Jurisdiction over Writ Peition in Bangladesh and Their Execution in Bangladesh:
The purpose of a writ is to provide recourse for the enforcement of the law against governmental or statutory public bodies. A writ is a written document that commands or obligates a public body to do or refrain from doing something. Writ is applicable only to public entities. In the Supreme Court case Abu-al-Siddique (Md.) vs. Bangladesh and Others, Writ Petition No. 7074 of 2012, a public body is defined as “any authority, body, corporation, or institution constituted or established by or under any law, and includes any other body, authority, or institution owned, managed, or established by the government.” Subject to the uniform grades and scales and uniform terms and conditions of service are the terms and conditions of any person holding a position in a public organization.
This scenario for applying for a writ may occur if a government body takes unjustifiable action against individuals. Article 102 of the Constitution addresses the writ jurisdiction of the High Court Division, while Article 104 addresses that of the Appellate Division. In accordance with Article 102 of the Constitution of Bangladesh, the High Court Division may issue a variety of orders in the exercise of its writ jurisdiction.
Categorization of Writs
According to the Bangladeshi constitution, there are five available writs: Prohibition, Habeas Corpus, Certiorari, Mandamus, and Quo Warranto.
In the first part of Clause (2) of Article 102 of the People’s Republic of Bangladesh Constitution of 1972, the High Court Division is authorized to order a person carrying out functions relating to the affairs of the Republic or a local authority to refrain from doing what is prohibited by law. Therefore, it addresses the prohibition writ, which is issued to prevent an individual from acting if the specified conditions are met. The conditions are (a) a complaint filed by an aggrieved party, (b) the absence of an equally effective remedy, (c) acts committed without jurisdiction or in excess of jurisdiction, and (d) by a person performing functions related to the affairs of the public body.
(a) An application filed by a complainant:
The prohibition writ may only be issued if it is requested by an aggrieved party. The term “aggrieved individual” is not defined in the Constitution. Regarding the specific circumstances and circumstances of each case, the Court has determined the meaning of the expression in various instances. As a general rule, an individual is considered an aggrieved party if he or she has a direct private interest in the subject matter of the writ.
This rule applied to both individuals and groups of individuals. As in Bangladesh, Sangbad Patra Parishad vs. Bangladesh challenged an award from the Wage Board by the association of newspaper owners, the High Court Division ruled, in rejecting the petition, that ‘the association had no direct private stake in the Wage Board award law. It is not obligated to pay anything under the award to any of the parties in question, but the owners of the individual newspapers must pay, and they are upset about it.
(b) No equally effective treatment option exists
Before issuing any prerogative (in the form of different types of orders under Article 102 of the Constitution), the Supreme Court of Bangladesh must be satisfied that the aggrieved individual has exhausted all other similarly effective legal remedies. If the aggrieved individual does not prefer the alternative solution and does not provide a sufficient explanation for not doing so, the individual will not be eligible for the High Court Division’s exceptional remedies in the exercise of their writ jurisdiction.
No Authority may exceed the jurisdiction of the statute. Any action taken by an agency that exceeds its authority is invalid and ultra vires. This is the case even if a portion of the law has jurisdiction and another portion does not. And the jurisdictional portion cannot be separated from the remainder without causing harm to anyone. In Abdul Khaleque vs. Court of Settlement, Kaji Shafiuddin, J. stated, “There can be no doubt that if a Tribunal or Court acts wholly without jurisdiction, its action would be null and void… If actions done with and without jurisdiction are so intertwined that action done with jurisdiction cannot be separated without prejudice to either party, then the entire action may be declared null and void.
In addition to judicial and quasi-judicial bodies, administrative officials may also receive the prohibition letter. Similar to mandamus and certiorari (which will be discussed later), it can be issued against any authority, regardless of the nature of its function, if it performs functions related to the Republic or any local authority’s affairs.
Local Authority refers to a body or individual authorized by law or the government to carry out specific administrative duties. It is assigned a portion of the government’s sovereign function. These responsibilities must be carried out for the benefit of the public. It must be a person performing duties related to the affairs of the Republic.
Writs of Mandamus
Mandamus is an order or order of the court that directs a person, corporation, or inferior tribunal to perform a specific duty. When a court, tribunal, authority, or person fails to perform his statutory duty, the High Court orders the Court or person to perform his statutory duty.
The second part of clause (2) (a) I of Article 102 authorizes the Division of the High Court to issue instructions in the nature of mandamus writs to compel a person performing duties related to the Republic or a Local Authority to comply with the law.
The difference between mandamus and prohibition is that mandamus commands a public official to do what they are required by law to do, whereas prohibition prohibits them from doing what the law prohibits. Similar to a prohibition, mandamus will not be granted if the aggrieved party does not apply or if there is an equally effective legal remedy available. Mandamus may assign duties to any individual in relation to the affairs of the Republic or a local authority.
Mandamus cannot be used to enforce public policy or any other matter that is not a public duty. To be eligible for a mandamus order, the petitioner must have the legal authority to perform the public duty. In Fisherman Telekhal Progressive v. Bangladesh, the petitioner challenged the settlement of two fisheries on the grounds that the settlement was made contrary to government policy, as stated in government memorandums. The government memorandum was the dissemination of a government policy without any statutory force.
The purpose of certiorari is to oversee the superior courts’ actions and ensure they have not exceeded their jurisdiction. When certiorari is granted by the High Court Division, it is similar to a prohibition.
(a) An aggrieved person submits an application for the same
(b) no other remedy similarly effective is provided by law
(c) The individual to be prosecuted performs duties related to the Republic’s or local government’s affairs.
Unlike a prohibition, however, it is issued after the act or proceeding has been completed to declare that it was carried out without legal authority and without legal effect. While a prohibition is issued to prevent the act or proceeding when it is incomplete and more must be prevented, certiorari is issued when the act or proceeding is complete.
Writ of Corpus
In accordance with clause (2) (b) I of Article 102 of the Bangladesh Constitution of 1972, the High Court Division is authorized to order that a detainee be brought before him to ensure that he is not being held without legal authority or unlawfully.
Habeas Corpus is a writ that is issued to protect liberty, especially liberty that is regarded as crucial. It is awarded against unlawful detention or deportation by the police authority. Habeas Corpus is a type of court order that directs the authorities to hold an individual in custody until he or she is brought to court. The authorities must then explain why he is being detained. If the explanation is inadequate, the court may order the release of the individual. Habeas corpus is thus a means of ensuring the subject’s liberty.
This individual must hold a government position. A public office implies a constitutional office or a law pertaining to the affairs of the Republic or a local authority. It will only be awarded when a government official has a public duty under the law and refuses to fulfill it. It could be administrative, quasi-judicial, or judicial.
Thus, the writing of habeas corpus lies when an individual is arrested without lawful authority or in an illegitimate manner. If the law requiring imprisonment is unconstitutional or invalid, or if the law is valid but the order is illegitimate or exceeds its authority, the order will be granted. An action is unlawful if it is ill-intentioned, a shady use of authority, done for insignificant or foreign reasons, or if the detaining authority does not apply its mind. In the case law Abdul Latif Mirza vs. Bangladesh, the detention period ordered by the Deputy Commissioner expired and a new detention order issued by the government was served on the detainee two days later, while the detention was declared unlawful for the subsequent two days.
Quo-Warranto is a writ issued by the High Court that confirms a person’s title to an office, evicting any unlawful occupants. When an individual illegally holds a law-created public office, the High Court may, by issuing quo-warranto, require the individual to demonstrate on what authority he holds the office and prohibit him from holding it in the future. Article 102 (2)(b)(ii) of the Bangladeshi Constitution of 1972 grants the High Court Division the authority to issue quo warranto orders. A person holding or claiming to hold a government office may be required to demonstrate the authority under which he claims to hold that office. If there is a request for the same thing and no other similarly effective legislative solution exists, this document may be issued. As with habeas corpus, it should be noted that an aggrieved individual is not required to file a quo-warranato petition. Unlike habeas corpus, however, the former is discretionary despite its obligatory nature.
It grants the judiciary the jurisdiction and authority to monitor executive action in matters of appointing government officers against the applicable statutory provisions. A person will be found to hold a public office without legal authority if he is ineligible to hold the office or if certain mandatory provisions of the law were violated when he was appointed or entered office. Additionally, the quo-warranto prevents a citizen from being denied a public office to which he is entitled.
Rahman Remura has extensive experience and expertise in judicial review applications, seeking remedies for central and local government administrative decisions or other bodies that have allegedly performed public duties or functions in an unlawful, irrational, or procedurally unfair manner. Several legislative acts have been subject to judicial review, including effective challenges on behalf of our clients against a number of public bodies.
Under the capable direction of Barrister Rahman, Barrister Mahbub and Advocate Wahid, the TLS has been involved in a number of precedent-setting public administration cases.