—Nafiz Ahmed, LL.M. (University of Cambridge); Lecturer, Department of Law, North South University, Dhaka
The Supreme Court of Bangladesh (SCBD) has long practiced using the Wednesbury unreasonableness principle to judge the legality of administrative actions and delegated legislation. The Court uses the Wednesbury principle as a tool for substantive judicial review of administrative actions. If put in simple words, the Wednesbury unreasonableness principle connotes that if an administrative decision is so unreasonable that no reasonable person who had applied her mind could have arrived at that decision, the action is treated as ultra vires or lacking legality. The presumption behind the Wednesbury unreasonableness is that the legislator never intends to grant an authority the power to make completely irrational decisions. The test for the Wednesbury principle is to see if the decision completely defies logic. The principle originated in the English Courts and was later adopted by the Supreme Court of Bangladesh.
Similar to the Wednesbury unreasonableness principle is the doctrine of proportionality, which is also a test of the legality of administrative actions. Many even argue that the doctrine of proportionality has replaced the Wednesbury unreasonableness principle. The claims of replacement of the Wednesbury Unreasonableness principle were made even by English Courts, where the principle originated. The proportionality test invites the Court to examine the equilibrium between the aims of the impugned decision and the means taken by the authority to reach that aim. While applying that proportionality test, the Court examines whether the decision maker’s actions were the least injurious means to achieve the aim of the decision. For instance. Imagine that an administrative body takes a decision ‘D’ to achieve ‘A’, and while doing so, they violate the right of ‘R’ to a very high degree. If the Court is convinced that ‘A’ could have been reached by violating the right of ‘R’ to a lesser degree, it would declare ‘D’ to be without legal authority. Thus, while applying the proportionality test, the Court judges the merit of a decision. The proportionality test is a greater use of judicial power than the Wednesbury unreasonableness principle.
Not following the judicial trend, the Appellate Division of the SCBD in Ekushey Television Ltd. and another v Dr. Chowdhury Mahmood Hasan and ors.,[1] rejected the doctrine of proportionality. The Court held in the Ekushey Television judgement:
It [proportionality test] involves the exercise of balancing relevant considerations like, the balancing test, the necessity test and the suitability test. This concept involves the Court to evaluate whether proportionate weight has been attached to one or other consideration relevant to the decision. As a ground for judicial review it is absolutely a new concept to our jurisprudence. And in accepting it this Court shall have to accord different weights to different ends or purposes and different means which cannot be allowed in a review. (Emphasis added)
While the inconsistency in the manner of adopting foreign principles may be a matter of concern, it became a settled matter that the SCBD did not view the doctrine of proportionality as a part of our legal system.
However, in a recent judgement, the High Court Division of the SCBD held that it must ensure that the taxpayers’ money is not wasted. The Court expressed this view in Omer Ali v Government of Bangladesh,[2]where the Court dealt with a petition by a private contractor against the government’s order to cash the security deposited by the petitioner. The government bought some lights from the petitioners and installed them in ferries. However, the lights proved ineffective during the winter when the fog got heavy. The petitioner claimed that the government officials tested the lights before purchasing them, so they could not claim the security deposit. While entertaining the petition, the Court noticed that the government officials tested the lights in New York during summer. While expressing its frustration with the government officials’ action, the Court noted the following:
As Guardian of the Constitution, this Court has a duty and obligation to ensure that the tax-payers’ money is not wasted. The case in hand is a classic example where Government officials have not only abused their official position and authority to undertake the trip to USA, but they also failed to perform their duty… As Guardian of the Constitution, this Court is concerned about the manner in which official matters are being conducted. Such conduct on the part of irresponsible, not to mention incompetent, Government officials cannot be allowed to continue unabated.
It appears that the Court in Omer Ali has shifted from the position taken in Ekushey Television Ltd. Suppose the Court wants to judge whether government money is being spent properly. In that case, it will have to compare the impugned decision with other possible decisions that could have been taken by the government, which would be a test similar to the proportionality test. To judge the merit of government actions, the Court must consider what other means could have been taken to fulfill the purpose of that action more efficiently. The Court’s new position could open doors for other challenges to government actions. Judicial activists may file petitions challenging government projects if the Court starts judging how government money is being spent. If the Court starts investigating government actions based on merit, Bangladesh’s judiciary may not be far from adopting the doctrine of proportionality.
Suggested citation: Nafiz Ahmed, Bangladesh One Step Closer to Adopting the Doctrine of Proportionality?, Int’l J. Const. L. Blog, Mar. 8, 2023, at: iconnectblog.com/2023/03/bangladesh-one-step-closer-to-adopting-the-doctrine-of-proportionality/
[1] (2003) 55 DLR (AD) 26.
[2] (2022) 30 BLT (HCD) 377.
Comments
One response to “Bangladesh One Step Closer to Adopting the Doctrine of Proportionality?”
‘Reason to be recorded in writing’in every action of administration, but sometimes in mobile courts, especially it can’t be.
Mumber two: There must be an administrative space to be given.
Before administrative authority civil courts generally not to interfere rather court can redirect to the one step higher authority to dispose.Unless exhaust the administrative process, action could be take by the honorable court.
Sometimes courts of highest could interfer anywhere it thinks fit.