Law Opinion
Bangladesh Bank perspective
Judicial intervention in administrative action
Forrukh Rahman
The writ jurisdiction of the honourable High Court Division is conferred by Article 102 of the Constitution of Bangladesh in order to protect the fundamental rights and also other procedural rights of the citizens as well as to ensure check and balance of powers exercised by the executive. Under Article 102, the High Court Division can give directions to government/statutory bodies to refrain from doing or to do some thing; or to declare any action as having no legal effect etc. Bangladesh Bank (BB) is established under Bangladesh Bank Order 1972. Writ petition can be filed against it.
A petitioner normally places a demand for justice to the respondent before filing petition. This is not a mandatory procedure, as it may not serve any purpose in situations where the public bodies are not asked to take any positive action. [Zamiruddin Ahmed vs. Bangladesh 1981 BLD 304]. A reasonable notice [Commissioner of Customs vs. Giasuddin 50 DLR (AD) 129] is served on the Attorney General before the writ petition is filed. [Article 102(4)(1)(b)]. The petition is moved before the Division Bench consisting of two Judges by way of motion. The court has power to grant any direction, as may be appropriate. When it is admitted, a rule nisi/show cause notice is issued to the respondent. Later, under Rule 7 Appendix IV (A) of the Rules of the High Courts the show cause notice and the petition filed by the petitioner is served on all parties directly affected by the order made.
A petitioner needs to make out a strong prima facie case that his fundamental right or any other right has been violated or is in imminent threat of being so, to obtain an interim relief by way of stay or injunction order pending final hearing of the petition. An interim relief is given in aid of or an ancillary to the main relief, which may be available to the petitioner on final determination of the petition. The grant of the interim relief is discretionary with the court and the court normally takes into account the principles under Order 39 of Civil Procedure Code 1908 i.e. the question of balance of inconvenience of the parties, loss of the petitioner and the effect of the relief on the public interest etc.
Presently there are more than 150 writ petitions pending against BB. Most of the cases have been filed by the loan defaulters against the classification made in the Credit Information Bureau (CIB) report or by the directors of commercial banks against BB's direction or by the employees of BB for change of promotion policy etc. In most cases, the High Court has granted ex parte (hearing the petitioners only) interim stay of the action taken by BB. Initially such stays have been granted for a short period. Further extensions of stay have also been granted in many cases. Consequently, many cases where stay orders have been granted are pending for full hearing for even two years or more. In several writs BB has not tried to vacate the stay order or appealed against the order in the Appellate Division by engaging advocates as the number of writs is huge. Surely this involves cost. Consequently, the petitioners have been enjoying the benefits of time. The petitioners do not want final hearing as the interim stay order serves their purpose. Cases are therefore pending for final hearing for years.
Some cases were however disposed of finally even after long delay. Such cases are not uncommon where BB lost in the final disposal. This does not give a healthy picture and suggests that there are some flaws in the system. Some efforts have been made below to identify the problems in the system.
Decision taken by BB
The fact that BB lost in some cases in the final hearing suggest that there are some problems in the decision making process. BB while taking any decision/giving direction/issuing circular has a duty to comply with the fundamental rights and also procedural rights of the citizens. The rights protected by Part III of the Constitution are known as fundamental rights. On the other hand, the non-fundamental procedural rights are originated from common law/law made by judge. At present, there is no practice within BB regarding compliance with such rights before decision making. Some banking legislation like Bank Company Ain 1991 tried to incorporate some rules of natural justice in the decision-making process. However, this is not enough.
Some examples of fundamental rights relevant for the purpose of BB are as follows. BB cannot issue a circular inconsistent with the fundamental rights. A law inconsistent with any of the fundamental rights is void [Article 26). All citizens are equal before law and entitled to equal protection by law. Therefore, any discrimination or favour towards a person is violation of this right. [Article 27). Every citizen has the right to be treated in accordance with law and only in accordance with law. BB cannot behave arbitrarily. If there is law, whether in statute or regulation or circular, a person can only be treated by such law. If there is no law, BB is under a duty to make such law and then take any action. [Article 31] etc.
The procedural rights made by judge are such that there are no questions relating to the merit of the decision. The court does not ask the question why BB takes a particular decision. Rather, the court only asks: How the decision is taken? This means that the court examines whether BB followed proper procedure in taking the decision.
Examples of some procedural rights relevant for BB are as follows. BB cannot act beyond its power (ultra vires) as conferred by statute/regulation/circular [Bangladesh vs. Dr Nilima Ibrahim 1981 BCR (AD) 175]. BB is under a duty to follow such procedure of decision making, which is prescribed by statute/regulation/circular. [State vs. Zahir 45 DLR (AD) 163].
BB needs to follow principles of natural justice. Which are as follows: (a) It has a common law duty to give fair hearing before taking any decision or issuing show cause notice. The presentation made by such person must be taken into account. [Ridge vs. Baldwin]. (b) BB cannot be biased while taking any decision. Such bias need not be actual bias. If it can be shown that there is a likelihood of bias, it will satisfy the court. Bias needs to be apparent. There is a saying that "Justice should not only be done, but should manifestly and undoubtedly be seen to be done."
Before changing its policy, BB needs to take into account the interest of such persons, who relied on its present policy, which is communicated to them by representation or circulars etc. Such persons may have legitimate exception that they will be treated in accordance with the existing policy. Some transitional or provisional policy must be made to accommodate the matters in pipeline. [Coughlan Case].
BB must ensure that the above rights are being complied with before reaching any decision on policy or issuing circulars or giving direction etc. This will definitely increase BB's chance of success in the final disposal. Further, the High Court Division will surely reject many petitions summarily at the motion stage, as there will be no case against BB. This will reduce the number of writ petitions succeeded in obtaining stay order.
High Court Rules applicable for Writ Petition
The public bodies like BB should be freely allowed to frame and change policy, take necessary decisions on public interest. Litigation aimed mainly to kill time should not be entertained. Lord Diplocks in O'Reilly vs. Mackman, a landmark judgment of the House of Lords stated that the judicial review procedure (writ petition in Bangladesh) is designed to protect public authorities against irresponsible and protracted litigation, by certain procedural restrictions, for example, the need to obtain leave, locus standi, the need to file affidavit, speedy procedure, the time limit etc. He also stated that allowing ordinary actions for public law matters might subject public authorities to lengthy delays, which would defeat the policy of the reform and the interest of the good administration.
The difference between ordinary action and writ jurisdiction is that in writ the procedure is specially designed to avoid delay. Under Article 107 of the Constitution, the Supreme Court is given power to make rules for regulating the practice and procedure of both High Court Division and Appellate Division. The Supreme Court is therefore the master of its own procedure. However, no new rule has been framed yet after liberation. The present Rules of the High Court Judicature were framed in 1960s under the High Court (Bengal) Order 1947. The rules under Appendix IV (A) Part I of the High Court Rules applicable for writ petition can be criticised as not suitable for the present position.
Under the present rule there is no requirement of serving demand of justice or letter of claim to the respondent(s) before filing writ petition. Serving demand for justice is not made a mandatory procedure in the case laws. Further, there is no requirement of obtaining proof of service. In practice, the petitioners often do not serve it although they annex it with the petition filed, as if it has been served before filing petition. The respondent is therefore remain unaware that a writ petition is going to be filed in the High Court. He does not get the opportunity to reply or contest the petition at the motion stage.
As in the UK, the petitioner may be required by rule of the High Court to serve a claim or demand of justice on the respondent and interested parties and file the same in the court before filing a writ petition. All respondents must file an acknowledgement of service containing summary grounds for resisting the claim. The court will decide whether permission to be given to petitioner to file a petition should be granted having had the benefit of submissions from all parties. Permission will be granted where the court considers that the petitioner has made out an arguable case which merits fuller investigation.
Essentially the requirement for permission will act as a filter to eliminate cases which are hopeless, misguided or trivial, or which have no real prospects of success. In urgent cases the petitioner must file a separate claim setting out the need for urgency. The urgent claim must be served on the respondent and interested parties by fax and post.
Once initial permission is granted, the petitioner must be required to file a writ petition. The respondent must be welcomed to contest the petition at the motion stage. The respondent may or may not file an affidavit in opposition at the motion stage. A rule nisi can be issued and interim relief like stay order may be given ex parte at the motion stage if the court has received the acknowledgement of service from the respondent containing summary grounds for resisting the claim. Stay order must be given for a temporary period. It must not be extended in such a manner that the petitioner postpones the final hearing.
As stated above, a reasonable notice is served on the Attorney General before the writ is filed under Article 102(4)(1)(b) of the Constitution. Normally 24 hours time limit is considered as reasonable. However, it is BB who will be in a better position to understand the interest of public. Serving a notice to the attorney general is a futile exercise.
Article 102 of the Constitution gives discretionary power to the High Court in granting any order, which includes interim orders e.g. stay order. Since this power is given under the Constitution of Bangladesh, the rules framed before liberation cannot adequately assist in exercise of this power. Therefore, there is a need for new rules as stipulated in Article 107 of the Constitution to bring uniformity in the exercise of this discretionary power. The discretion is surely a very strong one. Some rules or guidelines should always support such strong discretion.
Vigilant BB
BB needs to be more vigilant. BB needs to engage good advocates in some cases, which seem to be plainly intended to kill time, and where stay order has been obtained. Appeal can be preferred to the Appellate Division against the stay orders already granted by the High Court Division. If BB can convince the court that public interest is suffered seriously once such stays are granted, it is likely that some positive judgments will be announced giving some guidelines. The law declared by the Appellate Division shall be binding on the High Court Division. It is likely that the High Court Division will take into account the issues of public interest at the motion stage as a general rule in any writ filed against BB. This will act as a filer and eventually number of cases will be reduced.
Conclusion
The O'Reilly vs Mackman case rightly stated that the writ petition procedure was designed to protect public authorities against irresponsible and protracted litigation, by certain procedural restrictions, for example, locus standi, the need to file affidavit, speedy and summary procedure etc. Allowing ordinary actions for public law matters might subject public authorities to lengthy delays, which would defeat the policy of the reform and the interest of the good administration. We were able to introduce the alternative system but we could not avoid delay. There is a genuine need for review of the whole system. Further improvement can only be achieved by bridging positive reform. Such reforms frequently take place in Western countries. We can surely do the same.
The author is an Associate of A Hossain & Associates currently working in Legal Counsel, Central Bank Strengthening Project, Bangladesh Bank. The views expressed are of the author's own.
