Judicial Review of State Contracts: Piercing the Narrow Divide between ‘Pure and Simple’ and ‘Statutory or Sovereign’ Contracts
Dhaka University Law Journal (The Dhaka University Studies Part-F), Vol. 28 (2017), pp. 35-54
24 Pages Posted: 25 Oct 2018
Date Written: October 3, 2018
One of the challenges of the Bangladeshi public law is effectively to extend judicial review to contracts made by government agencies. Often, it is argued that contracts made by the government or its agencies belong to the private domain of the State, thereby precluding judicial intervention. Recent developments show that while the higher courts are becoming incrementally willing to review public contracts, they still shy away from contracts by public agencies that are seen as ‘pure and simple’ commercial contracts or ‘private’ contracts. The primary task of judicial review in any jurisdiction is effectively to extend constitutional control over government actions and/or omissions in order to ensure good governance. In order for judicial review to be an effective means of good governance, it should essentially embrace all government contracts, public or private. Set in this context, this article aims to examine the issue of reviewability of government contracts in Bangladesh and, while doing so, to critique the judicially crafted divide between ‘pure’ contracts and ‘statutory’ contracts as subject matters of judicial review. It is argued that this private/public divide with regard to state contracts (contract by state agencies) continues to be a clog on the Court’s capacity to ensure executive transparency and accountability. We conclude by arguing for reviewability of any state contract on the ground of lack of fairness.
Keywords: Judicial review, constitutionalism, contracts, good governance and the rule of law
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