SHAH ABDUL HANNAN VS BANGLADESH 16 BLC HCD 2011

 

Analysis of the Fact:

The petitioners resolved to move to the high court division under the provision of Article 102 of the Constitution on the allegation that Production Sharing Contracts (PSC) entered into by the Government is not conducive to public interest. The petitioners filed the instant public interest litigation probono publicio with honest and sincere desire to protect public property under Article 21 of our Constitution.

Rule produced in this case:

A Rule Nisi was issued on the respondents to show cause as to why they should not be directed to formulate a National Strategy Policy through Parliament ensuring appropriate participating for the state in all future Production Sharing Contracts prior to the leasing out all the removing blocks at a time.

Issues:

1)      Whether court can interfere with a government policy or not?

2)      Whether court can direct the parliament to frame policy or not?

Argument from the petitioner:

It was argued that

Ø  The Government made no attempt to safeguard the national interest and acted under economic duress.

Ø  A national policy like the execution of the PSC should be made through a public debate in the parliament.

Ø  Policy decisions can be placed before the judicial microscope. Article 145(2) entitles the petitioner to have recourse the Article 102.Article 144 and 145 put the Government in a fiduciary relationship to the citizenry. There are five grounds upon which this Division can examine the legality of any policy which are as follows:

•      Malafide

•      Ultravires

•      Arbitrary

•      Unreasonableness  Unfair.

The policy decision as adopted by the Government was arbitrary and unfair so it is subject to judicial scrutiny.

Ø  The government made no attempt to safeguard the national interest and acted under economic duress. For this reason parliamentary involvement before execution of the PSC should be made compulsory. Broader consensus is to be reached through public debate. A national policy is to be framed through parliament.

Ø  Policy decisions can be placed before judicial microscope. Article 145(2) entitles the petitioner to have recourse to article 102. Articles 144 and 145 put the government in a fiduciary relationship to the citizenry. There are five grounds upon which this Division can examine the legality of the policy such as Malafide, Ultravires, arbitrary, unreasonableness and unfair. The policy decision as adopted by the government was arbitrary and unfair. 

Ø  The Appellate Division in Masdar Hossain’s case did not say that court cannot challenge a direction to the parliament to frame policy. Although article 145 does not contain a mandate in the same way article 133 does.

 

 

 

Argument from the Respondent:

It was argued that

Ø  A Government Policy Matter deserves insulation from the judicial scrutiny. No direction can be challenged by this court on the Parliament requiring any of them to frame policy.

Ø  Relying upon the decision of the case Bangladesh vs Shafiuddin Ahmed 50 DLR AD 27 it was submitted that Article 133 confers power not to duty to legislate. No court can direct the parliament to legislate or the President to frame the rules. The policy as framed and followed was of impeccable propriety and veracity, free from vice like arbitrariness, unreasonableness, Malafide or unfairness. It was not ultra vires either the constitution or any other statute. The court cannot micro manage the government’s function.

Ø  Masdar Hossain’s case was the only exception to the general rule that the court cannot pass a direction upon the parliament to legislate because our constitution had founded on the doctrine of separation of power has left legislative power to the executive domain of parliament. 

Ø  Issues based on facts as well as technical nitty-gritty could not be examined by this court in it’s jurisdiction under article 102 of our constitution. Court cannot determine whether a particular policy is fair or based on public interest.

Decision:

The court cannot direct the parliament to execute a policy regarding the gas exploration which is mainly entrusted upon the executive department.

Reasoning behind the decision:

The court has the only duty to check the constitutionality of legislation but cannot direct the parliament to legislate any policy. The court can test the legality of a policy decision not its correctness or wisdom. No question regarding the legality of the policy was raised in the petition. Principle:

The three organs of the government that means the legislature, the executive and the judiciary will act within their definite circumference prescribed by the Constitution, the supreme law of the land.

Importance of this case:

The landmark decision of Shah Abdul Hannan vs Bangladesh upheld the notion Separation of power which is the pre condition of good governance. Though there should be some check and balance among various organs of the state but that should not be used capriciously without any limitation. In this case the Doctrine of public trust has been established and it was said that the state’s duty is essentially akin to that of a Trustee of a Public trust, a fiduciary duty to act as protectors. In this case the Theory of Separation of Power of Montesquieu and Wednesbury’s sense of unreasonableness has been applied. According to Montesquieu, assimilation of all three kinds of power in one authority would ensure tyranny. The same notion is also reflected through our Constitution by maintaining separation of powers among different organs of the state.

According to Wednesbury’s, a decision would be unreasonable if it is arrived at by taking into consideration extraneous factors. Unreasonableness means conduct which no sensible authority acting with due appreciation of its responsibility would have decided to adopt.