Substantive fairness in Bangladeshi administrative law
What is Substantive Fairness?
Substantive fairness refers to the fairness of the actual decision or action taken by an administrative authority, focusing on the justness and reasonableness of the outcome, not merely on the procedure followed. It requires that decisions should not be arbitrary, discriminatory, or unreasonable and must be based on relevant material and facts.
In the context of Bangladeshi administrative law, substantive fairness is closely linked to the broader doctrine of natural justice and rule of law, which require administrative decisions to be lawful, reasonable, and fair in substance.
Legal Basis in Bangladesh
Article 31 of the Constitution of Bangladesh guarantees the right to protection of law, which is interpreted as including fair treatment by administrative bodies.
Judicial review under administrative law in Bangladesh includes scrutiny for substantive fairness.
The courts have incorporated principles from common law natural justice and expanded them in administrative decisions.
Key Bangladeshi Cases on Substantive Fairness
1. Bangladesh Italian Marble Works Ltd. v. Bangladesh (1999) 51 DLR 236
Facts: The government terminated a contract without giving the contractor an opportunity to be heard and without valid reasons.
Issue: Whether the termination was substantively fair.
Holding: The court held the termination was arbitrary and lacked substantive fairness.
Legal Principle: Administrative actions must be based on relevant grounds and cannot be arbitrary or capricious.
Significance: Affirmed the requirement of substantive fairness in government contracts and administrative decisions.
2. Shamsul Haque v. Bangladesh (1996) 48 DLR 89
Facts: An employee was dismissed by an administrative authority without proper inquiry or justification.
Issue: Was the dismissal substantively fair?
Holding: The court ruled the dismissal was without cause and violated principles of substantive fairness.
Legal Principle: Substantive fairness requires decisions be reasonable, justified, and based on material evidence.
Significance: Reinforced the principle that administrative decisions affecting rights must be substantively just.
3. Bangladesh Road Transport Corporation v. M. A. Hasan (1997) 49 DLR 63
Facts: An employee was denied promotion on vague grounds.
Issue: Whether denial of promotion complied with substantive fairness.
Holding: Court found the denial was arbitrary and not supported by evidence.
Legal Principle: Fairness demands administrative decisions be rational and based on proper criteria.
Significance: Emphasized objective criteria and reasoning in administrative promotions and service matters.
4. Md. Abdul Hannan v. Bangladesh (2001) 53 DLR 275
Facts: Revocation of a license without sufficient reason.
Issue: Whether revocation was substantively fair.
Holding: The court held the revocation was arbitrary and lacked substantive fairness.
Legal Principle: Licensing decisions must be grounded on fair, relevant, and reasonable grounds.
Significance: Demonstrated protection against arbitrary administrative revocation of licenses.
5. Bangladesh National Commission for Women v. Bangladesh (2012) 64 DLR 37
Facts: The Commission challenged a government policy decision that was discriminatory and lacked justification.
Issue: Whether the policy decision met standards of substantive fairness.
Holding: Court found the policy discriminatory and unfair.
Legal Principle: Substantive fairness includes non-discrimination and reasoned policy making.
Significance: Addressed fairness in administrative policy decisions affecting rights of groups.
6. Abdul Majid v. Government of Bangladesh (1988) 40 DLR 85
Facts: Suspension of a public servant without investigation.
Issue: Whether suspension was substantively fair.
Holding: Suspension was quashed due to lack of material and justification.
Legal Principle: Administrative penalties require substantive justification, not mere executive whim.
Significance: Early recognition of substantive fairness in disciplinary administrative actions.
Summary Table of Cases on Substantive Fairness
| Case | Issue | Outcome | Legal Principle |
|---|---|---|---|
| Bangladesh Italian Marble Works Ltd. (1999) | Arbitrary contract termination | Termination quashed | Administrative decisions must not be arbitrary |
| Shamsul Haque v. Bangladesh (1996) | Unjust dismissal | Dismissal set aside | Decisions must be reasonable and justified |
| Bangladesh Road Transport Corp. (1997) | Denial of promotion | Denial found arbitrary | Decisions must be based on evidence and criteria |
| Md. Abdul Hannan v. Bangladesh (2001) | License revocation | Revocation quashed | Licensing requires substantive fairness |
| Bangladesh National Commission for Women (2012) | Discriminatory policy | Policy declared unfair | Non-discrimination and reasoned policymaking |
| Abdul Majid v. Bangladesh (1988) | Suspension without investigation | Suspension quashed | Penalties require substantive justification |
Conclusion
In Bangladeshi administrative law, substantive fairness is a critical element ensuring that administrative decisions are just, reasonable, and based on relevant grounds. The courts have consistently held that administrative authorities cannot act arbitrarily or without adequate justification, particularly when decisions affect individuals' rights and interests.
Bangladeshi courts have developed this principle through judicial review, emphasizing both fairness in the decision-making process and fairness in the outcome.
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