Judicial review in Bangladesh

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The term judicial review is not expressly used in Bangladeshi law, but Article 102 of the Constitution of Bangladesh allows writ petitions to be filed at the High Court Division for reviewing the actions of public authorities, or suspending proceedings in lower courts. The article has caused significant judicial activism in Bangladesh.

Contents

In the 1970s, Article 102 was employed by the courts to set a precedent for invalidating detentions under the Special Powers Act. The courts have struck down constitutional amendments and enforced democratic local government under Article 102. The scope of such judicial review has expanded greatly since Justice Mustafa Kamal formally accepted public interest litigation for the first time in 1996, allowing associations and NGOs espousing the public's cause to file for judicial review. [1]

Powers under Article 102

Article 102 of the Bangladeshi constitution gives discretionary powers to the High Court Division to issue orders. These include court orders (stay orders, quashing orders, mandatory orders, prohibiting orders), injunctions, declarations and damages. The text of Article 102 is quoted in the following. [2]

Lower courts

The High Court often issues stay orders on the proceedings of lower courts, if it finds cases to be politically motivated or against judicial conscience. It can also issue a quashing order to end the proceedings.

Constitutional review

Article 102 has been applied in enforcing fundamental rights, the separation of powers, declaring martial law illegal and quashing constitutional amendments. In Kudrat-E-Elahi Panir and others v. Government of Bangladesh, [3] the court struck down an Ordinance ending democratic representation in Upazila Parishads and vesting all powers with the government. It reinforced that local government must include elected representatives, as set forth in the constitution. [4] [5] In its judgement, the court ruled that constitutional amendments fall under the purview of judicial review. [6] In Secretary, Ministry of Finance v Masdar Hossain , the court curbed the government's power in judicial appointments and ordered for the creation of the Bangladesh Judicial Service Commission. [7] In Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh , the court ruled against military rule and martial law, while at the same time restoring some secularist clauses of the original 1972 constitution. [8]

In 2017, the sixteenth amendment to the Bangladeshi constitution was scrapped by the supreme court. [9] [10]

Administrative review

In Aruna Sen v. Government of Bangladesh , the court set a precedent for nullifying detentions under the Special Powers Act, 1974. In Abdul Latif Mirza v. Government of Bangladesh , it asserted that natural justice was a well-established part of Bangladeshi law. Unlike Malaysia and Sri Lanka, where subjective satisfaction has been sufficient for detention orders, the Bangladeshi apex court has asserted that there must be an objective basis to detention without trial. [11]

Bangladeshi courts have adopted the doctrine of legitimate expectation developed in Britain and used in other Commonwealth countries. The doctrine seeks to prevent abuse of power and irrationality, and assert principles of natural justice and fairness. In Biman v. Rabia Bashri Irene, the court ruled that a state-owned corporation cannot discriminate against one set of employees while providing more opportunities to another set of employees, while both sets are promised with the same legitimate expectations. In Md. Shamsul Huda and others v. Bangladesh, the court ruled against the government for not consulting the Chief Justice, as was the practice for thirty years, on the appointment of ten additional judges. In Bangladesh Soy-Protein Project Ltd v. Ministry of Disaster Management and Relief, the court ruled that the government was wrong to discontinue a school feeding program, when there was legitimate expectation not only from the contractual party, but millions of malnourished children. [12]

Public interest litigation

Public interest litigation was formally accepted in 1996 in Mohiuddin Farooque v. Government of Bangladesh. The petitioner, who was the Secretary General of the Bangladesh Environmental Lawyers Association, asked the court to instruct the government to enforce environmental policies in Tangail District, where industries were risking flood control. While accepting the petition, Justice Mustafa Kamal commented that “when a public injury or public wrong or an infraction of a fundamental right affecting an indeterminate number of people is involved, any member of the public, being a citizen, or an indigenous association, espousing the public cause, has the right to invoke the Court's jurisdiction”. [13]

In 2008, the Supreme Court ruled that the Stranded Pakistani community be given citizenship, the right to vote and National ID cards. [14]

In Md. Abdul Hakim v. Government of Bangladesh, a case involving a madrasa, the court explored the possibility of private bodies coming under the purview of judicial review. The madrasa's managing committee, however, was approved by the government. Hence, the particular private body was linked to the government. [15]

See also

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<i>Teo Soh Lung v Minister for Home Affairs</i>

Teo Soh Lung v Minister for Home Affairs is the name of two cases of the Singapore courts, a High Court decision delivered in 1989 and the 1990 judgment in the appeal from that decision to the Court of Appeal. The cases were concerned with the constitutionality of amendments made to the Constitution of the Republic of Singapore and the Internal Security Act ("ISA") in 1989. The latter statute authorizes detention without trial on security grounds. These amendments had the effect of changing the law on judicial review of executive discretion under the ISA by re-establishing the subjective test enunciated in the 1971 High Court decision Lee Mau Seng v Minister for Home Affairs which had been overruled in 1988 by Chng Suan Tze v Minister for Home Affairs, and limiting the right of judicial review to ensuring compliance with procedures specified in the ISA. In other words, the amendments were intended to render the exercise of power by the President and the Minister for Home Affairs under the ISA to detain persons without trial not justiciable by the courts. Both the High Court and Court of Appeal found that these amendments were constitutional because Parliament had done nothing more than enact the rule of law relating to the law applicable to judicial review. Thus, the amendments validly operated to deprive the applicant Teo Soh Lung of the ability to apply to the courts for judicial review.

<span class="mw-page-title-main">Remedies in Singapore administrative law</span> Types of legal orders applicable on Singapore Governments executive branch

The remedies available in Singapore administrative law are the prerogative orders – the mandatory order, prohibiting order (prohibition), quashing order (certiorari), and order for review of detention – and the declaration, a form of equitable remedy. In Singapore, administrative law is the branch of law that enables a person to challenge an exercise of power by the executive branch of the Government. The challenge is carried out by applying to the High Court for judicial review. The Court's power to review a law or an official act of a government official is part of its supervisory jurisdiction, and at its fullest may involve quashing an action or decision and ordering that it be redone or remade.

<span class="mw-page-title-main">Remedies in Singapore constitutional law</span>

The remedies available in a Singapore constitutional claim are the prerogative orders – quashing, prohibiting and mandatory orders, and the order for review of detention – and the declaration. As the Constitution of the Republic of Singapore is the supreme law of Singapore, the High Court can hold any law enacted by Parliament, subsidiary legislation issued by a minister, or rules derived from the common law, as well as acts and decisions of public authorities, that are inconsistent with the Constitution to be void. Mandatory orders have the effect of directing authorities to take certain actions, prohibiting orders forbid them from acting, and quashing orders invalidate their acts or decisions. An order for review of detention is sought to direct a party responsible for detaining a person to produce the detainee before the High Court so that the legality of the detention can be established.

<span class="mw-page-title-main">Exclusion of judicial review in Singapore law</span> Singapores application of legal concept to protect the exercise of executive power

Exclusion of judicial review has been attempted by the Parliament of Singapore to protect the exercise of executive power. Typically, this has been done though the insertion of finality or total ouster clauses into Acts of Parliament, or by wording powers conferred by Acts on decision-makers subjectively. Finality clauses are generally viewed restrictively by courts in the United Kingdom. The courts there have taken the view that such clauses are, subject to some exceptions, not effective in denying or restricting the extent to which the courts are able to exercise judicial review. In contrast, Singapore cases suggest that ouster clauses cannot prevent the High Court from exercising supervisory jurisdiction over the exercise of executive power where authorities have committed jurisdictional errors of law, but are effective against non-jurisdictional errors of law.

<span class="mw-page-title-main">Amendments to the Constitution of Bangladesh</span> Bangladeshi constitutional history

The Constitution of the People's Republic of Bangladesh was adopted by the Constituent Assembly on 4 November 1972 and became effective on 16 December 1972 one year after Bangladesh's victory in the War of Liberation. As of 2018 the Constitution has been amended 17 times. The procedure for amendments is demarcated in Article 142, a bill must be presented in the Jatiya Sangsad with the support of no less than two-thirds of all its members . Amending the Constitution of Bangladesh is the process of making changes to the nation's supreme law.

Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh is a case of the Appellate Division of the Supreme Court of Bangladesh. In a significant verdict in 2010, the court overturned the fifth amendment to the Constitution of Bangladesh made in 1979; and strengthened the secular democratic character of the Bangladeshi republic.

Aruna Sen v. Government of Bangladesh (1975) 27 DLR (HCD) 122 is a case of the High Court Division of the Supreme Court of Bangladesh. The case concerns unlawful detention under the Special Powers Act, 1974 (SPA). The judgement set a precedent for invalidating most detentions under the SPA.

Abdul Latif Mirza v. Government of Bangladesh 31 DLR (AD) 33 is a case of the Appellate Division of the Supreme Court of Bangladesh. The case concerns preventive detention. The court asserted the principles of natural justice.

<span class="mw-page-title-main">Appellate Division, Supreme Court of Bangladesh</span> National apex court

The Appellate Division, Supreme Court of Bangladesh is the appellate court in Bangladesh. The Appellate Division is the final court of appeal for all civil and criminal cases, with appellate review authority over judgements of the High Court Division.

References

  1. ↑ "A man of judicial excellence". The Daily Star. 2015-01-20. Retrieved 2017-07-07.
  2. ↑ "Powers of High Court Division to issue certain orders and directions, etc". bdlaws.minlaw.gov.bd. Retrieved 2017-07-07.
  3. ↑ Pranab Panday (26 January 2017). Reforming Urban Governance in Bangladesh: The City Corporation. Springer. p. 114. ISBN   978-3-319-49598-9.
  4. ↑ Ridwanul Hoque (18 January 2011). Judicial Activism in Bangladesh: A Golden Mean Approach. Cambridge Scholars Publishing. p. 124. ISBN   978-1-4438-2822-2.
  5. ↑ "Law and Our Rights". www.thedailystar.net. Retrieved 2017-07-07.
  6. ↑ "Constitutional Basis for Judicial Review in Bangladesh". 10 August 2016.
  7. ↑ "Independence of the judiciary- the Masdar case". 10 March 2014.
  8. ↑ "In the Supreme Court of Bangladesh" (PDF). The Daily Star. Archived from the original (PDF) on 12 July 2017. Retrieved 8 July 2017.
  9. ↑ "16th Amendment scrapped". The Daily Star. 2017-07-04. Retrieved 2017-07-07.
  10. ↑ "16th Amendment scrapped, parliament loses power to impeach SC judges | Dhaka Tribune". www.dhakatribune.com. 3 July 2017. Retrieved 2017-07-07.
  11. ↑ Imtiaz Omar (24 April 1996). Rights, Emergencies, and Judicial Review. Martinus Nijhoff Publishers. p. 311. ISBN   90-411-0229-9.
  12. ↑ Nigar, Meher. "Doctrine of Legitimate Expectation in Administrative Law : A Bangladesh Perspective" (PDF). The Chittagong University Journal of Law. Retrieved 8 July 2017.[ permanent dead link ]
  13. ↑ "A man of judicial excellence". The Daily Star. 2015-01-20. Retrieved 2017-07-07.
  14. ↑ Refugees, United Nations High Commissioner for. "How a Bangladesh court ruling changed the lives of more than 300,000 stateless people". UNHCR. Retrieved 2017-07-07.
  15. ↑ "Stretching the scope of judicial review". The Daily Star. 2016-07-12. Retrieved 2017-07-07.
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