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Thursday, August 19, 2010

Administrative Law 1

1.      Question: Scope and nature of Administrative law with definition of the Administrative law?
Answer: Administrative law is the body of law regulating government decision-making.  Review of administrative decisions can take place internally and externally. 
Scope and nature of administrative law:
(1)    Administrative law deals  with executive, judicial and legislative powers and function of the administration;
(2)    Administrative law prescribes various principle and rules by which official action is reached and reviewed in relation to individual liberty and freedom;
(3)    Administrative law deals with those means or control mechanisms which keep the executive, its various agencies within legal bounds.

2.      Question: Development of Administrative law in Bangladesh as an independent legal discipline?
Answer: Page 10.

3.      Question: What is the source of Administrative law?

Answer: Sources mean the places of origin. So “sources of administrative means places wherefrom administrative laws have been origined”. Since administrative law is a law. So the sources of law are the sources of administrative law. Thus the following sources are treated as the sources of administrative law-
(1)    Constitutional law:   constitutional law equal to (Constitution+ Constitutional precedent+ constitutional convention) we can not find any active constitutional convention in Bangladesh.
(a)    Constitution: Part 9 of the Bangladesh constitution deals with the services of Bangladesh and this part cover Articles 133-141, which is indeed/basically administrative law.
(b)   Constitutional precedent/ case law: sectary, Ministry of Finance vs. Masder Hossain, 52DLR (2000) AD 86.

(2)    Act/ Ordinance: Act or Ordinance is the important sources of Administrative law. For example-
(i)                  The Administrative Tribunal Act, 1980
(ii)                Public Servants (Retirement) Act, 1974;
(iii)               Official Secrets Act, 1923
            Ordinance-
(i)                  The Government Servants (Dismissal on Conviction) Ordinance, 1985
(ii)                Public Servants (Marriage with Foreign Nationals) Ordinance, 1976.



(3)    Delegated legislation- (Rules and regulation):- Administrative law exists in various rules, regulation, by laws etc. for example-
(i)                   Rules:-
(a)     Government servants (discipline and appeal) rules, 1985.
(b)   Bangladesh Civil Service Seniority Rules, 1983.
(ii)                Regulation:-
(a)    Bangladesh Shilpa Bank Employees Service Regulations, 1984.
(b)   Bangladesh public Service Commissions (Consultation) Regulation, 1979.
(iii)               By Law:-
(a)    Paurashava Water Supply (Model) Byelaws, 1999.
(4)    Judicial Precedent/ Case laws:-
(a)    Abdul Latif mirza vs. Govtment of Bangladesh,(1982)34 DLR(AD )173.In this case the Appellate Division of the Bangladesh Supreme Court observe that the principle of natural justice is a part of the law of the country.

Abdur Rahman and other vs. Sultan and others, (1983) BLD (AD), 129. In this case the Appellate Division of the Bangladesh Supreme Court held that the Civil Procedure Code deals with procedural matters and not substantive rights. The procedural laws are grounded on principle of the natural justice.

4.      Question: What is the reason for growth on Ombudsman?
Answer: There are some reasons for growth on Ombudsman.
In the 1st instance that in judicial remedy there are many defect. For example in a judicial remedy the complaint is required to led any evidence or to prove his case or court fees are payable for filing a complaint is justified or unjustified and also need the lawyer it is very lengthy process.
On the other hand Executive or administrative remedy from higher authority, it is not acceptable because it is buyouts by lower authority.
For such reason the ombudsman is growth because in judicial and executive remedy have many defect. So it is more batter the judicial and as will as executive remedy.
5.      Question: Who the court is batter than Ombudsman in protecting a person against Administrative form?
Answer: Page-150.

6.      Question: What is Doctrine of ultra vires?
Answer: Doctrine of ultra vires means that which strikes down and act where it violates statute, principles on natural justice. It strikes down a provision where it is in conflict with its parent law or the constitutional law as the case may be.

7.      Question: What is substantive ultra vires and its legal effects?
Answer: Substantive ultra vires: Whan any act or any provision is in conflict with its parent law or constitutional law as the case may be it is called substantive ultra vires.
Legal effect: null and void.


8.      Question: What are procedural ultra vires and its legal effects?
Answer: Procedural ultra vires: When any act is done or any provision is made in violation of certain procedural requirements prescribed by the parent law or by the general law, it is procedural ultra vires.
In case of procedural ultra vires we find traces of two different provisions-
(a)    Directory procedural provision;
(b)   Mandatory procedural provision.

Legal effect: Violation of directory procedural provision does not make the Act or provision null and void. But violation of mandatory procedural provision makes the act or provision null and void.
Example: If any Criminal Court judge gives its judgment without following the procedure as given in the Criminal Procedure Code it is procedural ultra vires.
How would you understand which is directory procedural ultra vires and which is mandatory procedure ultra vires. It depends upon the words which are used in law or the spirit of the law. For example shall means its is sometimes mandatory and sometime directory also many sense it means directory but in certain cases it is mandatory.

But it is show that if this judgment mandatory it is null and void and if it is directory it is not null and void. What is directory or mandatory procedural ultra vires it depends upon the nature of the law and circumstance of the prevailing or the word used in the law.

9.      What are principle/ concept of natural justice?
Answer: In Bangladesh there is no statute laying down the minimum procedure which administrative authorities must follow while exercising decision making power. Natural justice is concept of common law and it is the common law world counterpart of the American “procedural due process”.
In Civil Court Procedure prescribed by C.P.C. And Criminal Court procedure prescribed by Cr.P.C. On the other hand Administration Adjudication follows prescribed procedure given in the enabling law, but is some case Administration Adjudication follows prescribed procedure has not given in the enabling law in that case natural justice is applicable.
Natural justice has meant many things to many writers, lawyers and systems of law. Professor H.W.R. Wade defines natural justice as “the name given to certain fundamental rules which are so necessary to the proper exercise of power that they are projected from the judicial to the administrative sphere”. Natural justice is the price of the rule of law.
The principle of natural justice through various decisions of courts can be easily ascertained, though their application in a given situation may depend on multifarious factors. In Bangladesh, though natural justice enjoys no express constitutional  status but the appellate Division of the Supreme Court of Bangladesh in Abdul Latif Mirza Vs. Government of Bangladesh, (1982) 34 DLR(AD) 173, observed observe that the principle of natural justice is a part of the law of the country. “It is now well-recognised that the principle of natural justice is a part of the law of the country”.
In legal sphere the concept of natural justice generally covers two principles:-
(1)    Nemo judex in cause sua: No one should be made a judge in his own cause or the rule against bias.
(2)    Audi alteram partem: Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.
Question: What do you mean by the: Doctrine of Ultra Vires”? Discuss with reference to its legal effect?


Answer: The doctrine of ultra vires was first introduced in relation to the statutory companies. However, the doctrine was not paid due attention up to 1855. The doctrine of ultra vires was first established the following case was decided by the House of Lords In Ashbury Railway Carriage and Iron Company Ltd vs. Riche, (1875) L.R. 7 H.L. 653.

Ultra Vires Latin phrase meaning "beyond power or authority" describing an act by a corporation that exceeds its legal powers. For example, corporations do not have the authority to engage in the insurance business without a charter. A corporation offering insurance without authority would be acting ultra vires.

Ultra vires Literally, ‘beyond powers’. Ultra vires has two meanings: (1) substantive ultra vires where a decision has been reached outside the powers conferred on the decision taker; and (2) procedural ultra vires where the prescribed procedures have not been properly complied with. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making.

In corporate law, ultra vires describes acts attempted by a corporation that are beyond the scope of powers granted by the corporation's charter, the laws authorizing its formation, or similar founding documents.

In administrative law, an act may be judicially reviewable ultra vires in a narrow or broad sense. Narrow ultra vires applies if an administrator did not have the substantive power to make a decision or it was wrought with procedural defects.

Basic principles included the following:
  1. An ultra vires transaction might be ratified by all the shareholders.
  2. The doctrine of estoppel usually precluded reliance on the defense of ultra vires where the transaction was fully performed by one party
  3. A fortiori, a transaction which was fully performed by both parties could not be attacked.
  4. If the contract was fully executory, the defense of ultra vires might be raised by either party.
  5. If the contract was partially performed, and the performance was held to be insufficient to bring the doctrine of estoppel into play, a suit for quasi contract for recovery of benefits conferred was available.
  6. If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on the ground the act was ultra vires.


Effect:
(i)                 Ultra vires contract: A contract beyond the objects clause of the company’s memorandum is an ultra vires contract and cannot be enforced by or against the company.
(ii)               Ultra vires borrowings: A borrowing beyond the power of the company (i.e. beyond the objects clause of the memorandum of the company) is called ultra vires borrowing.
(iii)             Ultra vires torts or crimes: As regards the extent to which the ultra vires rules applied to torts and crimes, the law is not well settled. The following views may be mentioned.


Question: “The concept of rule of law does not only mean rule according to law” – Explain the statement with reference to its modern concept?
Answer: The rule of law, in its most basic form, is the principle that no one is above the law. Rule of law means A legal system in which rules are clear, well-understood, and fairly enforced, including property rights and enforcement of contracts.
(iv)             Words, by "rule of law" we mean a western tradition that can be traced back to the Roman republics and was fully developed by the liberal constitutionalism. It is characterized, in the words of Max Weber, by "legal domination."
(v)               Concept: The rule of law means; in the first place, the complete superiority or prevalence of usual law as opposed to the power of illogical power, and excludes the survival of arbitrariness, prerogative. "Rules of Law" has not been implemented in Britain in its dispatch and strength. Legally speaking, the greater is opposed from the limits understood in the "Rule of Law" as 'King can do no wrong' is the essential doctrine of their political system. Hence the ruler cannot be summoned in any court of law, though all servants of the Crown are legally                                                         liable to courts for their departmental affairs.

Under Crown Proceeding Act of 1947, government officials enjoy sure civil liberties. A citizen can be compulsory serious punishment who gives on lawsuit against a public officer but fails to prove the accusation in the court. Moreover, no proceedings can be done against judges concerning the presentation of their duties.
(vi)             The Rule of Law, in its most basic form, is the principle that no one is above the law. Thomas Paine stated in his pamphlet Common Sense (1776): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."
(vii)           In England, the issuing of the Magna Carta was a prime example of the "rule of law." The Great Charter forced King John to submit to the law and succeeded in putting limits on feudal fees and duties. Another earlier example was Islamic law and jurisprudence, which recognized the equal subjection of all classes, including caliphs and sultans, to the ordinary law of the land.
(viii)         Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations, in Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748).
(ix)             The concept is not without controversy, and it has been said that "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use".


Question 1: What is Administrative discretion and Administrative Arbitrariness? What are the tools developed by court to contral exercise of Administrative discretion described with case reference?
Answer:
Administrative discretion -The performance of acts required to be done by an administrative agency may depend upon considerations not entirely susceptible of proof or disproof and which, considering the circumstances and the subject matter, cannot be supplied by the legislature.
Administrative Arbitrariness: Administrative discretion is never unlimited. Administrative body while taking decision must, a part from law, be guided by relevant consideration and not by irrelevant. If its decision is backed/ influenced by externals considerations which (it ought not to have taken in to account/ it should not be taken in to account) then decision can not stand, since that is administrative arbitrariness.
Control at the stage of delegation of discretion: The court exercises control over delegation of discretion of power to the administration by adjudicating upon the constitutionality of the law under which such power are delegated. If the law gives/ confers vague and wide discretionary power to any administrative authority it may be declare Ultra vires. Law may confer discretionary power but that must be backed/ guided/ supported, by policy and specific guideline.


Question2: define the ombudsman? What is the reason for growth on Ombudsman? Question: Who the court is batter than Ombudsman in protecting a person against Administrative form? What are the imperfections of ombudsmen? What is the legal possession of ombudsman in Bangladesh?

Answer: An ombudsman (English plural: ombudsmans or ombudsmen) is an official, usually (but not always) appointed by the government or by parliament, who is charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens.
a government appointee who investigates complaints by private persons against the
There are some reasons for growth on Ombudsman.
In the 1st instance that in judicial remedy there are many defect. For example in a judicial remedy the complaint is required to led any evidence or to prove his case or court fees are payable for filing a complaint is justified or unjustified and also need the lawyer it is very lengthy process.
On the other hand Executive or administrative remedy from higher authority, it is not acceptable because it is buyouts by lower authority.
For such reason the ombudsman is growth because in judicial and executive remedy have many defect. So it is more batter the judicial and as will as executive remedy.
Page-150.

Question 3: What do you mean Public Statutory Corporation? What are the reason and legal status of the growth of public statutory corporation? Described its Governmental and Judicial Control?

Answer:
State
 

1. The executive (Government)             2.  Legislative (parliament)        3. Judicial (court/ tribunal)


(I). Governmental department    (II). Governmental companies    (III). Statutory public corporation
A Statutory Corporation is a corporation created by statute. Their precise nature varies by jurisdiction thus they might be ordinary companies/corporations owned by a government with or without other shareholders, or they might be a body without shareholders which is controlled by national or sub-national government to the (in some cases minimal) extent provided for in the creating legislation.
Parliamentary control
Rejection of a statutory instrument, although more unlikely than with Acts, will be fatal (since statutory instruments cannot be amended), and the Lords are not constrained by the Parliament Acts.
Statutory instruments may be subject to 3 types of parliamentary control (controls are specified under the enabling Act):

Page-66
Question 4: Distinguish between court and tribunal with definition? Described the composition and jurisdiction of the Administrative tribunal and Administrative appellate tribunal?
Answer: A court is a public forum used by a power base to adjudicate disputes and dispense civil, labour, administrative and criminal justice under its laws.
Tribunal is a generic term for any body acting judicially, whether or not it is called a tribunal in its title. a formal hearing or forum for the investigation or resolution of a dispute or conflict. A tribunal may be established on behalf of a national.
Jurisdiction:
PART VI
THE JUDICIARY
       [CHAPTER I- THE SUPREME COURT
94. Establishment of Supreme Court (1) There shall be a Supreme Court for Bangladesh (to be Known as the Supreme Court of Bangladesh) comprising the Appeallate Division and the High Court Division.
(2) The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.
(3) The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.
(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.
95. Appointment of Judges (1) The Chief Justice and other Judges shall be appointed by the President.
(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and-
(a) has, for not less than ten years, been a advocate of the Supreme Court; or
(b) has, for not less than ten years, helf judicial office in the territory of Bangladesh; or
(c) has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.
(3) In this articles, "Supreme Court" includes 'a Court which at any time before the commencement of the Second Proclamation (Tenth Amendment) Order, 1977, exercised jurisdiction as a High Court or Supreme Court in the territory now forming part of Bangladesh.
96. Tenure of office of Judges (1) Subject to the other provisions of this article, a Judge shall hold office until he attains the age of [sixty-seven] years.
(2) A Judge shall not be removed from office except in accordance with the following provisions of this article.
(3) There shall be a Supreme Judicial Council, in this article referred to as the council, which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges:
Provided that if, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or other cause, the Judge who is next in seniority to those who are members of the Council shall act as such member.
(4) The function of the Council shall be-
(a) to prescribe a Code of Conduct to be observed by the Judges; and
(b) to inquire into the capacity or conduct of a Judge or of any other functionary who is not removable from office except in like manner as a Judge.
(5) Where, upon any information received from the Council or from any other source, the President has reason to apprehend that a Judge-
(a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity, or
(b) may have been guilty of gross misconduct, the President may direct the Council to inquire into the matter and report its finding.
(6) If, after making the inquiry, the Council reports to the President that in its opinion the Judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the Judge from office.
(7) For the purpose of an inquiry this article, the Council shall regulate its procedure and shall have, in respect of issue and execution of processes, the same power as the Supreme Court.
(8) A Judge may resign his office by writing under his hand addressed to the President.
97. Temporary appointment of Chief Justice If the office of the Chief Justice becomes vacant, or if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office, those functions shall, until some other person has entered upon that office, or until the Chief Justice has resumed his duties, as the case may be, be performed by the next most senior Judge of the Appellate Division.
98. Additional Supreme Court Judges Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judge of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified person to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period as an ad hoc Judge and such Judge while so sitting shall exercise the same jurisdiction, powers and functions as a Judge of the Appellate Division.
Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article.
99. Disabilities of Judges (1) Except as provided in clause (2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office or profit in the service of the Republic not being a judicial or quasi-judicial office [or the office of Chief Adviser or Adviser].
(2) A person who has held office as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.
100. Seat of Supreme Court The permanent seat of the Supreme Court, shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint.
Article 100 as amended by the said Act runs thus:-
"100. Seat of Surpreme Court.-
(1) Subject to this article, the permanent seat of the Supreme Court shall be in the capital.
(2) The High Court Division and the Judges thereo shall sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches.
(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.
(4) A permanent Bench shall consist of such number of Judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have been transferred to that Bench.
(5) The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this Constitution or any other law; and the area not so assigned shall be the area in relation to which the HighCourt Division sitting at the permanent seat of the Supreme Court Shall have such jurisdictions, powers and functions.
(6) The Chef Justice shall make rules to provide for all incidental, supplenental or consequential matters relating to the permanent Benches."
101. Jueisdiction of High Court Division The High Court Division shall have such original, appeallate and other jurisdictions, powers and functions as are or may be conferred on it by this Constitution or any other law.
102. Powers of High Court Division to issue certain orders and directions, etc. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.
(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-
(a) on the application of any person aggrieved, make an order-
(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or
(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order-
(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office to show under whatauthority he claims to hold that office.
(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.
(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-
(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or
(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect refered to in sub-clause (a) or sub-clause (b). (5) In this article, unless the context otherwise requires, "person" includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
103. Jurisdiction of Appellate Division (1) The Appellate Division shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division.
(2) An appeal to the Appeallate Division from a judgment, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division-
(a) certifies that the case involves a substantial question of law as to the interpretation of this constitution ; or
(b) has sentenced a person to death or to [imprisonment] for life, or
(c) has imposed punishment on a person for contempt of that division; and in such other cases as may be provided for by Act of Parliament.
(3) An appeal to the Appellate Division for a judgment, decree, order or sentence of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to appeal.
(4) Parliament may by law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the High Court Division.
104. Issue and ececution of processis of Appellate Division The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance or any person or the discovery or production of any document.
105. Review of Judgments or orders by Appellate Division The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.
106. Advisory jurisdiction of Supreme Court If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.
107. Rule making power of the Supreme Court (1) Subject to any law made by Parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it.
(2) The Supreme Court may delegate any of its functions under clause (1) and article 113 to a division of that Court or to one or more Judges.
(3) Subject to any rules made under this article the Chief Justice shall determine which Judge are to constitute any Bench of a division of the Supreme Court* * * * * and which Judges are to sit for any purpose.
(4) The Chief Justice may authorise the next most senior-Judge of either Division of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.
108. Supreme Court as court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.
109. Superintendence and control over courts The High Court shall have superintendence and control over all courts [and tribunals] subordinate to it.
110. Transfer of cases from subordinate courts to High Court Division If the High Court Division is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, or on a point of general public importance, the determination of which in necessary for the disposal of the case, it shall withdraw the case from that court and may-
(a) either dispose of the case itself; or
(b) determine the question of law and return the case to the court from which it has been so withdrawn (or transfer it to another subordinate court) together with a copy of the judgement of the division on such question, and the court to which the case is so returned or trnasferred shall, on receipt thereof, proceed to dispose of the case in conformity with such judgement.
111. Binding effect of Supreme Court judgments The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.
112. Action in aid of Supreme Court Al authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.
113. Staff of Supreme Court (1) Appointments of the staff of the Supreme Court shall be made by the Chief Justice or such other judge or officer of that Court as he may direct, and shall be made in accordance with rules made with the previous approval of the President by the Supreme Court.
(2) Subject to the provisions of any Act of Parliament the conditions of service of members of the staff of the Supreme Court shall be such as may be prescribed by rules made by that court.

CHAPTER II - SUBORDINATE COURTS
114. Establishment of subordinate courts There shall be in addition to the Supreme Court * * such courts subordinate thereto as may be established by law.
 [115. Appointments to subordinate courts Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.]
116. Control and discipline of subordinate courts The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the [President] [and shall be exercised by him in consultation with the Supreme Court].
 [116A. Judicial officers to be independent in the exercise of their functions 117. Administrative tribunals (1) Notwithstanding anything hereinbefore contained, Parliament may be law establish one or more administrative tribunals to exercise jurisdiction in respect of matter relating to or arising out of-
(a) the terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishment;
(b) the acquisition, administration, management and disposal of any property vested in or managed by the Government by or under any law, including the operation and management of, and service in any nationalised enterprise or statutory public authority;
 [(c) any law to which clause (3) of article 102 applies.]
(2) Where any administrative tribunal is established under this article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal: Provided that Parliament may, by law, provide for appeals from, or the review of, decisions of any such tribunal.
Jurisdiction of Administrative Tribunals.  
4. (1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic [ or of any statutory public authority] in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic [or of any statutory public authority].



(2) A person in the service of the Republic
[ or of any statutory public authority] may make an application to an Administrative Tribunal under sub-section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic [ or of any statutory public authority]:

Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic
[ or of any statutory public authority] or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter:



[ Provided further that, where no decision on an appeal or application for review in respect of an order, decision or action referred to in the preceding proviso has been taken by the higher administrative authority within a period of two months from the date on which the appeal or application was preferred or made, it shall, on the expiry of such period, be deemed, for the purpose of making an application to the Administrative Tribunals under this section, that such higher authority has disallowed the appeal of the application:]



Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be.



(3) In this section “person in the service of the Republic
[ or of any statutory public authority]” includes a person who is or has retired or is dismissed, removed or discharged from such service, but does not include a person in the defence services of Bangladesh[ or of the Bangladesh Rifles].

Jurisdiction of Administrative Appellate Tribunal.  
6. (1) The Administrative Appellate Tribunal shall have jurisdiction to hear and determine appeals from any order or decision of an Administrative Tribunal.



(2) Any person aggrieved by an order or decision of an Administrative Tribunal may, within
[ three months] from the date of making of the order or decision, prefer an appeal to the Administrative Appellate Tribunal.



4[ (2A) Notwithstanding the provisions of sub-section (2), an appeal may be admitted after the period of three months specified in that sub-section but not later than six months, if the appellant satisfies the Administrative Appellate Tribunal that he had sufficient cause for not preferring the appeal within three months.]



(3) The Administrative Appellate Tribunal may, on appeal, confirm, set aside, vary or modify any order or decision of an Administrative Tribunal, and the decision of the Administrative appellate Tribunal in an appeal
[ shall, subject to section 6A, be final].



Question 5: What is delegated legislation and sub-delegated legislation? Described the restriction, control and mechanism of delegated legislation? Distinguish between delegated and sub-delegated legislation?
Answer:

Question 6: What do you mean of public interest litigation? What are the causes of its growth in Bangladesh? What are of problems and solution of these problems of public interest litigation?
Answer: The concept of public interest litigation has been originated in case of R vs. Thames Magistraties Court1, where Lord Justice Parker and Denning departed2, from the usual and traditional concept of Locus tandy3 as evolved from the Anglo-Saxon Jurisprudence.
The old concept of Locus standi is that only an aggrieved person can being a case before the court and only that person is aggrieved who is directly injured in money or property. It is not enough that he has a grievance or his one of the public who is complying in company with hundred or thousand of others. This old concept of Locus standi was laid down in 1980 by a distinguished judge, Loard Justice James, in the Sidebotham case4. Now this old possession has much been altered. There is at present, a much wider concept of Locus standi and there has been a remarkable series of cases in which private person (3rd parties) have come to the court and have been heard.
So, public interest litigation is a concept which recognizes maintainability of legal action by a 3rd party5 (not the aggrieved) in unique situation6.



(1)    (1957) 5 DLR 129.
(2)    The departed shifted their position fro economic injury concept to non-economic injury concept of aggrieved person.
(3)    Ordinarily Locus standi means Rights to sue.
(4)    (1880) 14 C h d 458 at 465.
(5)    3rd party (not the aggrieved) means that is not directly injured in money and property. He is not the actual victim but a party (Plaintiff) to the case/ litigation.
(6)  Unique situation means that situation where 3rd party acts as friend in good faith without any mala fide intention Pro-Bono-Publico, not for his own vested interest.


Causes of growth of public interest litigation:
(i)                To ensure justice for poor aggrieved person;
(ii)              To ensure justice for aggrieved person who is enable to go to court for reason other then poverty; (other reason are ignorance, social or other relative cases)
(iii)             To established rule of law for all;
(iv)            To ensure equality before law and equal protection of law for all.

If a plaintiff with a good case is turned a way only because he is not sufficiently affected personally, that means that some person is left frees to violate the law and that is contrary to public interest. In such case if the good case is accepted to ensure public interest that is public interest litigation.

Question 7: Described the Historical background and meaning of various writs? Described the writs limitation on the jurisdiction of the High Court Division of the Supreme Court of Bangladesh?
Answer: The term writ means the declared rule or order of the court or other appropriate authority. In other words writ means a written document by which one is summoned or required to do or refrain from doing something. Literally a writ means a written order.
In fine, writ is a judicial process by which any one is summoned as an offender, a legal instrument to enforce obedience to the orders and sentences of the court (Whardon’s law lexicon, 1976, page 1078).


Historical development of writ: Historically writ originated and developed in the UK under British legal system, where 5 different writ namely, Habeas corpus, Mandamus, Prohibition, Certiorari and Quowarranto where in existence. Initially all writ, were call prerogative writs, since the king issued writs through the court of kings bench on the court of chancery. Only the king or queen as the fountain of justice could issue writ, and they where conceived as being intimately connected with the rights of the crown.
In Britain now there is only one independent writ and it is Hebeas corpus. Since in Britain, the administration of justice (Miscellaneous provision) Acts 1933 and 1938 where passed whereby Mandamus, Prohibition, Certiorari and Quewarranto where abolished as writ, of those Mandamus, Prohibition and Certiorari have been turned in to orders and Quewarranto in to injunction.
In British period the Supreme Court was 1st established in 1774 at Kolkata in pursuance of the Regulating Act 1773. This court was 1st empowered to issue prerogative writ. The Indian Constitution adopted in 1949 gave both this Supreme Court and High court powers to issue writ and specific names of all writs where in corporate in both Articles of 32 (for the Supreme Court) and 226 (for the High Court). Under the 1956 constitution of Pakistan both the Supreme Court and High Court where given power to issue writ and specific name of all writs where mention in both the Articles of 22 (for the Supreme Court) and Article 170 (for the High Court). But it was 1962 Constitution of Pakistan where from the 1st time a changed was introduced in writ matters. The Supreme Court was not given any original writ jurisdiction. Only the High Court were empowered under Article 98 to issue writ, but the particular names of specific writs where not used in the wording of the Article 98.
Following in the instance of the Pakistan 1962 Constitution, the Constitution makers of the our country of Bangladesh also did not mention the specific names of various writ in Article 102 of the Constitution, rather the contents of each of the writs have been kept in self contained provision.


Reasons for incorporating the name of various writs in Bangladesh: Since no specific reasons have been stated by the constitution makers but it is assumed that for the following reason the names of various writs have not been used in Article 102 of the Bangladesh Constitution.
(i)                  In the United Kingdom only the writ of Habeas corpus in now effective and for 4 other writs have been turned into order/injunction. This concept/ reality might have influenced the 1962 of Pakistan. Following such intense, Bangladesh Constitution also did not incorporate the name of various writs in Article 102.
(ii)                Specific name of various writs make them limited in their application. This is the most important reason behind the non-specification of names of various writs.

Writ order can be issued following grounds:-
(1)  For enforcement of fundamental rights;
(2)  Where there is no remedy in law;
(3)  Where there is no other equally efficacious remedy is provided by law.

Limitation of the writ powers of the High Court Division to issued writs:-
(a)   In case of Mandamus, Certiorari and prohibition the High Court Division has no authority to except any writ if filed by any person not aggrieved.
(b)  The High Court Division is not able to entertain any writ petition which is related to a law concerning defense services or any disciplined force or Administrative tribunal
(c)   Writ petition must be filed within a reasonable time, it not filed a reasonable time the High Court Division shall not allow the same.
(d)  The High Court Division is not entertain any writ petition of there is efficacious remedy provided by law on the writ matter.
(e)   The High Court Division is not competent to issue any order if same related to development work of the government without hearing of the government lawyer and attorney general.

********1st chief justice of writ: Justice Impey**********


Lecturer_ Hasan Talukder Sir