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.
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