Application of writ is a guaranteed measure under the constitutions of Bangladesh – explain & illustrate
Introduction
According to common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction. In modern usage, this body is generally known as court. Warrants, prerogative writs and subpoenas are common types of writs but there are many others.
Writ practice is administered by a complicated set of rules and specifications that varies by jurisdiction. There are several different kinds of writ petition, but all have one thing in common: they ask an appellate-level court to take some extraordinary action and intervene in another court’s process to institute some higher legal remedy or legal relief.
A writ is only permitted when the defendant has no other adequate remedy, such as an appeal. A defendant is only allowed to lodge one appeal. If the appeal is unsuccessful, the defendant may file a writ as long as it does not mimic the unsuccessful appeal. The writ will immediately be dismissed if it simply mimics the unsuccessful appeal.
Historical development of writ:
Historically writ originated in the UK under British legal system. There were 5 different writs and they were Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Initially all writ, were call prerogative writs, since the king issued writs through the court of kings bench on the court of chancery. As the fountain of justice only the king or queen could issue writ. They were conceived as being intimately connected with the rights of the crown.
There is only one independent writ In Britain now, and that writ is Hebeas corpus. Since in Britain, the administration of justice (Miscellaneous provision) Acts 1933 and 1938 where passed whereby Mandamus, Prohibition, Certiorari and Que-warranto were abolished as writ, among them Mandamus, Prohibition and Certiorari have been used to give orders and Que-warranto have been used for injunction.
In British period the Supreme Court was 1st established in 1774 at Kolkata in pursuance of the Regulating Act 1773. This court was 1st empowered to issue prerogative writ. The Indian Constitution adopted in 1949 gave both this Supreme Court and High court powers to issue writ. In both Articles of 32 (for the Supreme Court) and 226 (for the High Court), specific names of all writs were integrated. Both the Supreme Court and High Court were given power to issue writ under the 1956 constitution of Pakistan. In both the Articles of 22 (for the Supreme Court) and Article 170 (for the High Court) specific name of all writs were mentioned. But a change was introduced for the first time in 1962 Constitution of Pakistan. Any original writ jurisdiction was not given to The Supreme Court. Only the High Court was empowered under Article 98 to issue writ, but in the wording of the Article 98 particular names of specific writs were not used.
Following in the instance of the Pakistan 1962 Constitution, the Constitution makers of Bangladesh did not mention the specific names of various writs in Article 102 of the Constitution as well. Rather the contents of each of the writs have been kept in self contained provision.
Basis of writ:
According to Article-102(1) the High Court Division may give directions to any person connected with the affairs of Republic or the local authority for the enforcement of fundamental rights. Article-102(2) of the Constitution defines various kinds of writ jurisdictions but it does not mention the names of the writs. However, but by analyzing this Article, all the writ jurisdictions can be found. According to Article-102(2) the High Court Division may, if satisfied that no other equally effective remedy is available-
• On the application of any aggrieved person, may make an order –
(a) it directs that a person who has a connection with the Republic or the local authority can be abstained from doing anything which he is not permitted by law to do. – this falls under Writ of Prohibition. Or he should do what he is required by law to do – this falls under the Writ of Mandamus.
(b) it declares that any person connected to the Republic or local authority cannot exceed his power and the functions performed will have no legal effect- this falls under the Writ of Certiorari.
• On the application of any person make an order-
(a) it directs that a person held in custody should be brought it so that it can justify whether the person is being held illegally or not. This writ is known as Habeas Corpus.
(b) It requires that a person withholding a office should show the reason for which he is holding it and under what authority. This writ is known as Quo- Warranto.
With Writ Jurisdiction the Appellate division is given the authority as well. Article-104 of the Constitution states that whenever necessary Appellate Division shall have power to issue directions, orders or writs.
Since the High Court Division is overburdened with cases, it may hand over some of its writ jurisdictions to District Judges. Article-44(2) declares, without prejudice to the powers of the Supreme Court under Article-102, Parliament may by law, within the local limits of its jurisdiction empower any other court, to exercise all or any of these powers.
Writ Jurisdiction can be shared with District Courts in the following ways as mentioned below.
At their initial stages district Courts can receive writ cases and deal with them
District Judges can be given jurisdiction to receive writ cases at their initial stages and deal with them from plaintiff petitioners. After examining all necessary documents, evidences, witnesses and determining the question of fact the District Judges can send the case to the High Court Division. After receiving the case the High Court Division can conduct the trial, determine the question of law and give final judgment.
Types of writs and its application in Bangladesh
Types of writs are discussed in the following
• Writ of Habeas Corpus.
Habeas Corpus means ‘has his body’. Since 1640 this is a British Law for the protection of liberty of a subject against his illegal detention in public or private custody. 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, states that a person in detention should be brought before to validate whether he has been held illegally or not. If the Court finds that he is being illegally held in custody by the authority, it then can announce the custody of that person as unlawful. Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a writ of habeas corpus to review the situation of 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 out that the person is being held in custody illegally, it then directs the detaining authority or person to set him free.
Some of the Writs of Habeas Corpus can be delegated to District Judges. Many of the Writs of Habeas Corpus are simple, such as in The case of Sardar Begum vs. Habib Shah Khan, PLD 1976 Lah. 216 give us an example. The accused was kept in police custody but he escaped. The relative of the accused, the Petitioner was seized in police station as captive for recovery of the accused, who had escaped- for two months. Held, such custody of detainee was opposed to provisions of the Constitution of Pakistan and was without lawful authority.
Moreover, a person can be arrested outside the capital for example: in remote areas. In that situation, it will be better, if a District Judge, where a person is arrested gives the jurisdiction of Habeas Corpus.
The greatest impotence of the writ of Habeas Corpus is that it grants upon a person even when he is in public custody. Every person has the right to test and determine in the High Court Division of the legality of the order or warrant by which he is held in custody. The purpose is to protect the liberty of the subject against an abuse of power. Its objective is also to enable the court to enquiry in to and determine the legality of the detention of the person, who is restrain of his liberty. The main principle of every such writ is to ensure the protection and well being of the person brought before the court. Section 491 Cr.P.C is widely worded and entitled the High Court Division to enquiry whether the application was legally or improperly detained in public or private custody. The person detained or any friend of that person can apply for Habeas Corpus.
• Writ of Mandamus.
Mandamus means ‘we command’. By writ of mandamus, the superior court directs any corporation, person, lower court or government to do something, which is in the nature of a public duty and is related to his or their office. This writ is issued when the lower tribunal has declined to exercise jurisdiction vested in it or any public authority declined to do what he is required by law to do. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution allows the High Court Division directing a person who performs functions in connection with the concerns of the local authority or Republic to carry out what he is obliged by law to carry out. When any right of a person, arising from any law and not from any contract, is despoiled, this remedy is available. The claimant must show that he has a lawful right to the act of lawful duty by the person or authority against whom the writ is prayed for.
When the case is simpler and when it gets an order from any legal public authority which has less power, then of the Jurisdiction of Writ of Mandamus can be delegated to District Judges. For example: in the case of Md. Abdul Mannan Bhuiyan vs. University of Rajshahi & Others. 25 BLD (2005) (HCD) 138, Rajshahi University was the respondent. The examination paper of Md. Abdul Mannan Bhuiyan was directed to re-examine to Rajshahi University. The paper was the 13th Paper of LL.B.(Hons.) Part-iv IV of 1999. to re-examine the paper fairly, Direction was given in agreement with law and in accordance with related provisions of re-examination.
• Writ of Prohibition
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 protect the legal right of a person from illicit exercise of power of jurisdiction person
Unlike Writ of Habeas Corpus and Writ of Mandamus, Writ of Prohibition is more complicated. Nevertheless, when it involves an order upon a statutory public authority of a lesser status, some jurisdiction regarding Writ of Prohibition can be passed on to District Judges,.
Some writ jurisdictions can never be handed over to District Judges. These are given in the following.
• Writ of Certiorari
Writ of Certiorari refers to corrective remedy. It is a complicated matter. So, this Jurisdiction should remain only with the High Court Division and not be shared with District Courts. Writ of Certiorari is extended to prevent public functionaries from exceeding their power. Certiorari is used when the act or proceeding has been completed.
• Writ of Quo-Warranto
Quo Warranto means ‘by what warrant or authority’. Writ of quo warranto provides remedy against illegal occupation of any public office or franchise or liberty. With the help of this writ a person can inquiry into the legality of the claim of an office or franchise and expel a usurper from his position. Under what authority he holds office the holder of the office has to show to the court.
Writ of Quo-Warranto involves challenging a person who is holding a public office. Therefore, this rule and should not be shared with District Courts and should remain only with the High Court Division.
Besides, when Writ of Mandamus, Habeas Corpus or Prohibition becomes complicated, instead of District Courts, those cases should be administered by the High Court.
Hence, the High Court Division can alleviate some of its burden by delegating some of the Writ Jurisdictions to District Judges. District Judges should be given proper training to handle the Writ Cases. Moreover, rank and status of District Judges should be raised.
Grounds for issuing writs
Writ order can be issued on the following grounds:-
(1) For enforcement of fundamental rights: To enforce the fundamental rights of the people writ can be issued. It has to be issued so that it aims for the betterment of the people and ensure what people deserve to get.
(2) Where there is no remedy in law: In situation where no solution can be found by the law, the writ can be issued.
(3) Where there is no other equally efficacious remedy is provided by law: A writ can be issued in situation where no effective solution is found that matches with the existing situation.
Limitation of the writ powers of the High Court Division in Bangladesh to issued writs:-
(a) In case of Mandamus, Certiorari and prohibition the High Court Division has no authority to accept any writ if filed by any person not aggrieved.
(b) The High Court Division is not able to entertain any writ petition which is related to a law concerning defense services or any disciplined force or Administrative tribunal
(c) Writ petition must be filed within a reasonable time, if not filed in a reasonable time the High Court Division shall not allow the same.
(d) The High Court Division does not entertain any writ petition if there is efficacious remedy provided by law on the writ matter.
(e) The High Court Division is not able to issue any order related to development work of the government without hearing of the government lawyer and attorney general.
Recommendation
For defense services, writ petitions should be introduced. Thus allowing the court to have some extent of control towards the military; undertaking direct changes to the different laws and regulations related to the defense of country.
There can be writs addressed towards local citizens so as to provide them with more flexibility, and help to the people of a nation to have a more broad series of regulations and rules. Providing personal preferences broaden the dimensions of the law, thus aiding to various alternative settlements and negotiations.
The level of flexibility for the petition can be extended, so as to provide more elasticity for the time required to file the petition. The High Court Division should be more liberal about this matter.
Writ is issued to protect the rights of general people. The constitution of Bangladesh allows it to safeguard people’s rights and privileges. The people responsible for the administration of all these procedures should make sure anyone is not denied from all these privileges and does not receive injustice.
Bibliography:
Ali, S. G. (2009, 03 21). law and our rights. Retrieved 07 15, 2012, from thedailystar: http://www.thedailystar.net/law/2009/03/03/opinion.htm
Battered Women Legal Advocacy Project Inc. (n.d.). 2003. Retrieved 07 12, 2012, from http://www.bwlap.org/publication/stream?fileName=writs.pdf
Hoque, K. E. (2006). law. Retrieved 07 16, 2012, from banglapedia: http://www.banglapedia.org/httpdocs/HT/W_0075.HTM
Md.Asaduzzaman. (2010, 08 19). lawsubject. Retrieved 07 18, 2012, from blogspot: http://lawsubject.blogspot.com/
Taylor, R. (2010, 04 21). Lawyers & Legal Advice. Retrieved 07 14, 2012, from helium: http://www.helium.com/items/1811283-difference-between-writ-of-certiorari-and-writ-of-execution
writ. (n.d.). Retrieved 07 18, 2012, from wordiq: http://www.wordiq.com/definition/Write