When is an Expectation Legitimate?

Expectation is not a frequently used word in the legal arena. Legal minds are often absorbed in the crowd of rights, duties, obligations, liabilities and other objective terms. If you don’t have any right recognised by law, I have no corresponding duty to act in your favour. So it does not matter what you expect from others. In order to get something, you must have some right, mere expectation will do no good. But does it mean that law does not recognise any expectation of the citizens if it lacks the legal elements that constitute rights? If any public authority says that it will provide a certain facility, will be fair to say that the expectation of the citizens that the facility will actually be provided unjustified simply because the authority is not legally bound to provide the same? Here comes the scope of legitimate expectation, which is actually a doctrine of public law developed by the courts under the broader concept of natural justice.

Legitimate expectation is the right arising out of a promise made in the shape of a statement of policy or procedure regularly adopted by the authority to a hearing or to be consulted. In other words, this is a right of fair hearing before a decision of withdrawal of an undertaking is made by a public authority. If the executive undertakes, expressly or by past practice, to behave in a particular way, the subject expects that undertaking to be complied with.

The term Legitimate Expectation was first used by Lord Denning in 1969 in the English case of Schmidt v. Secretary of State for Home Affairs. Lord Denning recognised that natural justice may apply to an administrative act if the individual had some ‘right, interest or legitimate expectation’ of which it would not be fair to deprive the person of the right to be heard. According to a Bangladeshi judge, Justice M.M. Ruhul Amin, “Legitimate expectation means that an administrative authority cannot abuse its discretion by disregarding undertaking or statement of its intent”.

A legitimate expectation is said to arise when an individual has relied upon an earlier policy choice of a public body, although the public body has since departed from this policy and has adopted a second policy. Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.

So what exactly a person with some legitimate expectation get from law? Under law, a person with a legitimate expectation has the right to get an opportunity a hearing before the authority. He shall be allowed to show that the changed policy affects him unreasonably. Obviously this right of hearing is another way of achieving natural justice, which always upholds the maxim- “hear the other party”. Thus the doctrine of legitimate expectation gives a very limited right (to be heard) when there was no right at all in the first place.

Legitimate expectation is founded upon either any statement or practice of the decision maker. The doctrine can be invoked against an executive decision if the impugned decision affects a person by depriving him of some benefit or advantage which either–

1. He had in the past been permitted by the decision maker and which can be legitimately expected to continue until some rational grounds of withdrawal is communicated to him. or
2. He has received some assurance by the decision maker that it will not be withdrawn without giving him an opportunity to show reason against the withdrawal.

Some examples

AG of Hong Kong vs. Ng Yuen 1983: The Government of Hong Kong declared that the illegal immigrants would be interviewed and allowed to have their case considered on merit before being expatriated. Ng Yuen was interviewed but was not allowed to explain his humanitarian ground, so he challenged the decision of his expatriation. The Privy Council (an appellate authority) held that legitimate expectation of the plaintiff to get his case heard was violated. The authority was fully entitled under law to expel illegal immigrants without giving them any opportunity of showing cause. Yet the statement made by the government gave rise to an expectation for the plaintiff, which cannot be frustrated.

Council of Civil Service Union vs. Minister of Civil Service 1984: In this instance, legitimate expectation arose out of a practice, not from any express statement. There had been a long and regular practice of consultation with the trade union before changing any terms and conditions of service although no law required such consultation. A new policy introduced by the UK government had the effect of prohibition on certain employees from participating in trade union activities, but the government did not consult the trade union. In the suit that challenged this decision, the court held that it was not fair to change policy without consulting the traded union contrary to the expectation that has been allowed to grow over the years.

Conditions

Some conditions must be fulfilled in order to persuade a court to give a decision on the ground of legitimate expectation doctrine.

1. The statement or practice must be sufficiently clear and unambiguous.
2. Legitimate expectation is enforced in order to achieve fairness. So it must be shown that not enforcing it will result in failure of justice.
3. There should be some indication that the statement or practice is meant to be binding.
4. The plaintiff must be one of the persons to whom the statement was made or the practice applied.
5. There shall not be any overriding public interest.

Basis of the Doctrine in Bangladesh

Bangladeshi courts have always insisted that administrative authorities must follow a minimum standard of fair procedure. This minimum standard refers to the concept of natural justice which forms the basis of the doctrine of legitimate expectation.

In Bangladesh though natural justice enjoys no express constitutional status, the Appellate Division observed in Abdul Latif Mirza vs. Government of Bangladesh (31 DLR 1): “It is now well- recognized that the principle of natural justice is a part of the law of the country”. The legal system of Bangladesh is greatly influenced by English laws where we can see a development trend towards the concept of legitimate expectation.

Some Bangladeshi Cases

Bangladesh Soya Protein Project Ltd. vs. Secretary, Ministry of MDMR (6 BLC 681): The government initiated School Feeding Programme and entered into contract with the petitioner for supply of soya protein biscuits for a fixed period. On the expiry of the contract, the Gov. discontinued the programme, violating its own policy. Upon the writ petition of file by the aggrieved company, the High Court Division held that this was in violation of legitimate expectation of the petitioner as well as of millions of under nourished children. This judgement has been criticised on the ground that no statement of policy in favour of continuance of the programme could be established.

Some Judges were provisionally appointed by one government in the High Court Division who were not confirmed by the next government after the expiry of two years. In Bangladesh vs. Idrisur Rahman(29 BLD 2009), the plaintiffs contended that the appointment of an additional judge under Article 98 is a gate-way to the cadre of a permanent judge so an additional judge at least has a legitimate expectation to be appointed as a permanent judge to the High Court Division. The court said: as to the legitimate expectation of the Additional Judges, it is held that they only have the right to be considered for appointment under Article 95(1) of the Constitution.

In Fazlul Karim Selim vs. Bangladesh(33 DLR 406), the court decided in favour of the applicant without using the term 'legitimate expectation': in the case of first grant of license and renewal of license the principles of natural justice is attracted in a limited way in consideration of legitimate expectation of getting a hearing.

Justice Amirul Kabir Chowdhury prescribed a test in Md. Hafizul Islam vs. Government of Bangladesh: "The concept of legitimate expectation cannot be given such wide interpretation so as to allow any wishful hope without lawful root." Mere fanciful expectation cannot be taken to be a reasonable expectation.

Limitations of the Doctrine

The doctrine applies mostly in procedural matters. Many substantive actions can get protection from legitimate expectation, as it would create encumbrances in administrative decisions taken on merits.

It has no application against statute. The supreme court of India has already held that legislation cannot be invalidated on the basis that it offends the legitimate expectation of the persons affected thereby.

The security of the state or public policy can override the expectation the individuals.

Being a subject of public law, there is no application of the doctrine of legitimate expectation in cases of contractual relations. Only cases between the government and the individuals permit the use of this doctrine.

This doctrine does not limit the power of a government of change its policy. It only requires that a person with legitimate expectation shall be allowed to show that the changed policy affects him unreasonably, and that the changed policy should not apply to his case. For example, in the English case of Findley vs. Sec. of State for Home Dept. 1985, the government had some policy to release the prisoners before the expiry of their terms of imprisonment subject to certain conditions. A new changed policy had caused a longer imprisonment of the plaintiff. It was held that the government was within its legal capacity to adopt any new policy. Of course the plaintiff had the right based on legitimate expectation to apply to the authority to be exempted from the new policy.

Legitimate Expectation is gradually gaining importance in our jurisprudence. This doctrine not only protects human dignity by ensuring that individuals are given the opportunity of a hearing, but in the broader sense it is representative of the rule of law, because individuals ought to be able to plan their lives secure in the knowledge of the legal consequences of their action.