural Justice: By snow, it is well-settled law that even if

the exercise of power is purely administrative in nature, if it adversely affects any

person, the principles of natural justice must be observed and the person concerned must

be heard. Violation of the principles of natural justice makes the exercise of power

ultravires and void. English law recognizes two principles of natural justice:

(a) Nemo debet esse judex inpropria causea: No man shall be judge in his own

cause, or the deciding authority must be impartial and without bias; and

(b) Audi alteram partem: Here the other side, or both the sides must be heard, or

no man should be condemned unheard, or that there must be fairness on the part of the

deciding authority. For example-

In Cooper V. Wandsworth Board of Works: The defendant Board had power

to demolish any building without giving any opportunity of hearing if it was erected

without prior permission. The Board demolished the house of the plaintiff under this

provision. The action of the Board was not in violation of the statutory provision. The

court held that the Board’s. Power was subject to the qualification that no man can be

deprived of his property without having an opportunity of being heard.

Limitations of Judicial Control

The judicial remedies mentioned above under the ‘Rule of Law’ system provide

an effective control against official excesses or abuse of power and in protecting the

liberties and rights of the citizens. But judicial control has certain limitations. It the first

place all administrative actions are not subject to judicial control. There are many kinds

of administrative actions, which cannot be reviewed by the law courts. Then there is a

tendency on the part of the legislature also to exclude by law certain administrative acts

from the jurisdiction of the judiciary. For example, in India the administration of

Evacuee Property act, 1950 vests final judicial powers in the Custodians and Custodian

General of Evacuee Property and the law courts have no jurisdiction to interfere in the

decision made under this Act.

Second, even in those administrative actions which are within its jurisdiction, the

judiciary cannot by itself take cognisance of excesses on the part of officials. It can

intervene only on the request of somebody who has been affected or is likely to be

affected by an official action. Human nature being what it is, legalism is the last sphere

in which it would like to enter. We are always reluctant to enter the precincts of judiciary

and prefer to continue to put up with minor injustices of administration. That means that

a negligible fraction of the cases of administrative excesses would come before the

judiciary and that too after a person has already suffered.

Third, the judicial process is very slow and cumbersome. The courts follow

certain set technical pattern of procedure beyond the comprehension of a layman and

then the procedure is so lengthy that it cannot be known as to when the final judgment

25

shall be given. There have been instances when cases have been pending with the courts

for years together. Sometimes the decision of the court comes when the damage has been

done beyond repair: “Justice delayed is justice denied”. An aggrieved person cannot wait

indefinitely to avail himself of the judicial remedy. The dilatory judicial procedure will

not in any way console the sufferer or reconcile his afflicted mind. Tired of the delay he

will lose hope and become a victim of bureaucracy.

Fourth, sometimes the remedies offered by the law courts are in adequate and

ineffective. In many cases, especially relating to business activities, mere announcement

of an administrative action or even a reminder concerning a proposed action may cause

an injury to the individual against whom not even a suit can be filed in the law court.

Fifth, the government may deprive the person of the remedy granted to him by

the court by changing the law or rules thereof. In a case the High Courts ordered that the

petitioners be promoted to the senior posts of Professors class I and that direct selection

for these posts contravenes the provision of the States Reorganisation act in as much as it

changes the conditions of service of the petitioners to their disadvantages. The

Government did promote the petitioners thereby giving effect to the judgement of the

court. But after some time these posts were withdrawn on the ground of financial

stringency and the persons were reverted to their substantive posts.

Sixth, judicial action is incredibly expensive and cannot therefore be taken

advantage of by many people. Filing a suit means paying the court fee, fee of the lawyer

engaged and cost of producing witnesses and undergoing all inconveniences which only

those who can afford can bear. This keeps many people away from the court who prefer

to suffer. On account of heavy cost and great inconvenience the judicial remedies are of

little advantage.

Last, the highly technical nature of most of the administrative actions saps the

force of judicial review. The judges are only legal experts and they may have little

knowledge of the technicalities and complexities of administrative problems. Their lelgal

bent of mind may hinder them in arriving at a right decision. They have to follow the

prescribed procedures and observe some formalities. W. A. Robson writes, “The liability

of the individual official for wrong doing committed in the course of his duty is

essentially a relic from past centuries when government was in the hands of a few

prominent, independent and substantial persons, so called Public Officers, who were in

no way responsible to ministers or elected legislatures or councils. Such a doctrine is

utterly unsuited to the Twentieth Century State, in which the Public Officer has been

superseded by armies of anonymous and obscure civil servants acting directly under the

orders of their superiors, who are ultimately responsible to an elected body. The

exclusive liability of the individual officer is a doctrine typical of a highly individual

Common Law. It is of decreasing value today, and is small recompense for an

irresponsible state.” Besides, the judges have their own whims and prejudices. That is

why the modern trend is towards the establishment of Administrative Tribunals, which

consist of person’s expert in technical matters.

Concluding Remarks

From review of the details of judicial control and its limitation we can reach a

conclusion. In conclusion we can say that the system of judicial control of administrative

26

power in USA & UK are different in some aspect but are similar in core areas of

administration. On the other hand, in Bangladesh and Indian subcontinent follow the

British system of judicial review process. But most of the developing countries like

Bangladesh there are some limitations of judicial review, which we have already been

discussed. Everybody knows that 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. So we should

overcome all the limitations of judicial control of the land. I have some specific

recommendations to overcome the problems.

All the decisions taken b 1. y the administration have to be opportunity to

judicial review.

2. All man should have equal opportunity to access the jurisdictions of judicial

review.

3. Judiciary would be transparent and dynamic so that every case accomplished

as soon as possible. In this case separate court would have established for

separate types of cases.

4. The remedies offered by the law courts must be adequate and effective. And

the recruitment of chief justice and other justices of Supreme Court must be

fair, merit and seniority based.

5. The separation of judiciary from the executive must be implemented as soon

as possible.

6. Judges would be trained for the highly technical nature of most of the

administrative problems. Because the judges are only legal experts and they

may have little knowledge of the technicalities and complexities of

administrative problem.

7. Strengthen law enforcement mechanisms, including the role of the judiciary

and provide witness protection programs.

Lastly, all would have adequate respect to the judiciary of the land. And

government always would have politically neutral to the judicial system of our country.It

is expected that the findings and recommendations of the study would be helpful for

concerned organisations for creating awareness and undertaking active programs to

protect the citizen’s rights against abuse of administrative power in Bangladesh.

End Notes:

24 Justice Douglas in U.S.V. Wunderlich, 342 US 98, 101(1951).

24 H.W.R. Wade, Administrative Law (Oxford : Clarendon Press, 1971), p. 51.

24 Lord Heward of Bury, the New Despotism, p. 17 (1929).

24 Lord Heward of Bury: The New Despotism (1929).

24 “The Johnson Act-A Return to State Independence”, 30 Illinois Law Review (1935), p. 215.

24 John Dickinson, Administrative Justice and the Supremacy of the Law (Cambridge : Harvard University

Press, 1927), p. 38.

24 B. Schwartz, Does the Ghost of Crowell V. Benson Still Walk? “98 University of Pensisylvania Law

27

Review”, December, 1949.

24 See A.H. Feller, “Administrative Procedure and the Public Interest, The Result of Due Process”, 25

Washington University Law Quarterly (April, 1940), p. 304.

24 James. M. Landis, The Administrative Process (New Haven : Yale University Press, 1938).

24 White and Collins V. Minister of Health (1939), K.B. 838.

24 R.V Agriculture Land Tribunal (1967), W.L.R. 1311.

24 Geddis V. Proprietors of Bann Reservoir (1873) 3 App. Cas. 430 at 455.

24 C.K. Takwani, 2001.

24 Markose: Judicial Control of Administrative Action in India, 1956, p. 395.

24 Allingham V. Minister of Agriculture and Fisheries (1948), All E.R. 780.

24 Local Government Board V. Arlidge (1915), A.G. 120.

24 Robert V. Hopwood [1925] A.G. 578. For the political back ground, a story of great interest see B. Keith

Lucas, ‘Poplarism’, [1962] Public Law 52.

24 Municipal Council of Sydney V. Compbell [1925] A.G. 338.

24 Davis V. Bromby Corporation [1908] 1 K.B. 170.

24 De. Smith, Judicial Review of Administrative Action, 2nd ed, 96.

24 Abdul Majid V. West Pakistan, PLD, 1956. Lahore. P. 615.

24 The Montgomery Flour & General Mills Ltd. V. Director Food Purchases, PLD 1957, Lahore, p. 914.

24 A.T. Mirdha V. State 25 DLR 335.

24 Markoe: Judicial Control of Administrative Action in India, 1956, p. 395.

References:

Cooper, F.E. (1965; 32), State: Administrative Law, 1. New York : The Babbes Merril

Company Ltd.

2. Freeman, J. Lepier (1952; 10-19), The Bureaucracy in Pressure Politics. Annals of

the Academy of Political and Social Science 319.

3. Griffith, L.A.G & Street, H. (1967; 19), Principle of Administrative Law. London:

Sir Isaac Piton and Sons Ltd.

4. Halim, M.A. (1998; 71-72), Constitution, Constitutional Law and Politics:

Bangladesh Perspective. Dhaka: Rico Printers.

5. Ibid., 335-344.

6. Jain, M.P. & Jain, S.M. (1981; 273), Principles of Administrative Law. Bombay :

N.M. Tripathi Private Ltd.

7. Lutrin, Carld E. & Settle, Allenk (1980; 297-304), American Public Administration

Concepts & Cases, 2nd Ed. California: Mayfield Publishing Company.

8. Massey, I.P. (2001; 54), Administrative Law. Lucknow: Eastern Book Company.

9. Obaidullah, A.T.M. (1999; 140-175), Bangladesh Public Administration. Dhaka:

Academic Press and Publishers Ltd.

28

Pfiffner, John M. & Presthus Robert (1953; 504-520), 10. Public Administration, 3rd Ed.

New York : Ronald Press Co.

11. Ibid.

12. Sachdeva & Gupta (1995; 307-310), A Simple Study of Public Administration, Delhi :

Ajanta Prakashan.

13. Takwani, C,K. (2001; 39), Lectures on Administrative Law. Lucknow: Eastern Book

Company.

14. Ibid.

15. Ibid.; 255.

16. Wade, H.W.R. (1971; 46-105), Administrative Law, Oxford: Clarendon Press.

Advocte Rajkumar makkd openion is true and correct. Everywhere corruption exists 

as stated to the extent of minimal.  No administration without Corruption right from

local bodies to judiciry. Corruption is receiving illegal gratification either in cash or

kind for doing favour  whether is  to minimal or to maxim, ofcourse

not so far meaasurable to reach maxim.  Thus, I state here that the corruption is limitless.

Corruption is serious aand punishable under the law, if one has to the conclusion the corruption

is to minimum.  

Who is responsible for corruption is judiciary ?

 

Do the judges takes money from accused directly ?

 

It is who that initiate the deal and makes offer before a judge ?

 

Advocates.

 

This is the story behing huge fees of BIG ADVOCATES. NO?

 

The BIG ADVOCATE means that who takes BIG FEES - A BIG AGENT. NO?

 

In this angle the judges seems the VICTIM OF CORRUPTION BY ADVOCATES. NO?

 

mr mahendra titre's question triggered the key point.