An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power

An Effective Mechanism to Diminish Arbitrary Exercise of Discretionary Power â€Å"If judicial review of administrative decision is the heart of administrative law, then concept of natural justice is one of the suppliers of blood to that heart. It is inherent in rule of law and our thirst for justice. † Abstract Natural justice is considered to be as old as the system of dispensation of justice itself. Since its move toward administrative adjudication, it has been the defender of fairness and justice in exercise of discretionary power of administration. The artificial distinction between judicial and administrative adjudication has blurred. Natural justice ensures the minimum procedural fairness in administrative adjudication. Right to fair hearing before an impartial and unbiased forum has been the key to ensure fairness and diminish arbitrariness in exercise of discretionary power. This paper seems to propose that the battle between fairness and arbitrariness, however, has been a continuous one and natural justice keeps its role as diminisher of arbitrariness open to play. 1 Introduction Natural justice, as a concept relating to administrative adjudication, can be defined as the unwritten law of fairness. This age-old principle has been applied to administrative and adjudication process to ensure procedural fairness and to free them from arbitrariness. In Bangladesh, there is no statute providing for procedural fairness which administration should follow in exercise of discretionary power. It is natural justice which invokes the minimum fair procedures which should be followed in administrative decision making. This paper, in part two, will show that the concept of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. The Principles were accepted as early as in the days of Adam and of Kautilya’s Arthashastra. Then this paper will move to look into how concept of natural justice was invoked into the administrative decision making. It will be  shown that initially the principles of natural justice used to be applied to courts of law alone but later on from judicial sphere it extended, to the tribunals exercising quasi-judicial functions and then to the statutory authorities and the administrative authorities, who have upon them, the responsibility of determining civil rights or obligations of the people. After examining application of the concept in administrative adjudication, the paper will concentrate in examining two basic principles of natural justice to how these principles diminish arbi trary exercise of discretionary power. In this part, it will be revealed that natural justice ensures minimum procedural fairness in administrative decision making. It precludes a partial and biased tribunal from adjudicating. It obliges the tribunal to provide show reasons of its decisions with precisions. While fair tribunal is less probable to decide arbitrarily, showing reasons for the decision decreases significantly limits the scope of whimsical and arbitrary decision making. In at the end of the paper, it will be proposed that the Battle between fairness and arbitrariness has been a continuous one and natural justice has fought to defeat arbitrariness. Since its move toward administrative adjudication, natural justice has been the defender of fairness and justice in exercise of discretionary power of administration. 2 Natural justice: the ‘unwritten law of fairness’ Natural justice implies fairness, equity and equality. This age-old principle has been applied to administrative and adjudication process to ensure procedural fairness and to free them from arbitrariness. Different jurists have described the principle in different ways. Some called it as the unwritten law (jus non scriptum) or the law of reason. It has, however not been found to be capable of being defined, but some jurists have described the principle as a great humanising principle intended to invest law with fairness to secure justice and to prevent miscarriage of justice. With the passage of time, some principles have evolved and crystallised which are well recognized principles of natural justice. Today the question of control of administrative discretionary power is perhaps the most critical and crucial problem of administrative law. In modern democracies the role and jurisdiction of administrative agencies is increasing at a rapid pace. The concept of Rule of Law would loose its validity if the instrumentalities of the State are not charged with the duty of discharging these functions in a fair and just manner. However, there is no statute laying down the minimum procedure which administrative agencies must follow while exercising decision-making powers. This minimum fair procedure refers to the principles of natural justice. Lord Viscount Haldane outlined principle of natural justice in the following word: â€Å" those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice. † Natural justice, as a concept of common law, represents higher procedural principles developed by the courts, which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual. The principles of natural justice were associated with a few ‘accepted rules’ which have been built up and pronounced over a long period of time. The word ‘Natural Justice’ manifests justice according to one’s own conscience. It is derived from the Roman Concept ‘jus naturale’ and ‘Lex naturale’ which meant principle of natural law, natural justice, eternal law, natural equity or good conscience. Lord Evershed, Master of the Rolls in Vionet v Barrett (1985, 55 LLJ QB, 39, Page 45) remarked, â€Å"Natural Justice is the natural sense of what is right and wrong. There is no statute laying down the minimum procedure which administrative agencies must follow while exercising decision-making powers. This minimum fair procedure refers to the principles of natural justice. Natural Justice is an expression of English common law. Lord Viscount Haldane outlined principle of natural justice in the following word: â€Å" those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice. † While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general duty to act fairly. Parpworth in his ‘Constitutional and Administrative Law’ views that linguistic difficulties with natural justice have forced the courts, in recent time, to use fairness as a concept to ensure minimum procedural propriety. Lord Parker C. J. in Re H. K. [1967] 2 Q. B. 617, 630 (C. A.) said that ‘[it] is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly’. Concept of natural justice has a close relation with fairness. The Supreme Court of India outlined the relation of fairness with natural justice in the following words: ‘Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government†¦.. Thus ‘natural justice’, as a concept relating to administrative adjudication, can be defined as the unwritten law of fairness. In Bangladesh, there is no statute providing for procedural fairness which administration should follow in exercise of discretionary power. It is natural justice which invokes the minimum fair procedures which should be followed in administrative decision making. 3 The First Man’s experience with natural justice: A Twenty First Century Analysis The concept of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. The Principles were accepted as early as in the days of Adam and of Kautilya’s Arthashastra. According to the Bible and Quran, when Adam amp; Eve ate the fruit forbidden by God, the God did not pass sentence on Adam before he was called upon to defend himself. Concept of natural justice was known to Greek and Romans. Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian, in the fifth and sixth Centuries A. D. called it jura naturalia i.

Dead Poets Society and The Banking Concept Essay

Dead Poets Society and The Banking Concept - Essay Example The headmaster however comments that discipline and tradition are the two important factors that shape young men. Students are taught to follow the banking concept of learning from their childhood. When students are familiar with standard methods, a revolutionary teacher like Keating is sure to face challenges from the institution as well as students. A deviation from normal engagement in learning and the adoption of a new approach may create doubt in the minds of students. The anxiety of students is more likely in higher classes or college when students are accustomed to a specified method of teaching. If the student is in an elementary school or kindergarten, they would trust the teacher’s creative and innovative methods because they believe that this is the normal method with which a teacher teaches. In fact, the banking concept puts the teacher and student in the wrong path because both do not enjoy the vistas available in education that deals with creativity and innovation. While following the banking concept, the teacher transfers the knowledge or information for the student to lea rn them and reproduce them without any scope for further thought or reflection on the subject. Students do not get a chance to investigate or explore the reactions and results in a laboratory which is also performed by the teacher. The role of students under this method is to accept all the information passed on to them without raising questions or understanding the reality. They do not have the opportunity to find the reason or truth behind each lesson they learn and find its relevance to their daily life. Any opposition from students on a particular curriculum is often treated as a disruptive behaviour (Monchinski 120-122). In contrast, Dead Poet’s Society is a movie where students are given the opportunity to explore. They are given the chance to experience their individualism, non-conformist and the extraordinary

MGMT 670- STRATEGIC MANAGEMENT Case Study Example | Topics and Well Written Essays - 1250 words

MGMT 670- STRATEGIC MANAGEMENT - Case Study Example The DVD had in reality created a wave among the Americans and it has been estimated that during the year 2008 more than 85 percent of the US households had this player. Apart from this, individuals could also very well subscribe for movie DVD’s and get them delivered to their home, by joining subscription services like the Blockbuster and Netflix companies. The advent of the internet into the homes have created a new platform, which has enabled people to watch downloadable movies. Many downloadable sites are available over the internet like the Netflix, Blockbuster, which allow the people al over the world, to either watch movies online or download them to their personal computers. (Thompson 2008) Home Movie Rental Business and Economic characteristics 1. The future movie experience for the worldwide audience is going to get concentrated on the home viewing category, since more and more famous companies like the Netflix and Blockbuster are on the path of streaming movies, dire ctly to the viewers big screen televisions. This could result in the start of an era, that could well enable the viewer’s world over to watch movies online or through the televisions, by subscribing with their satellite or cable operators. 2. Though most of the movie companies in the past have been much reluctant when it came to the provision of the video on demand because of the inherent threat of piracy, still some companies have changed their stance ever since. They feel doubtful about the extent of the profits, that they could very well acquire from such a business model and hence they have shown a positive bias with regards to the streaming movies online that cannot be pirated. . 3. The online movie download and streaming facilities with the increase in the internet service the world over, have made the online movie rental business quite attractive. (Thompson 2008) Competition in the Movie Rental Industry Thus the question now boils as to how the entertainment industry i s going to move forward in the coming years, with more and more breakthroughs taking place every day. Indeed this has made the competition much tougher between the various companies in the US and the foremost among them have been the Netflix and the Blockbuster companies, which have been very much in the forefront, when it comes to the entertainment segment and in the business of providing their viewers with unique entertainment and movie viewing experiences. (Thompson 2008) Netflix Driving Forces The year 2008 as already mentioned before had indeed become an important year, which had marked a change in the way people started to watch movies through rental videos. It started the subscription era of movies with the advancement of internet technology and the largest online subscription company turned out to be Netflix. Netflix Key Success factors The uniqueness that can be attributed to the Netflix success, can very much be attributed to the business model that it pursues for marketin g its movies online. This is because Netflix through its online portal very well gives its subscribers the same kind of benefits that they get, when they visit their nearest online video stores. They can pick from a wide variety of movies that are offered on the Netflix website and at the same time save valuable time, in case they had to rent it from their nearest rental video store by physically walking in and picking out the video. The distribution and the fast mail delivery system of providing the customers with