J
Judicial Oversight of
Bureaucracy
Md. Awal Hossain Mollah
Department of Public Administration
University of Rajshahi, Rajshahi, Bangladesh
Synonyms
Judicial activism; Judicial advice; Judicial
charge; Judicial guidance; Judicial review; Judi-
cial stewardship; Judicial supervision; Judicial
surveillance
Definition
Judicial oversight refers to the process by which
the judiciary examines the legality of any action of
a person or authority, public or private, in accor-
dance with the provisions of the Constitution or
any law of a country. Thus, judicial oversight of
bureaucracy refers to the procedures and mecha-
nisms of the judiciary by which the functions of
bureaucracy are scrutinized and tested based on
evidence for its validity or legitimacy.
Introduction
This chapter deals with a vital issue of governance
that is judicial oversight of bureaucracy by which
# Springer International Publishing AG, part of Springer Nature 2018
A. Farazmand (ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance,
https://doi.org/10.1007/978-3-319-31816-5_697-3
individual rights and accountability of bureaucrats
are ensured. Judicial oversight has some common
types widely and popularly used globally such as
judicial review, judicial supervision, judicial
activisms, and judicial advice (Mollah 2014).
Typically, judicial review is used for judicial over-
sight of bureaucracy globally. However, judicial
activism is used significantly in South Asia
including Bangladesh for the last 20 years. Both
judicial review and judicial activisms are closely
related to the world famous case of Marbury vs
Madison in 1803 declared by Chief Justice John
Marshall of the USA. In this case, C. J. John
Marshall explained that the court has the rights
to say “what the law is? A law must be consistent
with the Constitution. If there is any inconsistency
between a law made by the Congress and the
Constitution, it is the duty of the court to enforce
the Constitution and ignore the law.” Thus, he laid
down the foundation of two concepts – judicial
review and judicial activism (cited in Lal 2004).
These two basic forms of judicial oversight are
used mainly as judicial oversight of bureaucracy
like very effective means for protecting and pro-
moting individual rights through ensuring
accountability and transparency of bureaucracy.
Judicial oversight is an effective control mecha-
nism of not only the bureaucracy but also the
legislature and the judiciary. It also exercises this
power for any unlawful/illegal action of any indi-
vidual or organization (public or private). In this
chapter, the main form (judicial review) of judicial
2 Judicial Oversight of Bureaucracy
oversight of bureaucracy has been analyzed with
case references focused on Bangladesh.
Judicial Oversights of Bureaucracy in
Bangladesh
The bureaucracy exercises a huge volume of
power to meet the needs and expectations of citi-
zens through administrative and development
activities of the government. Today, bureaucracy
is not concerned with only pure administrative
function but also involved with a large number
of quasi-legislative and quasi-judicial functions
(Wade 1971). Therefore, they have a number of
chances to become arbitrary or master of the citi-
zens. So, it is very necessary to control them.
There are three main formal control organs of
the government such as executive, legislature,
and judiciary. This chapter highlights only judicial
oversight over bureaucracy. Judicial oversight of
the bureaucracy is primarily linked to the judicial
review and judicial activism. Besides, judicial
supervision and judicial advice are also used as
judicial oversight. In this chapter, only judicial
review and judicial activism have been analyzed
with suitable case references.
Judicial Review
Judicial review means the power of the courts to
examine the legality of the official act and thereby
to safeguard the fundamental and other essential
rights of the citizens. The object of judicial review
is to ensure that the authority does not abuse its
power and the individual receives just and fair
treatment (Wilkey 1985). It is the ultimate power
of any court to declare unconstitutional and hence
unenforceable any law, any official action based
on a law, and any other action of a public official
that seems to be conflicting with the Constitution
(Abraham 1980). Thus, the judiciary is
empowered to check a law or an official act of a
government employee or agent for constitutional-
ity or for the violation of basic principles of jus-
tice. The Supreme Court is also called the absolute
protector of the freedom and liberty, the
authoritative interpretation of the will of the citi-
zens, and the ultimate authority to control any
exercise of absolute, impulsive, and arbitrary
power (Diwan and Diwan 1996).
In the USA, there is in theory almost no limit
upon the right of courts to review the decisions of
administrative tribunals and agencies. Similarly,
Wilkey (1985) mentioned that in the USA, judi-
cial review produces a “summing up” of “all the
rules of administrative law, both procedural and
substantive, for if an agency violates any of the
fundamental rules or due process of law the
agency action is sure to be challenged and ulti-
mately nullified by the courts.” On the other hand,
in the UK, the general theory of judicial control is
comparative. It is commonly called the doctrine of
ultra vires. The doctrine of ultra vires means
beyond the jurisdiction or excess of jurisdiction
or lack of jurisdiction. For example, in a leading
case of 1948 in the UK, it has been observed that:
An attack was made on conditions attached to a
license for Sunday showings at a cinema. The
Cinematograph Act 1909 empowered the local
council to Sunday opening of cinemas subject to
such conditions as the authority think fit to
impose. A license was granted subject to the con-
dition that no children under 15 years of age
should be admitted, whether accompanied by an
adult or not. This total ban on children and indi-
rectly (in effect) on parents was attacked as being
unreasonable and therefore ultra vires (Wade
1971).
Bangladesh and other South Asian countries
mostly follow this doctrine of ultra vires for judi-
cial review. The power of judicial review in
Bangladesh has been established by Articles 7,
26, and 102 (2) of the Constitution of
Bangladesh (COB 2011). Articles 2 and 26 of
the Constitution enumerate the full judicial
power of the Supreme Court to declare a law
passed by the legislature inconsistent with the
Constitution or fundamental rights’ ultra vires
(COB 2011). The judicial review of executive
and bureaucratic actions has been empowered by
Article 102 (2) of the Constitution.
The common grounds of judicial review under
the doctrine of ultra vires are abuse of discretion,
breach of statutory duty, abuse of power and
Judicial Oversight of Bureaucracy
authority, irrelevant consideration, exceeding
jurisdiction, lack of jurisdiction, malice, breach
of mandatory condition, ulterior objects and
mixed motives, rule against negligence, acting in
the wrong manner, and nonobservance of natural
justice.
In exercising the power of judicial review, the
law court acts on the principles that “the adminis-
trative powers can be validly exercised only
within their true limits and public officials are
not to be allowed to transgress the limits of their
authority conferred by the Constitution or statu-
tory laws” (Islam 2003). Moreover, the court exer-
cises the power of judicial review if any
administrative or executive decision is mala fide
or in violation of the principles of natural justice
or due process of law. Some case example of
judicial review has been analyzed below.
Case Analysis
In the case of Motiur Rahman Versus
Bangladesh (2005), an important question of
law arose as to whether under s 3(2, 3) of Special
Power Act 1974 (later used as SPA 1974) a Dis-
trict Magistrate or Additional District Magistrate
is empowered to pass an order of detention mak-
ing the same effect for 30 days from the date of
service of the order of detention as was being done
since February 17, 1993, following a circular
issued by the then Secretary of Ministry of
Home Affairs (in this case total no. of writ peti-
tioners were 18 (57 Dhaka Law Report (later used
as DLR), 2005, pp. 327–32). In this regard, MA
Aziz and Syed Refaat Ahmed, two judges of the
High Court Division (later used as HCD), gave a
historic verdict by the judgment passed on July
29, 2003. The court held that from a combined
reading of s 3(2, 3), as mentioned above, there
cannot be any room for doubt or debate that the
order of detention made under s 3(2) cannot
remain valid after the expiry of 30 days from the
date when the order was made.
This was because s 3(3) of Special Power Act,
1974 (later used as SPA 1974) in an unmistakable
and unambiguous term stipulated that an order of
detention will operate with effect from the date of
3
making the order and no such order will remain in
force for more than 30 days unless in the mean-
time it has been approved by the government
(57 DLR 2005 p. 328). The court added that the
District Magistrate or Additional District Magis-
trate on the basis of an alleged circular dated
February 17, 1993, from the Ministry of Home
affairs started detaining persons with effect from
the date of service of the order on the detenu.
A process would normally take a few days, but
this processing time started getting added up with
the 30 days of the detention order. Then the court
observed that the detention of these additional
days was left unaccounted for, resulting in keep-
ing the detenu many days more in custody. This
was wholly unlawful and unauthorized simply
because it keeps a person in custody for a period
longer than permitted by law.
A circular does not have any force of law and
cannot override an act of parliament, i.e., the SPA
1974 (DLR 2005, p. 330). The court further
observed:
We find that the law of preventive detention is
being misused and abused by the officers who
have the power to detain a person because of
lack of knowledge of the law, particularly the
law under which they have been empowered to
pass an order of detention. On a reference to each
and every order of detention, we find that before
signing the order the detaining authority i.e., the
District Magistrate/Additional District Magis-
trate, asserts that on being satisfied as to the
necessity of detaining a particular detenu the
order of detention is passed. We thus feel that
the government should take steps to see that
these officers are properly trained for a reasonable
period so that they may be imparted with the basic
and working knowledge of the law. (DLR 2005,
p. 332).
This was a historical verdict of the High Court,
which was directed to the Registrar to circulate
among all the District Magistrates and all District
Session Judges of Bangladesh and also directed to
send a copy of the verdict to the Secretary of
Ministry of Establishment, the Secretary of Min-
istry of Home Affairs, and the Secretary of Min-
istry of Law, Justice and Parliamentary Affairs.
4 Judicial Oversight of Bureaucracy
In this case, it has been found that the detenu
authority misused SPA, which was against per-
sonal liberty and a clear violation of human rights.
However, the court heroically declared the afore-
said actions of government were illegal and
directed the concerned ministries of the govern-
ment to take necessary steps regarding this. Thus,
the judiciary makes the administration account-
able and contributes in ensuring human rights and
good governance.
Similarly, in the case of Khorshed Alam vs
Secretary of Ministry of Home Affairs (Writ
Petition No. 194 of 2004, 57 DLR, 2005,
pp. 32–4), it was found that the extension of
detention order was made by the District Magis-
trate arbitrarily by abusing SPA 1974, which had
no legal basis, and the detenu was set free by the
fair verdict of the Supreme Court. We also found
that colorable exercise or abuse of administrative
power is not allowed by the law and the court, and
no one is above the law. Thus, the court compelled
the lower court, tribunals, and administration to
account for the common law of the country
through its judicial review and supervision pro-
cess. At the same time, the court ensured the
personal liberty of citizens as well as human
rights.
In another case of Amirul Islam vs Ministry
of Home Affairs (Writ Petition No. 4345 of 2004,
59 DLR, 2007, pp. 258–63), the petitioner joined
as a police sergeant at Khulna Metropolitan Police
(KMP), Khulna, on March 9, 2000, and after
completing 2-year training period in police ser-
vice was confirmed as a police sergeant in 2002.
Suddenly, the petitioner was placed under suspen-
sion by the commissioner in charge of KMP vide
office Order No. 282(6) RO dated January
18, 2004, on the allegation that he was involved
in immoral activity with one Akhi Islam Ruma. In
this case, the court found that the charge was not
only the violation of the principles (audi alteram
partem) of natural justice but also the provisions
of special provisions of ordinance were discrimi-
natory and comparatively harsh in nature. In addi-
tion, in the absence of guideline as to which case is
treated under PRB and which under the ordinance
1976, the authority enjoys arbitrary power in
violation of the nondiscriminatory provision of
the Constitution.
Therefore, in view of the overall circum-
stances, the court constrained to hold that in the
instant case there was fair scope to give proper
relief to the petitioner as he was deprived of cross-
examining prosecution witness and was punished
and unheard without giving the opportunity of
self-defense as such. Thus, the Supreme Court of
Bangladesh plays a very crucial role in ensuring
legal accountability of public officials and also in
ensuring fundamental rights of citizens, rule of
law, and constitutional supremacy that ultimately
contribute to good governance through its review
power.
Some other cases also found that in exercising
the power of judicial review, the Supreme Court
acts on the law that administrative powers can be
genuinely exercised only within their true limits
under laws. For instance, in the case of Shamima
Sultana vs Bangladesh (Writ Petition No. 3304
of 2003, 57 DLR, 2005 pp. 201–24. Shamima
Sultana Seema and nine other petitioners were
Ward Commissioners (elected by dated 25–03-
2002 City Corporation Election) in the seats
reserved for female candidates in Khulna City
Corporation under provisions of Section 4 of the
Khulna City Corporation Ordinance 1984 (the
Ordinance, in short)), the court declared that the
government cannot do anything out of the ambit
of law or ordinance. In this case, the circular dated
September 9, 2002, issued under the signature of
the Joint Secretary, Ministry of Local Govern-
ment, Rural Development and Cooperative, and
Local Government Division (Poura-1) was
declared illegal and without lawful authority. It
was further declared that once elected, commis-
sioners, whether in the general seats or in the
reserved seats, male or female, are equal in all
respects, and they shall be so treated by all
concerned. Thus, the judiciary on the one hand
ensured administrative accountability and on the
other and more importantly ensured rule of law,
equal rights, as well as human rights through this
judicial review process.
Similarly, public officials are not to be allowed
to transgress the limits of their authority conferred
by the Constitution or by statutory laws. The
Judicial Oversight of Bureaucracy
courts can exercise the power of judicial review if
the decision is mala fide or in violation of the
principles of natural justice or an irrelevant con-
sideration or rule against bias. In the case of
Mamunur Rashid vs Bangladesh (Writ Petition
No. 2529 of 2001, 57 DLR, 2005, pp. 100–103),
after observing the evidence and hearings of both
parties, the court found some serious anomalies in
government records and decoded that the
impugned compulsory retirement order shomo
(Uni-1) Pa/293–274 dated November 6, 2001,
had been passed with mala fide intention and
hence was without jurisdiction and was of no
legal effect.
From the above analysis, it has been found that
if any case appears before the court like inconsis-
tent with the Constitution and law, the court can
declare that that case happened without lawful
authority and is of no illegal effect. The court
can also order the concerned authority to take
necessary steps regarding this. Therefore, the
court can compel the administration to be
accountable to the judiciary or legal system of
Bangladesh. In this way, the court, on the one
hand, ensures the accountability of government
officials and, on the other hand, ensures funda-
mental rights of citizens.
In contrary, it has also been found that imple-
mentation of verdict depends on executive and
will of government which is a major challenge
and impediment of judicial power and indepen-
dence. It is evident that Masdar Hossain Case was
a landmark case in the history of Bangladesh. In
this case, it has been found that Masdar Hossain
along with 441 judicial officers (judges) filed a
writ petition (No. 2424 of 1995) for separation of
the judiciary from the executive in Bangladesh.
The High Court delivered its historic judgment on
May 7, 1997, in favor of the separation of the
judiciary from the executive. However, the gov-
ernment took a stance against this verdict and
favored an appeal to the Appellate Division. The
Appellate Division also gave its landmark deci-
sion in favor of the separation of the judiciary
from the executive with 12-point directives on
December 2, 1999 (Mollah 2012). Successive
governments took 23 adjournments up to 2006,
but the verdict remained unimplemented, and it
5
was finally implemented by an interim caretaker
government (2006–2008) in 2007. Perhaps, it
remained pending if the then interim government
did not implement it. Similarly, a lot of verdicts
have been delivered against arbitrary arrest, deten-
tion and torture in prison cell, under trial prisons,
extrajudicial disappearance and killing, environ-
mental protection, violence against women and
children, and violence against minorities and
backward groups, but the execution or implemen-
tation of these verdicts is either very slow or still
remains pending. As a result, violation of human
rights, misuse of power, deterioration of law and
order, and attack and abduction by militant groups
are increasing.
Is the Judiciary Independent?
“The ultimate protection of the individual in a
society governed by Rule of Law depends upon
the existence of an enlightened, independent and
courageous judiciary and upon adequate provi-
sion for the speedy and effective administration of
justice” mentioned by International Conference
of Jurists, held in Bangkok in 1965.
Independence of judiciary means a fair and
neutral judicial system of a country, which can
afford to take its decisions without any interfer-
ence of executive or legislative branch of govern-
ment including personal freedom of judges from
political, superior, or any other forms of internal
or external interference. Broadly independence of
judiciary depends on two aspects – institutional
and individual independence of judges. In theory,
the Judiciary of Bangladesh is separated and inde-
pendent institutionally from 2007. However, in
practice both institutionally and individually, it is
not independent. Few instances can be mentioned
here. Individual independence of judges depends
on appointment, tenure, and discipline.
Serious controversy has risen regarding the
frequent appointments to the High Court Divi-
sions of the Supreme Court. There are allegations
that the appointments are made by political con-
sideration. Bangladesh still does not have a law
prescribing detailed “qualifications” for the
appointment of judges to the Supreme Court. In
6 Judicial Oversight of Bureaucracy
Bangladesh three basic principles are followed for
appointing judges in Supreme Court and subordi-
nate courts, which include the following: senior-
ity, merit, and quota. Out of three, the most
practicing criteria are seniority. However, the
principle of seniority is not always strictly
followed in appointing judges. For example, in
2004 Justice Syed J.R. Mudassir Husain of the
Appellate Division of the Supreme Court was
appointed the 14th Chief Justice of Bangladesh
bypassing Justices M. Ruhul Amin and
Mohammad Fazlul Karim, two senior judges of
the Appellate Division. Similarly, in 2008 Presi-
dent Prof. Iajuddin Ahmed appointed Justice
Mr. M.M. Ruhul Amin as the 16th Chief Justice
of the Supreme Court of Bangladesh by supersed-
ing Justice Mohammad Fazlul Karim, who was
then the senior most among the Appellate Divi-
sion judges. This practice is still continuing. The
present (22nd) Chief Justice Syed Mahmud
Hossain has been appointed superseded by Justice
Wahhab Miah who was the senior most and acting
CJ after the resignation of CJ Surendra Kumar
Sinha.
In addition, generally the most senior judges of
the High Court Division are appointed to the
Appellate Division, but these principles also vio-
lated frequently in Bangladesh. From December
1985 to November 2000, this occurred 19 times in
Bangladesh (Akkas 2004, p. 140). Similarly, the
appointment of Chief Justice A.B..M. Khairul
Haque by the President in September 2010 was
alleged to have involved the supersession of two
more senior judges of the Appellate Division.
Similar controversies arose in the appointment of
the present Chief Justice of Bangladesh, Justice
Muzammel Hossain on 18 May, 2011. In this
appointment, Justice Shah Abu Nayeem Mominur
Rahman was superseded (and then he resigned).
In the case of High Court Division, seniority
principles were violated on February 20, 2001, for
instance, three judges were appointed to the High
Court Division by superseding senior district
judges. In order of seniority the first four judicial
officers in the rank of district judges were as
follows: Mr. M. Abdul Hye, Mr. Afzal Hossain
Ahmed, Mr. M. Abdur Razzak, and Mr. M. Marzi-
Ul-Haque.
As an institute the judiciary is still not inde-
pendent too. For instance, the cancellation of the
16th amendment of Bangladesh Constitution is
worth mentioning here. Advocate Manzill
Murshid with eight other Supreme Court lawyers
filed a writ petition to the High Court Division
(HCD) on November 5, 2014, questioning the
legality of the 16th amendment of the Constitu-
tion. The 16th amendment of the Constitution was
passed by the parliament on September 17, 2014,
without any opposition which repealed the provi-
sion of the Supreme Judicial Council (SJC),
which was the constitutionally empowered body
for probing allegations against judges of the
Supreme Court and recommending removal.
Through this amendment, the parliament was
empowered to remove (impeach) judges for inca-
pacity of misbehavior. In this case, based on the
arguments of 12 amicus curiae, on June 1, 2017,
the Appellate Division of the Supreme Court
chaired by the Chief Justice (Surendra Kumar
Sinha) of Bangladesh upheld the High Court ver-
dict (delivered on May 5, 2016) that declared the
16th amendment of the Constitution illegal,
unconstitutional, and against the principles of the
separation of state powers and the independence
of the judiciary (The Daily Sun, July 3, 2017; The
Daily Star, May 6, 2016).
However, the verdict has not been
implemented as the government did not accept
the verdict and challenge for review. In addition,
the government compelled 11 “charges” against
Chief Justice (CJ) Surendra Kumar Sinha includ-
ing money laundering and corruption and forced
for resign. As a result, he (CJ) has reigned from
the post of CJ on October 10, 2017, and went to
Australia (The Daily Star, 15 October 2017).
Critics raised their voice against this forced resig-
nation of CJ which is a serious threat for judicial
independence, which happened for the first time
in the history of Bangladesh. Therefore, political
and executive interference on judiciary is still
continuing though the judiciary has been sepa-
rated from the executive in 2007. It has also
alleged that Surendra Kumar Sinha (CJ) was
appointed by the ruling party, by superseding on
political consideration.
Judicial Oversight of Bureaucracy
In case of the lower judiciary, the indepen-
dence is also a matter of contention. Posting,
promotion, and transfer of the judges of subordi-
nate judiciary are still in the hands of the law
ministry.
There is criticism also regarding the appoint-
ment of public prosecutors, who play a great role
in aiding the judiciary to come to a proper
decision-making in state-led cases. Bangladesh
has a longstanding practice of appointing ruling
party-affiliated lawyers as public prosecutors. It is
alleged that, following the practices of the past,
the current government has replaced the entire
group of public prosecutors with members or gen-
uine supporters of the governing party and has
also made politically motivated appointments to
the Office of the Attorney General. Apart from
these, the manner of refusal of bail to political
leaders has raised concerns about whether the
courts are functioning freely. In addition, presi-
dential pardons in several sensational murder
cases to persons affiliated with the ruling party
seriously undermined the rule of law.
Therefore, the judiciary is facing political and
executive domination and challenges which are
the major obstacles of independence of judiciary
in Bangladesh. Thus, the real spirit of judicial
oversight, rule of law, and good governance is
hampering.
Conclusion
The foregoing discussion and analysis reveal that
the role of oversight of the judiciary in protecting
the citizen’s rights through checking and combat-
ing the abuse or misuse of official’s power is very
effective. However, the courts cannot interfere in
the bureaucratic activities of their own accord.
They can intervene only when they are invited to
do so by any person or organization who feels that
his/her rights have been abrogated or are likely to
be abrogated as a result of some action of the
public officials. Secondly, the courts cannot inter-
fere in each and every administrative act, as too
much of judicial action may make the official too
much conscious, and very little of it may make
them negligent of the rights of citizens. Though
7
suo moto rule or PIL is effective for rapid action
against the arbitrary or abusive exercise of bureau-
cratic or administrative power, the implementa-
tion of the verdicts is dependent on the
executive. Besides, the judiciary is not indepen-
dent enough to take its decision both individually
and institutionally. Therefore, strong political will
is essential for the execution of the judicial deci-
sion. Therefore, both judicial independence and
strong political will are a must for effective judi-
cial oversight of bureaucracy in ensuring rule of
law and good governance of a country.
Cross-References
▶ Judicial Advice and Judicial Activism for
Checking Bureaucratic Power
▶ Judicial Charge for Arbitrary Use of Power
▶ Judicial Guidance for Policy Makers
▶ Judicial Remedies for Victims
▶ Judicial Review of Administrative Action
▶ Judicial Supervision of Bureaucratic Function
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