October 25

Ridwanul Hoque: The “Datafin” Turn in Bangladesh: Opening Up Judicial Review of Private Bodies

This post considers a recent development in Bangladeshi case law on the judicial review of private bodies. To begin with, Bangladeshi courts are largely conservative in opening up judicial review for private bodies or private acts of the State. Regarding the reviewability of state contracts, for example, the court remained quite dismissive for a long time but altered its approach in the late 1980s. In the case of Sharping M. S. Samity v Bangladesh[1], it accepted the view that contracts by state agencies are amenable to judicial review only if they are concluded in the State’s “sovereign” capacity. Therefore, “pure and simple” contracts, as opposed to “statutory” contracts, were held not to be judicially reviewable. This view still holds the field (Mark Construction Ltd v. Chief Engineer, Rural Electrification Board[2]), and the private-public-divide with reference to contract-centric state actions continues to limit the ability of courts to use judicial review to check administrative unfairness and arbitrariness.

In a different but closely related arena, however, there has been a welcome shift in the court’s position vis-à-vis the judicial reviewability of ostensibly private body actions. In Moulana Md. Abdul Hakim v Bangladesh[3], the High Court Division of the Supreme Court of Bangladesh held unlawful a dismissal decision by a management committee of a private educational institute. Although in a few earlier cases the court clarified the meaning of public authorities to recognise relatively newer public agencies such as a public-sector gas-distribution company as subjects of judicial review (Conforce Ltd v Titas Gas Co. Ltd[4]), Abdul Hakim is arguably the first decision to clearly hold that a private body’s actions may qualify as public functions for the purpose of judicial review. In this sense, Abdul Hakim marked the beginning of the expansion of traditional boundaries of judicial review of administrative actions.

Before proceeding to viewing a little larger image of Abdul Hakim, a short discussion on the status of judicial review under Bangladesh’s constitutional framework would be useful. The source of judicial review, known as the “writ jurisdiction” of the court, is article 102 of the Constitution. The High Court Division is the original court for judicial review, and its decisions are appealable to the Appellate Division. Broadly, judicial review can be sought on two grounds: (i) that the petitioner’s fundamental/constitutional rights have been breached or (ii) that there is a breach of the ‘principle of legality’. In the former case, remedies can be sought against “any person or authority” [art. 102(1)], meaning that there can conceivably be a ‘horizontal’ enforcement of constitutional rights against private persons. In practice, however, this has not been the case. In the latter case, as per art. 102(2), judicial review can be directed against “a person performing any functions in connection with the affairs of the Republic or of a local authority,” –a phrase that has long been interpreted as excluding private entities from the scope of judicial review.

Thus, whenever faced with petitions for mandamus, certiorari or prohibition against private entities the court used to routinely rely on the private-public distinction (strictly drawn) on the basis of the identity of the respondent of the litigation and the source of its powers (private or statutory). In Abdul Hakim too, a leading jurist of the country, who served as an amicus curie, argued that acts of private entities which are not statutory or local authorities are not judicially reviewable.[5] Another amicus curie, however, differed from this view and argued that the derivative authority of the body whose actions are impugned is of little concern as to the reviewability of its actions that are of a public nature.[6] This argument with which the court agreed is premised on the public-law rationales that aim at a greater public accountability of such bodies.

 

The Case of Abdul Hakim

Mr. Abdul Hakim was a principal of a madrasah, a non-government religious educational institute, who was sacked in February 2011 by a decision of the madrasah management committee. Mr. Hakim applied for judicial review of this decision. The respondent opposed the application on the basis that since the dismissal order was issued by a private body, it was not amenable to judicial review under art. 102(2) of the Constitution.

In Bangladesh, private schools and colleges are governed by managing committees, which are private bodies composed of local social leaders and parents of students. These private institutions are partly funded by the government, which also has a regulatory role in overseeing the management of non-governmental educational institutions. The formation and the modus operandi of such school committees are provided by statues. Despite such oversight of schools and madrasahs by the concerned Education Board, a statutory authority, applications for judicial review used to fail on the basis that the decision was made by a private body not having a direct statutory source of power.

In Abdul Hakim, the Court resolved the question of jurisdiction by employing a liberal interpretation to the term “a person performing any functions in connection with the affairs of the Republic” in art. 102(2). It held that a body does not necessarily have to have its powers derived from statute to be amenable to review. It will suffice if the functions of that body are “in connection with the affairs” of the State. In other words, one has to look into the nature of the functions of the body concerned, and not exclusively to the source of its power. The court took cognizance of the reality that in certain sectors such as education and health, activities of private bodies are essentially functions belonging to the public domain.

It appears that the Court’s reasoning was in line with the developments in other jurisdictions including, for example, the UK with regard to the growing definition of public authorities for the purpose of judicial review. The Court indeed cited a series of English cases (most notably, R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815  and R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909) and academic works such as those in Michael Taggart’s volume.[7] In analyzing the facts of the present case, the Court looked at a range of factors including the capacity of the madrasah’s management committee to impact on rights and interests of the petitioner. It found that the body had such a capacity and that there was a regulatory connection between its functions and their statutory oversight. Applying one of the approaches from Datafin (whether the body has been “woven into the fabric of public regulation”) to those findings, the Court concluded that the managing committee of Mr. Abdul Hakim’s madrasah was discharging a public function.

Conclusion

The Abdul Hakim decision of the High Court Division is a remarkable instance of judicial activism in the field of administrative law. It certainly has pushed the traditional boundaries of judicial review within which only ‘public functions’ or ‘statutory authorities’ were reviewable. Scholars and actors from other jurisdictions, especially those jurisdictions where the scope of judicial review is similarly restricted long and which have also not yet tracked the “Datafin turn” in the English context, have something to learn from this Bangladeshi case which put due emphasis on the “rights and interest” of citizens and the constitutional and public law values behind administrative law.

Groundbreaking as it might be, Abdul Hakim is just the beginning of the court’s push back on traditional boundaries of judicial review. It has also not yet been tested on appeal by the Appellate Division of the Supreme Court of Bangladesh, which still has case law to suggest that writs do not lie against private bodies. Without this authoritative ruling from the apex court, the High Court Division might remain hesitant in taking Abdul Hakim’s ruling further forward. For example, a recent High Court Division ruling relevantly observed that there has to be a breach of “statutory duty” by a public body for the issue of a writ of mandamus.[8] Conversely, in UTI Pership (Pvt) Ltd v Bangladesh,[9] the High Court Division relied on the ratio of Abdul Hakim in holding that a business organisation incorporated as a private company was amenable to judicial review. The true impact of Abdul Hakim is, therefore, yet to be seen.


Ridwanul Hoque is a Professor of Law in the Department of Law at Dhaka University. Main areas of his interest are comparative constitutional law, judicial activism, judicial politics, public accountability, and the social relevance of law. His publications include a book, titled Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars, 2011), and several articles in noted journals.

 

[1] (1987) 39 DLR (AD) 85.

[2] 3 SCOB [2015] HCD 37.

[3] (2014) 34 BLD (HCD) 129 (per Syed Refaat Ahmed J).

[4] (1992) 42 DLR (HCD) 33.

[5] (2014) 34 BLD (HCD) 129, 131 (argument of Mr. Mahmudul Islam).

[6] Ibid. (argument of Mr. Rokanuddin Mahmud).

[7] Citing Michael Taggart (ed.), The Province of Administrative Law (Hart Publishing, 1997).

[8] Freight Management Ltd. v Bangladesh Bank (2016) 68 DLR (HCD) 493, 500.

[9] Writ Petition No. 3519 of 2013, unreported decision of 10 August 2015, per Md. Habibul Gani J.