Assignment

On
1. Decentralisation of writ Jurisdiction of High Court Division .
Course Title: Administrative Law.
Course Code: 3201

Submitted to
Ms. Sharmin Sultana
Assistant Professor
Department of Law
Dhaka International University

Prepared by
Muhammed Zahangir Hossain
ID No: 19, 2nd semester
Program: LL.M (2 years), 30th batch
Department of Law
Dhaka International University

Date of Submission: 25.11.2020

1
 TABLE OF CONTENTS
 Abstract 2
 Introduction 3-4
 Methodology 4-5
 Concept and Classes of Writ 6-12
 Limitation on the jurisdiction of high court Division 13
 Writ Jurisdiction of the Appellate Division 14
 Writ Respondents 14-15
 Writ and Fundamental Rights Under the constitution 15-18
 Public Interest Litigation (PIL) 18-19
 Conditions for Public Interest Litigation 19
 Relevance of Public Interest Litigation 19-20
 Who Can File Public Interest Litigation? 20
 Writ as Public Interest Litigation 21-22
 Recommendations 22-24
 Conclusion 24-25
 Bibliography and Useful links 25-26

Abstract : Judiciary, being the sentinel of constitutional and statutory

rights of citizens has a special role to play in the constitutional scheme.
It can review legislation and administrative actions or decisions on the
anvil of constitutional law. In Bangladesh, for the enforcement of
fundamental rights one has to move the Supreme Court or the High
Court directly by invoking Writ Jurisdiction of these courts. Till 1960s
and 70’s, the concept of litigation in the then East Pakistan and
thereafter in Bangladesh was still in its rudimentary form and was seen

2
as a private pursuit for the vindication of private vested interests.
Litigation in those days consisted mainly of some action initiated and
continued by certain individuals, usually, addressing their own
grievances/problems. There were very little organized efforts or attempts
to take up wider issues that affected classes of consumers or the general
public at large. However, these entire scenarios changed with the
emergence of the concept of public interest litigation (PIL). This article
will discuss theoretically, the scope of Writ jurisdiction of Supreme
Court in effectively ensuring fundamental rights, the role of public
interest litigation in ensuring justice and its relation to Writ jurisdiction.

Introduction :“Justice without force is impotent; force without justice is

tyranny” A court of law is the only place where a person can seek justice
and the Supreme Court being the apex Court of Bangladesh, is the last
resort for ensuring justice to the peoples. There are many ways by which
a judge administers justice keeping himself within the periphery of the
constitution. Amongst all, Writ is one of the most important and
effective mechanisms to ensure justice. It is said to be one of the most
exceptional power of the court which can be used to ensure justice. A
writ is a formal written order issued by a body with administrative or
judicial jurisdiction. In modern usage, this body is generally known as
court. Writ practice is administered by a complicated set of rules and
3
specifications that varies by jurisdiction. There are several different
kinds of writ petition, but all have one thing in common. They ask an
appellate-level court to take some extraordinary action and intervene in
another institutions/courts process to institute some higher legal remedy
or legal relief. Though the Constitution provides for this special kind of
remedy to be exercised by the Court, such kind of remedy is not always
available except in case of protecting the violation of fundamental rights.
However the situation is changing gradually with the use of writs in
Public Interest Litigation and by relaxing the requirements of locus
standi in bringing a claim which is of course a result of judicial activism.
Such judicial activism is always welcomed and wanted if it is exercised
within the purview of the constitution.

Methodology: This is a theoretical study on the subject matter and the

study largely depends on secondary information deriving from books,
journals, publications, case laws, websites and articles. These
information are systematically gathered and analyzed from different
point of view of different writers and researchers including the current
writer. It is hoped that the article will give the readers insight into the
significance of writ in protecting fundamental rights and in flourishing
the concept of Public Interest Litigation to truly ensure justice for all.
Objectives The core objectives of this article are as follows

4
a. To evaluate the concept of the writ and writ jurisdiction

b. To examine the power of the Supreme Court of Bangladesh in issuing

writ.

c. To show the legitimacy of writ matter on the basis of the Constitution.

d. To examine the relation of writ in protecting fundamental rights.

e. To evaluate the concept of Public Interest Litigation.

f. To examine the correlation of writ and public interest litigation.

Meaning of Writ In general writ means a written document but in legal

terminology it has a restricted meaning. In legal terms, it is a document
by which one is summoned or required to do or refrain from doing
something. “Writ means” a written command, precept, or formal order
issued by a court, directing or enjoying the person or persons to whom it
is addressed to do or refrain from doing some act specified therein.
According to Blackstone, writ is mandatory letter from the king in
Parliament, sealed with his Great Seal, and directed to the Sheriff of the
Country wherein the injury is committed or supposed so to be, required
him to commandthe wrong-doer or party accused, either to do justice to
the complainant or else to appear in Court, and answer the accusation
against him. According to Burton’s legal thesaurus writ stands for bid,
bidding, command, commandment, decree, direction, directive, flat,
mandate, order, ordinance, percept, regulation and requirement. Simply

5
the word writ is used to indicate a particular type of order or judicial
process.

Concept and Classes of Writ: Historically writ originated and

developed in English Legal System. In England, the writs are issued by
the Crown as the head of the judicial system. Where there is no statutory
source and the Crown issued it by virtue of prerogative, it was called the
prerogative writ e.g. the writ of Habeas Corpus, Mandamus, Prohibition,
Certiorari, and Quo Warranto. There are some other kinds of writ, e.g.
writ of execution, writ of error, writ for the election, writ of a Member of
Parliament, etc. issued in the name of the reigning monarch, for the
doing, or not doing, of some act or thing. In Bangladesh, there is no
prerogative power belonging to any organ of government. But power to
issue the writ corresponding to the English prerogative writ has been
rested with the High Court Division under Article 102 of the constitution
of the People's Republic of Bangladesh. Since these writs are founded on
the express provisions of the constitution, the High Court Division is
also free to issue appropriate orders in the nature of those writs,
embodying their essential principles. However, these writs are available
not only for the enforcement of fundamental rights but also for the
enforcement of non-fundamental legal rights created by various statutes
and other Laws in force for the time being. In the context of Bangladesh,

6
writ can be classified as: Habeas Corpus, Mandamus, Prohibition,
Certiorari, and Quo Warranto.

Habeas Corpus means 'have his body' i.e.to have the body before the
Court. So it is a kind of order of the Court that commands the authorities
holding an individual in custody to bring that person before Court. The
authorities must then explain in the Court why the person is being held.
Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the
Bangladesh Constitution, the High Court Division, on the application of
any person, directs that a person in custody be brought before it to
satisfy itself as to whether he is being held in custody with or without
lawful authority. Sec.491 of the Code of Criminal Procedure also
authorizes the High Court Division to issue a direction in the nature of a
writ of Habeas Corpus to bring before it a person detained in public or
private custody in order to see as to whether he is being detained
illegally or improperly. If the High Court Division finds that such a
person is being held in custody, illegally or improperly, it then directs
the detaining authority or person to set him at liberty. The Writ of
‘Habeas Corpus’ is a process for securing the personal liberty of the
subjects by affording an effective means of immediate release from
unlawful or unjustifiable detention, whether in prison or in private
custody. This writ is the most important weapon forged by the
ingenuinity of man to secure the liberty of the individual. There is no
7
judicial process more familiar or important than this. Lord Acton points
out that it is often said that the British Constitution “attained its final
perfection in 1969 when Habeas Corpus Act was passed”.

Mandamus means 'we command'. By writ of Mandamus, the superior

court directs any person, corporation, lower court or government to do
something, specified therein, which pertains to his or their office and is
in the nature of a public duty. Sub-clause (i) of clause (a) of sub-article
(2) of article 102 of the Constitution authorizes the High Court Division
to direct a person performing functions in connection with the affairs of
the Republic or a local authority to do what he is required by law to do.
This remedy is available when any right of a person, arising from any
law and not from any contract, is violated. The applicant must show that
he has a legal right to the performance of legal duty by the person or
authority against whom the writ is prayed for. According to Ferris,
Generally speaking, it may be said that Mandamus is a summary writ,
issuing from the proper court, commanding the official or board to
which it is addressed to perform some specific legal duty to which the
party applying for the writ is entitled of legal right to have performed”.
In Halsbury Laws of England [13] , Mandamus is described as follows:-
“The order of Mandamus is an order of a most extensive remedial
nature, and is in form, a command issuing from the High Court of
Justice directed to any person, corporation or inferior tribunal, requiring
8
him or them to do some particular thing therein specified which
appertaining to his or their office and is in the nature of public duty”.
Thus it is clear that when a court or tribunal or an authority or a person
has refused or failed to perform his statutory obligation, it is the writ of
Mandamus by which the higher court can compel the authority or court
or person to do his statutory obligation. So Mandamus is a positive
remedy.

Prohibition means 'to forbid' from doing something. In other words, it is

a writ issued by the superior court to a lower court, tribunal or
administrative authority prohibiting it from doing something which it is
not authorized by law to do. Sub-clause (i) of clause (a) of sub-article (2)
of article 102 of the Constitution authorizes the High Court Division to
direct a person performing any functions in connection with the affairs
of the Republic or local authority to refrain from doing what he is not
permitted by law to do. Prohibition is an ordinary remedial writ, as old
as the common law itself. Originally the primary purpose of prohibition
was to limit the jurisdiction of the ecclesiastical courts. Writ of
Prohibition is a judicial order issued by the High Court to any
constitutional, statutory or non-statutory agency to prevent these
agencies from continuing their proceeding in excess or abuse of their
jurisdiction or in violation of the principles of natural justice or in
contravention of the law of the land .
9
Certiorari means 'be certified' of the proceedings of any lower court or
tribunal to be investigated by the superior court. Records of any pending
or concluded proceedings before any authority or court including a
tribunal can be called for by the High Court Division of the Supreme
Court of Bangladesh for its examination as to the legality or otherwise of
the said proceedings. Under sub-clause (ii) of clause (a) of article 102,
not only legality of a proceedings but also any act done by a person,
performing functions in connection with the affairs of the Republic or a
local authority, can be declared to have been done without any lawful
authority and with no legal effect. Thus remedy under the aforesaid sub-
clause (ii) is wider than thatof the remedy available in a writ of
Certiorari. In a writ of Certiorari, superior court interferes when the
lower court or tribunal acts without any jurisdiction or in excess of its
existing jurisdiction or in cases where it fails to exercise its jurisdiction -
for example, when it decides a case without giving an opportunity to the
parties to be heard or violates the principle of natural justice or if there is
an error apparent on the face of the record of such proceedings. But
under sub-clause (ii) of clause (a) of article 102, the High Court Division
can also declare any act done by any authority, which is neither a
judicial nor a quasi-judicial, to be without lawful authority .

Quo Warranto means 'by what warrant or authority'. Writ of Quo

Warranto provides remedy against illegal occupation or usurpation of
10
any public office or franchise or liberty. It enables inquiry into the
legality of the claim, which a person asserts to an office or franchise and
to oust him from such position, if he is an usurper. The holder of the
office has to show to the court under what authority he holds office.
Such remedy is available under sub-clause (ii) of clause (b) of sub-
article (2) of article 102 of the Constitution from the High Court
Division. This writ of Quo Warranto is issued to show by what authority
a person is holding or purporting to hold a public office. A writ of Quo
Warranto may be applied at the instance of any person even who has no
personal or special interest. A stranger can also file such writ petition. It
is discretionary relief which the Supreme Court may grant or refuse
according to the facts and circumstances of each case. Thus, the
Supreme Court may refuse it where the application was actuated by ill-
will, or malice or ulterior motive

Writ Jurisdiction According to Blacks Law DictionaryJurisdiction

means- A government’s general power to exercise authority over all
persons and things within its territory; a states’ power to create interests
that will be recognized under common law principles as a valid in other
states. A court’s power to decide a case or issue a decree. The
Constitution has conferred on the High Court Division (HCD) original
jurisdiction in the field of writ matters. The basis of writ jurisdiction is
Article 102 of the Constitution of Bangladesh. Writ jurisdiction means
the power and jurisdiction of the HCD under the provisions of the

11
Constitution whereby it can enforce fundamental rights as guaranteed in
part III of the Constitution and can also exercise its power of judicial
review. Under the constitution, the High Court Division has power under
art.102(1) to pass necessary orders to enforce fundamental rights and
under article 44(1) the right to move the High Court Division under
article 102(1) is itself a fundamental right. In view of the provision of
art-44, the High Court Division cannot refuse to entertain an application
under article 102 (1) on the ground that the petition involves resolution
of disputed question of fact. If necessary in appropriate cases, the court
will have to take evidence. The constitution does not stipulate the nature
of the relief which may be granted. It has been left to the High Court
Division to fashion the relief according to the circumstances of a
particular case. The constitution has not stipulated any procedure for the
remedy and it is for the court to adopt its own procedure. The high Court
Division follows certain rules of procedure and practice in respect of all
writ petitions, whether one involves enforcement of fundamental rights
or not. A person may apply for enforcement of fundamental right when
there is a threat to infringe it and need not wait till the threat is carried
out. The threat must be real and the mere apprehension that the
petitioner may be deprived of his fundamental right is not sufficient to
invoke the jurisdiction of the court. The article further confers upon the
High Court Division power to issue writs or orders not only for the
enforcement of the fundamental rights but also for any other purpose.

12
There are some other provisions of law which also empowers the Court
to issue writ such as Section-491 of the Code of Criminal Procedure
empowers the Court to issue directions in the nature of a Habeas Corpus.

Limitation on the jurisdiction of high court Division :The

constitution has imposed restriction on the exercise of the writ
jurisdiction of the high court division of the Supreme Court thus: Firstly,
the High Court division can not pass any interim or other order in
relation to any law to which article 47 applies. Secondly, when a writ
petition praying for prohibition, Mandamus, or Certiorari is filed along
with a prayer for an interim order which is likely to have the effect of
prejudicing or interfering with any measure designed to implement any
development program, or any development work or be otherwise
harmful to the public interest such interim order cannot be issued
without notifying and hearing the Attorney General as per provisions of
the constitution and unless the high court division is satisfied that such
interim order will not have any of the above mentioned effects. The writ
jurisdiction usually does not extend to authorities specifically excluded
by the constitution under article 105 (5) thus a court or tribunal
established under a law relating to the defense service of Bangladesh or
any disciplined force or a tribunal to which Article 117 applies are
beyond the purview of the writ jurisdiction of the High Court Division.

13
Writ Jurisdiction of the Appellate Division: Article 104 of the
Constitution of Bangladesh empowers the Appellate Division to issue
such directions, orders, decrees or writs as may be necessary for doing
complete justice in any cause or matter pending before it. In exercising
its appellate jurisdiction only, the Appellate Division can interfere if it
can be shown that the exercise of the writ jurisdiction under Article 102
of the Bangladesh Constitution by the High court Division is plainly
arbitrary or unreasonable or is not in accord with the accepted principles
governing its exercise.

Writ Respondents: Writ of Certiorari, Mandamus and prohibition lie

against ‘any person’ performing functions in connection with the affairs
of the Republic or of a local authority and not against a private
individual or body. Thus the ‘person’ must be a public functionary. A
writ petition will not lie even against a public functionary in respect of
functions performed not in connection with the affairs of the Republic or
a local authority, but in his private capacity. Writ of Habeas Corpus lies
against any person, be he a public functionary or private person, while
Quo Warranto lies against a person holding or purporting to hold a
public office. Article 102(5) stipulates that the expression person in art
102 includes a statutoryauthority and any court or tribunal except

14
(i) a court or tribunal established under a law relating to defense service
or any discipline force and (ii) a tribunal to which art.117 is applicable.
The definition of person is both inclusionary and exclusionary. Person
thus includes all statutory authorities and courts and tribunals except the
ones excluded. Statutory public authorities are defined in article 152 as
the authorities whose activities are authorized by statutes or instruments
having statutory force. It must also include all authorities whose
activities are authorized by the Constitution. The definition of person
given in art.102 (5) is inclusive and not exhaustive. By virtue of article
152, the definition of person and local authorities given in General
clauses Act will be attracted. However in following circumstances no
writ shall lie before Court. For instance because of the reason of
exclusionary clause, no writ shall lie against a court or tribunal
established under a law relating to the defense services or any
disciplined force or a tribunal to which art.117 applies. However, writ
petition will lie against the military authorities other than a court or
tribunal of the specified kind.

Writ and Fundamental Rights Under the constitution: the High

Court division has the power under article 102(1) to pass necessary
orders to enforce fundamental rights and under article 44(1) the right to
move the high court division under article 102(1) is itself a fundamental
right. The position of the high court division in respect of enforcement
15
of fundamental rights is the same as that of the Indian Supreme Court
with the difference that its decision is not final and is subject to appeal
under article 103. Thus it is not discretionary with the high court
division to grant relief under article 102(1). Once it finds that a
fundamental right has been violated, it is under constitutional obligation
to grant the necessary relief. Under article 32, the Indian Supreme Court
entertains only disputes involving breach of the fundamental rights. If a
person wants to challenge any state action on various grounds including
breach of the fundamental rights, he shall have to seek the remedy under
article 226 which is discretionary. Under the constitutional dispensation
of Bangladesh, a petitioner does not have this problem, he can by one
petition enforce his right under article 44 and at the same time press
other ground of ultra vires in respect of a state action. Article 102(1) of
the Constitution empowers the High Court Division to give appropriate
directions or orders to any person or authority for the enforcement of
any of the fundamental rights. Persons performing functions in
connection with the affairs of the Republic are also amenable to this
jurisdiction of the High Court Division. However, there must be an
application by an aggrieved person so that the High Court Division may
pass an order or direction for the enforcement of a fundamental right. In
the case of Md. Shoib vs. Bangladesh the petitioner, one of the three
partners of a partnership firm, field a writ petition at the High Court
Division challenging the validity of a government order staying a

16
proceeding for release and handing over possession of the said
partnership to the petitioners which affected the petitioners fundamental
right to freedom of profession or occupation contained in Article 40 of
the Constitution. While disposing of the writ petition D.C. Bhattacharya
J. observed: “Any person aggrieved by any order or act may move this
court for relief against such order or act and the petitioner being very
much affected by the impugned order has every right to move this Court
for necessary orders.” If the infringement of fundamental right is
established, the enforcement of the fundamental right becomes
obligatory upon the High Court Division and exhaustion of all other
equally efficacious remedy provided by law is not necessary. The
Constitution does not mention the relief which may be granted to redress
the violation of fundamental rights. It has been left to the High Court
Division to fashion the relief according to the circumstances of
particular cases. It may be one injunctive relief preventing the
infringement of fundamental right or it may be a direction or order
including an order in the nature of various kinds of writs. In this context,
the observations made by M.A. Jabir, J., in Bangladesh vs. Ahmed
Nazirar to direct relevance: “We have, accordingly, no doubt that the
framers of the Constitution intended to empower the High Court
Division to pass appropriate orders .... and the power to do so is not at all
fettered because of the absence of nomenclature of the nature of writ in
the Constitution”. It can be seen from the above discussion that the High

17
Court either by an application by any aggrieved party or in its own
initiative can issue writ to ensure proper protection of fundamental rights
as enunciated in the constitution.

Public Interest Litigation (PIL): Public interest litigation means "a

legal action initiated in a court of law for the enforcement of public
interest or general interest in which the public or a class of the
community have pecuniary interest or some interest by which their legal
rights or liabilities are affected," [26] PIL is a "strategic arm" of the legal
aid movement and is intended to bring justice within the reach of poor
masses. Public Interest Litigation is a litigation that where the poor who,
on account of their poverty, social disability or lack of awareness, cannot
approach the court in case of the denial of their rights, any member of
the public or social action group can approach the court on behalf of
them. For this, a regular writ petition is not required to be filed through a
lawyer, it maybe done even by addressing a letter to a judge of the court,
though a "Public Interest Litigation", is filed in the same manner, as a
writ petition is filed. It is a devise to provide justice to those who
individually are not in a position to have access to the courts. The time
has now come when the courts must become the courts for the poor and
struggling masses of this country. Fortunately, this change is gradually
taking place and Public Interest Litigation is playing a large part in
bringing this change." In the 1990s the courts have gone a step further.
18
They themselves have started taking note of certain issues on the basis
of news paper reports or their information. This means that even when
no one has filed a petition or approached the court, the courts itself
initiates a case, pronounce a decision and directs the appropriate
authorities to act accordingly.

Conditions for Public Interest Litigation: Public Interest Litigation is

not meant for enforcement of individual specific rights. The Supreme
Court has also held that a person filing Public Interest Litigation should
act bonafide and not for personal or private profit. Public Interest
Litigation can also not be moved with political or other oblique
motivation. Thus for filing Public InterestLitigation, it is necessary that a
personal filing a petition should not have private personal interest. It
should be for general, social good and not for political gains or motives.

Relevance of Public Interest Litigation: The emergence of the

principles of Public Interest Litigation is justified on the basis of
illiteracy, poverty, social ans economic backwardness and lack of
awareness of a large section of our population. These have denied
millions of our people access to justice. Accordingly, the courts have
been pronouncing on social issues. Through social action and litigation,

19
the legal and judicial process is becoming a vehicle for providing
remedy to those who are struggling to find protection of their interest.

Who Can File Public Interest Litigation? Earlier it was only a person
whose interest was directly affected along with others, whereby his
fundamental right is affected used to file such litigation. Now, the trend
has changed, and, any Public-spirited person can file a case (Public
Interest Litigation) on behalf of a group of person, whose rights are
affected. It is not necessary, that the person filing a case should have a
direct interest in this Public Interest Litigation. A Public Interest
Litigation can be filed against the State, Municipal Authorities, and not
against any private party. However, “Private party” can be included in
the PIL as “Respondent”, after making concerned state authority, a
party. The rule of locus standi have been relaxed and a person acting
bonafide and having sufficient interest in the proceeding of Public
Interest Litigation will alone have a locus standi and can approach the
court to wipe out violation of fundamental rights and genuine infraction
of statutory provisions, but not for personal gain or private profit or
political motive or any oblique consideration…court has to strike
balance between two conflicting interests.

20
Writ as Public Interest Litigation: The formal exposition of PIL for
which the activists were waiting for a long time came from the appellate
division in 1996. The standing of the petitioner was seriously contested
by the government in the appeal of Dr. Mohiuddin Farooque V
Bangladesh / Sikander Ali Mondol V Bangladesh (FAP20). In the FAP
20, PIL was recognized as a special type of constitutional litigation
under the Bangladeshi legal system. The activists greeted the positive
outcome of the FAP20 judgment with much enthusiasm. It opened the
gate for PIL and removed all doubts and confusions about the validity of
PIL cases. Since then various cases were filed such as in the matters
relating to the functioning of the democratic process- Md. Idrisur
rahman V Shahid Uddin Ahmed and Others, Ziaur Rahman Khan v
Bangladesh, Saiful Islam Dildar V Bangladesh and others. In the area of
detention- Bilkis Akter Hussain V Bangladesh and others, Md.
Shahnewaz v Bangladesh, in the genuine social interest matters- Sultana
Nahar V Bangladesh and Others, Dr. Mohiuddin Farooque V
Bangladesh, The number and variety of cases indicate the progression of
PIL towards maturity as PIL has become a permanent feature of the
Bangladeshi Legal System. It is pertinent to mention here that these PIL
cases were filed in the format of a writ petition and the remedies sought
were under the nature of Habeas Corpus, Mandamus, Certiorari, Quo
Warranto and prohibition. Hence it can be said that it is a new dimension

21
of seeking relief using the old format so that the right of the people can
be protected more expeditiously.

Recommendations: The judicial power of the Republic is vested in the

judiciary consisting of the Supreme Court and the Subordinate courts.
The guardianship of the Constitution is vested upon the Supreme Court,
which is invested with the power of judicial review. The High Court
Division of the Supreme Court is overburdened with all kinds of
civil/criminal suits, including writ cases. In our country the writ petition
can be filed only in the High Court Division which is situated in Dhaka.
But it is troublesome for the people who live in rural area to come to
Dhaka and file a writ petition in the High Court division. So it would be
better to confer the writ jurisdiction to every District Judge Court like as
India. This will not be unconstitutional as Article-44(2) declares, without
prejudice to the powers of the Supreme Court under Article-102,
Parliament may by law empower any other court, within the local limits
of its jurisdiction, to exercise all or any of these powers. Some of the
Writs of Habeas Corpus can be delegated to District Judges. Many of the
Writs of Habeas Corpus are simple, such as the case of Sardar Begum v.
Habib Shah Khan. A person can be arrested in remote areas outside the
capital. In such situation, it will be better if a District Judge, where a
person is arrested, issues the writ of Habeas Corpus. Some of the
Jurisdiction of Writ of Mandamus can be delegated to District Judges
22
when the case is simpler and when it involves an order upon any
statutory public authority of a lesser status or of any inferior tribunal
such as the case of Md. Abdul Mannan Bhuiyan v. University of
Rajshahi & Others. Some jurisdiction regarding Writ of Prohibition can
be delegated to District Judges, where it involves an order upon a
statutory public authority of a lesser status such as the case of Abdul
Latif v. Govt. of West Pakistan. At present the writ petition can filed
only against the Government/public bodies. It will be more effective to
protect the fundamental rights if Writ Petitions can be filed against
individuals as well. Article 102 of our Constitution uses the term ‘any
person aggrieved’. It does not use the expression as “aggrieved party” or
“any person personally aggrieved’’. So, the Supreme Court of
Bangladesh should expressly come forward to allow PIL. Sri Lanka and
Pakistan—these two neighboring countries have, although they have
same Constitutional constraints as we have in our Constitution, already
overcome the barricade of ‘aggrieved person’ and they are now widely
allowing PIL. The approach of the court about PIL requires rethinking
and restructuring. Overuse and abuse of PIL will make it ineffective.
Hence,any change to improve it further should be encouraged and
welcomed. The PIL should not be merely a cloak for attaining private
ends of a third party or of the party bringing the petition. The court
should examine the previous record of public service rendered by the
organization bringing PIL. Before entertaining a writ petition and

23
passing any interim orders in such petitions, the court must carefully
weigh conflicting public interests. Only when it comes to a conclusion
that there is overwhelming public interest in entertaining the petition, the
court should intervene. Even when public interest litigation is
entertained, the court must be careful to weigh conflictingpublic
interests before intervening.

Conclusion: “Injustice anywhere is a threat to justice everywhere”. A

system of law, without effective remedies either fails in its mission or
serves very little purpose. An effective system of remedies would also
serve no good purpose unless there is a vast awareness of the existence
and availability of those remedies. Out of all legal remedies, writ is a
very important piece of legal remedy against arbitrary administrative
action. If proactive approaches are taken to the practical modification in
the existing system of Law of Writs in Bangladesh, it can be proved
truly effective as a remedy to the public to guarantee their rights.
Initially the development of Writ in Bangladesh was slow due the
prolonged periods of Martial Laws and autocratic regimes that curtailed
the fundamental rights and disrupted the normal functions of the
judiciary. Once the democratic institutions had changed to operate the
judiciary boldly re-asserted its proper constitutional role. As a result,
progressive interpretations of the Constitution, including the
development of PIL, became possible. The Supreme Court tackled the
24
problem of access to justice by people through radical changes and
alterations made in the requirements of locus standi and of party
aggrieved. Public Interest Litigation as it has developed in recent years
marks a significant departure from traditional judicial proceedings. The
court is now seen as an institution not only reaching out to provide relief
to citizens but even venturing into formulation of policy which the state
must follow.

Bibliography:

1. Blaise Pascal’s Penses, www.brainyquote.

com/quotes/quotes/b/blaisepasc118337.
2. Md.Abdul Halim, 2006, Constitution, Constitutional Law and Politics:
Bangladesh Perspective Dhaka: CCB Foundation, p.363.
3. Concise law Dictionary, 2005, 3rd ed. London, LexisNexis Publication, p.899
4. Siddiqur Rahman Miah,2007, Law of Writs in Bangladesh, Dhaka: New Warsi
Book Corporation, P.2
5. The Constitution of People’s Republic of Bangladesh, 1972; Art.102.
6. The Code of Criminal Procedure, 1898, Sec 491.
7. Zabrivsky v. General Officer 1947 All C 246.
8. Hidayatullah M. 1965, Democracy in India and Judicial Process New Delhi:
Asia Publishing House, p.76.
9. Siddiqur Rahman Miah, Ibid. p.154.
10. The Constitution of People’s Republic of Bangladesh, 1972; Art.102.
11. Ferries, 1999, The Law of Extra-ordinary Legal Remedies London: Sweet and
Maxwell, p.187.
12. Ibid., vol.11, 3rd, Para 159, p.84.

25
 13. Kamruzzaman Bhuiyan, 2008, Article 102 Dhaka: Kamruzzaman Bhuiyan,
p.36.
45. The Constitution of People’s Republic of Bangladesh, 1972; Art.102.
15. Concise law Dictionary, Ibid., p.899.
16. Kamruzzaman Bhuiyan, Ibid., p.37.
17. The Constitution of People’s Republic of Bangladesh, 1972; Art. 102.
18. Md. Abdul Halim, Ibid., pp.367-68.
19. Md.Abdul Halim,Ibid., p.367.
20. Latifur Rahman, 2005, The Constitution of the People’s Republic of
Bangladesh with Comments &Case-Laws Dhaka: Mullick Brothers, pp.134-5
21. Kochuni v Madras, 1959,AIR SC 725.
22. Mahmudul Islam, Constitutional Law of Bangladesh, 2002, 2nd Edition
23. Bangladesh vs. Ahmed Nazirar
24. Janata Dal vs. H.S.Chowdhury, 1982
25. Naim Ahmed, 1999, Public interest litigation: constitutional issues and
remedies November 1st ed. P.45,46
26. Naim Ahmed, Ibid., P.47
27. The Constitution of People’s Republic of Bangladesh, 1972; Art.44 (2).
28. Md. Abdul Halim, 2006, Constitution, Constitutional Law and Politics:
Bangladesh Perspective Dhaka: CCB Foundation, p.374.
29. Ibid., p.374.
30. Martin Luther King,Jr ,www.brainyquotes.com/quotes/
authors/m/martin_luther_king

26
 Assignment
On
2. Seperation of Powers In the Context of Bangladesh.
Course Title: Administrative Law.
Course Code: 3201

Submitted to
Ms. Sharmin Sultana
Assistant Professor
Department of Law
Dhaka International University

Prepared by
Muhammed Zahangir Hossain
ID No: 19, 2nd semester
Program: LL.M (2 years), 30th batch
Department of Law
Dhaka International University

Date of Submission: 25.11.2020

27
 TABLE OF CONTENTS
 Abstract 29
 Introduction 29
 The Legislature may defer to administration for two
types of authority 29
 CIVIL SERVICE TILL 1971 29-30
 Role and Power 30
 Style 31
 Power system 31
 THE PUBLIC SERVICE COMMISSION (PSC) 32
 DILEMMA OF ADMINISTRATION 32
 THE POLITICAL SYSTEM 32-34
 CORRUPTION 34-35
 THE ROLE OF THE ARMY 35-36
 The policy research that may be applicable in an 37-39
administrative setting in Bangladesh civil service
 The reasons 39-41
 Conclusion 41
 Bibliography and Useful links 42

28
 ABSTRACT
This paper talks about the nature and extent of public administration in connec tion
to legal administrative accountability in order to reestablish accountability within our
political/administrative system. This paper will try to address what the government
of Bangladesh has failed to address, which are the topics that must concentrate on
enhancing the legal accountability of public administrators through the concept of
separation of powers.

INTRODUCTION

The Constitution states that there should be Separation of Powers. Legislation,

Judicial and Executive powers must all be autonomous and free from any dominant
influence amongst them selves. The constitution must delegate to Administrative
bodies due to expertise, time, and that they can not act quickly at the same time
must be held accountable. The differences between the private sector and the
public sector concerning authority is that; in the private sector one may do what
they wish until they run into laws prohibiting certain behavior; whereas in the
public sector, unless the law specifically identifies and allows action, it cannot be
done.

The Legislature may defer to administration for two types of authority:

1. Quasi-legislative ability to engage in rule making. Legislative body does not have
the expertise to perform specific legislative actions. Let administration fill in the
blanks in legislation. There for when rules are promulgated they will have the same
force as if they are a statute enacted by congress.

2. Quasi-judiciary. Administration acts as a judge, enforcing certain rules under their

expertise. When agencies go out and enforce the rules it deals with specific
individuals and cases.

CIVIL SERVICE TILL 1971

During when Bangladesh (East Pakistan) was a part of Pakistan the civil service
used to follow the British tradition. Members of a highly elitist and strictly
profession orien ted h igh er civ il serv ice “th e C iv il S erv ice of P ak istan (C S P )” con
tro lled key policy ranks and to ok on th e task of making all the vital decisions.
(Maniruzzaman, T. 1981)

29
There were several other central services like police, foreign, taxation, customs,
etc, apart from CSP. The CSP quota has not been properly distributed between
Bengalis (East Pakistan) and Punjabis, as most of the elite people and civil service
were from West Pakistan, a biasness was created and it always helped the West
Pakistan. This was one of the reasons East Pakistan (Now Bangladesh) had to
disaffiliate from West Pakistan. (Sayeed, 1968; Khan and Zafarullah, 1982)

When Bangladesh separated from Pakistan, the civil service system that the
country inherited from British, then India and ultimately from Pakistan had all the
characteristic

of a modern bureaucracy. The civil servants were well- qualified, sufficiently

trained, quite handsomely paid, and had the skills necessary to manage a war
destroyed country.( Zafurllah, Khan and Rahman, 1997)

Bangladesh began its nationhood with parliamentary democracy. But authoritarian

inclinations of the first regime routed democratic values. This set the scene for a
military takeover, which lasted for over fifteen years. Authoritarian rule came to an
end in 1990 followed by a process of democratization, which is still in progress
(Khan and Hossain, 1996)

Economically a developing country with a per capita income of US$220, state

intervention in all area of economic and social life has dominated over the years.
The growth of the private sector has been slow-moving but current programs of
economic liberalization are geared to endorse private initiatives in numerous
sectors of the economy, previously the monopoly of the government. (
Zafurllah, Khan and Rahman, 1997)

Role and Power

After independence, heavy burden was felt on political leadership and civil
servants and to rebuild a nation, which was heavily damaged, by a war. The
political leadership had to depend upon the civil servants to undertake the huge
task of nation building. So the role of the civil servants in the administration of the
country was again pointed out. The success of government policies is the duty of
the Bangladesh Civil Service, a group of trained administrators who form the
nation's most powerful group of civilians (Civil Servant). (Khan,1991)

30
Style

After independence, an officer in the civil service has been one of the most
privileged careers in the country. The benefits for senior civil servants are
government housing at a standard rate of 7.5 percent of base salary, transportation,
medical care, and a pension and the prestige and influence that come with an
administrative career. (Country Studies, 2005)

Power system

The administration of public services is still guided within a combined structure.

The Ministry of Establishment (ME) work as the central personnel bureau of the
Bangladesh government. Because of this reason the political effect is always there,
meaning those who should be appointed to this Ministry, usually the pro-
government civil service officers, get the appointments (patronized appointments).
And when the opposition wins the elections, these officers were posted in other
ministries even some might get forced retirement. The ME is under the direct
control of the Prime Minister. The highest-ranking career civil servant of the
Ministry, the secretary, is responsible to the Prime Minister. (Khan,1991) In the
present system of power, the Prime minister holds the power and authority of the
chief executive of the government. The President has the status and privileges of
the head of state. (Europa, 2005)

The responsibilities of ME are to establish the broad policies, principles, rules and
regulations for the management of public services. ME is also responsible for all
preliminary recruitment of the whole 30 cadre and for disciplinary action and
welfare in respect to all employees and officers in the secretariat and outside.
(Khan,1991)
Presently, there has been a recent development to stren gth en the Prime Minister‟s
Secretariat (PS) at th e cost of the ME. The secretary of the PS, known as the
Principal Secretary to the Prime Minister is one of the senior most officers of the
Bangladesh Civil Service (BCS) cadre. Many of the senior officers of the PS
belong to same cadre. So, it is basically a conflict within a particular cadre. It is
also expected that the PS will be more strengthened in course of time, as all crucial
decisions must be approved by the Prime Minister. So the senior officers of the PS
have figured that it is within their power to monitor and coordinate all-important
dealings carry out and decision approved by the Prime Minister. (Khan,1991)

31
THE PUBLIC SERVICE COMMISSION (PSC)

The public Service Commission (PSC) in Bangladesh is a legitimate organization

and their responsibility consists of conducting tests and examinations for the
selecting of the cadre civil servants and other categories of public servants. But,
actuality, the PSC has become a simply advisory body. The government has
intentionally overlooked the advice and suggestions of the P S C . T he d iso bed ien
ce of th e P S C ‟s orders can also be recognized to the main position of the ME in
the public service system. It may be mentioned that, very often, the ME tired
unjustifiably to influence and obstruct the activities of the PSC. (Khan and
Zafurallh, 1984)

T he P S C ‟s positio n has been m ore w eakened by an acute shortage of qualified

personnel, and dependence on adequate space and buildings. (Zafarullah and Khan,
1983). Also the members of the PSC have been appointed mostly on political
grounds. As consequences the majority of the members, lack both the background
and the ability to perform their assigned tasks satisfactorily. Lately, the
government has decided to make the PSC a division of the PS under the direct
control of the Prime Minister. This action may facilitate the PSC to remain outside
the control of the ME, but to what extent it will be able to perform its designated
functions with out interference from the PS remains to be seen (Khan, 1991). Most
of the policy making is done by the ME; if all the authority lies with PSC, then the
ME cannot perform the policy making plans in their own way and this would be
most beneficial for the current government.

DILEMMA OF ADMINISTRATION
Bangladesh is still not thriving in institutionalizing an administrative structure,
which fits to the needs and goal of the people of an independent country. The civil
service still continues to be influenced by colonial traditions and practices of the
past. Therefore an elitist, and top-heavy administrative system is in active in
Bangladesh. (Khan,1989)

THE POLITICAL SYSTEM

Law, Judiciary, Administration, Political office and the People

Former President Sheikh Muzib (1971-1974), Lt. Gen Ziaur Rahman (R) (1975-
1981) and Lt. Gen. Ershad (R) (1982-1990) have all maneuvered the political
system to hold on to power. Elections have been manipulated. P eop le‟s confid
ence in th e electio n system has been destroyed. Individuals have become
32
more important than the organization they represent, resulting in lack of faith
political institution, political parties, the legislature, and the judiciary. The political
system has become the shadow of one man so long as he is in power. The
executive member of the government keeps on playing the most dominant role
compared with other governing body and the judiciary. (Khan and Zafarullah,
1990)

The political system has a major impact on the civil service. As a result civil
servants have lost faith and condolence in the politicians. Parliamentary control
over the activities of the civil servants is missing. But the chief executive, who
happens to be the Prime Minister, because of her widespread powers has been in a
position to control the activities of the senior civil servants. But, in reality, chief
executive has rarely used her powers to regulate, coordinate and systematically
control the activities of top- level civil servants. Instead their senior officers have
mostly controlled the civil servants. (Khan, 1991)

The sen io r civ il servan t‟s clo seness to th e ch ief executive is what caused the
bypass ministries to make high-level policy decisions. The other reason is that
most of the ministers are not very educated and they are not acquainted with the
civil systems and the rules and regulations, and the Prime Minster is aware of it.
Therefore the ministers do not feel bad about it; because they need fame and
money, not work. This explanation does not apply for all the ministers.
Both Presidents Zia and Ershad have awarded many senior civil servants with
membership to the cabinet. Most of these civil servants turned into politicians
who used to hate political control of the civil service. (Khan, 1991) The reason
for the animosity is that they cannot show that they are interested in politics; it
was taught in their entry exam th at th ey cou ld n‟t use po litical m eth ods w h ile th
ey are in the service. It is the ethical issues that they work with.
Bangladesh Army now working indirectly to help the current Government. Even
the Chief of Army staff, is selected not by merit or seniority, it is now selected by
political influence, whether the nominated chief of Army can serve for the present
government, no matter if it is lawful or not.

One of the conditions needed for blocking corruption under democracy is that
legislators must be free and accountable so that they are not individually and
jointly beholden to vested wealthy interest lobby. ( Muzzafer, nd)
This brings forward the topic of public accountability and public scrutiny as a
remedy, which are tough to recognize on the part of elected or non-elected officials
in an autocratic or in a democratic system. Restrictions of political power presume
separation of Judiciary from executive and legislative division of the government. (
33
Muzzafer, nd)

In addition countries that have devoted themselves to pluralistic democracy

(competitive political system) they have not establish laws to administer these
markets and judges have very modest experience in reconciling the problems
occurring out of the deals in these markets. Therefore a corrupt and politically
dependent judiciary can facilitate corrupt practices in these areas (Buscaglia and
Dokalias 1996). Bangladesh suffers from the problems of ancient laws, jungle of
laws and poorly equipped judiciary including the bar creating uncertainty and dire
fit between law and reality (Linarelli 1996). It also promotes attitudes for getting
around the court leading to the acceptance of additional legal measures. (Dasgupta
and Mookherjee 1998)

The objective of reform affecting operation of private markets requires well

drafted, comparatively clear and commonly available dependable set of laws to
decrease the opportunities for corruption. (Paris Rodriques, 1995) But even with
clearly drafted laws, lack of confidence in judiciary as a result of delays and
backlogs create situations for pay off to accelerate decisions even when judges
themselves are not corrupted. (Buscaglia, 1995) Thus judicial reform to improve
professionalism, pay, working conditions, creation of specialized courts and better
case management techniques are considered necessary. However they are not
sufficient unless pricing of court services are such as to keep the regular litigants
out of the system while the disadvantaged and poor are not denied access to justice.
Regular check ups on disposal of cases, incentive for high- quality judgment and
positive costs for 'distortive' legal practice by lawyers and litigants are considered
supportive (Lawyers Committee, 1996). But the courts cannot monitor honesty of
the other divisions of the government. The major procurement deals or
privatization instructions may not be confronted under the present system if the
motions of rules and regulations have been obeyed on paper. For deals such as
these to be confronted, one not only calls for laws but also independent pro-active
judiciary that command shows respect for its competence and ethics. But when
private business acts like a group and plan to make deals with public officials for
procurement contracts, concessions and privatization then an honest judiciary
become helpless and powerless in the face of corruption- friendly and
administration environment. The disposal of cases in Bangladesh indicates a
universal problem that is unable to verify additional- legal acts. (Muzzafer, nd)

CORRUPTION
Bangladesh holds the top place in public sector in the world when it comes to
corruption. A review by the business funded lobby group Transparency
34
International (TI) released its annual rankings of corruption, which says that the
other nine most corrupt nations were: Nigeria, Uganda, Indonesia, Kenya,
Cameroon, Bolivia, Azerbaijan, the Ukraine, and Tanzania. As Transparency
International chairman Peter Eigen said in a press release, it is "essential that
corrupt governments do not steal from their own people. This is now an urgent
priority if lives are to be saved." (BBC, 2002) Even in 2005, the issue is still that
Bangladesh continues to be the number one corrupted coun try in th e w orld . “A
ccord in g to th e annual survey by the Berlin-based organization Transparency
International, the world's least corrupt country is seen as being Iceland and the
countries perceived as most corrupt are Bangladesh and C had .”(In fop lease, 2005)

Corruption takes place mainly because of political reasons. If the political process
becomes corrupt, then bureaucratic corruption automatically boosts as natural
fallout. Recently too much political influence is observed in the current social
context of Bangladesh. The administrative officials rely on political groups for
advancing their own interests. Corruption spreads as an outcome. Many among the
people's representatives are lacking of adequate knowledge about government
rules, regulations and policy. The civil servants who are at the top take advantage
of this ignorance of elected representatives. (TI Bangladesh, 2004)

Corruption has been institutionalized in the civil service. Former Presidents Muzib,
Zia and Ershad, including the present government and the recent past government
had manipulated and corrupted the civil service for their own benefits. BCS was
not corrupted previously. Now the corruption has surrounded the civil servants.
The level of corruption has swallowed up the civil servants. The level of
corruption depends on how in flu en tial th e civ il servan t‟s positio n is. T he civ il
servan ts have become habituated to living a life style, which is far beyond their
legal/ real income. The civil service has been corrupted with incompetence,
noncompliance, misbehavior and exploitation of official positions. (Zafarullah,
1987)

THE ROLE OF THE ARMY

Bangladesh Army is currently helping the Government in various ways, especially

of administratively. The Bangladesh Army serving on Disaster management,
rehabilitation, in aid to civil administration, military collegiate school. (Bangladesh
Army, 2005)

Retired Army officers eventually becoming civil administration have been a

frequent scenario since P resid ent Z ia‟s tim e, w ho w as prev io usly form er ch ief
35
of Army staff. Many key posts in the civil service including the foreign service
have been given to either serving or retired military officers, These introduction
has significantly increased during the eight year reign of President Ershad, who
was also previously a former Chief of Army staff. This practice has opened up
significant new career opportunities for military officers. But at the same time this
has badly affected the career prospects and consequently confidence of cadre civil
servants. Recently these trends are not as effective as they were in the past. The
government is now giving priority to the civil service and the present Prime
Minister is not formerly from the Army (though her husband was the former Chief
of Army staff and later became President) she is surrounded by all her political
colleagues.

Recently the Bangladesh Army has gone far away from the political area, because
of the shift in power to civil government 14 years ago, and thus the civil service
role is increasing. The people of Bangladesh are exasperated with the Army
dictatorship and they have become more comfortable with the civil service.
Previously the Army has had a major role in the political arena; the last two
presidents were former Chiefs of the Bangladesh Army.

W H Y T H E R E IS N O “S E P A R A T IO N O F P O W E R S ” BETWEEN EXECUTIVE
AND LEGISLATIVE AUTHORITY
There is no „separation of power‟ in the system between executive and legislative
authority. The legislature
– the parliament- passes law. The prime minister and cabinet who are chosen by
the majority in parliament and who themselves are members of parliament (MPs)
governs the country. This country is governed by the prime minister, cabinet, and
Members of Parliament (MPs) which are elected by the majority in parliament. The
government can pass and approve laws and modify policies because of their
majority in parliament. Election is the main way of preventing abuse of power,
which permits voters to replace the majority party with an opposition party.

T H EC O N C E P T OF A N “A POLITICAL AND IMPARTIAL

CIVIL SERVIC E ” DISTIN CT F R O M “T H E G O V E R N M E N T ”

The implementation of a specific design policy should depend on knowledgeable

experts who, being impartial civil servants, are devoted to the state and the govern m
en t. T he govern m en t‟s ro le is to decid e upon a goal and the amount of money
they can grant, while the civ il servan ts‟ ro le is to show th e best possib le m eans
to reach the goal. This way there can be a limit to who has power over the other.

36
 The following policy research that may be applicable in an administrative
setting in Bangladesh civil service:

1. Corruption has been institutionalized in the civil service. To find a way to stop
Corruptions have to be removed from the civil service. There are many ways we
can take out the corruption, though it is a long process but the eliminating of
corruption process should start immediately. How we can remove the corruption?

a. Initial way to reduce corruption is to provide more benefits, namely, financial

benefits, educatio nal benefits for th e civ il servan ts‟ dependents, housing, and
various domestic services. It will also raise the demand of the civil service to the
young students.

b. Second, Bangladesh is a poor country; in fact one of the poorest countries in the
world, poverty is the main reason for this corruption. So this country needs more
aid from the rich countries and the UN. But when the government will receive the
aid, it should be thoroughly watched periodically by a higher power body,
comprised by all the political parties and review the process how the work is going
on.

2. We have to put more religious belief into the Civil Service. It will make the moral
and ethical issues stronger;

a. The moral and ethical issues must be sustained, other wise the nation will soon
collapse into anarchy.
3. The political play has a major impact on the civil service. As a result civil servants
have lost faith and condolence in the politicians.

a. The BCS has to be out of political pressure.

4. The power still lies in the hand of the top-level secretaries and high businessmen
who are very close to the prime minister and it is very much active in Bangladesh.

a. The power should be transparent, it should not be in the hand of the high level
secretaries rather it should distributed to the all rank of the officers so that nobody
can try to do any kind of manipulations.

5. For the senior civil servants, the chain of command should be maintained, meaning
top-level secretaries should not bypass ministries in making high-level policy
decisions.
37
 The reason of bypassing is that, most of the ministers are not very educated and
they are not acquainted with the civil systems and the rules and regulations. So the
political party should not elect the Minister by seeing how much money they have
given to the party but also see whether they are educated or not.

6. The retired secretaries should not join the parties just after they are retired, they
should at least wait for a few years,

a. B ecause th e secretaries‟ still have the silent authority towards the civil service,
which might deviate the policy.

7. Bangladesh Army should not involve in the political matters and government
policy.

a. If they do then the democracy will again go in vein and th e in tern atio nal donor‟s
w ill again stop giving money to this country.

8. The civil service runs in an active and dynamic atmosphere but it is not always
open for change like flexibility, innovativeness, the ability to solve problems, an
outward-looking attitude and a keen political awareness.

a. It should have broad perceptions.

9. Bangladesh civil service is still not been successful in developing and

institutionalizing an administrative system.

a. BCS should have more optimistic view in connection to developing

institutionalizing an administrative system.

10. The public Service Commission (PSC) should be active.

a. The ME should not have authority as the central personnel bureau and
organizational
reform of the Bangladesh government. The PSC should be rebuilt with new active
and skilled professional people. So the patronized appointments will be stopped.

11. Currently 20 percent chosen are women in BCS.

a. It should be increased at least 50 percent. Women are more methodically sound

38
 and loyal to their profession than Men. ( Particularly in a country like
Bangladesh)

12. Former Army personnel absorbed in higher civil service positions, even the rank of
the Secretary (highest rank in the civil service).

a. It should not be appropriate, as they did not go through the BCS process of
succession.

13. The civil service runs in an active and dynamic atmosphere but it is not always
open for change like for flexibility, innovativeness, the ability to solve problems,
an outward-looking attitude and a keen political awareness.

The reasons are given bellow:

a) The civil service still continues to be influenced by colonial

traditions and practices of the past. As a result the power still lies
in the hands of the top level secretaries and high businessmen who
are very close to the prime minister and who are very active in
Bangladesh.

b) The senior civil servants, because of their closeness to the chief

executive, can bypass ministries in making high-level policy
decisions. The other reason is that most of the ministers are not
very educated and they are not acquainted with the civil systems
and the rules and regulations, and the Prime Minster is aware this
discrepancy.

14. Bangladesh is still not been successful in developing and institutionalizing an

administrative system.

The reasons are given below:

(a) The civil service as a whole still continues to be influenced by imperial traditions
and practices of the past.

(b) Most of the administrative policy making is done by the Ministry of Establishment,
ME; and all the authority lies with this Ministry, instead of public service
commission, PSC.

39
(c) The public Service Commission (PSC) in Bangladesh is a legitimate organization
and their responsibility is conducting tests and examinations for the selecting of the
cadre civil servants and other categories of public servants and developing
institutionalization. But, actuality, the PSC has become a simply advisory body.

The government has intentionally overlooked the advice and suggestions of the
PSC. The disobedience of the P S C ‟s orders can also be recognized to the main
position of the ME in the public service system.

(d) It may be mentioned that, very often, the ME tried unjustifiably to influence and
obstruct the activities of the PSC. The P S C ‟s positio n has been w eakened by an
acute shortage of qualified personnel, and dependence on adequate space and
buildings.

(e) Most of the members of PSC have been appointed on political ground. As
consequences the majority of the members, lack both the background and the
ability to perform their assigned tasks satisfactorily.

(f) Lately, the government has decided to make the PSC a division of the PS under the
direct control of the Prime Minister. This action may facilitate the PSC to remain
outside the control of the ME but to what extent it will be able to perform its
designated functions with out interference from the PS remains to be seen.

(g) Most of the policy making is done by the ME; if all the authority lies with PSC,
then the ME cannot perform the policy making plans in their own way, meaning
the way in which the present government would most benefit.
(h) The political effect is always there. Those who should be appointed to the Ministry
of Establishment, are usually the pro- government civil service officers, they get
the appointments (patronized appointments).

15. Most of the ambitious top civil servants also become a member of a political
party.

The reasons are given below:

(a) Most of the civil servants are conversant about the bureaucratic system, because of
their long association with the service and they may be familiar with all the
loopholes.

40
(b) If they join in government parties they can utilize the supreme power because they
do not need any assistance from the civil service.

(c) The retired civil servants are very much demanded by the political parties.

(d) If they join the political parties they will receive lots of financial gain.

(e) There are no other challenging options to do after retirement, because of the less-
job-opportunities.

CONCLUSION

Van Braam (1957) of Netherlands made the following comments:

“Neither in our country nor elsewhere has civil servants ever been popular. They are
considered: a bit lazy, not completely unreliable, 'bureaucratic', inflexible and too
powerful. Stressing the negative aspects seems to facilitate the chances of the adoption of
reform proposals. These stereotypes more or less mirrors general opinion of the Dutch
towa rd (thir) civil serva n ts seen a s a g ro u p “ .

We hope that justice, not power, can be supplant seperessio n. As Linco ln

said in his greatest trial, “We, even we here, hold the power and bear the
responsibility". (Al Gore, 2004)

41
 REFERENCE/Bibliography:

1. Ahmad, Muzaffer (nd). Governance, Structural Adjustment & The State of

Corruption in Bangladesh.Website.[On-line]: http://www.ti-
bangladesh.org/docs/muzaffer/muzaffer.htm. Accessed: August 20, 2005
2. Al Gore (Former Vice President). Speech. S.F. Wall poster, Dec 2004
3. Bangladesh Army (2005). Web site. [On-line]:
http://www.bangladesharmy.info/index.htm. August 29. Accessed: August 20,
2005

42