Writ types and cases in Bangladesh
Writ Petition is a special request to the Supreme Court’s High Court Division. In writ jurisdiction, the court grants immediate relief against the unlawful, unreasonable action of an administrative authority, court, or quasi-court.
The Bangladeshi Constitution grants the High Court the authority to issue writs, directives, and other orders. By filing a petition with the High court division of the Supreme Court under Article 102 of the Constitution against the illegal violation of an individual’s rights, the Writ is a citizen’s most potent available weapon for protecting his rights.
This article discusses writ in Bangladesh, including its type and various cases.
Writs Explanation:
Writ is a very important legal remedy of the citizens of a welfare state for the enforcement and implementation of substantive law when their fundamental rights have been violated, such as by an illegal act of authority, an error of law, etc.
In Bangladesh, this right is exercised by filing a written document, known as a writ petition, with the High Court Division of the Supreme Court, in accordance with Article 102 of the Constitution of the People’s Republic of Bangladesh, in order to enforce fundamental rights.
The court then orders the opposing party or parties, i.e. the respondent/s, to do or refrain from doing something. The primary purpose of writ is to protect the fundamental rights of the people and to ensure their enforcement.
Types of the writ
The Constitution of Bangladesh indicates towards following Writ types, namely-
- Habeas Corpus
- Certiorari
- Prohibition
- Mandamus &
- Quo-Warranto.
Types of writ described:
Habeas Corpus Writ:
“Habeas Corpus” is a Latin phrase that means “have his body,” i.e., one must produce his or her body before the court. Following the filing of a Habeas Corpus petition, the court orders the relevant authority to bring the detained individual before it, regardless of whether s/he was being held in prison or private custody.
Afterwards, if the cause presented by the concerned person or authority demonstrates no legal justification for detention, the court may order the immediate release of the detained individual, securing his or her liberty.
Example:
If a person has been arrested or imprisoned based on false allegations or reasons, e.g. murder, then s/he, or if s/he is incapable, then his family, friends, or person who is close to the detenu and knows all facts and circumstances of the case, has the option to file a writ of habeas corpus for his freedom and must then prove to the court that s/he did not commit the crime.
Case reference: Writ
Habiba Mahmud Vs. Bangladesh, 45 DLR (AD) 89
The Court must maintain a balance between the State’s need to prevent harmful activities and the citizen’s right to personal freedom.
Government of Bangladesh v. Sajeda Parvin, 40 DLR (AD) 178
Important is the fact of detention, not the date of the order for detention.
Bangladesh and Others v. Jamil Huq, 1 BLD (AD) 488
The only thing that can be said is that the grounds on which a Court Martial established under the Army Act can be challenged by habeas corpus will be analogous to those available under Article 102, subsection 5, of the Constitution.
AKM Azizul Hoque Vs. Bangladesh, 42 DLR 189
When a specific criminal charge has been leveled and a specific criminal case is pending, the executive authority should not commit resources to preventive detention. The executive authority has a solemn constitutional obligation to assist the Supreme Court.
55 DLR (HCD) 194 Korban (MD.) v. Government of Bangladesh and Others
The detainee is to be released within three hours, and District Magistrate Abdul Huq is to compensate him with Taka 5,000 for the arbitrary exercise of power that deprived him of his liberty.
Writ of Certiorari:
Certiorari is Latin for “to be certified” or “to be more fully informed of.” Initially, certiorari was a court order. With the passage of time, the scope of this writ was expanded to include judicial, quasi-judicial, and even administrative functions.
This writ power enables the High Court Division of the Supreme Court to control the actions of the inferior or subordinate courts, i.e. to determine whether the subordinate courts in Bangladesh are operating within their jurisdiction or beyond it.
Example:
A writ of certiorari may be filed by the aggrieved party or, in certain circumstances, by anyone against a lower court, tribunal, or authority that abused its power or violated the principle of natural justice.
Saudhangshu Bhuson Das Vs. Major Hasan Reza, (1959) 11 DLR 117
The power of the High Court to issue a writ of certiorari cannot be used to modify a conviction or to remand a case for the imposition of a lawful sentence.
Bharat Tewari Vs. N. Hossain Spl Magte., Dinajpur (1958) 10 DLR 481
A writ of certiorari or other prerogative writ may be issued against an order that is not subject to appeal or reversal.
Regional Transport Authority of Dhaka versus Momin Motor Company (1958) 10 DLR 284
A writ of certiorari was granted when a quasi-judicial body, such as the regional Transport Authority, issued an order adversely affecting a person’s interests without his knowledge.
Secretary, Ministry of Home Affairs v. Sk Ali Ahmed, 40 DLR (AD) 170; 48 DLR (AD) 20
Even if the statute is silent, notice must be given if a person’s right, interest, property, or character is to be affected. When the law requires service of notice, the authority cannot evade this obligation.
Ashraf Ali & Others v. Bangladesh, 5 BLT (AD) 261
The learned Judges of the High Court Division exceeded their authority when they exercised their authority under certiorari to overturn the decision of a lower court.
The Prohibition Writ:
The term prohibition refers to a preventive writ. It empowers the High Court Division to prohibit a court, tribunal, authority, or person from engaging in conduct that is prohibited by law. A writ of prohibition is appropriate when there is an absence or excess of jurisdiction, an abuse of power, or a violation of the principle of natural justice.
Example:
If judicial or quasi-judicial authorities issue an order that is illegal or exceeds the court’s jurisdiction, the aggrieved party may file a writ petition with the superior court, i.e. the High Court Division of the Supreme Court, and if the court finds the complaint to be valid, it may issue a writ of prohibition against the lower court, i.e. the District Judge Court etc.
Case reference: Writ
M. Wali Ahmed Chowdhury:
The issuance of a writ of prohibition is discretionary, and care must be taken to request the appropriate writ.
Muhammad Tofail Vs. Abdul Gafoor
In addition to jurisdictional excess or absence, prohibition may be based on the violation of a statute or a principle of common law.
Writ of Mandamus:
Mandamus means “order” This writ is one of the most widely used, valuable, and necessary legal remedies. This writ is issued by the superior court, i.e., the High Court of the Supreme Court, to compel any person, corporation, inferior court, or government to perform a specific action related to his/her/its public duty or, in certain cases, a statutory duty imposed upon him/her/it by the constitution or any other law.
Example:
If a government employee working for a Public company alleges that one of his/her rights has been violated by the company’s actions, s/he has the option to file a Writ of Mandamus against that company. To obtain redress, the aggrieved party must demonstrate the accuracy of the information and arguments presented.
Case reference: Writ
Government of Bangladesh vs. Zamiruddin Ahmed, 1 BLD (HCD) 304
Mandamus may issue even if no demand for justice has been made prior to the filing of the writ petition if special circumstances indicate that a demand for justice would be futile.
Of East Pak., Vs. Dacca National Medical Institute (1958)10 DLR 343
Writ of mandamus issued for violation of the fundamental right to association.
Government of Bangladesh v. Professor Nurul Islam, 20 BLD (HCD) 377
This court could issue any order containing appropriate directives for the enforcement of any of the fundamental rights, as well as mandamus-style directives.
M. Walid Ahmed Chowdhury versus Mahfuzul Huq Chowdhury, 8 DLR 429 (1956).
A mandamus will not issue unless the party seeking it has not only stated on affidavit that he demanded of the party against whom the mandamus is sought to be enforced by the writ and that such demand was refused, but has also satisfied the court that this is a principle that has been universally accepted and insisted upon as an essential and invariable condition for the issuance of the writ.
Mofzalur Rahman et al. vs. The State et al., 7 BCR (HCD) 319
Regarding the High Court’s jurisdiction under Article 102 of th
e Constitution, the Appellate Division held in that decision that a writ of mandamus would not issue from a Sessions Judge’s decision issued under section 439A of the Criminal Procedure Code.
Writ of Quo-Warranto:
The literal translation of “Quo Warranto” is “what is your authority?” It is a legal remedy against an occupier or usurper of an independent, self-sustaining public office, franchise, or liberty.
It confers jurisdiction and authority on the judiciary to control executive action in matters of making appointments to public offices contrary to applicable statutory provisions, thereby protecting citizens from being denied a public office to which they may be entitled. In a writ of quo warranto, the petitioner challenges the legitimacy of the claim of the holder of a public office.
Therefore, this writ can be requested by anyone, regardless of whether they have a personal stake in the outcome.
Example:
The Supreme Court may file a writ against an individual or corporation if it determines that there is no legal right against him/her/it, i.e. the individual is illegally holding a public office, the company lacks legal authorization to hold the industry, etc.
Sajda Parvin Vs. Bangladesh, 40 DLR (AD) 178; Ahmed Nazir Vs. Bangladesh, 27 DLR 199; Alam Ara Huq Vs. Bangladesh, 42 DLR 98
No public office can be held without a legitimate claim to that office.
Abu Bakr Siddiqui Vs. Mr. Justice Shahabuddin, 49 DLR 1
The Person questioned regarding his eligibility for the office must be in actual possession of the position.
The District Registrar and Others v. Mohammad Abdur Rab Mia, 19 BLD (AD) 24.
The petitioner did not appear before the writ court to establish a public right; rather, he did so to further his own interests. A quo warranto cannot be used in such a manner or for such a purpose.
Mostafa Hussain v. S.M. Faruque, 40 DLR (AD) 10, and Shamsul Huq Chowdhury v. Justice Abdur Rouf, 49 DLR (AD) 176.
A person will be found to be holding a public office without lawful authority if he is ineligible to hold the office, if he violated a mandatory provision of law that cannot be remedied as a regulation in making the appointment or in entering the office, or if the appointment was made by a person who lacked the authority to do so.
Group Captain (Retired) Shamim Hossain vs. Abdur Rahman, 49 DLR 628
A public office is a right, authority, and duty, created and conferred by law, by which an individual is vested with a portion of the sovereign functions of the government to be exercised for the benefit of the public, for the term and by the tenure prescribed by law, and is therefore an office in which the public has an interest.
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