WRIT LAW & PROCEDURE IN BANGLADESH

AL AMIN RAHMAN & ASSOCIATES

It seems that some of the decisions and orders may go contrary to the legitimate expectation of the citizens, that is when resort must be taken to writ law. This situation may arise if any adverse action against the citizens is taken by a public body that is the City Corporation, Pouroshava, Tax tribunal, Election tribunal, Security Department, several government ministries and their authorized bodies etc. Here, Judicial Review plays an effective role allowing the aggrieved citizens to go to the court to seek justice against the decision of the public bodies.

In Bangladesh, ‘Writ’ derived from Article 102 of the Constitution that allows the citizens to get remedies against any arbitrary or illegal actions of any public body or the lower court. In a Writ, the challenge is based on an allegation that an unlawful decision has been made by the state body against an individual or the community and there is no effective alternative remedy available to the individuals.

On the contrary to writ law, in our Country, Section 9 of the Code of Civil Procedure permits the civil court to try all suit of civil nature. By virtue of these provisions, the civil courts can exercise the power of Judicial Review. The power of Judicial review conferred by Article 102 is a basic feature of the Constitution and in view of the decision in Anwar Hossain Chowdhury, it cannot be taken away or curtailed even by an amendment of the Constitution.

The Supreme Court has the power to declare an action to be without lawful authority if it is without jurisdiction or is vitiated by mala fide or bad faith. Article 102 (1) of the constitution confers power on the High Court Division to enforce fundamental rights, while Article 102(2) confers the power of Judicial Review in non-fundamental right matters.

One may challenge the constitutionality of a law as happened in Re Hindu Women’s Right to Property Act. In deciding the constitutional validity of a law, the court is not concerned with the wisdom and justice of the law, even though harsh, but whether the law is prohibited by the provisions of the constitution or not. The court will not hear an objection regarding the Judicial Review by a person who has not been affected by it. Besides, in order to avail the remedy in writ jurisdiction, the petitioner is required to come to the court without any delay.

There are different kinds of writs available in Bangladesh as initiated in England as certiorari, mandamus, quo warrantor, habeas corpus and prohibition etc.

Writ Law for Habeas CorpusThe word ‘Habeas Corpus’ means ‘you may have the body’ that is to have the body before the court to exercise writ law. The High Court Division of Bangladesh is directed to issue a writ in the nature of ‘habeas corpus’ when a case of unlawful detention is made. On the application of any person the court may direct the authorities to give an explanation in the court why the person is being held in the custody. The court can order the release of the individual if the explanation is unsatisfactory. The court will see whether the detention is in accordance with the law or not. In West Pakistan v. Begum Shorish Kashmiri, the action taken upon no ground or without proper application of mind of

the detaining authority didn’t qualify in accordance with law and was struck down as being taken in an unlawful manner. In West Pakistan v. Begum Shorish Kashmiri, the action taken upon no ground or without proper application of mind of the detaining authority didn’t qualify in accordance with law and was struck down as being taken in an unlawful manner.

Writ Law for Mandamus‘Mandamus’ is a command issuing from the High Court of Justice under the purview of writ law directed to any individual, corporation or inferior tribunal, demanding him or them to perform some certain functions, related to their office, they are required by law to perform. Usually, a Writ of Mandamus may issue to issue necessary clearance for delivery of imported goods, RAJUK to mutate the name of a purchaser of land in its records, to direct police to prosecute an offender against law, on an income tax officer to comply with the direction of the Income Tax Tribunal, on the licensing authority to determine an application for license, on an authority to supply certified copy of the order 

sheet of a proceeding before him, on a University authority to comply with the principles of natural justice. However, mandamus may not be issued to enforce an order which has been passed without lawful authority.

It is evident that when a court or tribunal or an authority or a person refuses or fails to perform his statutory responsibility, the higher court can compel the authority or court or person to carry on his statutory obligation through the writ of mandamus as a positive remedy.

Writ Law for ProhibitionInitially, the prime objective of prohibition was to restrict the jurisdiction of the courts. When a court, or a tribunal or a public authority is about or is about to act in excess of its authority, the higher court by issuing a writ of prohibition forbids the tribunal, court or authority from doing such act. However, because of the formulation of the jurisdiction in Article 102(2), a writ in the nature of prohibition under our constitutional dispensation lies against any person, performing any function in connection with the affairs of the Republic or of a local authority’, whether or not he performs a judicial or quasi-judicial

function. When a public officer performs an act without or in excess of his jurisdiction given by law, the High Court may issue a writ without any inquiry as to whether he is acting judicially or quasi-judicially. In Anisul Islam Mahumd v Bangladesh, the High Court division issued a writ of prohibition as the detention order by the special tribunal was found to be without lawful authority. Usually, prohibition acts as a judicial writ since it is used against a judicial or quasi-judicial body and not always against an administrative body.

Writ Law for CertiorariA Wirt of ‘certiorari’ is issued when an authority acts without jurisdiction, in excess of jurisdiction or commits an error of law apparent on the face of the record. However, gradually, the jurisdiction was widened to include within its ambit all the authorities performing judicial, quasi-judicial writ. If a court or a tribunal or an authority or a person is in violation of the principle of natural justice, or misused the authority or acted in excess of its jurisdiction, the higher court by declaring certiorari can declare that act illegal.

In Eastern Beverage Ind. Ltd. v Bangladesh, notification levying capacity tax held void for failure to specify “guiding principles”; in Sk. Ali Ahmed v. Secretary, Ministry of Home Affairs, the concepts of ‘fairness’ and ‘legitimate expectation’ were reflected in the case of cancellation of license which involves denial of a right. Besides, in HFDM De Silva v. Bangladesh, it was held that Black-listing the petitioner and passing order for his deportation, ought to have been given the opportunity of hearing.

Writ Law for Quo Warranto

The term ‘quo-warranto’ means ‘by what warrant or authority’. Quo-warranto works as a writ instrument by which it is ensured that no one can hold any public office without having a valid claim to that office. Usually, the quo warranto proceeding affords a 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 or

franchise. Besides, it also protects a citizen from being deprived of a public office to which he may have a right. In G.D. Karkare v T.L. Shevde the petitioner prayed for the writ on the allegation that the respondent was not qualified to be the Advocate-General as he exceeded the age limit. The writ may lie against Ministers, members of Parliament, Chairman of municipality, members of Municipal Board, Administrator of Municipal Corporation appointed by the government, Chairman or member, Union Parishad and so on.

ConclusionOut of all legal remedies offered by the state, Writ is a crucial form of legal remedies against the infringement of the administrative actions which is getting much more popular upon several successful applications as a remedy in the context of the adverse activities of the state bodies. If effective measures are taken and brought to the court maintaining the proper procedure, Writ Petition in Bangladesh can be demonstrated as an effective remedy for the public as a special modification in the existing legal and administrative system of Bangladesh.

Thank You!