INTRODUCTION
The primary object of this article is to offer a systematic study of the Writ Jurisdiction of the Supreme Court of Bangladesh under the 1972 Constitution of the People’s Republic of Bangladesh. An attempt has been made to examine the definition of writs, historical basics of writ, common types of writs, comparison of writs, different types of writs under the constitution, writ in the international perspective. The article portrays writ jurisdiction of the Supreme Court of Bangladesh, comprising of the High court Division and the Appellate Division, to be given in the nature of orders under the 1972 constitution and the Code of criminal Procedure, 1898. Relevant cases have been cited. Finally, the article summarizes general conclusions making an overall assessment of the writ jurisdiction of the Supreme Court of Bangladesh.
Definition of Writ
The word Writ means a written document by which one is summoned or required to do or refrain from doing something.[2] Historically writ originated and developed in British legal system As defined by Blackstone, ‘writ is a mandatory letter from the king-in- parliament, sealed with his great seal, and directed to the Sheriff of the country wherein the injury is committed or supposed so to be requiring him to command the wrongdoer or party caused either to do justice to the complainant, or else to appear in court and answer the accusation against him.”
Initially writs were royal prerogatives. Since only the King or Queen as the fountain of justice could issue writs, they were called prorogate writs. “They were called prerogative writs because there were conceived as being intimately prerogative writs because they were conceived as being intimately connected with the rights of the crown. A Prerogative writ was issued only on some probable cause being shown to the satisfaction of the court. Why the extraordinary power of the crown is called in to the party’s assistance.
The king issued writs through the court of Kings’ Bench or the Court Chancery. The prerogative writs were five in number—Habeas Corpus, Certiorari, prohibition, Mandamus, and Quo-Warranto.[3] The King issued them against his officers to compel them to exercise their functions properly or to prevent them front abusing their powers.
Subjects being aggrieved by the actions of tile king’s officials came to the King and appealed for redress. And the King through the above mentioned two courts issued them against his officials to give remedies to his subjects. Gradually as tile governmental functions increased and the concept of rule of law emerged and the courts became independent. These writs came to be the prerogatives of the courts instead of the King and lastly they came to be tile prerogatives of the people, for they are now guaranteed rights in the constitutions (If many countries and citizens can invoke them as right).
A write is a remedial right for the enforcement of substantive law. A writ literally means a written order. In England, the writs are issued by the Crown as the head of judicial System. Where there is no statutory source and the crown issued it by virtue of prerogative, it was called the prerogative writ e.g. the writ of habeas corpus, mandamus, prohibition, certiourari, quo-warranto.
In Bangladesh, there is no prerogative power belonging to any organ of government. But power to sue the writ corresponding to the English prerogative writ has been rested in the High court Division under Article 102 of the constitution. [4]since these writs are founded on the express provisions of the constitution; the High court divisions are also free to issue appropriate orders in the nature of those writs, embodying their essential principles.
In Bangladesh, these writs are available not only for the enforcement of fundamental rights but also for the enforcement of non fundamental legal rights created y various statuses and other laws enforce for the time being. This jurisdiction to enforce the legal rights is vested in the high court division under Article 102 of the constitution.
What is writ Jurisdiction?
The Constitution has conferred on the High Court Division (HCD) original jurisdiction only in one case and that case is the field of writ matters. The basis of writ jurisdiction is Article 102 of the Constitution of Bangladesh.[5] Writ jurisdiction means the power and jurisdiction of the HCD under the provisions of the Constitution whereby it can enforce fundamental rights as guaranteed in part III of the Constitution and can also exercise its power of judicial review. Like Article 32 of the Indian Constitution and article 22 of the Pakistan constitution of 1956 conferred power on the Supreme Court to enforce fundamental right and made the right to apply to Supreme Court for enforcement of fundamental rights itself a fundamental right. Under the constitution, the High Court Division has power under art.102(1) to pass necessary orders to enforce fundamental rights under article 44(1) the right to move the High Court Division under article 102(1) is itself fundamental right.[6] In view of the provision of Art. 44, the High Court Division cannot refuse to entertain an application under article 102 (1) on the ground that the petition involves resolution of disputed question of fact. If necessary in appropriate cases, the court will have to take evidence. The constitution does not stipulate the nature of the relief which may be granted. It has been left to the High Court Division to fashion the relief according to the circumstances of a particular case. The constitution has not stipulated any procedure for the remedy and it is for the court to adopt its own procedure. The high Court Division follows certain rules of procedure and practice in respect of all writ petitions, whether one involves enforcement of fundamental rights or not.[7] A person may apply for enforcement of fundamental right when there is a threat to infringe it and need not wait till the threat is carried out. The threat must be real and mere apprehension that the petitioner may be deprived of his fundamental right is not sufficient to invoke the jurisdiction of the court.
Historical Basis Of Writ Jurisdiction
History of writ jurisdiction
In British India a Supreme Court was first established in 1774 under the Regulating Act of 1773. This court was first empowered to issue prerogative writs. Later two Supreme Courts were established in Madras (in 1800) and Bombay (in 1823) and these two courts were also given writ power. In 1862 three Supreme Courts were abolished and in their place three High Courts were established. These three High Courts were empowered to issue prerogative writs. After the partition in 1947 India and Pakistan became two independent Dominions. The Indian Constitution adopted in 1949 gave both the Supreme Court and the High Courts power to issue writs and specific names of all writs were incorporated in both Articles of 32 (for the Supreme Court) and 226 (for the High Courts). Under the 1956’s Constitution of Pakistan both the Supreme Court and the High Courts were given power to issue writs and specific names of all writs were incorporated in the Articles 22 for the Supreme Court and 170 for the High Courts. But it was 1962’s Constitution of Pakistan where for the first time a change was introduced in writ matters. Unlike earlier the Supreme Court was not given any original writ jurisdiction. Only the High Courts were empowered under Article 98 to issue writs but the particular names of specific writs were not used in wording of this Article. Provisions were made instead where true contents of each of the major writs had been set out in self-contained propositions. As to this change Cornelius, C.J.said:
‘Now in Pakistan we have Article 98, and the ancient names of the writs have been eliminated from the Constitution, although the categories distinguish themselves easily under those names, and they will always be used with their specific meanings in judgments. In Article 98 true content of each of the major writs has been set out in the long form of words. The object probably was to attain certainty as to the limits within which the courts may act. Previously, in each case the courts referred to precedents from England, the United States, India and several other countries, to determine whether they had power to interfere in the case before them. It is perhaps supposed that this may not be necessary now that the powers are stated not by label, but by full expression. However, it is to be remembered that the earlier precedents will lose their value as guidance. In the new article there are verbal changes in respect of the availability of the writ to public servants, for the protection of their rights in the public service’.[8]
Following the instance of the Pakistan 1962 Constitution the Constitution makers of our country also did not incorporate the specific names of various writs in Article 102 of the Constitution; rather contents of each of the writs have been kept in self-contained provisions. Why have the specific names of various writs been omitted?
No specific reasons have been stated by the Constitution makers though it is assumed that for following two reasons the names of various writs were omitted in 1962 Constitution of Pakistan and the same applies to the Bangladesh Constitution.
First, in Britain the Administration of Justice (Miscellaneous Provisions) Acts, 1933 and 1938 were passed whereby mandamus, prohibition, Certiorari and quo-warrnnto were abolished as writs. Of these mandamus, prohibition, and certiorari have been turned into orders and quo-warranto into injunction. Thus in Britain there is .only one independent writ and it is habeas corpus. This might have influenced the Constitution makers of 1962 Constitution of Pakistan in not using the specific names of various writs.
Second, some writs have limited scope in their application. For instance, prohibition and certiorari these—two writs are basically judicial writs and are applicable only in respect of judicial and quasi-judicial bodies. Thus if the specific names of prohibition and certiorari are used, then the courts will not be able to apply them to control administrative actions for which separate procedure is to be provided for. To avoid this inconvenience the specific names of writs have not been incorporated; rather provisions have been inserted so that the contents of those writs are retained and the control of administrative actions may, as well, be possible by the same device. The words of Munir Qadir, C.J. is pertinent to mention in this respect—
‘The present Constitution by its 98th Article appears to have made an attempt to reduce into self-contained propositions. In the course of their evolution some distinguishing incidents had come to attach separately to some of these writs. Those distinguishing features, it seems, have not been incorporated in Article 98, apparently because they were not regarded as being of the essence of the remedy. The conditions of exercise of jurisdiction in relation to the various writs have thus become more uniform. As a consequence, in some cases the field covered by the earlier writ has become somewhat enlarged. The writ of certiorari, for example, was available originally in respect of judicial or quasi-judicial determination only. It was not available in respect of non-judicial determinations. Article 98 has not preserved any such distinction, with the result that all orders passed in excess of lawful authority, whether by judicial, quasi-judicial or non-judicial functionaries, are equally liable to be declared as being of no legal effect’.[9]
Now we will investigate Article 102 of our Constitution to see how the true contents of each of the major writs have been set out into self contained propositions.
As Article 102 proceeds-
“The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law if on the application of any person aggrieved, make an order-(j)
‘Directing a person performing any function in the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do.’
This italic- part of the section contains the true idea of prohibition. Here “which he is not permitted by law” means that he may be about to misuse or abuse his power or to act in excess of his jurisdiction prescribed by law. In’ such a case the High Court Division, on application, may issue the writ of prohibition with a view to prohibiting or refraining the person concerned from doing that act.
The same sub-Article continues:-
‘……to do that which he is required by law to do. ‘This part of the Article contains the true concept of mandamus, “to do that which he is required by law to do” means that the person concerned is under statutory obligation to do something but he has refused or failed to perform his obligations. In such a case the HCD by issuing the writ of mandamus, can compel the person or authority to perform his statutory obligation.
Now the sub-Article 102(2) (a)(ii) proceeds-
‘Declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect.’ Here lies the concept of certiorari.
Now the sub-Article 102(2) (b)(i) proceeds-“On the application of any person, make an order-
(i) Directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Here the very concept of the writ of habeas corpus is hidden.
Lastly sub-Article 102(2) (b)(ii) states ‘Requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office’ -this part contains the concept of quo-warranto.
CLASSIFICATION OF WRITS
There are five types of writs which in details described as follows.
1. Writ of Habeas Corpus
2. Writ of Mandamus
3. Writ of Prohibition
4. Writ of Certiorari
5. Writ of Quo-Warranto
Writ of Habeas Corpus
The word ‘habeas Corpus’ means “have his bodies’. To have the body before the court. So it is a kind of order of the court that commands the authorities holding an individual in custody to bring that person into court. The authorities must then explain in the court why tile person is being held. The court can order the release of the individual if the explanation is unsatisfactory.[10] Thus the writ of ‘Habeas Corpus’ is a process for securing the personal liberty of the subjects by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody.[11] This writ is the most important weapon forged by the Ingeminate of man to secure the liberty to the individual. There is no judicial process more familiar or important than this. Lord Acton points out that it is often said that the British Constitution “attained its find perfection in 1679 when Habeas Corpus Act was passed”.
This is a British Law for the protection of liberty of a subject against his illegal detention in public or private custody since 1640. The King’s Bench issues writ of habeas corpus to examine as to whether a person was illegally detained in custody.
Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution, the High Court Division, on the application of any person, directs that a person in custody be brought before it to satisfy itself as to whether he is being held in custody with or without lawful authority. If the Court finds that he is being illegally held in custody by the authority, it then can declare the same to be without lawful authority.[12] Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a write of habeas corpus to bring before it a person detained in public or private custody in order to see as to whether he is being detained illegally or improperly. If the High Court Division finds that such a person is being held in custody, illegally or improperly, it then directs the detaining authority or person to set him at liberty.
Writ of Mandamus
Literally the term ‘mandamus’ means ‘we command’ and reminds one of the times when the king of England “as the autocratic head of a vast administrative system had occasion to mandamus his subjects many times in the course of the day” .In Halsbury’s Laws of England’ mandamus is described as follows
The order of mandamus is an order of a most extensive remedial nature, and is in form, a command issuing from the High Court of Justice directed to any person. Corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertaining to his or their office and is in the nature of public duty.
Thus it can he said that when a court or tribunal or an authority or a person has refused or failed to perform his statutory obligation, it is the writ of mandamus by which the higher court can compel the authority or court or person to do his statutory obligation. So mandamus is a positive remedy.[13]
This remedy is available when any right of a person, arising from any law and not from any contract, is violated.[14] The applicant must show that he has a legal right to the performance of legal duty by the person or authority against whom the writ is prayed for.
In Lakhi Ram v. Haryana[15] the appellant prayed for mandamus challenging the action of the government expunging adverse remarks in the annual confidential report of an officer claiming that the judgment would prejudice his chance of promotion. The High Court dismissed the application on the ground that the appellant had no locus standi.
Mandamus may issue on any person performing functions in connection with the affairs of the Republic or of a local authority. Such a person must hold office of a public nature’, that is, an office under the Constitution or a law relating to the affairs of the Republic or of a local authority.[16] It will issue only when that public functionary has a public duty under a law and he refused to perform his legal duty; the duty may be judicial, quasi-judicial or purely administrative. The duty sought to be enforced must be a duty of a public nature.
Thus mandamus may issue on the government to implement its own decision under certain circumstances, to pay leave salary, or allowance, or future salary, to restore seniority of a government servant’ or to forward to the President a competent appeal of a government servant to issue necessary clearance for delivery.
Writ of Prohibition
Prohibition is an original remedial writ, as old as the common law itself. Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts. Prohibition as a writ means one which prevents a tribunal possessing judicial or quasi- judicial posers from exercising jurisdiction over matters not within its cognizance. Thus prohibition is originally a judicial writ since it can be used against a judicial or quasi-judicial body and not against an administrate e body or public corporation or body. But no longer ii remains limited to he used only against judicial and quasi-judicial body. The wording in 1962 Constitution of Pakistan and also in present Bangladesh Constitution makes it clear that this writ can be used against any public body.
It may, therefore, he said that hen a court, or a tribunal or an authority or a person is about to violate the principles of natural justice or is about to abuse the power or is about to act in excess of its jurisdiction, the higher court by issuing a writ of prohibition can prohibit the tribunals, or court or authority from doing such act. The Principle 0f natural Justice basically means principles of 1. No one should he condemn unheard: & 2.No one can he a judge of its own Cause. Prohibition can prohibit the tribunal, court or authority from doing such act. So prohibition is a preventive remedy.[17]
Prohibition means ‘to forbid’ from doing something. In other words, it is a writ issued by the superior court to a lower court, tribunal or administrative authority prohibiting it from doing something which it is not authorized by law to do. Prohibition is a preventive writ and issued to stop illegal exercise of power of jurisdiction to the detriment of any legal right of a person. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing any functions in connection with the affairs of the
Republic or local authority to refrain from doing what he is not permitted by law to do. Since both certiorari and prohibition have the same object in view, the prevention of usurpation of jurisdiction by judicial and quasi-judicial bodies, the primary difference between the two writs being as to the stage at which the writ is available, it follows that the grounds on which prohibition will issue are the same as those on which v will issue (if the Petitioner comes to court after the tribunal has already made the order without jurisdiction) Thus, prohibition will issue to prevent the tribunal from proceeding further, when the tribunal—
(a) Proceeds to act without or in excess of jurisdiction.
(b) Proceeds to act in violation of the rules of natural justice.
(c) Proceeds to act under a law, which is it.
(d) Proceeds to act in contravention of fundamental rights.
Prohibition will lie only against judicial or quasi-judicial proceedings and not against the exercise of legislative or executive “[18] functions, or against private persons or associations, who cannot he called an ‘authority’ In short, a writ of prohibition is available only against such authorities as are amenable to the jurisdiction.
Writ of Certiorari
The term ‘certiorari’ means ‘to be certified’ or ‘to be more fully informed of’. The writ of ‘certiorari’ is so named because in its original form it required the King ‘should be certified’ of the proceedings to be investigated. This writ was drawn up for the purpose of enabling the Court of King’s Bench to control the action of inferior court and to make it certain that they should not exceed their jurisdiction; and therefore, the writ of certiorari is intended to bring into the High Court the decision of inferior tribunal, in order that the High Court may be certified whether the decision is within the jurisdiction of the inferior courts.
Initially at common law in Englandcertiorari used to be used either forms the King’s Bench or the Chancery for the purpose of exercising superintending control over inferior courts. So certiorari was necessarily a judicial writ at initial stage. But gradually, the jurisdiction was enlarged to include within its fold all authorities performing judicial, quasi-judicial and even administrative functions. Thus certiorari’ is no longer a judicial writ. When a court or a tribunal or an authority or a person has already violated the principle of natural justice, or misused the power or acted in excess of its jurisdiction, the higher court by issuing certiorari can quash that act can declare that act illegal. This is Certiorari.[19]
So it can be said that when a court or a tribunal or an authority or a person has already violated the principle of natural justice, or misused the power or acted in excess of its jurisdiction, the higher court by issuing certiorari can quash that act i.e. can declare that act illegal.
An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi- judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. For instance the government may be empowered to acquire property if it is ‘satisfied’ of the existence of a public purpose for such acquisition. If the government validly reaches a conclusion as to the existence of a public purpose its order will be legal provided of course that the circumstances which it has found to exist do in law constitute a public purpose.
R v. Lincolnshire Justice Exp,[20] When an adotticer acts illegally, he acts without jurisdiction. An administrative officer try to pass order or to take action if certain facts exist, If those essential listed not exist his order or action is void.” Writ of certiorari misinterpretation of ‘public purpose’.
It is the Court which will decide what is meant by ‘public purpose’. In the same way Professor Wade observed, “In administrates prescribed statutory ingredients will more readily he lies’ collateral. This is probably because, in contrast to judicial ii”.
In Abdur Rahman v. Sultan [21] Where the person complaining knew of holding of local investigation by Advocate Commissioner, hut did not take step to file any objection against the report) the authority on receipt of complaint issued a notice to show cause why action to cancel or suspend the permits should not be taken.
The court found the notice to be bad as the proposed action had to be particularized with reference to each of the permits detailing particular conditions for breach of which action was sought to be taken in connection with each of the permits. A bald notice covering all the permits could not be issued.
Thus whether a judge gave an actually biased judgment is not material, the judgment is vitiated if there a real likelihood of the judge being biased. We come across three ‘steppes of bias – pecuniary, personal and official and we shall deal with them.
Writ of Quo Warranto
The term “Quo warranto” means “by what warrant or authority.” Quo warranto is a writ by which any person who occupies or usurps an independent substantive public office or franchise or liberty, is asked to show by what right he claims it, so that the title to the office, franchise or liberty may he settled and unauthorized occupants ousted by judicial order.
More precisely, it can he said that when a person illegally holds a public office created by law the higher court, on the application of any person, can, by issuing quo warranto, ask the person to show Of what authority he holds the office and can make him not to hold such office further.[22]
Writ of quo warranto provides remedy against illegal occupation or usurpation of any public office or franchise or liberty. It enables inquiry into the legality of the claim, which a person asserts to an office or franchise and to oust him from such position, if he is a usurper.[23] The holder of the office has to show to the court under what authority he holds office. Such remedy is available under sub-clause (ii) of clause (b) of sub-article (2) of article 102 of the Constitution from the High Court Division.
Art. 102(2)(b)(ii) provides that on the application of any person the High Court Division may inquire whether a person holding or purporting to hold any public office is holding it under a legal authority. This is jurisdiction to issue writ in the nature of quo warranto. This writ is used to ensure that no one can hold any public office without having a valid claim to that office.
The writ lies “against a person who claimed or usurped an office, franchise or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. It also lay in cases of non-user, abuse, or long neglect of a franchise.
A writ of Quo warranto will issue in respect of an office only if the following conditions arc satisfied:
I. The office must be public.[24] It will not lie in respect of office of a private charitable institution or of a private association. Thus, the Managing Committee of a private school, even though a small section of the public, the students and their guardians are interested in the school, is not an office of a public nature of the purpose of Quo warranto.
The test to a public office is whether the ditties of the office are public in nature in which the public are interested whether it is or is not remunerated. However, payment of remuneration out of public funds will be a specific test.
II. The office must be substantive in character, i.e., an office independent in title. It is not, therefore, applicable to ministerial offices that hold office at the pleasure of the master.
Broadly stated, the quo warranto proceeding affords judicial inquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it. The issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto 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;[25] it also protects a citizen from being deprived of a public office to which he may have a right. In order that this writ may issue, the office must he a public office of a substantive character’ created by the Constitution, statute or authority power.’
A public office is a right under his duty, created and conferred by law, by which an individual with some portion of the sovereign functions of the government to hi exercised by for the benefit of the public, for the his the tenure prescribed by law’’ and thus it is an office public have interest.
But the writ will lie in respect of held at pleasure. Provided that the office is one of a public character. It has been held that the office of Speaker of a public office and writ can issue to him to inquire by the petitioner prayed for the writ on the allegation that the respondent was not qualified to be the Advocate-Genial as 1ie exceeded the age limit and the court held that the office of the Advocate-General is a public office.
The membership of Privy Council was held to be a public office though held at the pleasure of the Crown. The office of the Chief Justice or a Judge of the High Court is a public office and a writ may lie against him.
The writ will lie against Ministers, members of Parliament’. (‘Chairman of municipality”, members of Municipal board administrator of Municipal Corporation appointed by the government’. Engineer of Municipal Board’ member of Bar Council, Chairman or member of Union Parishad, member of Senate or Syndicate of a University, Dean of a Faculty in a University, Chief Metropolitan Magistrate, government pleader or against members of civil service. If there was any complaint about the appointment or promotion of an officer who was not eligible under the rules to be appointed or promoted, the proper remedy was to make an application for quo warranto. The writ will not issue to question the claim to any office of a private association, institution or college or school or a private corporation.’ Professors and Readers of Major University were not held to be holding any public office and no writ would lie against them.” Appointment made as stop-gap arrangement such as an appointment of a Chief Minister pending his election within six months was held not liable to be questioned.’
In M. D. WASA v. Superior Builders & Engineers Ltd. [26]a commercial contract was involved. WASA illegally terminated the contract. The High Court Division held the writ petition maintainable to give relief. The Appellate Division rejecting the plea of non- maintainability of the writ petition observed, “Basically, the principle is that, a writ petition cannot be founded merely on a contract, but when a contract is concluded the contractor has a legitimate expectation that he will be dealt with fairly.” The doctrine of fairness was introduced to give aggrieved persons a right to a hearing. The doctrine of legitimate expectation is a further extension of the fairness doctrine to give a right to hearing. The doctrine is now being pressed in aid to deal with arbitrary change of policy.
The burden of proof is primarily on the petitioner who is required to bring sufficient materials on record in support of his case. Like the presumption of constitutionality of law, there is a presumption that official business has been regularly performed and the burden to prove the contrary is on the petitioner.’ Where both the sides have led evidence in support of their respective cases, the question of onus oh proof fades into insignificance and the court is to take decision on the preponderance of evidence. In the absence of relevant and reliable materials on both sides, the court may. In certain circumstances, come to a finding as to whether the impugned action is arbitrary or not.
Difference between Writ of Prohibition & Writ of Certiorari
I. The grounds of both the writs are same but the distinction lies in that prohibition is a preventive remedy while certiorari is a curative or corrective remedy.[27] Thus prohibition applies where the authority is about to misuse the power whereas certiorari applies where the authority has already abused the proper.
2. A writ of certiorari will be issued when the proceeding is closed, while an order of prohibition can be issued only so long as the.
Proceeding remains pending. It cannot be issued after the authority has ceased to exist or becomes functus ofiicio.
3. Prohibition is issued with a view to stop an act lustrating whereas certiorari is to quash or declare the act illegal.
WRIT UNDER BANGLADESH CONSTITUTION
According to the Article-102 of the Constitution of the Peoples’ Republic of Bangladesh
(1) The High court division on the application of any person aggrieved may give such directions or orders to any person or authority including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by the part –iii of the Constitution.
(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law.
(a) On the application of the any person aggrieved, make an order.
(i) Directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by the law to do or to do that which he is required by law to do. [28]
(ii) Declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is no legal effect.
(b) On the application of any person, make an order
(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in unlawful manner or
(ii) Requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.
(3) Notwithstanding anything contain in the foregoing clause,[29] the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.
(4) Whereon an application made under clause (1) or sub clause (a) of clause (2) an interim order is prayed for and such interim order is likely to have the effect of
(a) Prejudicing or interfering with any measure designed to implement any development programmed or any development work.
(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney General has been given reasonable notice unless the application and he has been given an opportunity of being heard, and the high court division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b)
(5) In this article unless the context otherwise requires, person includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defense service of Bangladesh or any discipline force or a tribunal to which article 117 applies.
Article 44 of the Constitution, Enforcement of fundamental rights:(1): The right to move the High Court Division in accordance with clause (1) of the article102 for the enforcement of the rights conferred by this part is guaranteed.
(2) Without prejudice the to the power of the High Court Division, under article 102, parliament may by law empower any other court, within the local limits of its jurisdiction to exercise all or any of those powers.[30]
The name of the various writs has not been used in our Constitution but the true contents of each of the major writs have been set out in self-contained propositions. As Article 102 proceeds-— “The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law
(a) On the application of any person aggrieved, make. An order —
(i) “Directing a person performing any function in the affairs of the Republic or of a local authority to refrain front doing that is not permitted hi law to do.
This portion of the section contains the true idea of prohibition. Here “which he is not permitted by law” means that he may be about to misuse or abuse his power or to act in excess of his jurisdiction prescribed by law. Thus in these cases the High Court division, on application, will issue the writ of prohibition with a view to prohibiting or refraining the person from doing that act.
The same sub-Article continues— “to do that which he is required by law to do”. This part of the article contains the true concept of mandamus. “To do that which he is required by law to do” means that he is under statutory obligation to do something but he has refused or failed to perform his obligations. In such case the High Court division by issuing the writ of mandamus, can compel the person or authority to perform his statutory obligation. Now the sub-Article 102(2) (a) (i) proceeds— “declaring that any act done or proceeding taken by a person”. “Directing that a person in custody he brought court it So that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.”
And the sub-Article 102(2) (a) (ii) states—‘requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that of the”
This part contains the concept of Quo-warranto.
Other Provisions
Section-491 of the Code of Criminal Procedure: Power to issue directions of the nature of a Habeas Corpus– (1) The High Court Division may, whenever it thinks fit, direct-
(a) That a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law.[31]
(b) That a person illegally or improperly detained in public or private custody within such limits be set a liberty.
(c) That a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court.
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or commissioners respectively.
Enforcement of Fundamental Rights
Article 102 of the constitution empowers the high Court Division to give appropriate directions of orders to any person or authority for the enforcement of any of the fundamental rights. Persons performing functions in connection with what affairs of the Republic are also amenable to this jurisdiction of the High court division.
However, there must be an application by an aggrieved person so that the High Court Division may pass an order or direction for the enforcement of a fundamental right. If any act or proceeding violates any of the 18 fundamental rights enumerated in the constitution the order or direction will be issued to remedy the grievance.[32] In the case of Md. Shoib v. Bangladesh [33] the petitioner, one of the three partners of a partnership firm, filed a writ petition at the high court division challenging the validity of a government order staying a proceeding for release and handing over possession of the said partnership to the petitioners which affected the petitioners fundamental right to freedom of profession or occupation contained in Article 40 of the constitution. While disposing of the writ petition D. C Bhattacharya J. observed.
Any person aggrieved by any order or act may move this court for relief against such order or act and the petitioner being very much affected by the impugned order has every right to move this court for necessary orders. Therefore, we think that the petition is quite maintainable.
If the infringement of fundamental right is established, the enforcement of the fundamental right becomes obligatory upon the High court Division and exhaustion of all other equally efficacious remedy provided by law is not necessary. As in Sarwari Begum v. Bangladesh [34] in which the petitioner filed a writ petition for the enforcement of fundamental right guaranteed under Article 42 of the Constitution to hold her purchased house alleging that the illegal enlistment of the house as abandoned property has encroached on her fundamental right, Naimuddin Ahmed, J. observed;
Since the petitioner has sought remedy by enforcing Clause (1) of Article 42 of the constitution which is a fundamental right guaranteed under the constitution, this application can also be treated as an application under Clause of Article 102 of the constitution for enforcement of a fundamental right guaranteed to the petitioner under Article 42 of the constitution, and as such, the petitioner being a person aggrieved by enlistment of the disputed house as abandoned property can maintain an application before this Court irrespective of whether she has other equally efficacious remedy or not.
The constitution does not mention the relief which may be granted to redress the violation of fundamental rights. It has been left to the high court division to fashion the relief according to the circumstances of particular case. It may be one injunctive relief preventing the infringement the nature of various kinds of prerogative writs.
In this context, the observations made by M.A. Jabir, J. in Bangladesh us. Ahmed Nazir are of direct relevance; We have, accordingly, no doubt that the framers of the constitution intended to empower the high court Division to pass appropriate orders and the power to do so is not at all fettered because of the absence of nomenclature of the nature of write in the constitution.
Violation of the Principles of Natural Justice
An act of a person performing functions in connection with the affairs of the Republic or of a local authority to be permitted by law must be in consonance with the basic principles of natural justice. According to these principles, before taking any action against a man, the authority has to give him notice of the case, a fair opportunity to answer the case against him and to put his own case.
A notice is the minimum obligatory condition where a stature requires notice to be given. Any action without service of the notice to the party concerned is not permitted by law. Even when a stature is silent, notice is to be given if any person is sought to be affected in his right, interest, property or character. Thus is Abdur Rouf v. Ministry of LGRD[35] the chief election Commissioner ordered for candidate securing the highest number of the recounting of votes without giving to the votes notice and opportunity of hearing, Kazi Ebadul Haque J., Held:
When an administrative authority decides a matter bought before it, such authority has to act fairly and justly. If a person is likely to be affected by such order or decision of such administrative authority, the person to be affected is to be given an opportunity of being heard. … otherwise the order will be without jurisdiction and void.
In this case we find that the Election commissioner neither notified the respondent No. 10 who secured the highest number of votes nor be was beard ….. As such the order passed by the Chief Election Commission for recounting of votes is wholly without jurisdiction and void.
But failure to issue notice may not be fatal where the person complaining was aware of the proceeding and did not take step to file his objection. This point may be illustrated by the facts of Abdur Rahman v. Sultana [36] wherein the person complaining knew of holding of local investigation by Advocate Commissioner, but did not take any step to file objection against the report. Badrul Haider Chowdhury J. Observed: Equity aids the vigilant, when the two parties are litigating over a matter, equity aids the vigilant, when the two parties are lighting over a matter, equity will not come to the aid of an indolent party who does not keep track of the course of proceeding.
`Another requirement of natural justice is that the person likely to be affected by the act of the person performing functions in connection with the affairs of the Republic or of a local authority must be given an opportunity of hearing. A hearing to be fair, the authority should (a) receive all relevant materials which the person concerned products (b) disclose all information, evidence or materials which the authority wants to use against the person in arriving at his decision, and (c) afford opportunity to the person to controvert the information or material sought to be used against him. In this context, Ruhul Islam J. While delivering judgment of the appellate Division in M. A. Hai v. TCB [37] held: When on employee is sought to be punished on a chare of misconduct, examination of witness in support of the charge should be in the presence of the employee and the employee should be given the opportunity of cross examining the witness.
Another principle of natural justice requires that a biased act is not permitted by law. It has been dealt with in Murari Mohan Das v. Bangladesh[38] The fact of the case was that the same person who was a witness to the incident that the accused Ticket examiner took fare from the ticket has travelers also acted as the Inquiry Officer and his decision was influenced by his own knowledge about the matter in issue. When no evidenced was available against the petitioner, the Inquiry Officer supplied the deficiency by his personal knowledge violating the principles of natural justice. It was held by Shahabuddin Ahmed, J. Same person can not be judge and a witness at the same time.
Writ Jurisdiction of the Appellate Division
Article 104 of the 1972 Constitution of Bangladesh empowers the Appellate Division to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it. In exercising its appellate jurisdiction only, the Appellate Division can interfere if it can be shown that the exercise of the writ jurisdiction under Article 102 of the Bangladesh Constitution by the High court Division is plainly arbitrary or unreasonable or is not in accord with the accepted principles governing its exercise. As in Controller of Examinations D.U. v. Mabimuddin, [39] the appellate division set aside the judgment of the high court division as discretion was exercised upon misconception of law relating to availability of efficacious remedy. In this case on an allegation of adoption of unfair means in the examination, the appellant controller withheld the results of 425 examinees. Input of availability of alternative remedy by way of appeal to the Chancellor, the examinees filed a writ petition which was allowed by the high Court division. In allowing the appeal filed by the controller of Examinations, D.U. Shahabuddin, C. J. held: High Court Division is fund to have wrongly decided the maintainability of the writ petition.
WRIT JURISDICTION IN THE INTERNATIONAL PROSPECTIVE
U. K.
In the sense in which judicial review is understood in England, it is the power of a Court to hold illegal and hence unenforceable any action by a public official or any judicial or quasi-judicial act or proceeding of Subordinate Courts and tribunals or other administrative bodies and to enforce their performance of statutory duty. The principle has been extended in written Constitutions to cover the power of a Court to declare a law and even a constitutional amendment unconstitutional on the ground of its inconsistency with or repugnance to the Constitution. In later years, judicial review has come to embrace the power of a Court to enforce the fundamental rights guaranteed by the Constitution and also to declare a law or an official action to be invalid if it contravences a fundamental right.[40]
As Dicey demonstrated a century ago, abstract declarations of the rights of man are of little value unless there are definite means or machinery for such rights in case any of those rights are violated by the State or its officials. He insisted that even where such rights are guaranteed by a written Constitution, as in the U.S.A. what is more important is not declaration of the rights in the Bill of Rights, but the means of enforcing those rights under the American constitutional system. Conversely, he added, a basic right, such as the right to personal liberty existed in the U.K. even in the absence of any guarantee by a written Constitution, because the ordinary law provided the means of redress if an Englishman’s personal freedom was violated by government action.
Remedies provided by ordinary law in U. K.
In England, individual rights are safeguarded, even without any declaration that they are fundamental, by means of the “prerogative writs’, which have been called ‘the bulwork of English liberty’.
Briefly speaking, they were called ‘prerogative writs’ because they were extraordinary remedies which originated in the royal prerogative (discretionary power), namely, the writs of habeas corpus, mandamus, position, certiorari and quo. warranto.
‘Prerogative writs’, meaning of
As stated above, the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto were known in English common law as ‘prerogative writs’, as distinguished from ‘writs of right’ e. g. a writ of summons, which could be obtained by a suitor as a matter of a right (to commence on action). A prerogative writ was issued only on some probable cause being shown to the satisfaction of the Court “why the extraordinary power of the Crown is called in to the party’s assistance”.
Modernising the Prerogative writs
As observed by the House of Lords, owing to the great increase in the number of administrative bodies since the second World War, leading to a greater interference with the rights of ordinary citizen, the law relating to judicial control over these bodies has had to be relaxed, and many of’ the technical rules relating to the prerogative writs have been abandoned or modified to pave the way for judicial relief in a larger number of cases. This change has taken place by stages.
U.S.A
American colonists brought with them the English common law. So, When the Constitution was drafted, the colonists were already familiar with the use by their Courts of the ‘prerogative writs’. The framers of the Constitution, therefore, assumed the existence of these writs and their only anxiety was that the power to issue the writs should be above the reach of the Executive and the Legislature, and so they engrafted in the Constitution [Art. is. 9(2)], safeguarding the writ of habeas corpus against suspension except in national emergencies, assuming that it was available without a constitutional guarantee. There is no provision in the Constitution authorizing the suspension of the writs other than habeas corpus even in emergencies.
But the use of the writs and the Courts which are empowered to issue them are regulated by legislation. The Judiciary Act of 1789 (5. 14), thus empowered all Courts of the United States ‘to issue writs of scire facias, habeas corpus and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law”.
It follows that the power of the American Supreme Court to issue the writs is conferred and regulated by ordinary law.
The Court will refrain from pronouncing upon abstract, contingent ‘or hypothetical issues. It will decide a case or controversy between bonafide adversaries. In 1911 the U.S. Supreme Court gave the leading decision on this maxim in the case of Muskrat v. United States,[42] An Act of Congress authorised Muskrat and other to bring suit in the U.S. Court of Claim, with an appeal to the Supreme Court to determine the validity of certain Acts of Congress which altered the terms of some prior allotments of Cherokee Indian lands. Justice Day, delivering the unanimous judgment, rejected the appeal for not meeting the case or controversy requirement.
“If such actions as are here attempted, to determine the validity of legislation are sustained”, he said, “the result will be that this Court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon if by the Constitution.
The Court will not pronounce upon the constitutionality of a statute or of an official action at the instance of one who has availed himself of the benefits and then turns back to challenge its legality. In St. Louis v. Prendergast Co.[43] a company connected its premises with a new sewer and availed itself of its benefits. It then challenged the validity of the statute which provided for a tax levy against recipient of the services. The U.S. Supreme Court unanimously held that by accepting and availing himself to the benefits of the construction and zoning involved the company was “estoppled from maintaining a suit” on the grounds and under the circumstances. This is in effect an extension of the principle of not allowing anyone to blow hot and cold at the same time and to disallow approbation and reprobation. The Court looks askance at any attempt to have the judicial decision-cake and eat it too.
‘The cardinal principle of statutory construction”, wrote Chief Justice Hugest in United States v. Carolene Products Co.[44] is to save and not to destroy We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same”.
If the decision of a case can rest on an independent and separate ground, the Court will not decide questions of a constitutional nature. A5 Justice Frankfurter said, “This Court (U.S. Supreme Court) reaches constitutional issues last, not first”. Justice Brandeis succinctly put ii “(the) most important thing we do is not doing”.
The Court will not ordinary impute illegal motives to the lawmakers. In Barenblatt v. United States,[45] Justice Harlan observed, “The judiciary lacks authority to interval on the basis of the motives which spurred the exercise of that power”.
India
Fundamental right
When a legal right is created and guaranteed by the Constitution, it is called a ‘fundamental’ right because it is secured by the fundamental law, i.e. the Constitution of the State. Art. 19 of the Indian Constitution thus, confers a number of substantive fundamental rights on every citizen of India, e. g. the right to freedom of expression, assembly, association, movement, residence and profession.
The Constitution of India does not rest with the creation of these substantive rights but also provides for their enforcement, as Art. 32 (and Art. 326) The rights created by Art. 32(1) is a remedial right.
Earliest writ Jurisdiction of the courts in India
(i) Calcutta.-A Royal Charter, date 26th March, 1774 was issued by George III in pursuance of the Act of 1773, which established the Supreme Court at Calcutta.[46] Its Judges were given the same Jurisdiction and authority as were exercised by the King’s Bench in England. Clause 4 of the Charter provided as follows-
‘….and it is our further will and pleasure that the said chief Justice and Puisne Justices shall severally and respectively ….. to have such jurisdiction and authority as our Courts of King’s Bench have and may lawfully exercise writhing that part of Great Britain called England by the common Law thereof ……
Clause 21 of the said charter authorized the Supreme Court of Calcutta, for the first time in the history of India to issue prerogative writs of mandamus. certiorari, proceeded and error. But it gave rise to another question whether the jurisdiction of the Supreme Court in the matte of issuing writs was confined to these four types of writs only. In fact it is well known that the Supreme Court issued write of habeas corpus, which is also a high prerogative writ. From where did the Supreme Court derive this authority and power to issue writ of habeas corpus? Justice Das [47] has pointed out that this power was enjoyed by the supreme court under clause of the Charter of 1774, which conferred on the chief justice and the puisne Justices severally and respectively …. such jurisdiction and authority as our (English) Justices severally and respectively … such justices of the court of Kings Bench have and may lawfully exercise within …. England”. Clause 4 therefore gave to the supreme court of Calcutta very wide powers as the court of kings Bench enjoyed in England.
ii) Madras and Bombay. In 1800 the Recorder’s Court at Madras was abolished.
The Charter of 1823 authorised the abolition of the Recorder’s Court at Bombay and the establishment of the supreme court of Judicature in its place….. Thus the powers of the Supreme court at Madras and bombay in issuing high prerogative writs were placed upon an equal footing with those of the supreme court at Calcutta.
Writs under the Constitution of India
The constitution of India has empowered the Supreme Court and all the high Courts of India to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari. Under article 32 any person can move the Supreme Court issue directions or order or writs for the enforcement of any of the Fundamental Rights as stated in Part III of the constitution. The right to move the Supreme court is itself made a fundamental Right which even the Government cannot take away except as provided by the constitution. Under Article 226 all the High courts in India are empowered to issue writs for the enforcement of any of the Fundamental rights as guaranteed under Part III of the constitution.
a) Supreme Court’s power- The supreme court of India is the highest Court in India. Articles 124 to 145 deal with the constitution and powers of the Supreme Court. Under Article 32 the right to move the Supreme Court for the enforcement of the fundamental rights is guaranteed and the Supreme Court has been expressly empowered to issue directions or writs, including writs of habeas corpus. Mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate. The rights guaranteed under Article 32 cannot be suspended except as provided by the constitution. The Supreme Court has no power to issue such direction, orders or writs for any other purpose unless parliament specifically empowers it under Article 139 of the constitution.
Thus the jurisdiction of the Supreme Court is exercisable only for the enforcement of the fundamental rights as conferred by part III of the constitution. Article 32 will not apply to all other matters. The combined effect of clauses (1) and (2) of Article 32 is that if a petitioner makes out a case for the violation of Fundamental Rights the grant of the appropriate writ under Article 32 is not discretionary but is a matter of right.
b) High court’s power-Article 226 subsequent to the Forty third and Forty fourth Amendment acts now provides that every high court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person, authority or Government, directions orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of Fundamental rights conferred by Part III of the constitution and for any other purpose.
Clause (2) of Article 226 clarifies that the high court will have jurisdiction even in cases where the cause of action arises within its territorial jurisdiction, but that seat of the government or authority or residence of the person petitioned against, is not within those territories.
To prevent misuse of the court’s power to grant interim order by way of injunction or stay order, clause (3) makes it clear that no such order will be made without affording full opportunity to the other side by supply of copies of the petition and documents proposed to be relied upon. This requirement can be postponed in period of fourteen days only. No interim order will be issued at all where such an or any investigation or enquiry into an offence punishable with imprisonment or any action for the executing of any work or project of public utility, or the acquisition of any property for such execution by the Government or any corporation owned or controlled by the government.
Where any fundamental right is infringed, an application under Article 226 should not be thrown out simply on the ground that the proper writ has not been prayed for. The court should give suitable protection to fundamental Rights.[48] A High court is bound as much as the supreme court to enforce the fundamental rights guaranteed under the constitution.
Subject to what has been stated above the jurisdiction of the Supreme Court is concurrent with the high court for the enforcement of Fundamental rights. This is also made clear by clause (4) of Article 226.
Remedies provided by the constitution of India
Instead of leaving it to the general law of remedies under civil law, the constitution of India has provided certain special remedies for the enforcement of the rights and liabilities created by the constitution:
- Writs issued under Arts. 32 and 226 (Supreme court and high court).
- Orders of revision under the supervisory jurisdiction of the high court under
Art. 227.
- Appeal to the supreme court. By special leave. under Art. 236 (besides regular
appeal under Arts. 132, 133, 134)
This jurisdiction under Art. 136 is important in this book because it is a constitutional and extraordinary remedy at the hands of the supreme court where no other remedy is available under the constitution against the decision of a court or tribunal [Art. 323A(2) (d); 323 B(3) (d)].
CONCLUSION
Recommendations
The judicial power of the Republic is vested in the judiciary consisting of the Supreme Court and the subordinate courts. The guardianship of the Constitution is vested upon the Supreme Court, which is invested with the power of judicial review.
The High Court Division has statutory jurisdiction to entertain suits and petitions and hear appeals and revisions from the decisions of the subordinate civil and criminal courts and adjudicative bodies (Art. 101). Save in some specified situations, the High Court Division in exercise of its power of judicial review, can not only review the state actions to ensure that those do not contravene any provision of the Constitution or the laws of the land, but can also strike down any law for inconsistency with any provision of the Constitution including the provisions guaranteeing fundamental rights (Art. 102).
The High Court Division can, in exercise of this power, issue writs in the nature of certiorari, mandamus, prohibition, habeas corpus and quo-warranto. Only a person aggrieved by any state action can file a writ petition before the High Court Division.
But this standing rule has been modified by the Appellate Division in case of public interest litigation allowing any enlightened person to espouse the cause of the poor and downtrodden to ventilate their grievance in the court and to bring before the court an issue of great importance and public interest.
The sole object of Art. 102 is the enforcement of the fundamental rights guaranteed by the Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to complain under Art. 102 where no ‘fundamental’ right has been infringed.’
It follows that no question other than relating to a fundamental right will be determined in a proceeding under Art. 102 including interlocutory relief.” A writ under Art. 102 would not lie for enforcement of government policy or Directive Principle.
Where the Supreme Court will not interfere under Art.102 since Art. 102 is a remedy available only for the enforcement of fundamental rights, it follows that— No question other than relating to a fundamental right will be determined in a proceeding under Art. 102. So from this research work I personally find out the followings findings or recommendation about the writ petition in our country, which is as follows.
01. The remedies of writ are not very close to hand of the general people of our country. Most of the people of our country are not well-known about the writ provision. They do not know about the procedure, court fees and in which court the petition should lie. So the Governments itself and media, voluntary organization should work to inform the general people about writ remedies.
02. In our country the writ petition may filed only to the High Court Division which is situated in DhakaCity. But the people who live in rural area are a great burden for them to come in Dhaka city and file a writ petition to the high court division. I personally believe that it is impossible for the villagers to come Dhaka city just for filing a writ petition to protect their fundamental rights. So it would be better to give the writ jurisdiction to every District Judge Court like as India.
03. Majority people of our country live under poverty line; they are not able to pay the court fees for filing writ petition. Therefore, Government should allow the petitioner to file writ petition without any fees.
04. The procedure of writ petition is more complex than any other procedure. The writ procedure should make easy that general people can to the court and file petition to protect their rights.
05. The provision of writ remedies is stated in Article -102 of our Constitution. But it is not clearly mention their different types of writ. It should clearly mention that general people can easily understand.
06. To grant a writ petition the Court must look at the locus standi of the petitioner. In that case the Court may grant the writ petition of any body without looking the locus standi. Because all person are not well known about the writ procedure and remedies. Therefore, the locus standi should relax.
07. At present the writ petition can filed only against the Government. But government should make rules that petition can file against any person. It will be more effective to protect the fundamental rights.
08. The Government, NGO′s, all kinds of Media should publish the whole procedure about the writ matter and make the awareness among general peoples to protect their fundamental rights. In Village area people even heard the writ remedies ever.
Initially the development of Writ in Bangladesh was show due to the threshold problem. This was mainly because of the prolonged periods of Martial Laws and autocratic regimes that curtailed the fundamental rights and disrupted the normal functions of the judiciary. Once the democratic institutions had a changed to operate the judiciary boldly re-asserted its proper constitutional role. As a result, progressive interpretations of the Constitution, including the development of PIL, became possible.
Finally, it needs to be mentioned that Writ Jurisdiction is an important issue of the High Court Division. This jurisdiction is for the benefit of the all people, citizen and public interest. Therefore, the judges should be liberal about granting the writ petition.
Writ as public interest litigation
There is no confusion as to the general meaning of PIL –that it is Litigation in the interest of the public. Yet the more one attempts to be specific about the scope of PIL the less satisfactory becomes this general description. Terms like ‘litigation’ ‘public’ or ‘interest’ have different meaning and scope in different situation. Further complication arises when the term public interest is the issue. Since the term is culture specific, no single definition can satisfy everyone. Hence the scope of terms depends, to a great extent, on the point of view chosen.[49]
While the concept of PIL was just taking shape, one of the pioneers of PIL in India, observed in people’s Union of Democratic Rights v. Union of India.[50]
Public interest litigation is essentially a co-operative effort on the part of the petitioner, the State or public authority and the Court secure observance of the Constitutional or legal rights, benefits and privileges conferred upon the vulnerable section of the community and to reach social justice to them.
PIL may be distinguished from ordinary litigation in the following way.
First, PIL is for the benefit of the people as a whole or a segment of the society. It aims to enhance social and collective justice there must be a public cause involved as opposed to a privet cause. This includes several situations:
- Where the matter in question affects the entire public or the entire community, Such as illegal appointment of an unfit person as a government servant.
- Where the issue involves a vulnerable segment of the society, Such aseviction of slum-dwellers without any alternative arrangement
- Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole community, Such as rape of a minor girl in police custody.
Second, in the situation mention above, any individual or organization may approach the court. In other words, PIL involves liberalization of the rules of standing. This includes cases initiated suo motu. Because the judge himself is a concerned citizen in such a case.
Third, the court adopts a non-adversarial approach as opposed to an adversarial system of litigation. This includes procedural aspect as well as writ petition, appoint commissioner, award compensation or supervisor and monitor the enforcement of its orders.[51]
Early Development of PIL in Bangladesh
On 16 May 1974, the Prime Ministers of Bangladesh and India signed a treaty in Delhi provided inter alia that India will retain the southern half of South Berubari Union No. 12 and the adjacent enclaves and in exchange Bangladesh will retain the Dahagram and Angarapota enclaves.
This treaty was canceled on the ground that the agreement involved cession of territory and was entered into without lawful authority by the executive head of government. The petitioner Kazi Mukhlesur Rahaman was an advocate and came to the Court as a citizen and as such his standing was in Question.
The effect and influence of the Berubari case is enormous. It has often been considered as the starting point of PIL in Bangladesh where “The Court went very close to the doctrine of public interest litigation”. Bing the judgement of the Appellate Division, Berubari was resorted resorted and referred to whenever a winding of the standing rule was sought. This case may be regarded as an early achievement of the young Bangladeshi jurisdiction in its attempt to assert its creative authority.[52]
Concluding Remarks
After the emergence of Bangladesh in 1971, Article 102 of the Constitution of the Peoples Republic of Bangladesh, 1972 empowered the High Court Division of the Supreme court of Bangladesh to exercise writ jurisdiction similar to that which had been conferred on the High courts of Pakistan under Article 98 of the writ have been Constitution of Pakistan 1962. Although the contents of the writ have been embodied in the constitution it is basically a legacy of the English Writs and still the Judges of the Supreme Court of Bangladesh look back to the English and sub continental case laws while exercising the writ jurisdiction. Like other Superior courts of the subcontinent the supreme court of Bangladesh has been able to fashion a writ system tailored to meet the needs of the present era.
However, it should be stressed here even after the lapse of a quarter of a century no rules have been framed for the exercise of writ jurisdiction by the high Court Division under Article 107 of the Constitution of the Peoples’ Republic of Bangladesh.
Furthermore, the constitution of Bangladesh under Article 105 has only empowered the Appellate Division of the Supreme Court to review any judgment pronounced or order made by it. Now power order passed by it in exercise of its writ jurisdiction.
REFERENCES
Books
1. Naim Ahmed, Public Interest Litigation Constitution Issue & Remedies, 1st ed. (Dhaka: Bangladesh Legal Aid and Services Trust, BLAST, 1999).
2. Md. Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective, 3rd ed. (Dhaka: CCB Foundation, 2006).
3. Md. Abdul Halim, The legal system of Bangladesh, 1st ed. (Dhaka: CCB Foundation, 2004).
4. Muhammad Sohul Hussain, Cr.PC Today, 1st ed. (Dhaka: Shams Publication, 2007).
5. Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2003).
6. V. D. Kulshreshtha, Landmarks in Indian Legal and constitutional History, 7th ed. (Bombay: University Press Ltd. 2001).
7. Justice Siddiqur Rahman Miah, Law of Writs in Bangaldesh, 1st ed. (Dhaka: Mullick Brothers, 2007).
