In recent years the nature and boundaries of “the duty to act fairly” has been the predominant subject of judicial and academic concern in any discussion on the application of the rules of natural justice. Now that the “fairness” controversy has subsided (due to the highest judicial pronouncements that natural justice and fairness are synonymous) a new debate on the application of natural justice seems likely. This new debate will centre over the nature and boundaries of the concept of a “legitimate expectation” as the basis of an entitlement to a hearing.
The term legitimate expectation has no specific definition like that of natural justice. It is a situation where an individual in no way be debarred from his legal rights even from the expectation which has no legal footing, without due procedure. On the other hand, Natural justice is something, which maintains certain principles in disposing justice. Legitimate expectation is a plea for the claimant to sought natural justice.
In administrative law, traditionally, the requirements of procedural fairness have been known collectively as die rules of natural justice. The rules of natural justice shall necessarily mean to conform to the following principles in Latin form.
- The principle of audi alteram partem (meaning ‘hear the other side’) encompassed the rules that a man should be heard before taking any decision, whether it is written or oral.
- The principle of nemo judex in causa sua (meaning no man a judge in his own case) which covers the rules that the decision maker must not decide his own case and he should not appear to be biased in coming to a decision.
With a view to conform to the principles of natural justice the constitution of Bangladesh has incorporated the concept of procedural due process as such of American constitution, in the sense that, it guarantees the protection of the law and to be treated in accordance with law as an inherent right of every citizen or every other person within Bangladesh. It also provides for safeguards as to arrest and detention as well as protection in respect of trial and punishment to protect the legitimate expectation ensuring natural justice. All these will be discussed later under this topic. Now let me take die opportunity to refer here that how natural justice and legitimate expectation is inter related. In an English case we have seen that he was removed from his office on the ground of professional misconduct but notice of allegation did not reach to him. It is his legitimate expectation to have at least a notice even hearing before taking decision against him which vitiate the natural justice tremendously.
The principles of natural justice were originally applied to court of justice and now extend to any person or body deciding issues affecting the rights or interests where a reasonable person would have legitimate expectation that the decision making process would be within some rules of fair procedure. In the long run we can say the principles of natural justice depend on fair hearing.
Legitimate Expectation and Estoppel
What is estoppel and how it is relates with legitimate expectation is discussed below:
The term estoppel was first discussed in an English case where we traced the meaning and rule of estoppel. Here the rule lead us to understood estoppel as follows- “Where one by his words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time” Actually. Estoppel is a rule of evidence whereby a person is precluded from saying one thing at one time and opposite at another time and thus frustrates one’s legal interest and entitlement. While legitimate expectation means a right or entitlement which a person can claim its enforcement at any time. Prima facie it can be understood as same meaning of die two terms Estoppel and Legitimate expectation. But in broad sense both the doctrines are separate and distinct. For Estoppel to invoke, the element of acting to applicant’s detriment is prerequisite whereas it has no applicability in substantial manner in case of legitimate expectation.
(a) Application of Estoppels and legitimate expectation:
The rules of estoppel as statutorily found in Evidence Act 1872 will apply only when
(i) a person has made some representation by words act or omission
(ii) and thereby intentionally caused or permitted some other person to believe the thing represented to be true; and
(iii) the other person believed and acted upon such representation
But legitimate expectation will applies where the public authorities or any person make representation in the shape of information and ensured some entitlement to the person concerned. It is often seen that the government authorities seeks immunity against estoppel to defraud the legitimate interest on the fake plea that they derive power from the people in general. As estoppel is here to protect the legitimate expectation of the individual, I think, in one sense estoppel give back up to the individual to enjoy his legal rights and interests. In this regard let us visit to a case example. Here die government had notified that new industries will be exempted from taxes for three years. A person establishes an Oil mill resort to the enforcement of notification while the government decided again to withdraw the notification. The Supreme Court upon consideration of long case in many jurisdiction upheld that the government is bound by the notification out of estoppel and the petitioner in entitled to protect his legitimate expectation not to pay taxes for three years.
(b) When Estoppels and legitimate expectation does not applies:
Estoppel and legitimate expectation has some similarity in the sense that in certain case estoppel has no application likewise legitimate expectation. There is no estoppel against an Act of the legislature even it is not possible against the law of the land and supreme law i.e. the constitution. Like that in case of emergency and greater constitutional interest legitimate expectation would not be applied there. The waiver or acquiescence in the facts of the case operates as estoppel. It is to be found from the instant fact that the appellant did not agitate his claim in any court of law until the minister has recommended inclusion of 7 left out listees in the 2nd list to be listed in the 3rd list and to be included for consideration for promotion to the post of general manager. Moreover, the appellant has appeared at the 2nd examination and was unsuccessful to be listed. As such no case of legitimate expectation as well is attracted in the facts and circumstances of the instant case.
Legitimate Expectation and Judicial Review:
The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is enough merely to note that the legitimate expectation can provide a sufficient interest to enable one who can not point to the existence of a substantive right to obtain the leave of the court to apply for judicial review.
In judicial review the court is basically obliged to determine that whether the alleged act under review is lawful or unlawful or detrimental to the legitimate interest of individual. The basic function of the court with regard to illegal action or decision is to declare it as void and thus give protection to the legitimate interest as well as natural justice.
Legitimate expectation gives proper footing to the individual justice seekers to bring his case under the jurisdiction of judicial review of the Supreme Court of Bangladesh. Legitimate expectation and judicial review has a great relationship in the sense that unless there is legitimate interest (in absence of which judicial review court would not take into consideration the whole matter) there is no judicial review. So what actually constitute proper footing or locus standi need to be clear in all form? The word locus standi, means “the right to bring an action or to be heard in a given forum” In the case of Kazi Muklesur Rahman v. Bangladesh quite early in our constitutional journey the question of locus standi was given a liberal contour, in this manner-
It appears to us that the question of locus standi does not involve the Courts jurisdiction to hear a person but of the competency of the person to claim a hearing, so that the question is one of discretion which the court exercises upon due consideration of the facts and circumstances of each case.
Whether the Court has jurisdiction to protect the legitimate expectation of a particular person can be best satisfied from the Article 102 (1) of the constitution of Bangladesh which confers power on the High Court Division to enforce the fundamental rights within the meaning of legitimate expectation as well. But condition is that he must be affected by the unconstitutionality of the law which breaks his legitimate interest. The rule of court of review is essentially supervisory .^Basically the duty of the review court is to observe inter alia whether the authority has exceed it s authority, or do any act ultra viresly,58 violates the legitimate expectation of a particular person which is, in fact, in the route and process of development.
Legitimate Expectation and Rule of law:
(a) Meaning of Role of Law:
The rule of law as a philosophical doctrine is an aspect of ancient and modem natural law thought which essentially contains the view that the authority of law derives not from the power of any political ruler, but from a higher source, secular or theological and the laws of man should be evaluated against the dictates from this higher form of law. Basically Rule of law implies the Value and dignity of individual.
A.V. Dicey in his famous work, An Introduction to the Study of the Law of the Constitution, enunciated die concept as including three things- (i) absence of arbitrary power, that is, no man is above law and the persons in authority do not enjoy wide, arbitrary or discretionary powers, (ii) equality before law, that is, every man irrespective of his status and position is subject to the ordinary laws of the land and the jurisdiction of ordinary courts, and (iii) individual liberties.
However, what is a necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framer of the law accountable to the people.
Nonetheless there are a number of factors required to be counted as necessary element of Rule of Law among which the followings are mentioned here.
(i) The affairs of the government must be run in accordance with law;
(ii) By ‘law’ is not meant any law passed by the legislature, but law which is fair and not arbitrary or unreasonable;
(iii) The law should ensure basic human rights;
(iv) The law should be non-discriminatory;
(v) Everybody irrespective of status or position including the public functionaries must be subject to law;
(vi) No man should be adversely affected in his life, liberty or property without notice and opportunity of being heard.
(b) Discussion on Rule of law and legitimate expectation:
It is easily can be said that whenever a person is maltreated, is also excluded from legitimate expectation. In feet it is no doubt true; the principle at the root of the doctrine of legitimate expectation is Rule of Law which requires regularity.
Regarding the protection of legitimate expectation Rule of law has a vital rule. It is the fundamental aim of the constitution of Bangladesh that every organ of the state must justify his action in terms of law. Laws of the country need to be enacted after taking into consideration of Article 27 and 31 of constitution of Bangladesh, where Article 27 prohibits any sort of discrimination and article 31 introduces the aspect of due process in action to prohibits arbitrary proceeding and protect the interest of the individual. Thus legitimate expectation might be respected through maintaining Rule of law.
However supreme priority should be given on the that a person ought not to be deprived of his personal liberty or other substantial interest without giving an opportunity of fair hearing before an independent court. The prime concern of rule of law is like that the power is to be exercised in a manner which is not unreasonable and detrimental to the legal interest of individual. Because it may frustrates the legitimate expectation of a person. The case of Bangladesh vs Idrisur Rahman is mostly related here. It was held that-
“if a right or privilege of a sitting judge sought to be denied citing the provision of Article lll of the constitution that will not only be contrary to rule of law but would also be contrary to consultation being in violation of his fundamental rights guaranteed under Articles 27 and 31 of the constitution. Further this would also amount to a denial of his right of access to justice; which is an inviolable right secured and ensured in the constitution and equally founded in the doctrine of American due process of law.”
However in the concluding moment I would prefer to refer a comment by Hilaire Barnett to satisfy the meaning of Rule of law taking into accord to the legitimate expectation.
“The rule of law — in its many guises- represents a challenge to state authority and power, demanding that powers both be granted legitimately and that their exercise is according to law. According to law means both according to the legal rules and something over and above purely legality and imputes concepts of legitimacy and constitutionality. In its tum, legitimacy implies rightness or in morality of law.”