Introduction:
Remedial mechanism works based on law, legal entitlements and the rights are protected in the society. There is a Latin legal maxim “ubi jus ibi remedium” which denotes where there is a right, there is a remedy. For every recognized legal right, there must be a corresponding remedy to address the violations of that right. But in terms of “Legitimate Expectation,” it is not necessary to have a strict legal right or claim; however, it must be nexus with a legal right or claim. The doctrine of legitimate expectation is closely associated with the ‘right to be heard’ particularly, when an aggrieved party seeks a remedy due to an authority’s deviation from a lawfully established policy. It would be erroneous to consider this expectation as identical to anticipation. Neither a wish, desire, pious hope, prominent moral obligation nor directly established legal right amounts to a legitimate expectation. It is an expectation that is independent of any legal right and totally detached from any legal right, yet linked to a prior legal right. It is a civilized concept that is incorporated in British Constitutional law. Legitimate expectation is a doctrine established by the Court to assess administrative actions. For example, a university was providing a full free scholarship to the top 3 students of each department from the initiation. Mr. A knew about this policy and was admitted to that university and made his position in the top 3 in his department. But in that year university authority changed its policy and from now they will provide scholarships to only the student who secures the first position in each department. Here, Mr. A can claim a scholarship based on legitimate expectation though he has no strict legal right.
So, expectation can be two types: 1) Legitimate and 2) Illegitimate. If Mr. A claimed a scholarship after being fourth in his department then it would be illegitimate.
Again, expectation can be two types:1) Legal and 2) Legitimate. If the expectation is legal, then there are no issues. But if the expectation is legitimate the question arises how much it is connected to a legal claim. Every legal claim is legitimate, but every legitimate claim might not be the legal one.
Now, let’s draw a clear distinction between legal and legitimate claims, in accordance with the previous example. If Mr. A secures a position in the top three among other students in his department then according to the University policy he is eligible to receive the scholarship. But if the authority denies the scholarship due to his previous affiliation with politics, then he can legally claim the scholarship since he is eligible, and nothing was mentioned about the affiliation in the policy. Here, there is a clear established legal right, so the claim is the legal one.
On the contrary, if the University authority suddenly changes their policy about scholarship to provide only one student, then the claim made by Mr. A will be a legitimate one because it was his right in the conventional sense.
Issues of the Case:
- Whether legitimate expectation is totally independent from a legal claim or not?
- Whether legitimate expectation can still be claimed even if it goes against the public interest?
Fact:
M/S Shilpee Food Product Ltd later named Bangladesh Soya Protein Project Ltd the petitioner in 1976 took lease technology from the Bangladesh Council of Scientific and Industrial Research (BCSIR) to know how Soya products such as, Soya milk, Soya bread, and Soya-protein biscuits can be used for commercial purpose. Since 1989 the petitioner supplied Soya products to numerous schools on the request of the Ministry of Relief, Government of the People’s Republic of Bangladesh, in connection with their School Feeding Program for the under-nourished children of the disaster-affected areas. But in 1997 the Government abruptly discontinued the program, and the petitioner filed a mandamus writ petition to perform that program.
Arguments of the Petitioner:
Firstly, the petitioner in 1983, the Government and Bangladesh Soya Protein Project Ltd entered into a contract to supply Soya products in School Feeding Program. In that contract it was mentioned that the petitioner should install industrial unit estimated cost of TK. 124.27 Lacs, the factory has to be set within 24 months, have to arrange necessary land, building, materials etc. for the proposed factory, have to import new machinery total worth Tk. 67.66 Lac within 1.5 years, have to follow international standard and specifications of BSI, have to make arrangements for workers accommodations. Since the petitioner was the only supplier of Soya products on that time and confront huge cost for initial set-up it is reasonable that the petitioner will desire about continuance of that program.
Secondly, in research conducted in different school authorities by the Bangladesh Council of Scientific and Industrial Research, Dhanmondi (‘BCSIR’ in short) showed that the petitioner supplied Soya products with fullest satisfaction. And all the Ministry related to that School Feeding Program was also satisfied.
Thirdly, the petitioner’s company invested money in research in 1989 to improve their standards and fulfill all the requirements. It is obvious that if petitioner knew that the School Feeding Program will continue only for 8 years (1989 to 1997) then would not embark a huge expenditure in initial set up.
Fourthly, Legitimate expectation can be denied if it against the public interest. But here the Ministry of Disaster Management and Relief (MDMR) acted unfairly, unreasonably and cruelly demolished legitimate expectation not only of the petitioner but also millions of under-nourished children of Bangladesh from getting benefitted from that program. The counsel of the petitioner conceded that the petitioner has no legal right in the conventional sense, but the expectation is legitimate and reasonable.
Arguments of the Respondent:
Firstly, between the petitioner and Government there was specific contract with mentioned time. And that contract is expired since performance of contract was done. So, regarding the School Feeding Program the petitioner has no subsisting right and Government has no obligation to continue that program.
Secondly, in the contract with Government it was mentioned nowhere that the program will be continued for long term or the Government will renew the contract after termination. So, the expectation claimed by the petitioner under the special original jurisdiction of the High Court Division under Article 102 of the Constitution is detective.
Judgement of the Case:
Writ petition of mandamus was accepted and the Secretary, Ministry of Disaster Management and Relief, Government of Bangladesh and other respondents are directed to execute their policy decision and take necessary steps to re-start School Feeding Program within 2 months from the day of judgement.
Key Points Highlighted in the Judgement:
After the flood of 1988 there was a serious malnutrition problem among the children of Bangladesh and the School Feeding Program is effective, on heavy demand across the country. The petitioner’s company supplied high quality food, with no competitor in terms of quality. Ministry of Disaster Management and Relief neglected all those existing facts and records and by discontinuing the program miserably failed to perform their commitment to the people of Bangladesh.
Reasoning behind the Judgement:
Since nobody refused about the malnutrition problem among the children of Bangladesh it is obvious that how much the School Feeding Program is necessary to overcome this issue. And not only the petitioner’s legitimate expectation was related to that but also millions of under-nourished children of Bangladesh. If the program does not continue the cost incurred by the petitioner in regard to initial factory set-up, worker’s accommodation, and research will result loss and turn into nothing but waste. We all know about Wednesbury principle which establishes that Court can quash public authorities’ decision if that was unreasonable, and no authority reasonably done that. Discontinuation of that program is violation of their own policy decision, irrational according to Wednesbury principle.
Landmark Foreign Judgments:
Legitimate expectation was first introduced by Lord Denning in the case of Schmidt v Secretary of State for Home Affairs (1969). The core issue of that case was whether the Home Secretary should grant a hearing before reject the application of extension of leave. It was established from that case, it would be unfair if anyone’s request is rejected without hearing him whether the matter is about his strict legal right, interest or legitimate expectation.
In an Indian case Madras City Wine Merchants’ Association V. State of T.N (1994). it was mentioned that legitimate expectation may arise: 1) if there was an express promise by public authority 2) regular practice based on which claimant may expect reasonably to continue 3) expectation must be reasonable.
Recommendation:
In the judgement, it was mentioned that the petition was issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, but if it was specifically mentioned that it was a mandamus writ petition under Article 102(2)(a)(i), then it will be more translucent. Relying on judicial transplantation instead of advancing our own legal framework could lead to greater chaos in the judicial system in the future.
Conclusion:
Through judicial interpretation, the concept of legitimate expectation has been acknowledged as a component of Bangladesh’s constitutional framework, although not being specifically stated in the document. This case serves as a reminder of the judiciary’s growing role in defending individual rights and holding public officials accountable. According to the ruling of the High Court Division, when a reasonable expectation is in line with the general public interest and fairness, it can be used as the foundation for judicial remedies even in the absence of a clear legal entitlement. However, the ideas governing legitimate expectation must be codified into the legal system in order to guarantee consistency and clarity in subsequent cases. A more progressive and cohesive legal system would be promoted by this strategy, which would lessen dependency on judicial transplantation.
About the author :
Md. Asif Rahman is an undergraduate law student currently in his 8th semester of the LL.B program at East West University, Dhaka, Bangladesh. With a keen interest in legal research, Asif is dedicated to understanding and contributing to the evolving landscape of law and justice.