Judicial Review in Bangladesh
Introduction
Judicial review is the power of the courts to examine the actions of the executive and legislative branches of government to ensure they comply with the Constitution and laws of Bangladesh. It serves as a check on arbitrary or illegal government action, safeguarding fundamental rights and maintaining the rule of law.
The Constitution of Bangladesh explicitly provides for judicial review under Article 102, which allows the High Court Division of the Supreme Court to issue writs for the enforcement of fundamental rights and other legal rights.
Constitutional Basis for Judicial Review in Bangladesh
Article 102 of the Constitution empowers the High Court Division to issue writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari.
Article 44 provides every citizen the right to move the High Court Division for enforcement of fundamental rights.
The doctrine of separation of powers underpins judicial review but courts have power to intervene when other branches exceed their authority.
Grounds for Judicial Review in Bangladesh
Illegality: Whether the action is authorized by law.
Procedural Impropriety: Whether fair procedure was followed.
Irrationality or Wednesbury Unreasonableness: Whether the decision is so unreasonable that no reasonable authority would have made it.
Violation of Fundamental Rights: Whether fundamental rights guaranteed by the Constitution are infringed.
Excess or Abuse of Power: Whether the authority exceeded its jurisdiction.
Important Case Laws on Judicial Review in Bangladesh
1. Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh, 41 DLR (AD) 108 (1989)
Facts: The government took over a private marble company under the Vested Property Act, 1974.
Holding: The Supreme Court held that administrative action must be lawful and within statutory authority. Arbitrary takeover without due process violated constitutional guarantees.
Significance: Affirmed that administrative actions are subject to judicial review for legality and due process.
2. Secretary, Ministry of Finance v. Masdar Hossain, 49 DLR (AD) 1 (1999)
Facts: The case concerned the independence of the judiciary and the appointment of judges.
Holding: The court emphasized the importance of judicial independence and ruled that any executive action undermining this principle would be subject to judicial review.
Significance: Reinforced judicial review to protect constitutional principles beyond individual rights.
3. Biman Bangladesh Airlines v. Azizur Rahman, 37 DLR 156 (1985)
Facts: The government imposed conditions on airline employees that were challenged as illegal.
Holding: The court held that actions violating statutory rights or exceeding delegated authority are void.
Significance: Clarified the doctrine of ultra vires in administrative actions.
4. Anwar Hossain Chowdhury v. Bangladesh, 38 DLR 95 (1986)
Facts: The petitioner challenged detention orders under preventive detention laws.
Holding: The court ruled that detentions without adherence to prescribed safeguards violated fundamental rights.
Significance: Highlighted protection of personal liberty through judicial review.
5. Bangladesh National Women Lawyers Association v. Government of Bangladesh, 56 DLR (2004)
Facts: Challenged the lack of protection and enforcement of women’s rights.
Holding: The court issued directives to improve enforcement of laws protecting women’s rights.
Significance: Demonstrated judicial activism and review to enforce social rights.
6. State v. Mohiuddin Farooque, 41 DLR (AD) 99 (1989)
Facts: Questioned the validity of emergency powers exercised by the executive.
Holding: The court held that even emergency powers are subject to judicial review to prevent abuse.
Significance: Affirmed limits on executive power and protection against arbitrary actions.
Summary Table of Key Cases and Their Contribution to Judicial Review
| Case Name | Key Issue | Contribution to Judicial Review |
|---|---|---|
| Bangladesh Italian Marble Works Ltd. (1989) | Administrative overreach | Review of legality and due process |
| Secretary, Ministry of Finance (1999) | Judicial independence | Protection of constitutional principles |
| Biman Bangladesh Airlines (1985) | Ultra vires doctrine | Limits on administrative authority |
| Anwar Hossain Chowdhury (1986) | Preventive detention and personal liberty | Safeguarding fundamental rights |
| Bangladesh National Women Lawyers Assoc. (2004) | Enforcement of social rights | Judicial activism in social justice |
| State v. Mohiuddin Farooque (1989) | Executive emergency powers | Limits on emergency powers and abuse prevention |
Conclusion
Judicial review in Bangladesh is a vital mechanism for ensuring government accountability and protecting fundamental rights under the Constitution. The Supreme Court’s decisions have developed clear doctrines on legality, procedural fairness, and protection of constitutional principles. The power under Article 102 has been used effectively to check executive excesses and uphold the rule of law.
RELATED Blog
0 comments