Reviewing The Views
Scope of legitimate expectation doctrine
Md. Harun Reza
The field of natural justice is the most developed area of public law. It is the exclusive development made by the courts. The term 'Legitimate expectation' was first used by Lord Denning in 1969 and from that it has assumed the position of a significant doctrine of public law in almost all jurisdictions. Legitimate expectation of a person is such kind of right which the court now enforces. Expectation means the act or state of expecting; that which is or may fairly be expected; that which should happen, according to general norms or custom or behavior; that the degree of proportionality or the value of something expected.
A natural or constitutional residence of this doctrine is article 27 and article 14 of Bangladesh constitution and India respectively which abhors arbitrariness and insists on fairness in all administrative dealings. Regarding the meaning of legitimate expectation, In Asaf Khan and Others v. The Court of Settlement, Dhaka and Others (23 BLD 24) Justice M.M. Ruhul Amin in favor of the Division Bench comments that "Legitimate expectation is a concept of administrative law, which means that an administrative authority cannot abuse its discretion by legitimate expectation by disregarding undertaking or statement of its intent"
Development of the concept
In Bangladesh it is true that there is no general statute like administrative Justice Act laying down the minimum procedure which administrative authorities must follow while exercising decision making power. Nonetheless the court has always insisted that administrative authorities must follow a minimum standard of fair procedure (ensuring legitimate interest of individual). This minimum procedure refers to the concept of natural justice which ultimately protects and ensures legitimate expectation. Again in Bangladesh though natural justice enjoys no express constitutional status the Appellate Division of the Supreme Court of Bangladesh in Abdul Latif Mirza v. Government of Bangladesh (31 DLR 1) had observed: "It is now well- recognized that the principle of natural justice is a part of the law of the country"
In Fazlul Karim Selim v. Bangladesh (33 DLR 406), the District Magistrate did not use the term 'legitimate expectation'. But in deciding in favor of the applicant that he should have been given a hearing, what the court wanted to assert that in the case of first grant of license and renewal of license the principles of natural justice is attracted in a limited way in consideration of legitimate expectation.
It is a matter of hope that there are three facts heading to the possibility of the recognition of the concept of legitimate expectation by the courts in Bangladesh. First the legal system of Bangladesh is greatly influenced by English laws where we can see a development trend towards the concept of legitimate expectation. Secondly, Bangladesh has a written constitution which embodies clear principles of natural justice. Thirdly, Bangladesh courts are developing the principles of natural justice based on common law, the constitution (Art.135), and some statutory provisions. These facts clearly indicate that Bangladesh is in a suitable position to develop the concept of legitimate expectation. The most recent instances of application of this doctrine can be traced from Bangladesh v. Idrisur Rahman 15 BLC (AD), 2010 at 49, where J Md Joynal Abedin held that the appointment of an additional judge under Article 98 is a gate-way to the cadre of a permanent judge under Article 95 of the constitution and in that view of the matter an additional judge acquires a right or at least has a legitimate expectation to be appointed as a permanent judge to the High Court Division. So following the English and Indian decisions, the courts in Bangladesh have been developing the legitimate expectation doctrine with reference to the principles of natural justice since a long time.
Rationality of legitimacy of an Expectation
When and how an expectation becomes legitimate, should be construed carefully. The means of test must be standard one. Justice Amirul Kabir Chowdhury, formerly Chairman of National Human Rights Commission prescribed a test in Md. Hafizul Islam v. Government of Bangladesh and Others in this manner: "the concept of legitimate expectation is to some extent uncommon in our jurisprudence. The word 'legitimate' connotes lawfully begotten. An expectation to become legitimate therefore should not be sworn of lawful begetting. The concept of legitimate expectation cannot be given such wide interpretation so as to allow any wishful hope without lawful root." Again mere fanciful expectation cannot be taken to be a reasonable expectation. Even expectation based on contract or relationship would not be maintainable if it is not clear founded.
Loopholes of the Doctrine
Due to its certain limitations, it is not substantially able to render service to the public by giving protection to their legal rights and enjoyment. In case of substantive action this doctrine is hardly visible as it is purely a procedural matter. The contending plea not recognizing the substantive action within its ambit is that, if substantive protection is to be accorded to legitimate expectations it would create encumbrances in administrative decision which is taken on merits. It has no application against statute. It means all the law which are made by legislature shall be in traceable by the doctrine of legitimate expectation. Even the supreme court of India held that legislation cannot be invalidated on the basis that it offends the legitimate expectation of the persons affected thereby. The security of the state or public policy is enough qualified to override the expectation or right of the individual. In case of contractual relation there is no application of the doctrine legitimate expectation. The Constitution of Bangladesh only contains some rules of natural justice in a general way. The word legitimate expectation has no place in the constitution or any other statues of Bangladesh. There is no specific Act containing the minimum procedure requiring administrative authorities to follow in times of exercising decision making power.
No doubt, a huge acclivity and declivity this new doctrine of administrative law now stands in Bangladesh through the case law given by the supreme court of Bangladesh. In the instant attempt I would prefer to propose some suggestions to the authority concern for their cordial consideration in the way of development of doctrine of legitimate expectation.
1. The legislature of Bangladesh may enact an Act providing for the improvement of administrative justice in Bangladesh. In the prospective Act, there should be indicated that the rules of natural justice would apply to all judicial, quasi-judicial and administrative authorities who have decision making power affecting people's rights, privileges, liberty or livelihood.
2. A decision without fair procedure suffers from jurisdictional error, which consequently renders the decision void. So notice must be given to the applicant before deciding his cause or imposing punishment on him.
3. Opportunities of hearing must be given to the individual for explaining the humanitarian or other special grounds by reason of which he should not be deprived of his right.
4. The Supreme Court of Bangladesh need to give recognition to the concept of legitimate expectation in every judicial approach substantially.
Legitimate Expectation is gradually gaining importance. The substance of the doctrine is honoring implied commitments without hampering express policies. The doctrine invokes to enforce regularity, predictability and certainty in Government's dealings vis-à-vis the masses.
The writer is student of law at Northern University Bangladesh.