Stretching the scope of judicial review

In the 5th Distinguished Law Lecture Series, organised by the Department of Law and Human Rights of the University of Asia Pacific, Dr. Justice Syed Refaat Ahmed, the Honourable Judge at the Supreme Court of Bangladesh, delivered a lecture on the issue of judicial review in reference to a reported case of Md. Abdul Hakim v Government of Bangladesh and others 34 BLD (HCD) 129. In this case, as it was evident in Dr. Justice Ahmed's lecture, the court explored the extent of judicial reviewability of actions and decisions of private bodies operating in the public domain.

Generally judicial review means the power of the courts to review legislative and executive action and to 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 allowed to transgress the limits of his authority conferred by the Constitution. In Bangladesh, the High Court Division under Article 102 of the Constitution can review the functions of State bodies' actions if they are contrary to the Constitution.

However, what makes the Abdul Hakim case complex and intriguing is the fact that the Madrasah where Mr. Abdul Hakim used to work happened to be a private body but run by the Managing Committee approved by a government authority, i.e. the Bangladesh Madrasah Education Board. The question that the court had to deal with, as Dr. Justice Ahmed being the presiding judge in the case informed, was whether an order issued by an ostensible private authority can be reviewed by a court in its writ jurisdiction. The court had to consider the judicial reviewability of actions and decisions of ostensible private bodies that nevertheless operate in the public domain.

In dealing with the issue the court considered the landmark case of R v Panel on Takeovers and Mergers, exparte Datafin PLC and another reported in (1987) QB 815. In this case, the Court of Appeal was concerned with the actions of the Panel on Take-overs and Mergers which it termed as a truly remarkable body as it is an unincorporated association without legal personality. The Court of Appeal further noticed that although the body was self-regulating, they were promulgating, amending and interpreting City Code on Take-Overs and Mergers. Lloyd LJ in his findings noted that “where there is a possibility, however remote, of the panel abusing its great powers, then it would be wrong for the courts to abdicate responsibility”. Lloyd LJ further notes that “Of course the source of the power will often perhaps usually be decisive. If the source of the power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review…. If the body in question in exercising public law functions, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review”.

The court also considered the unreported case of The London Metal Exchange ex p. Albatros Warehousing BV (2000). In this case, Mr. Justice Richards considered the issue of what constitutes a public function. By referring to the Datafin PLC case, he pointed to the need to make broad assessment of all circumstances of a case and in particular on the “extent to which the powers can be said to be woven into a system of governmental control”.

The court in applying the principles laid down in the above cases had to determine the fact and degree of the public element of any ostensible private authority's operation ambit in the case of Abdul Hakim. The court further had to examine the extent of the Madrasah Managing Committee Chairman's capacity to affect the rights and interests of the petitioner in the case and whether the authority's capacity is enmeshed in a complex regulatory regime that links it to a higher authority. In reaching its judgement the court was satisfied the Chairman of the Managing Committee of a non-governmental Madrasah in discharging his powers and duties engages effectively in regulating the services of the teachers. By doing so the Chairman remains a repository of power that otherwise is the preserve of the State under Articles 15(a) and 17 of the Constitution to ensure and provide education. In fact the Chairman is discharging functions for and on behalf of the State under a well- defined hierarchical order of compliance and oversight.

The decision in the Abdul Hakim case has set a precedent against the well-settled principle that any order or decision of a private body cannot be challenged under Article 102 of the Constitution. However, what the court carefully considered is whether the power of a Chairman of the Managing Committee of a non-governmental Madrasah is woven into a system of governmental control. The answer was in the affirmative and hence the court could invoke its jurisdiction under Article 102. By willing to delve into the forays made by courts in various jurisdictions due to a lack of case law in the country, the court in the Abdul Hakim case correctly justified its position in regard to the maintainability of the case.

However, the critics may point out that judicial reviews are for adjudication of disputes than for performing administrative functions. Hence, it is advisable that the court must exercise the power of judicial review with caution and self-control. While that may be true as courts are discouraged from providing their own preferred amendments in the guise of interpretation, it also has to be noted that the court in this case has rightly responded to fill an accountability vacuum created by the privatization of public enterprises, the contracting out of public services and the deregulation of industry and commerce.

In today's globalized world, the courts need to be pragmatic in understanding the complexities of social or economic enterprise in the public realm as it creates opportunities for private bodies to strike partnership with the public sector to keep the flow of trade, commerce and service delivery operational. Thus, one needs to understand whether various decisions by these private bodies are enmeshed within the broader regulatory authority of public bodies. As the Abdul Hakim case has shown, it is in fact something worth delving into by both the lawyers and the judges.

The writer is a Barrister-at-Law, Supreme Court of Bangladesh.