Publication Details


The case of Moulana Abdul Hakim and Judicial Review. A move towards the right direction?

Judiciary Case Comments

Volume 2 Issue 1 December 2016

Abstract

The ruling in Moulana Md. Abdul Hakim v. Government of Bangladesh & Others in 2014 has extended the frontiers of judicial review under the Bangladeshi constitutional scheme. The judgment explores the judicial reviewability of actions and decisions of private bodies operating in the public domain. The point of reference is article 102(2) of the Constitution that presupposes the availability of the Writs that may be appealed to for reviewing executive actions in the public domain. Challenging that conventional wisdom, this judgment identifies amenability to judicial review not exclusively by reference to an obvious derivative public status of a person but increasingly by the public domain within which it operates and prevails irrespective of its derivative status. The recognition is of a reality of public-private partnership of providing services to the public at large and in regulating public activity that has blurred the traditionally held view that a Writ in Certiorari under article 102(2) can only validly be addressed to public functionaries. This article finds such traditional view fallacious, as it belies the fact of public functionaries forsaking their monopoly over public affairs and of private and public enterprise being inextricably intertwined in the conduct of business of the Republic or of a local authority.