Merits review versus judicial review in Bangladesh
⚖️ Overview of Concepts
✅ Merits Review
Definition: A process where a higher authority (often an administrative tribunal or appellate body) reconsiders the entire matter on its facts, law, and policy, and substitutes its own decision.
Scope:
Evaluates whether the original decision was the best or most preferable.
May involve new evidence.
Typically done by administrative appellate bodies, statutory authorities, or review boards.
Not usually conducted by the High Court Division under Article 102 of the Constitution of Bangladesh.
✅ Judicial Review
Definition: A constitutional process where courts (primarily the High Court Division of the Supreme Court) examine whether the decision-making process of a public authority was lawful, fair, and within jurisdiction.
Focus:
Legality, not the correctness of the decision.
Does not re-evaluate facts or merits, unless the decision is so unreasonable that no reasonable person could have made it (Wednesbury principle).
Grounds: Illegality, irrationality, procedural impropriety, mala fide, violation of natural justice, etc.
⚖️ Legal Framework in Bangladesh
Article 102 of the Constitution of Bangladesh provides the High Court Division with powers to issue writs (certiorari, mandamus, prohibition, habeas corpus, and quo warranto).
Judicial review in Bangladesh is based on British common law principles, adapted into the constitutional framework.
🧾 Key Case Law in Bangladesh
🔹 Case 1: Secretary, Ministry of Finance v. Md. Masdar Hossain, 52 DLR (AD) 82 (1999)
Facts: Involved judicial independence and administrative control over lower courts.
Issue: Whether administrative decisions affecting judicial officers could be reviewed.
Holding: The Appellate Division recognized the scope of judicial review to assess the legality of executive actions.
Importance: Reaffirmed that judicial review is focused on legality, not substitution of decisions — not a merits review.
🔹 Case 2: Md. Shahidul Islam v. Bangladesh, 56 DLR (HCD) 324 (2004)
Facts: Challenge to termination from public employment.
Issue: Whether the termination order was legal and followed due process.
Holding: The High Court Division quashed the order on the ground of violation of natural justice.
Significance: Reiterated that courts will not interfere with policy or merits of the decision unless procedural irregularities or illegality is shown.
🔹 Case 3: Ekushey Television Ltd. v. Bangladesh, 55 DLR (AD) 1 (2003)
Facts: Government cancelled the broadcasting license of Ekushey Television.
Issue: Whether the cancellation was lawful.
Holding: The Appellate Division upheld the cancellation on the basis of legal and regulatory grounds.
Key Point: The court did not re-evaluate the wisdom of the decision (i.e., the merits) but assessed whether the legal procedure and authority were properly exercised.
🔹 Case 4: State v. Abdul Hamid, 43 DLR (AD) 305 (1991)
Facts: Challenge to disciplinary action taken under service rules.
Issue: Whether courts can interfere with disciplinary discretion of administrative authorities.
Holding: The court held that merits of disciplinary findings are not open to judicial review unless mala fide or procedural illegality is established.
Significance: Differentiates between merits review (which courts avoid) and legality review (which courts enforce).
🔹 Case 5: Abdul Latif Mirza v. Bangladesh, 31 DLR (AD) 33 (1979)
Facts: Detention under the Special Powers Act.
Issue: Whether detention was lawful.
Holding: The court held that judicial review applies even in preventive detention cases to ensure legal compliance.
Importance: Although the executive has wide discretion, it must act within the bounds of law, and courts can review legality, not the merit of detention decisions.
🔹 Case 6: Bangladesh v. Idrisur Rahman, 69 DLR (AD) 72 (2017)
Facts: Cancellation of enrolment as an advocate.
Issue: Whether the cancellation decision was arbitrary.
Holding: The Appellate Division observed that judicial review may intervene if there is no evidence or the decision is arbitrary, but courts will not substitute their own opinion on the merits.
Key Point: Reinforces the distinction between correcting legality vs correcting judgment calls.
🔹 Case 7: University of Dhaka v. Zakir Ahmed, 37 DLR (AD) 1 (1985)
Facts: A student challenged expulsion from university.
Issue: Whether disciplinary action was taken lawfully.
Holding: Court interfered due to violation of natural justice, not because it disagreed with the merits.
Relevance: Courts will not engage in academic or disciplinary decisions’ merits, only procedural or legal flaws.
📌 Summary Table: Merits Review vs Judicial Review in Bangladesh
| Feature | Merits Review | Judicial Review |
|---|---|---|
| Who conducts | Administrative tribunals or appellate bodies | High Court Division under Art. 102 |
| Scope | Re-assess facts, law, and policy | Review only legality, procedure, fairness |
| Standard | What is the correct or preferable decision | Was the decision lawful, fair, and rational |
| New evidence | Often allowed | Generally not allowed |
| Bangladeshi Cases | Not common in courts | Shahidul Islam (2004), Masdar Hossain (1999), Ekushey TV (2003), Zakir Ahmed (1985) |
🧠 Key Takeaways
Judicial review is not an appeal on the merits. The High Court ensures that public bodies act within their powers, follow fair procedures, and do not abuse discretion.
Merits review involves evaluating whether the substance of the decision was correct, which is not the High Court’s role under Article 102.
Courts in Bangladesh consistently respect the boundaries between judicial oversight and administrative discretion.
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