Immigration Consultant In Bangladesh

“Application of Doctrine of Legitimate Expectation in Bangladesh”

Introduction

The emerged concept of legitimate expectations in administrative law has now gained sufficient importance. Legitimate expectation is the latest recruit to the long list of concepts fashioned by the Courts for the review of administrative actions. The Legitimate action would arise when there is an express promise given by a public authority that there is a regular practice of certain thing which the claimant can reasonably expect to continue. It therefore follows that the concept of legitimate expectations consists of inculcating an expectation in the citizen that under certain rules and scheme he would continue to enjoy certain benefits of which he would not be deprived unless there is some overriding public interest to deprive him of such an expectation.

Legitimate expectation

In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a long-standing practice or keeping a promise.

Legitimate expectation in public law

In his judgment, Judge Langan, QC set out a series of propositions which in his view comprehensively reviewed the subject of legitimate expectation in public law. These included the following:

  • a legitimate expectation founded on a representation generally requires that representation to be clear and unambiguous;
  • a legitimate expectation founded on past practice requires there to have been a specific undertaking to an individual or group whereby the continuation of that practice is assured;
  • there is a legitimate expectation that a public authority will not act so unfairly that its conduct amounts to an abuse of power;
  • detrimental reliance is not required to establish a legitimate expectation;
  • The fact that maladministration has occurred is not a ground for judicial review. The question is only whether the public body has acted unlawfully; and

In deciding what, if any, relief should be granted, the court will take into account (a) whether the decision challenged is in the macro-political field; and/or (b) involves social or political value judgments as to priority of expenditure; and/or (c) the nature and clarity of the promise or prior practice in question. By Herbert Smith LLP

Doctrine of legitimate expectation It cannot be overemphasized that the concept of legitimate expectation has now emerged as an important doctrine. It is stated that it is the latest recruit to a long list of concepts fashioned by the court to review an administrative action.[1] It operates in public domain and in appropriate cases constitutes a substantive and enforceable right.[2] As a doctrine it takes its place beside such principles as rules of natural justice, rule of law, non-arbitrariness, reasonableness, fairness, promissory estoppel, fiduciary duty and perhaps, proportionality to check the abuse of the exercise of administrative power. The principle at the root of the doctrine is Rule of Law which requires regularity, predictability and certainly the governments’ dealing with the public.[3] An expectation could be based on an express promise, or representation or by established past action or settled conduct. It could be a representation to the individual or generally to a class of persons. Whether an expectation exists is a question of law, but clear statutory words override any expectation, however founded. However as an equity doctrine it is not rigid and operates in areas of manifest injustice. It enforces a certain standard of public morality in all public dealings. However, considerations of public interest would outweigh its application. It would immensely benefit those who are likely to be denied relief on the ground that they have no statutory right to claim relief. Exercise of discretion is an inseparable part of sound administration and, therefore, the State which is itself a creature of the Constitution, cannot shed its limitation at any time in any sphere of State activity. A discretionary power is one which is exercisable by the holder of the power in his discretion or subjective satisfaction. The exercise of discretion must not be arbitrary, fanciful and influenced by extraneous considerations. In matters of discretion the choice must be dictated by public interest and must not be unprincipled or unreasoned. Reasonable and non-arbitrary exercise of discretion is an inbuilt requirement of the law and any unreasonable or arbitrary exercise of it violates Article 14 of the Constitution of India, 1950. The discretion must be exercised reasonably in furtherance of public policy, public good and for public cause. This doctrine of legitimate expectation acts as a deterrent for those in charge of public power from exercising it arbitrarily. It should not be capped, cabined or confined in narrow, pedantic and lexographic approach; rather it should be given broadest of interpretations so as to cover within its purview the dialectics and dynamics of fairness and efficiency. The basic purpose for the same being the expectation in a rule of law society is that holders of public power and authority must be able to publicly justify their action as legally valid and socially wise and just. Under such circumstances, it becomes an inherent right of the public in a democracy to prevent themselves from the abuse of discretion and do not get susceptible to the deadly tentacles of arbitrariness and unreasonableness.

[1] See Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499. [2] See M.P. Oil Extraction Co. v. State of M.P., (1997) 7 SCC 592.

[3] See Chanchal Goyal (Dr.) v. State of Rajasthan., (2003) 3 SCC 485

Legitimate expectation in Bangladesh

The doctrine of legitimate expectation in Bangladesh protects both procedural and substantive rights. In administrative law, a legitimate expectation generally arises when there has been a representation of a certain outcome by the public authorities to an individual. To derogate from the representation may amount to an abuse of power or unfairness. The doctrine of legitimate expectation as a ground to quash decisions of public authorities has been firmly established by the English courts. Thus, where a public authority has made a representation to an individual who would be affected by a decision by the authority, the individual has a legitimate expectation to have his or her views heard before the decision is taken. In addition, an individual may also have a legitimate expectation to a substantive right. The recognition of substantive legitimate expectations is somewhat controversial as it requires a balancing of the requirements of fairness against the reasons for any change in the authority’s policy. This suggests the adoption of a free-standing proportionality approach, which has been said not to apply in administrative law.

The doctrine of legitimate expectation – in both its procedural and substantive dimensions – has been recognized by Bangladesh courts. Nonetheless, the scope of the doctrine in Bangladesh is not clear due to the dearth of cases and lack of definite pronouncements by the courts in judgments that have been rendered. Whether the courts will adopt the UK approach with regard to measuring legitimate expectation with the ruler of proportionality remains an open question.

Legitimate expectation of a procedural right

The doctrine of legitimate expectation originates from common law principles of fairness. English courts developed this doctrine largely to encourage good administration and prevent abuses by decision-makers.[1] Generally, the courts will grant judicial review of an administrative decision based on an individual’s legitimate expectation if a public authority has made a representation to the individual within its powers. The individual has to show that the representation was a clear and unambiguous promise, an established practice or a public announcement. This is largely a factual inquiry.

The key idea is that under certain circumstances where a representation has been made by a public authority to an individual who would be affected by a decision by the authority, the individual expects to be heard before the decision is made. To deny the right to be heard amounts to unfairness. The court will thus be inclined to quash a decision if there has been unfairness and reliance by the individual on the representation to his detriment. This is demonstrated in the 1983House of Lords decision Council of Civil Service Unions v. Minister for the Civil Service (the GCHQcase).[2] This case involved the trade unions of employees of the Government Communications Headquarters (GCHQ), a government signals and intelligence department, who argued that they had an expectation to be consulted before the Minister took the decision to deny them the right to join trade unions. The Minister argued that it had been necessary to take that step as the trade unions were conducting strikes that crippled GCHQ operations and threatened the national security of the United Kingdom. The Court established that in the past the trade unions had been consulted on employment-related matters, even though it was not a rule. However, their Lordships clearly recognized that an individual can have a legitimate expectation to be consulted before a decision is taken when it is proven that this is the practice. Such a representation can come in the form of a clear and unambiguous promise to hear the individual or an established practice to consult those affected before taking the decision. Nonetheless, on the facts of the case, their Lordships agreed that they could not review the Minister’s decision even though there was an enforceable legitimate expectation as the decision had been made on national security grounds.

Legitimate expectation of a substantive benefit

In a 1999 case, the Court controversially held that individuals can have a legitimate expectation to receive a substantive benefit, not merely a procedural right.The English courts initially wavered in recognizing that an individual has a legitimate expectation of a substantive benefit arising from a representation from the authorities. The notion of protecting a substantive legitimate expectation was espoused in the 1995 High Court decision in R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Off-shore) Fisheries Ltd.[3] In that controversial case, JusticeStephen Sedley formulated the framework for legitimate expectations as the balance of the requirements of fairness against the decision-maker’s reasons to change the policy.[4] This was in step with the development of the doctrine of proportionality as prescribed in the Treaty on European Union,[5] and inEuropean Court of Justice case law.[6] The decision wove proportionality back into the fabric of judicial review in the UK under the banner of an expanding doctrine of “fair administration” despite the clear rejection of proportionality as a self-standing ground of review by the House of Lords in R. v. Secretary of State for the Home Department, ex parte Brind (1991).[7]

In 1996, the Court of Appeal opined in R. v. Secretary of State for the Home Department, ex parte Hargreaves[8] that “[o]n matters of substance (as contrasted with procedure) Wednesbury provides the correct test”. In Associated Provincial Picture Houses v. Wednesbury Corporation (1947),[9] the High Court had introduced the idea of Wednesbury unreasonableness, that is, a public authority’s decision is unlawful if, although they have “kept within the four corners of the matters they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”.[10] The inference to be made from ex parte Hargreaves was that where an applicant claimed to have a substantive expectation, it was not for the court to judge if that expectation should be protected vis-à-visthe broader public interest. The court should only intervene if the decision-maker’s exercise of its discretion satisfied the Wednesbury threshold.

However, the courts’ role in protecting substantive legitimate expectations was clearly established by the Court of Appeal of England and Wales in R. v. North and East Devon Health Authority, ex parte Coughlan (1999).[11] The case involved an applicant who was promised by her local authority that a new nursing home would be her “home for life”. The Court granted the application for review on the ground that the applicant had a legitimate expectation to have the substantive benefit of staying in the nursing home as promised by the local authority. It also set out the approach to be taken in safeguarding procedural and substantive legitimate expectations. Where procedural legitimate expectations were concerned, courts would require an opportunity for consultation to be given unless there was an overriding reason to resile from it (such as the national security concern that arose in the GCHQ case). As regards substantive legitimate expectations, courts would decide whether for a public authority to frustrate an expectation by making a decision was so unfair that the decision would amount to an abuse of power. The courts would weigh the requirements of fairness towards the individual against any overriding interests relied by the authorities.[12]

Coughlan has been criticized for allowing the doctrine of proportionality to affect administrative law, as the court has to judge the merits of a case when granting a review on grounds of substantive legitimate expectation and, in a sense, usurp the discretion of the executive branch of government. This is arguably inconsistent with the court’s traditional role in judicial review which is to avoid examining the merits of administrative decisions and only scrutinize them for compliance with the law.[13] However, it is undeniable that the protection of legitimate expectations in both its procedural and substantive forms is here to stay. The scope of substantive legitimate expectation has also expanded. In Coughlan the view was expressed that “most cases of an enforceable expectation of a substantive benefit … are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract”.[14] However, in R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (2007),[15] it was accepted that members of a group of close to a thousand or even up to several thousand people[16] could have a legitimate expectation of a substantive benefit following the government’s announcement of its intentions.[17]

Legitimate expectation of a substantive benefit

The existence of the doctrine of substantive legitimate expectation in Bangladesh public law was accepted by the Court of Appeal in the case of Abdul Nasir bin Amer Hamsah v. Public Prosecutor.[27] In his judgment written on behalf of the Court, Chief Justice Yong Pung How stated that the idea behind the doctrine is that certain “expectations could, in suitable circumstances, be deserving of protection, even though they did not acquire the force of a legal right”. However, the decided cases do not indicate whether the doctrine of substantive legitimate expectation will be developed in the way it has been developed in the UK.

Conclusion

Legitimate expectation is essentially a feature of the duty upon public authorities to act fairly and not abuse their powers. There is of course a tension between the requirement for local authorities to act properly within the ambit of their statutory powers (not fettering their discretion) and the doctrine of legitimate expectation which may under certain circumstances compel an authority in fairness to behave as it may reasonably be expected to do, even though this may not accord with its corporate wishes. The developing concept owes something to the equitable doctrine of estoppels which had been developed so energetically by former Master of the Rolls, Lord Denning.

‘There is of course an analogy between a private law estoppels and the public law concept of a legitimate expectation created by a public authority, the rejection of which may amount to an abuse of power . . .[Coughlan. . .] But it is no more than a similarity because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote’. Fairness is a creature of particular sets of circumstances and these are as infinitely variable as human beings and indeed human nature itself. But given the fact that claimants in a fix will naturally look to any suitable remedy within reach in Bangladesh.

Bibliography

1)      [1] Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499.

2)      [2] M.P. Oil Extraction Co. v. State of M.P., (1997) 7 SCC 592.

3)      [3] Chanchal Goyal (Dr.) v. State of Rajasthan., (2003) 3 SCC 485

1.      Peter Leyland; Gordon Anthony (2009), “Legitimate Expectations”, Textbook on Administrative Law (6th ed.), Oxford; New York, N.Y.: Oxford University Press, pp. 313–330 at 313, ISBN 978-0-19-921776-2 (pbk.) .

2.      Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6, [1985] A.C. 374, House of Lords (UK).

3.      R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Off-shore) Fisheries Ltd. [1995] 2 All E.R. 714.

4.      Hamble, p. 724 per Sedley J.: “[L]egitimacy is a relative concept, to be gauged proportionately to the legal and policy implications of the expectation”.

5.      Treaty on European Union (7 February 1992), [1992] 1 C.M.L.R. [Common Market Law Report] 573, Art. 5(3).

6.      e.g., Brasserie du Pêcheur S.A. v. Germany; R. v. Secretary of State for Transport, ex parte Factortame Ltd. [1996] EUECJ C-46/93, Case C-46/93, [1996] E.C.R. I-1029, [1996] Q.B. 404, European Court of Justice.

7.      R. v. Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4, [1991] 1 A.C. 696, H.L.

8.      R. v. Secretary of State for the Home Department, ex parte Hargreaves [1996] EWCA Civ 1006, [1997] 1 W.L.R. 906, Court of Appeal (England and Wales)

9.      Associated Provincial Picture Houses v. Wednesbury Corporation [1947] EWCA Civ 1, [1948] 1 K.B. 223, C.A.

10.  Wednesbury, p. 234.

11.  R. v. North and East Devon Health Authority, ex parte Coughlan [1999] EWCA Civ 1871, [2001] Q.B. 213, C.A.

12.  Coughlan, p. 242, para. 57.

13.  Leyland & Anthony, pp. 323–325.

14.  Coughlan, p. 242, para. 59.

15.  R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2007] EWCA Civ 498, [2008] Q.B. 365, C.A.

16.  R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2000] EWHC 413 (Admin), [2001] Q.B. 1067 at 1078, para. 6.

17.  Bancoult (No. 2), pp. 407–408, paras. 73–76.

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