Law Book Review
Armory of a judicial remedy
Ridwanul Hoque
The judicial power to review the legality or otherwise of any governmental or legislative act and to quash it when found 'unlawful' has become instrumental in enforcing legal limits of other political branches of the state. Of the forms of judicial review, judicial review of administrative actions is the least controversial but nevertheless contentious. Specially, the ancient judicial writ of certiorari, in which the court can declare any action unlawful and quash it, has received many diverse formulations and treatment. The traditional discourse here generally tends to keep a margin of appreciation for the administration, with the policy of judicial non-interference with the administration having been underscored. Inspired by public law principles, there has been a significant change in this philosophy of certiorari in recent days both in England, the home of certiorari, and elsewhere.
The book under review is a posthumous work by the late Barrister Syed Ishtiaq Ahmed (1932 - 2003), who happened to be one of the most celebrated lawyers of the country. The book, emerging from the Justice Ibrahim Memorial Lectures written but not delivered in 2003, is an outstanding contribution to our existing knowledge about the public law remedy of certiorari. Mr. Ahmed nourished and kept a deep passion for law and justice, and his struggle for and contributions to an independent judiciary are well known. So is his short but great work on 'the expanding horizon of judicial review' in Bangladesh [45 DLR (1993), Journal, 45], in which he endorsed the Bangladeshi judges' stretching of judicial power out to the general public in the form of public interest litigation. In the present book, there is yet another brilliant imprint of the author's intellectuality and distinctive legal thoughtfulness. Notably, for example, the analyses made in the book are grounded in the primordial norm of rule of law. It is from this perspective that the author has critiqued many English decisions for being deficient in reasoning and public law rationales.
The administrative law remedy of certiorari had many ups and downs in its life. For a long a time, the English courts shied away from intervening in administrative affairs unless the challenged actions proved extremely unreasonable and clearly beyond jurisdiction. Such a nearly insurmountable jurisdictional threshold began to be trimmed in the early 1960s when the courts, through dynamic interpretation, began to re-fashion the age-old legal principles such as 'natural justice' and 'rule of law' so as to ensure greater responsibility of the administration. The revival of English administrative law from the post-War deep depression led to the creation of new grounds and subjects of certiorari. In an unprecedented decision (which perhaps inadvertently escaped the author's notice), for example, the House of Lords in R v Home Secretary, ex p. Fire Brigade Union [1995] 2 AC 523 HL, held a criminal injuries scheme unlawful for being inconsistent with the one instructed in an Act of Parliament which did not then come into force. The story of certiorari in the post-Human Rights Act 1998 era is an altogether new story; courts now actively consider human rights and engage in the review of executive actions and prerogatives with greater intensity.
The book Certiorari succinctly presents the trajectory of the life and development of certiorari, and gives the reader a taste of fresh view of many English judicial decisions in this area. The book is divided into seven chapters, with a Preface by Justice Syed Refaat Ahmed and a Foreword on the great personality Justice Mohammed Ibrahim, written by the late author himself. While the first chapter introduces the subject, giving a historical account, chapter 2 draws a picture of the period of 'amnesia and blackout' in certiorari's early life. Chapter 3 takes the analyses further forward, letting the reader know about 'the period of legal depression' and how the great remedy of certiorari made recovery from that depression. Chapter IV is on what is famously known as 'Wednessbury reasonableness' developed in the case of Wednesbury Corporation [1948] 1 KB 223 in which the Court held that actions that are unreasonable by the standard of an ordinary person's reason are subject to quashing.
Entitled 'The Anisminic case and after', chapter V describes the relatively modern development of certiorari. In the Anisminic case, which ushered in what the English lawyers call the Anisminic moment in the English public law, the Court refused to accept the argument of 'error of law within jurisdiction' as a defense against judicial review of administrative actions. Earlier, the English courts used to refrain from applying certiorari when the errors by public authorities were wrong but fell within their 'jurisdiction'. In chapter V, the author has examined the cases that overturned this rigid principle and thereby forged the new public law-based certiorari. Chapter VI examines 'other' grounds of judicial review which the author rightly catalogues under 'other ways of committing illegality' (by the administration). These other means, such as mala fide, breach of natural justice, abuse of administrative discretion and so on, have received in-depth, sharp analyses in this chapter. Chapter VII is the most argumentative of all chapters, in which the sub-continental scenario of certiorari has been brought into focus. But for this chapter I would have critiqued the author for not paying any attention to the jurisprudence of Bangladesh where he led a legendary legal professional life.
I would still like to critique the author for inadequate focus on the Bangladeshi developments regarding certiorari. Interestingly, however, the short discussion on the Bangladeshi jurisprudence holds the strongest of all arguments advanced by others so far. The author argues that courts in Bangladesh have not yet 'caught up' the newer public law principles of judicial review (at p. 13). In his own words, the Court has yet to ''liberat[e] itself from the fetters of 'jurisdictional' and 'non-jurisdictional' approach''. The author also clearly argues that the wording in article 102 of the Constitution of Bangladesh regarding certiorari, which gives the judges power to declare anything as having 'been done ... without lawful authority,' makes room for a progressive certiorari arresting any illegality committed by public authorities. I have elsewhere [Law & Our Rights, 29 October 2005] argued for a society-specific reformulation of judicial review in Bangladesh, urging the courts to shun the bondage with colonial jurisprudence, and now find an energizing support in Ahmed's argument. After the author wrote in 2003, Bangladeshi top judges have made some progress towards modernizing certiorari or judicial review in general, but have not yet fully realized its public law rationales. For example, the courts still hesitate in intensely reviewing public contracts and lag behind in utilizing the fundamental rights with their full potential. Ahmed's penetrating argument thus still rings true. As he concludes, at p. 148, ''[t]he ground is well prepared now as it always was .... Let the great judicial power entrusted to our judges ... be used by them to usher in a new era of a liberal and progressive constitutional order.''
I would have also wished the author to shed light on the constitutional nature of the administrative law remedy of certiorari in Bangladesh. Lastly, he would have done better to touch on the probable impact of the UK Human Rights Act on the future of the common law-driven remedy of certiorari in England.
The book constitutes an extremely significant contribution to the Bangladeshi public law jurisprudence which often falls into legal depression and subversion. The arguments in the book are clear, lucidly-worded and exceedingly convincing, and they portray a fabulous legal craftsmanship. This is a must read for lawyers, judges, law students and legal educators, and indeed for every one interested in public law.
The reviewer is Associate Professor of Law, University of Dhaka.
