Friday, December 21, 2012

Emergence of administrative law as a separate branch of law

Administrative law is a by-product of intensive form of government. During the last century, the role of the government has changed in almost every century of the world, from laissez – faire to paternalism and from paternalism to maternalism. Today the expectation from the government is not only protect its people from external aggression and internal disturbance but also to take of its citizens from the cradle to the grave. Therefore, the development of modern process and the administrative law has become the cornerstone of modern political philosophy.

            Today there is a demand by the people that government must solve their problem rather than merely define their rights. It is felt that the right of equality in the American Constitution will be sterile right if the black in the first to lose his job and the last to be re-employed. In the same manner, the equality clause in Bangladesh Constitution would become meaningless if the government comes forward to actively help the weaker section of the society to bring about equality in fact. This implies the growth of administrative law and process.

            In the same manner today, people recognize all problems as solvable rather than political controversies. Before the industrial revolution in England, during the heydays of laissez-faire doctrine, the conflict between the employer-employee was considered a political controversy and the government would do well by
keeping away. But today every one feels that it is the duty of the government to resolve this conflict and maintain industrial harmony, because it is essential for economic growth. Likewise, the regulation of patterns of ownership, production and distribution is considered the responsibility of any good government to guarantee the maximum number. This again has led to the growth of administrative law.

            We are at present living in modern welfare state and its main characteristics are:
(i)                 a vast in the range and detail of government regulation of privately owned economic enterprise;
(ii)               the direct furnishing of services by government to individual members of the community, the economic and social services as social security, low cost housing, medical care etc.
(iii)             increasing government ownership and operation of industries and business, which at an earlier time, were or would have been operated for profit by individuals or private corporations.
In short, as pointed out by friedman in his wall known book “Law in a changing society”, the state performs five different functions and three out of these functions result from the activities of the state as Provider, as Entrepreneur and as Economic Controller.
            In the welfare state, public powers become an instrumentality for the achievement of purposes beyond the minimum objective internal order and national defense. It is not sufficient that the state be secure and well ordered and yet lacks the attribute of distributive justice. But as social justice becomes the conscious end of state policy as is the care in Bangladesh. Under the Constitution of Bangladesh, there is a vast and in evitable increase in the frequency with which ordinary citizen s come into direct relationship with the wielders of power.
            Phenomenal growth in science and technology in the 20th century has placed a counter balancing responsibility on a modern government to control the forces which science and technology have unleashed. Modern and Technological developments produce great structural changes and create crucial problems such as cultural conflicts, haphazard urbanization, ruthless exploitation of natural resources, environmental pollution, rapid transport and traffic, automation and consequential unemployment, erratic production and distribution, concentration of economic power, dismal health, education, employment and training condition, incessant labor strikes and lock-outs, staggering inflation, accelerated smuggling, pervasive corruption, adulteration, tax evasion, commercial malpractices, violence, management of sea and space and many others which a modern man confronts. These multi-dimensional problems with varied social-economic and political ramifications cannot be solved except with the growth of administration and law regulating administration.

            The inadequacy of the traditional type of courts and law making organs to give that quality and quantity of performance which is required in the 20th century for the functioning of a welfare and functional government in the biggest single reason which has led to the growth of administrative process and law like medicine, in law also there is a shift from punitive to preventive justice. Today litigation is not considered a battle be won but a disease to be cured. Inadequacy to thje traditional Courts to responds to this new challenge has led to the growth of administrative adjudicatory process. Furthermore, the traditional administration of justice is technical, expensive and dilatory. It is unworkable where the subject matter is dynamic and requires not only adjudication but development also as in the case of industrial disputes. Therefore in cases where the need in fair disposition and not merely disposition on file, administrative adjudicatory process seems to be the only answer.
            For the same reason, because of limitation of time, the technical nature of legislation, the need for flexibility, experimentation and quick action, the traditional legislative organs cannot pass the quality and quantity of laws which are required for the functioning of a modern government. It is said, not perhaps rightly, that if our parliament sits all the 24 hours all the 365 days in a year, it cannot possibly pass all the laws needed by the government body. Therefore, there is the inevitable growth of administrative legislative process.
No list of causes, howsoever lengthy it may be, can be exhaustive. Nevertheless, a modern functional government in the back drop of socialism is the main force behind the growth of administrative law and process in the 20th century.

No comments:

Post a Comment