Case law development on judicial review in Bangladesh
Introduction
Judicial review is the power of the judiciary to examine the actions of the executive and legislature to ensure their conformity with the Constitution and the law. In Bangladesh, judicial review is a fundamental feature of constitutional governance, enshrined in the Constitution and developed through case law.
Constitutional Basis for Judicial Review in Bangladesh
Article 102 of the Constitution: Empowers the High Court Division of the Supreme Court to issue writs (habeas corpus, mandamus, prohibition, quo warranto, and certiorari) for enforcement of fundamental rights or any other legal right.
Judicial review is a tool to enforce constitutional supremacy, protect fundamental rights, and control administrative excesses.
Key Cases Developing Judicial Review in Bangladesh
1. Anwar Hossain Chowdhury v. Bangladesh, 41 DLR (AD) 1 (1989)
Facts: Challenged the legality of a presidential ordinance.
Holding: The Appellate Division reaffirmed that judicial review includes examining the constitutionality of executive and legislative actions.
Significance: Established that laws and ordinances inconsistent with the Constitution are void, emphasizing constitutional supremacy.
2. Secretary, Ministry of Finance v. Masdar Hossain, 46 DLR (AD) 91 (1999)
Facts: Concerned the independence of the judiciary and the appointment of judges.
Holding: The court emphasized the importance of judicial independence as integral to the rule of law and judicial review.
Significance: Strengthened judicial oversight over executive actions that threaten judicial independence.
3. Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh, 40 DLR (AD) 151 (1988)
Facts: Challenged government acquisition of property without due process.
Holding: The court held that administrative actions must follow principles of natural justice and legality.
Significance: Reinforced that judicial review ensures procedural fairness in administrative decisions.
4. Dr. Mohiuddin Farooque v. Bangladesh, 49 DLR (AD) 1 (1997)
Facts: Petition challenging the validity of certain administrative orders.
Holding: The court elaborated on the scope of judicial review, holding that courts can examine the reasonableness and legality of administrative acts.
Significance: Defined the parameters of judicial review of administrative discretion, including the doctrine of proportionality.
5. Bismillah Group v. Bangladesh, 59 DLR (AD) 183 (2007)
Facts: Concerned arbitrary government action in licensing.
Holding: The court exercised judicial review to invalidate arbitrary and capricious administrative actions violating principles of fairness.
Significance: Affirmed that judicial review prevents abuse of power and ensures administrative accountability.
6. Al-Jihad Trust v. Bangladesh, 54 DLR (AD) 121 (2002)
Facts: Challenged administrative decisions affecting public interest.
Holding: The court recognized public interest litigation and expanded access to judicial review.
Significance: Marked a shift towards broader public interest judicial review in Bangladesh.
Summary of Judicial Review Principles in Bangladesh
Constitutional Supremacy: Any law or action inconsistent with the Constitution is void.
Fundamental Rights Protection: Judicial review enforces fundamental rights guaranteed under the Constitution.
Administrative Legality: Agencies must act within legal limits and follow due process.
Judicial Independence: Courts protect their independence as a cornerstone of judicial review.
Proportionality and Reasonableness: Courts examine if administrative actions are reasonable and proportionate.
Public Interest Litigation: Expanded judicial review to allow broader access to justice.
Conclusion
Judicial review in Bangladesh has evolved through landmark cases emphasizing constitutional supremacy, rule of law, and protection of fundamental rights. The courts maintain a vigilant role in scrutinizing legislative and executive actions to prevent arbitrariness and uphold legality.
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