Judicial Oversight of Bureaucracy
Judicial oversight refers to the process by which the judiciary examines the legality of any action of a person or authority, public or private, in accordance with the provisions of the Constitution or any law of a country. Thus, judicial oversight of bureaucracy refers to the procedures and mechanisms of the judiciary by which the functions of bureaucracy are scrutinized and tested based on evidence for its validity or legitimacy.
This chapter deals with a vital issue of governance that is judicial oversight of bureaucracy by which individual rights and accountability of bureaucrats are ensured. Judicial oversight has some common types widely and popularly used globally such as judicial review, judicial supervision, judicial activisms, and judicial advice (Mollah 2014). Typically, judicial review is used for judicial oversight of bureaucracy globally. However, judicial activism is used significantly in South Asia including Bangladesh for the last 20 years. Both judicial review and judicial activisms are closely related to the world famous case of Marbury vs Madison in 1803 declared by Chief Justice John Marshall of the USA. In this case, C. J. John Marshall explained that the court has the rights to say “what the law is? A law must be consistent with the Constitution. If there is any inconsistency between a law made by the Congress and the Constitution, it is the duty of the court to enforce the Constitution and ignore the law.” Thus, he laid down the foundation of two concepts – judicial review and judicial activism (cited in Lal 2004). These two basic forms of judicial oversight are used mainly as judicial oversight of bureaucracy like very effective means for protecting and promoting individual rights through ensuring accountability and transparency of bureaucracy. Judicial oversight is an effective control mechanism of not only the bureaucracy but also the legislature and the judiciary. It also exercises this power for any unlawful/illegal action of any individual or organization (public or private). In this chapter, the main form (judicial review) of judicial oversight of bureaucracy has been analyzed with case references focused on Bangladesh.
Judicial Oversights of Bureaucracy in Bangladesh
The bureaucracy exercises a huge volume of power to meet the needs and expectations of citizens through administrative and development activities of the government. Today, bureaucracy is not concerned with only pure administrative function but also involved with a large number of quasi-legislative and quasi-judicial functions (Wade 1971). Therefore, they have a number of chances to become arbitrary or master of the citizens. So, it is very necessary to control them. There are three main formal control organs of the government such as executive, legislature, and judiciary. This chapter highlights only judicial oversight over bureaucracy. Judicial oversight of the bureaucracy is primarily linked to the judicial review and judicial activism. Besides, judicial supervision and judicial advice are also used as judicial oversight. In this chapter, only judicial review and judicial activism have been analyzed with suitable case references.
Judicial review means the power of the courts to examine the legality of the official act and thereby to safeguard the fundamental and other essential rights of the citizens. The object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment (Wilkey 1985). It is the ultimate power of any court to declare unconstitutional and hence unenforceable any law, any official action based on a law, and any other action of a public official that seems to be conflicting with the Constitution (Abraham 1980). Thus, the judiciary is empowered to check a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. The Supreme Court is also called the absolute protector of the freedom and liberty, the authoritative interpretation of the will of the citizens, and the ultimate authority to control any exercise of absolute, impulsive, and arbitrary power (Diwan and Diwan 1996).
In the USA, there is in theory almost no limit upon the right of courts to review the decisions of administrative tribunals and agencies. Similarly, Wilkey (1985) mentioned that in the USA, judicial review produces a “summing up” of “all the rules of administrative law, both procedural and substantive, for if an agency violates any of the fundamental rules or due process of law the agency action is sure to be challenged and ultimately nullified by the courts.” On the other hand, in the UK, the general theory of judicial control is comparative. It is commonly called the doctrine of ultra vires. The doctrine of ultra vires means beyond the jurisdiction or excess of jurisdiction or lack of jurisdiction. For example, in a leading case of 1948 in the UK, it has been observed that:
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 15 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 therefore ultra vires (Wade 1971).
Bangladesh and other South Asian countries mostly follow this doctrine of ultra vires for judicial review. The power of judicial review in Bangladesh has been established by Articles 7, 26, and 102 (2) of the Constitution of Bangladesh (COB 2011). Articles 2 and 26 of the Constitution enumerate the full judicial power of the Supreme Court to declare a law passed by the legislature inconsistent with the Constitution or fundamental rights’ ultra vires (COB 2011). The judicial review of executive and bureaucratic actions has been empowered by Article 102 (2) of the Constitution.
The common grounds of judicial review under the doctrine of ultra vires are abuse of discretion, breach of statutory duty, abuse of power and authority, irrelevant consideration, exceeding jurisdiction, lack of jurisdiction, malice, breach of mandatory condition, ulterior objects and mixed motives, rule against negligence, acting in the wrong manner, and nonobservance of natural justice.
In exercising the power of judicial review, the law court acts on the principles that “the administrative powers can be validly exercised only within their true limits and public officials are not to be allowed to transgress the limits of their authority conferred by the Constitution or statutory laws” (Islam 2003). Moreover, the court exercises the power of judicial review if any administrative or executive decision is mala fide or in violation of the principles of natural justice or due process of law. Some case example of judicial review has been analyzed below.
In the case of Motiur Rahman Versus Bangladesh (2005), an important question of law arose as to whether under s 3(2, 3) of Special Power Act 1974 (later used as SPA 1974) a District Magistrate or Additional District Magistrate is empowered to pass an order of detention making the same effect for 30 days from the date of service of the order of detention as was being done since February 17, 1993, following a circular issued by the then Secretary of Ministry of Home Affairs (in this case total no. of writ petitioners were 18 (57 Dhaka Law Report (later used as DLR), 2005, pp. 327–32). In this regard, MA Aziz and Syed Refaat Ahmed, two judges of the High Court Division (later used as HCD), gave a historic verdict by the judgment passed on July 29, 2003. The court held that from a combined reading of s 3(2, 3), as mentioned above, there cannot be any room for doubt or debate that the order of detention made under s 3(2) cannot remain valid after the expiry of 30 days from the date when the order was made.
This was because s 3(3) of Special Power Act, 1974 (later used as SPA 1974) in an unmistakable and unambiguous term stipulated that an order of detention will operate with effect from the date of making the order and no such order will remain in force for more than 30 days unless in the meantime it has been approved by the government (57 DLR 2005 p. 328). The court added that the District Magistrate or Additional District Magistrate on the basis of an alleged circular dated February 17, 1993, from the Ministry of Home affairs started detaining persons with effect from the date of service of the order on the detenu. A process would normally take a few days, but this processing time started getting added up with the 30 days of the detention order. Then the court observed that the detention of these additional days was left unaccounted for, resulting in keeping the detenu many days more in custody. This was wholly unlawful and unauthorized simply because it keeps a person in custody for a period longer than permitted by law.
A circular does not have any force of law and cannot override an act of parliament, i.e., the SPA 1974 (DLR 2005, p. 330). The court further observed:
We find that the law of preventive detention is being misused and abused by the officers who have the power to detain a person because of lack of knowledge of the law, particularly the law under which they have been empowered to pass an order of detention. On a reference to each and every order of detention, we find that before signing the order the detaining authority i.e., the District Magistrate/Additional District Magistrate, asserts that on being satisfied as to the necessity of detaining a particular detenu the order of detention is passed. We thus feel that the government should take steps to see that these officers are properly trained for a reasonable period so that they may be imparted with the basic and working knowledge of the law. (DLR 2005, p. 332).
This was a historical verdict of the High Court, which was directed to the Registrar to circulate among all the District Magistrates and all District Session Judges of Bangladesh and also directed to send a copy of the verdict to the Secretary of Ministry of Establishment, the Secretary of Ministry of Home Affairs, and the Secretary of Ministry of Law, Justice and Parliamentary Affairs.
In this case, it has been found that the detenu authority misused SPA, which was against personal liberty and a clear violation of human rights. However, the court heroically declared the aforesaid actions of government were illegal and directed the concerned ministries of the government to take necessary steps regarding this. Thus, the judiciary makes the administration accountable and contributes in ensuring human rights and good governance.
Similarly, in the case of Khorshed Alam vs Secretary of Ministry of Home Affairs (Writ Petition No. 194 of 2004, 57 DLR, 2005, pp. 32–4), it was found that the extension of detention order was made by the District Magistrate arbitrarily by abusing SPA 1974, which had no legal basis, and the detenu was set free by the fair verdict of the Supreme Court. We also found that colorable exercise or abuse of administrative power is not allowed by the law and the court, and no one is above the law. Thus, the court compelled the lower court, tribunals, and administration to account for the common law of the country through its judicial review and supervision process. At the same time, the court ensured the personal liberty of citizens as well as human rights.
In another case of Amirul Islam vs Ministry of Home Affairs (Writ Petition No. 4345 of 2004, 59 DLR, 2007, pp. 258–63), the petitioner joined as a police sergeant at Khulna Metropolitan Police (KMP), Khulna, on March 9, 2000, and after completing 2-year training period in police service was confirmed as a police sergeant in 2002. Suddenly, the petitioner was placed under suspension by the commissioner in charge of KMP vide office Order No. 282(6) RO dated January 18, 2004, on the allegation that he was involved in immoral activity with one Akhi Islam Ruma. In this case, the court found that the charge was not only the violation of the principles (audi alteram partem) of natural justice but also the provisions of special provisions of ordinance were discriminatory and comparatively harsh in nature. In addition, in the absence of guideline as to which case is treated under PRB and which under the ordinance 1976, the authority enjoys arbitrary power in violation of the nondiscriminatory provision of the Constitution.
Therefore, in view of the overall circumstances, the court constrained to hold that in the instant case there was fair scope to give proper relief to the petitioner as he was deprived of cross-examining prosecution witness and was punished and unheard without giving the opportunity of self-defense as such. Thus, the Supreme Court of Bangladesh plays a very crucial role in ensuring legal accountability of public officials and also in ensuring fundamental rights of citizens, rule of law, and constitutional supremacy that ultimately contribute to good governance through its review power.
Some other cases also found that in exercising the power of judicial review, the Supreme Court acts on the law that administrative powers can be genuinely exercised only within their true limits under laws. For instance, in the case of Shamima Sultana vs Bangladesh (Writ Petition No. 3304 of 2003, 57 DLR, 2005 pp. 201–24. Shamima Sultana Seema and nine other petitioners were Ward Commissioners (elected by dated 25–03-2002 City Corporation Election) in the seats reserved for female candidates in Khulna City Corporation under provisions of Section 4 of the Khulna City Corporation Ordinance 1984 (the Ordinance, in short)), the court declared that the government cannot do anything out of the ambit of law or ordinance. In this case, the circular dated September 9, 2002, issued under the signature of the Joint Secretary, Ministry of Local Government, Rural Development and Cooperative, and Local Government Division (Poura-1) was declared illegal and without lawful authority. It was further declared that once elected, commissioners, whether in the general seats or in the reserved seats, male or female, are equal in all respects, and they shall be so treated by all concerned. Thus, the judiciary on the one hand ensured administrative accountability and on the other and more importantly ensured rule of law, equal rights, as well as human rights through this judicial review process.
Similarly, public officials are not to be allowed to transgress the limits of their authority conferred by the Constitution or by statutory laws. The courts can exercise the power of judicial review if the decision is mala fide or in violation of the principles of natural justice or an irrelevant consideration or rule against bias. In the case of Mamunur Rashid vs Bangladesh (Writ Petition No. 2529 of 2001, 57 DLR, 2005, pp. 100–103), after observing the evidence and hearings of both parties, the court found some serious anomalies in government records and decoded that the impugned compulsory retirement order shomo (Uni-1) Pa/293–274 dated November 6, 2001, had been passed with mala fide intention and hence was without jurisdiction and was of no legal effect.
From the above analysis, it has been found that if any case appears before the court like inconsistent with the Constitution and law, the court can declare that that case happened without lawful authority and is of no illegal effect. The court can also order the concerned authority to take necessary steps regarding this. Therefore, the court can compel the administration to be accountable to the judiciary or legal system of Bangladesh. In this way, the court, on the one hand, ensures the accountability of government officials and, on the other hand, ensures fundamental rights of citizens.
In contrary, it has also been found that implementation of verdict depends on executive and will of government which is a major challenge and impediment of judicial power and independence. It is evident that Masdar Hossain Case was a landmark case in the history of Bangladesh. In this case, it has been found that Masdar Hossain along with 441 judicial officers (judges) filed a writ petition (No. 2424 of 1995) for separation of the judiciary from the executive in Bangladesh. The High Court delivered its historic judgment on May 7, 1997, in favor of the separation of the judiciary from the executive. However, the government took a stance against this verdict and favored an appeal to the Appellate Division. The Appellate Division also gave its landmark decision in favor of the separation of the judiciary from the executive with 12-point directives on December 2, 1999 (Mollah 2012). Successive governments took 23 adjournments up to 2006, but the verdict remained unimplemented, and it was finally implemented by an interim caretaker government (2006–2008) in 2007. Perhaps, it remained pending if the then interim government did not implement it. Similarly, a lot of verdicts have been delivered against arbitrary arrest, detention and torture in prison cell, under trial prisons, extrajudicial disappearance and killing, environmental protection, violence against women and children, and violence against minorities and backward groups, but the execution or implementation of these verdicts is either very slow or still remains pending. As a result, violation of human rights, misuse of power, deterioration of law and order, and attack and abduction by militant groups are increasing.
Is the Judiciary Independent?
“The ultimate protection of the individual in a society governed by Rule of Law depends upon the existence of an enlightened, independent and courageous judiciary and upon adequate provision for the speedy and effective administration of justice” mentioned by International Conference of Jurists, held in Bangkok in 1965.
Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government including personal freedom of judges from political, superior, or any other forms of internal or external interference. Broadly independence of judiciary depends on two aspects – institutional and individual independence of judges. In theory, the Judiciary of Bangladesh is separated and independent institutionally from 2007. However, in practice both institutionally and individually, it is not independent. Few instances can be mentioned here. Individual independence of judges depends on appointment, tenure, and discipline.
Serious controversy has risen regarding the frequent appointments to the High Court Divisions of the Supreme Court. There are allegations that the appointments are made by political consideration. Bangladesh still does not have a law prescribing detailed “qualifications” for the appointment of judges to the Supreme Court. In Bangladesh three basic principles are followed for appointing judges in Supreme Court and subordinate courts, which include the following: seniority, merit, and quota. Out of three, the most practicing criteria are seniority. However, the principle of seniority is not always strictly followed in appointing judges. For example, in 2004 Justice Syed J.R. Mudassir Husain of the Appellate Division of the Supreme Court was appointed the 14th Chief Justice of Bangladesh bypassing Justices M. Ruhul Amin and Mohammad Fazlul Karim, two senior judges of the Appellate Division. Similarly, in 2008 President Prof. Iajuddin Ahmed appointed Justice Mr. M.M. Ruhul Amin as the 16th Chief Justice of the Supreme Court of Bangladesh by superseding Justice Mohammad Fazlul Karim, who was then the senior most among the Appellate Division judges. This practice is still continuing. The present (22nd) Chief Justice Syed Mahmud Hossain has been appointed superseded by Justice Wahhab Miah who was the senior most and acting CJ after the resignation of CJ Surendra Kumar Sinha.
In addition, generally the most senior judges of the High Court Division are appointed to the Appellate Division, but these principles also violated frequently in Bangladesh. From December 1985 to November 2000, this occurred 19 times in Bangladesh (Akkas 2004, p. 140). Similarly, the appointment of Chief Justice A.B..M. Khairul Haque by the President in September 2010 was alleged to have involved the supersession of two more senior judges of the Appellate Division. Similar controversies arose in the appointment of the present Chief Justice of Bangladesh, Justice Muzammel Hossain on 18 May, 2011. In this appointment, Justice Shah Abu Nayeem Mominur Rahman was superseded (and then he resigned).
In the case of High Court Division, seniority principles were violated on February 20, 2001, for instance, three judges were appointed to the High Court Division by superseding senior district judges. In order of seniority the first four judicial officers in the rank of district judges were as follows: Mr. M. Abdul Hye, Mr. Afzal Hossain Ahmed, Mr. M. Abdur Razzak, and Mr. M. Marzi-Ul-Haque.
As an institute the judiciary is still not independent too. For instance, the cancellation of the 16th amendment of Bangladesh Constitution is worth mentioning here. Advocate Manzill Murshid with eight other Supreme Court lawyers filed a writ petition to the High Court Division (HCD) on November 5, 2014, questioning the legality of the 16th amendment of the Constitution. The 16th amendment of the Constitution was passed by the parliament on September 17, 2014, without any opposition which repealed the provision of the Supreme Judicial Council (SJC), which was the constitutionally empowered body for probing allegations against judges of the Supreme Court and recommending removal. Through this amendment, the parliament was empowered to remove (impeach) judges for incapacity of misbehavior. In this case, based on the arguments of 12 amicus curiae, on June 1, 2017, the Appellate Division of the Supreme Court chaired by the Chief Justice (Surendra Kumar Sinha) of Bangladesh upheld the High Court verdict (delivered on May 5, 2016) that declared the 16th amendment of the Constitution illegal, unconstitutional, and against the principles of the separation of state powers and the independence of the judiciary (The Daily Sun, July 3, 2017; The Daily Star, May 6, 2016).
However, the verdict has not been implemented as the government did not accept the verdict and challenge for review. In addition, the government compelled 11 “charges” against Chief Justice (CJ) Surendra Kumar Sinha including money laundering and corruption and forced for resign. As a result, he (CJ) has reigned from the post of CJ on October 10, 2017, and went to Australia (The Daily Star, 15 October 2017). Critics raised their voice against this forced resignation of CJ which is a serious threat for judicial independence, which happened for the first time in the history of Bangladesh. Therefore, political and executive interference on judiciary is still continuing though the judiciary has been separated from the executive in 2007. It has also alleged that Surendra Kumar Sinha (CJ) was appointed by the ruling party, by superseding on political consideration.
In case of the lower judiciary, the independence is also a matter of contention. Posting, promotion, and transfer of the judges of subordinate judiciary are still in the hands of the law ministry.
There is criticism also regarding the appointment of public prosecutors, who play a great role in aiding the judiciary to come to a proper decision-making in state-led cases. Bangladesh has a longstanding practice of appointing ruling party-affiliated lawyers as public prosecutors. It is alleged that, following the practices of the past, the current government has replaced the entire group of public prosecutors with members or genuine supporters of the governing party and has also made politically motivated appointments to the Office of the Attorney General. Apart from these, the manner of refusal of bail to political leaders has raised concerns about whether the courts are functioning freely. In addition, presidential pardons in several sensational murder cases to persons affiliated with the ruling party seriously undermined the rule of law.
Therefore, the judiciary is facing political and executive domination and challenges which are the major obstacles of independence of judiciary in Bangladesh. Thus, the real spirit of judicial oversight, rule of law, and good governance is hampering.
The foregoing discussion and analysis reveal that the role of oversight of the judiciary in protecting the citizen’s rights through checking and combating the abuse or misuse of official’s power is very effective. However, the courts cannot interfere in the bureaucratic activities of their own accord. They can intervene only when they are invited to do so by any person or organization who feels that his/her rights have been abrogated or are likely to be abrogated as a result of some action of the public officials. 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. Though suo moto rule or PIL is effective for rapid action against the arbitrary or abusive exercise of bureaucratic or administrative power, the implementation of the verdicts is dependent on the executive. Besides, the judiciary is not independent enough to take its decision both individually and institutionally. Therefore, strong political will is essential for the execution of the judicial decision. Therefore, both judicial independence and strong political will are a must for effective judicial oversight of bureaucracy in ensuring rule of law and good governance of a country.
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