The Writ Petition in Bangladesh
Writ Petition is a special request to the High Court Division of the Supreme Court. In writ jurisdiction, Hon’ble Court grants immediate relief against the illegal, unreasonable action of an administrative authority, judicial or quasi-judicial action. The Constitution of Bangladesh has empowered the High Court to issue writs, directions and orders etc. Writ is a very powerful weapon available to a citizen, by which a citizen can protect his rights through filing a petition before the High court division of the Supreme Court under 102 of the Constitution against illegal violation of the rights of an individual. This article reflects on writ: type and cases in Bangladesh.
Writ Explained
Writ is a very important legal remedial right of the people of a welfare state for the purpose of enforcement and implementation of substantive law, where there has been an infringement of their fundamental rights, i.e. the illegal act of authority, error of law etc. In Bangladesh this right is exercised through the filing of a written document, i.e. writ petition to the High Court Division of the Supreme Court as per the Constitution of the People’s Republic of Bangladesh under Article 102 of Bangladesh for its directions or orders on the matter for enforcement of fundamental rights. Subsequently, the court summons or requires the opposite parties, i.e. respondent/s to do or refrain from doing something. The main object of the writ is to safeguard the fundamental right of the people and to make enforcement of people’s rights.
Types of the writ
The Constitution of Bangladesh indicates towards following kinds of writs, namely-
- Habeas Corpus
- Certiorari
- Prohibition
- Mandamus &
- Quo-Warranto.
Types of writ explained
Writ of Habeas Corpus:
The word ‘Habeas Corpus’ is a Latin term which means- ‘have his body’, i.e. one has a body which is to be produced before the court. After filing a Habeas Corpus writ petition, the court orders the concerned authority to produce the detained person before the court, whether s/he was kept in prison or in private custody. Thereafter, if the cause shown by the concerned person or authority reflects no lawful justification for detention, then the court can order the immediate release of that detained person securing his or her personal liberty.
Example:
If a person has been arrested or imprisoned on a false allegation or reasons, i.e. murder etc., then s/he or if s/he is incapable, then his family, friends or person who is close to detenu and knows all facts and circumstances of the case have the option in hand to file a writ of habeas corpus for his liberty and subsequently have to prove to the court that s/he did not commit the crime.
Writ Case reference
- Habiba Mahmud Vs. Bangladesh, 45 DLR (AD) 89
- The Court is to hold the balance between the State’s need to prevent prejudicial activities and the citizen’s right to enjoy his personal liberty.
- Sajeda Parvin Vs. Government of Bangladesh, 40 DLR (AD) 178
- The fact of detention and not the date of order of the detention is the material point.
- Jamil Huq Vs. Bangladesh and others, 1 BLD (AD) 488
- All that can be said is the ground on which a decision of a Court Martial set up under the Army Act can be challenged by habeas corpus position will be analogues to one available under sub-Article 5 of the Article 102 of the Constitution.
- AKM Azizul Hoque Vs. Bangladesh, 42 DLR 189
- Where a specific criminal charge has been levelled and the specific criminal case is pending, the executive authority should not take resources to preventive detention- The executive authority is to act in aid of the Supreme Court as a solemn constitutional obligation.
- Korban (MD.) Vs. Government of Bangladesh and others, 55 DLR (HCD) 194
- The detent is directed to be set at liberty within three hours and the District Magistrate Abdul Huq is to pay him a compensatory cost of Taka 5,000 for a whimsical exercise of power curtailing the liberty of a person.
Writ of Certiorari
The term certiorari means ‘to be certified’ or ‘to be more fully informed of’. Initially, certiorari was a judicial writ. However, with time, gradually the jurisdiction of this writ was enlarged to the field of judicial, quasi-judicial and even administrative functions. This writ power has empowered the High Court Division of the Supreme Court to control the action of the inferior or subordinate courts, i.e. whether the subordinate courts in Bangladesh are functioning within their jurisdiction or in excess of their jurisdiction.
Example:
A writ of certiorari can be filed by the aggrieved party or in certain cases by anybody against the lower court, tribunal or authority, who acted in excess of jurisdiction or misused the power or violated the principle of natural justice.
Wriy Case reference
- Saudhangshu Bhuson Das Vs. Major Hasan Reza, (1959) 11 DLR 117
- The power of the High Court in issuing the writ of certiorari cannot be invoked to amend a conviction nor to order the case to go back for imposing lawful sentence.
- Bharat Tewari Vs. N. Hossain Spl Magte., Dinajpur, (1958) 10 DLR 481
- Writ of certiorari or any other prerogative writ will issue against an order, against which no appeal or revision lies.
- Momin Motor Co. Vs. Regional Transport Authority, Dhaka, (1958) 10 DLR 284
- Relief by an application for a writ of certiorari was given when a quasi-judicial body like the regional Transport Authority passed an order against a person adversely affecting his interest without notice to him.
- Sk Ali Ahmed Vs. Secretary, Ministry of Home Affairs, 40 DLR (AD) 170; 48 DLR (AD) 20
- Even when the statute is silent, notice has to be given if any person is sought to be affected in hgis right, interest, property or character. When the statute requires service of notice the authority cannot absolve itself of this duty.
- of Bangladesh Vs. Ashraf Ali & Anr., 5 BLT (AD) 261
- The learned Judges of the High Court Division exceeded their jurisdiction while exercising their power under certiorari to interfere with the Judgment of an inferior tribunal.
Writ of Prohibition
Prohibition means ‘prohibit’ which is a preventive writ. It authorizes the High Court Division to prohibit the court, tribunal, authority or person from doing, what s/he or it is not permitted by law to do. A writ of prohibition lies where there is the absence of jurisdiction or excess of jurisdiction, abuse of power or violation of the principle of natural justice.
Example:
If the judicial or quasi-judicial authorities give any order which is illegal or is in excess of the jurisdiction of that court, then the aggrieved person can file a writ petition against that order to the superior court, i.e. the High Court Division of the Supreme Court and if the court finds the complaint to be true then it can apply the writ of prohibition against the lower court, i.e. District Judge Court etc.
Writ Case reference
- M. Wali Ahmed Chowdhury Vs. Mahfuzul Huq Chowdhury
- The issue of a writ of prohibition is discretionary and care must be taken to state in a proper manner and the precise writ asked for.
- Muhammad Tofail Vs. Abdul Gafoor
- Prohibition lies not only for the excess of or absence of jurisdiction but also for the contravention of statute or the principal of common law
Writ of Mandamus
Mandamus means ‘command’. This writ is one of the most popular, valuable and essential remedies in the administration of justice. The superior court, i.e. High Court of the Supreme Court, through this writ gives the command to require any person, corporation, inferior court or government to do some particular which is related to his/her or its public duty and in certain cases of statutory duty, imposed upon him/her, them or it by the constitution or by any other law.
Example:
If a government employee who has been working under a Public company complains that one of his/her rights has been violated by the action of the company, then s/he has the option in hands to file a writ of Mandamus against that company. To get a remedy, the aggrieved person has to prove his or her given information and points right thoroughly.
Writ Case reference
- Zamiruddin Ahmed Vs. Govt. of Bangladesh, 1 BLD (HCD) 304
- When there are special circumstances to indicate that demand for justice would be futile, mandamus can issue even though no demand for justice was made prior to filing of the writ petition.
- Dacca National Medical Institute Vs. Of East Pak., (1958)10 DLR 343
- Violation of the fundamental right of association- writ of the mandamus issued.
- Professor Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377
- This court could pass any order giving appropriate direction for the enforcement of any of the fundamental rights and could also give direction in the nature of mandamus.
- M Walid Ahmed Chowdhury Vs. Mahfuzul Huq Chowdhury, (1956) 8 DLR 429
- A mandamus will not issue unless the party seeking it has not only stated upon affidavit that he had demanded of the party against whom the mandamus is sought to be enforced by the writ and that such demand was met by a refusal but has also satisfied the Court of this upon evidence is a principle which has been universally accepted and insisted upon on as an essential and invariable condition for the issue of the writ.
- Mofzalur Rahman & others Vs. The State and another, 7 BCR (HCD) 319
- As to the jurisdiction of the High Court under Article 102 of the constitution, the Appellate Division has held in that decision that a writ of mandamus would not lie from a decision of the Sessions Judge passed under section 439A of Cr.P.C.
Writ of Quo-Warranto
‘Quo Warranto’ literary means ‘what is your authority’. It is a judicial remedy against an occupier or usurper of an independent sustentative public office, franchise or liberty. It confers jurisdiction and authority on the judiciary to control executive action in the matters of making appointments to public offices against the relevant statutory provisions, which also protects citizens from being deprived of a public office to which they may have a right. In a writ of quo warranto, the petitioner does not seek to enforce his right but challenges the validity of the claim of the holder of a public office. Hence, this writ can be sought by any person whether s/he has any personal interest or not.
Example:
The Supreme Court can file a writ against the individual or company, if it finds no legal right against him/her or it, i.e. person illegally holding the position of a public office, the industry lacks legal authorization to hold the industry etc.
Writ Case reference
- Sajda Parvin Vs. Bangladesh, 40 DLR (AD) 178; Ahmed Nazir Vs. Bangladesh, 27 DLR 199; Alam Ara Huq Vs. Bangladesh, 42 DLR 98
- No one can hold any public office without having a valid claim to that office.
- Abu Bakr Siddiqui Vs. Mr Justice Shahabuddin, 49 DLR 1
- The Person asked to show cause as to his entitlement to the office must be in actual possession of the office.
- Mohammad Abdur Rab Mia Vs. The District Registrar and other, 19 BLD (AD) 24
- The petitioner did not come before the writ court to establish any public right but only to serve his selfish end. A writ of quo warranto cannot be indulged in or for such a purpose.
- Mostafa Hussain Vs. S.M. Faruque, 40 DLR (AD) 10; Shamsul Huq Chowdhury Vs. Justice Abdur Rouf, 49 DLR 176
- A person will be found to hold the public office without lawful authority if he is not qualified to hold the public office or some mandatory provision of law which cannot be cured as a regulatory has been violated in making the appointment or in entering the office or when the appointment has been made by a person who had no authority to appoint.
- Abdur Rahman Vs. Group Captain (Retd) Shamim Hossain, 49 DLR 628
- A public office is a right, authority and duty, created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law and thus it is an office in which the public has an interest.
Concluding remarks
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