Judicial Review in Bangladesh

Abstract
Judicial Review is the most fascinating tool used by the judiciary to uphold constitutionalism in
a republic which pledges rule of law instead of rule of man. This is truer in a country which has
declared constitutional supremacy. Judiciary of Bangladesh as the watchdog remains vigilant
and checks whether any action or inaction has been taken by any person non-complying with
the high ideals of struggle of liberation embodied in the constitution and rectify that as the
guardian of the constitution. But since conferment of absolute power on any department leads
to departmental autocracy, the power of judicial review is not unfettered. There are some
specific constitutional limitations on the power of judiciary to review the actions of other
branches of the government. Besides, the judiciary with the help of its interpretative tool
sometimes extended its power and sometimes imposed some self-restrictions. Since
liberalisation of the idea of personal grief and the growth of public interest litigation, judiciary
has increased its power noticeably in the recent past which sometimes even led to conflicts
between the judiciary and other organs of the government. This paper aims at shedding some
light on the gradual extension of power of judicial review and the limitations imposed thereon.

Introduction
Law prevails everywhere and everything; it is all-embracing and permits every sphere of life and
society. Knowledge of law, both professional and general, therefore, is indispensable for human
development. Law which is created based on social demand and human need is an imperative
category, and ought to rule. Everywhere it ought to be the rule of law, law as a body of norms
regulating human and institutional behavior and their interrelationships. General perception of
the concept of rule of law brings to one’s imagination two elegant categories of personalities
for example judge and lawyer, who form the core of justice system. When law is abused, or law
is misapplied, or law is not properly made, it is the task of the justice system that means the
judiciary to intervene to ensure that law prevails, and only law rules.

Bangladesh is unitary independent sovereign, Republic to be known as the peoples Republic of

Bangladesh and by nature, man is rational as well as animal being and they live together in the
society depending upon each other to full fill their needs for survival. As Social beings, men
express their nature by creating and recreating an organization which guides and control their
behavior in many ways.
Judicial review of administrative action is perhaps the most important development in the field
of public law in the second half of this century. This is the most potent weapon in the hands of
the judiciary for the maintenance of the rule of law.

Body
Judicial Review
Generally Judicial Review means the power of the courts to review the legislative and executive
action and determine their validity. Courts exercise such power on the basis that powers can be
validly exercised only within their true limits and a public functionary is not to be allowed to
transgress the limits of his authority conferred by the constitution or the law.

According to Chief Justice John Marshall:

“Judicial Review is the power given to Supreme Court justices in which a judge has the power to
reason whether a law is unconstitutional or not. Chief Justice John Marshall initiated the
Supreme Court’s right to translate the Constitution in 1803 following the case of Marbury vs.
Madison, in which he declared the Supreme Court as the sole interpreters of Constitutional
law. This is one of the sole purposes of the Supreme Court of the United States. Many Historical
thinkers would find some difficulty in imagining a government set up to limit the power of itself,
but others would argue that this form of government best works for the people, and not
against them. The treatment of the Constitution by the Supreme Court as a “living” document
that is able to be translated differently over time for the good of the people has as many
sceptics as it does supporters.” Machiavelli would also totally disagree with the idea of having
anyone make decisions about laws because they are morally incorrect. And, the Supreme
Court’s protection of the people of the United States, and its Constitution is also a necessity in
running a truly virtuous and successful government that concentrates on the rights of the
individual, rather than the people as a whole. Machiavelli found the most successful
government to be one that ruled on the basis of “realism” not “idealism”. We today see the
Supreme Court as a collection of the most “enlightened” thinkers of our day. Locke felt that for
a government to be successful in preserving the rights of the individual citizen, it must
concentrate on protecting the “Life and Liberty” of each citizen. These beliefs have Molded one
of the most successful political states in modern History. They only believed in the truth, and
justice that government is supposed to protect its people with. He felt that a government
should be run with the sole intention of forcing the people to be obedient, and for the
individual virtues of the people to be a non-factor in any political decisions made by the ruler of
the state. Plato knew that within any political State there would be corruption, to stop the
corruption Plato felt that the philosopher kings would best rule because they would not indulge
themselves in a corrupt society. The Constitution of the United States is the ideal document in
Locke’s mind.

One of the earliest political philosophers Plato would find our present day governmental setup
of the Supreme Court to be the ideal group to deal with the United States’ situation. Others
thought that one sole dictator or King could best run a successful government. Some believed
that the people would best run a government.

A more modern philosopher such as John Locke would find the Supreme Court and its power of
Judicial Review to be one of the most important characteristics of the United States’ setup of
Democracy. Locke believed that all people should be treated as equals, and to not treat each
other equally would interfere on an individual’s right to “self Preservation” While reviewing the
validity of the authority the flowing question are to be inquired and determined

 has exceeded its power?

 Committed an error of law?
 abused its power?
 failed to consider all relevant factors or taken into consideration irrelevant factors?
 reached a decision which no reasonable authority would have reached?
 failed to observe the statutory procedural requirements and the common law principles
of natural justice or procedural fairness?

Constitutional Basis of Judicial Review in Bangladesh

In the case of Mujibur Rahman v Government of Bangladesh,(1992) 44 DLR (AD) 111, it was
stated that there is no particular vesting of judicial power of the Republic, yet this power is
vested in the Higher Judiciary. According to Article 102 of the constitution of Bangladesh, the
power of judicial review in Bangladesh vests in the High Court Revision impliedly. Art. 102(1) of
the constitution confers power on the High Court Division to enforce fundamental rights while
102(2) confers power of judicial review in non-fundamental right matters. Under Article 44 of
the constitution right to move the High Court Division for enforcement of the fundamental
rights is itself a fundamental right. Article 7 of the constitution clearly states that ‘Constitution
is the suprema lex of the land.’ Under Article 7(2) it is declared that if parliament makes any law
which is not consistent with the constitution or if the law is contradictory to any provision of
the constitution then that particular law is inconsistent to the extent of the inconsistency.
Under Article 26 of the constitution the pre-constitutional laws and the post-constitutional laws
cannot be inconsistent with the fundamental rights, guaranteed under Part 3 of the
constitution. The Supreme Court is the guardian and protector of the constitution so the
constitution has vested the power of judicial view on the superior courts.
In the case of Jamil Huq v Bangladesh (1982) 34 DLR (AD) 125, on reviewing the Preamble, Art.
7, Art. 26(1) and Art. 108 of the Constitution says:“A merged reading of the articles above
mentioned pointed out that full judicial power has been conferred by Bangladesh Constitution
on the supreme judiciary as an independent organ of the state. It has power to declare a law
passed by the Parliament inconsistent with the constitution or fundamental rights it ultra vires.”

The Importance of Judicial Review

Judicial review is important for the following reasons:

 To protect civil rights and liberties by striking down laws that violate the constitution
 To ensure limitation of power of the organs of the State
 To shield the precious fundamental rights incorporated in part 3 of the constitution
 To set appropriate limits on democratic government
 To ensure that the changing views of a majority do not suppress the fundamental values
common to all
 To ensure accountability and check and balance system
 To ensure separation of judiciary from other organs of the State

Judicial Review in other countries

The Supreme Court’s principle power is judicial review the right of the Court to declare laws
unconstitutional. This authority is not expressly stated in the Constitution. The Supreme Court
has exercised judicial review since 1803, when Chief Justice John Marshall first announced it in
Marbury v. Madison. Marshall deduced the necessity of such a power from the purpose and
existence of the Constitution. He reasoned that judicial review was necessary to implement the
Constitution’s substantive and procedural limits on the government. Judicial review is both a
powerful and controversial tool because it allows the Supreme Court to have the ultimate word
on what the Constitution means. These permits the Court justices are appointed rather than
elected to overrule decisions already made by Congress and legislatures throughout the
country.

Expansion of Judicial Review in Bangladesh

In present time the notion of judicial review in Bangladesh is facing evolutionary and
progressive development. Over the years, The Supreme Court of Bangladesh has made a
number of rulings that have struck down laws and executive actions as unconstitutional. In fact,
they have been able of expanding their powers of judicial power. In Kudrat E Elahi V
Bangladesh (1992) 44 DLR (AD) 319 Justice Mustafa Kamal held that, even constitutional
amendment come within the purview of ‘any other law’ referred to in Art. 7(2) of the
constitution. Thus, it is subject to judicial review. In Jamil Huq V Bangladesh (1982) it was
stated that, the court has the power to declare an action unlawful if it is totally coram non
judice or is vitiated by malafide or bad faith. In Aruna Sen V Bangladesh (1975) 27 DLR (HCD)
122 the court stated that, ‘the executive satisfaction of the detaining authority is subject to
judicial review in Bangladesh. The authority has to satisfy the judicial conscience of the court
that the detention is lawful and made in a lawful manner. The court through judicial scrutiny
will apply objective test to determine the ‘state of satisfaction’ of executive authority.

In the landmark case of Dr. Mohiuddin Farooque V Bangladesh (1997) 26 CLC (HCD) the court
has interpretated the term ‘any person aggrieved’ liberally which has paved the way of public
interest litigation in Bangladesh. When public wrong, public injury or invasion of fundamental
rights is committed against indeterminate number of people, any member of society who
shares ‘common injury’ or ‘common invasion’ has the right to invoke the writ jurisdiction under
article 102.

It was stated in Z.I. Khan Panna V Bangladesh (2017) 1 LNJ 280, ‘Any activity which derogates
the supremacy of the constitution must be proclaimed as a fraud on the constitution. It is
yonder the constituent power of the parliament. Judicial review is the soul of the judiciary in
written constitution.’ The court declared that Joint Forces Indemnity Act, 2003 is void ab initio
and ultra vires the constitution. It was born dead and had no legal existence. The court in
practice of its judicial power uses the doctrine of ultra vires to test the validity of statutory
power of the public authorities.

The evolving concept of judicial review in Bangladesh gave birth to the notion of public law
compensation. A new term ‘constitutional tort’ is introduced, where public and private law
have merged. The term ‘appropriate’ used in Art. 102(1) has been given a liberal interpretation.
Compensation as a constitutional remedy for violation of fundamental rights is incorporated in
this term. The concept of public law compensation has firmly established in the case of Bilkis
Akhtar Hossain V Bangladesh(1997) 17 BLD (HCD) 344/2 MLR 1997 113. In this case, the court
declared, ‘The grounds of detention are subject to judicial scrutiny and if the court discovers
the materials and grounds of detention been unreasonable, without rational basis and
probative value, it can set aside the detention immediately.’ The High Court Division grant
monetary compensation of BDT 1,00000/- to each of four detenus. The Appellate Division held
that the High Court Division erred in law in paying monetary compensation as the parties have
not prayed for any cost. But the Appellate Division has approved the idea of granting
compensation in cases of gross invasion of fundamental rights of the citizens in the present
case. The supreme court as protector and guardian of the constitution has produced
mechanisms and devised new redresses for the purpose of vindicating the most precious
fundamental rights of the citizens. CCB Foundation V Bangladesh (2017) 5 CLR (HCD) 278 is the
first case where public law compensation was finally realized. In this case the court awarded
monetary compensation of BDT 20,00000 for breach of constitutional duty and negligence of
the respondents. Once the court found that right to life of a child was violated, it was under
constitutional obligation to grant necessary relief. In Md Shahanewas V Govt. of
Bangladesh(1997) 26 CLC(HCD), the court granted BDT 20,000 monetary compensation against
a police officer for negligently arresting a poor fisherman, who was deprived of livelihood and
liberty for 6 months. In AKM Fazlul Haque V Bangladesh(2006) 58 DLR (AD) 166 the court
awarded BDT 25,000 monetary compensation to the petition for non-payment of his pension
and delay in receiving the pension. In Bangladesh V Ahmed Nazir (1975) 4 CLC (AD) the court
stated that the constitution does not stipulate the nature of relief that may be granted. It has
been left to the High Court Division to fashion the relief in accordance with the circumstances
of the particular case.

This is how the expansion of Judicial Review in Bangladesh developed through these cases.

Conclusion
Judicial review is not the only means of constraining the ruling authorities in a democratic
government, and it is almost certainly not the most effective means. Elections, the defining
feature of modern democracy, probably deserve that title, and mixed government, with its
associated checks and balances, probably ranks next. Unlike these other means, moreover,
judicial review is based on a rationale that runs counter to our leading moral argument for
granting public officials the authority to control our lives. To these general limitations can be
added a more immediate, but certainly not insignificant, concern as the Supreme Court and
lower federal courts have been filled by a President who has now lost the nation’s confidence
and support. Under these circumstances, it is natural for many scholars to question the
desirability of judicial review and seek methods to avoid or circumvent its consequences.