A writ petition is a filing that a party makes with an appeals court in order to secure a speedy review of some issue. Writ petitions are facets of English common law[1], and are used in legal systems following the common law model. A writ petition is essentially a court petition for extraordinary review, asking a court to intervene in a lower court’s decision.
Writ practice is governed by a complicated set of rules and specifications that varies by jurisdiction. Most writ petitions are unsuccessful, regardless of where filed. There are several different kinds of writ petition, but all have one thing in common: they are asking 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. For example, 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 simply mimic the unsuccessful appeal because a defendant can file multiple writs. If the writ simply mimics the unsuccessful appeal, it will immediately be dismissed
Legal basis of writ:
The High Court Division of the Supreme Court is overburdened with all kinds of
Civil suits, including writ cases. In this situation, High Court Division may delegate some
of its writ jurisdictions to District Courts.
Writ Jurisdiction is the instrument for enforcement of fundamental rights. In Bangladesh fundamental rights are provided in Article-26 to Article-47 that is, the Part-(iii) III of the Constitution. The High Court Division is empowered with writ jurisdiction by Article- 44 and Article-102 of the Bangladesh Constitution. Article-44(1) of the Constitution, declares that right to move to the Supreme Court, in accordance with clause (1) of Article-102, for the enforcement of fundamental rights conferred by part-(iii) III is guaranteed.
According to Article-102(1) the High Court Division for the enforcement of fundamental rights may give directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic 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 efficacious remedy is available-
(a) On the application of any aggrieved person, may make an order –
(I) directing any person performing any functions in connection of the Republic or of a local authority to refrain from doing that which he is not permitted by Law to do – this is clearly the Writ of Prohibition. Or to do that which he is required by law to do – this is the Writ of Mandamus.
(ii) declaring that any act done or any proceedings 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 – this is the Writ of Certiorari.
(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 an unlawful manner – this is the Writ of Habeas Corpus[2].
(ii) Requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office – This is the Writ of Quo- Warrantor.
It is also found that the Appellate Division is empowered with Writ Jurisdiction too. Article-104 of the Constitution provides that Appellate Division shall have power to issue directions, orders or writs whenever necessary.
Since the High Court Division is overburdened with cases, it may delegate some of its writ jurisdictions to District Judges. This will not be unconstitutional. Article-44(2) declares, without prejudice to the powers of the Supreme Court under Article-102, Parliament may by law empower any other court, within the local limits of its jurisdiction, to exercise all or any of these powers.
Writ Jurisdiction can be shared with District Courts in the following ways as mentioned below.
District Courts can receive writ cases and deal with them at their initial stages
District Judges can be given jurisdiction to receive writ cases from plaintiff petitioners and deal with them at their initial stages. District Judges can take evidences, all necessary documents, examine witnesses and determine the question of fact and then send the case to the High Court Division. On receiving the case the High Court Division can conduct the trial, determine the question of law and give final judgment.
Here, the role of District Judge will be similar to the role of Magistrate. Section 202(2A) and section-205c of Cr. P.C. provides, when any Magistrate receives a case which is exclusively try able by a Court of Sessions, then the Magistrate wish all make inquiry into on the case by taking documents, articles, examining witnesses, take other evidences which are necessary and wish all send the case to the Court of Sessions for trial.
Hence, by delegating some of the writ jurisdictions to district judges, the High Court Division can reduce its burden and it can relieve itself to a great extent. To handle and adjudicate the writ cases, quality, education and position of district judges should be upgraded by imparting ton them continuing legal and judicial training. Moreover, rank and status of district judges should be raised.
Discuss the various types of writs and distinction among them
Writ of Mandamus:
This writ is not actually a writ, instead it is a command. Mandamus actually is Latin for “we command,” so it is not a writ of right, but rather an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official’s discretion; used only when all other judicial remedies fail. Examples of how a writ of mandamus may be used include: ordering the directors of a corporation to produce the books for inspection in the manner provided by law or ordering a lower court to accept a suit it has illegally refused.
Writ of Prohibition:
Prohibition is an original 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 powers from exercising jurisdictions 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 administrative body or public corporation or body. But no longer has it remained limited to be used only against judicial or quasi judicial body.
Therefore, it may be said that when 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 tribunal, court or authority from doing such act. So prohibition is a
Writ of Certiorari
A petition for writ of Certiorari is a document the losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ. Certiorari is a Latin word meaning “to be informed of, or to be made certain in regard to”. It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. The writ of Certiorari is a decision by the Supreme Court to hear an appeal from a lower court.
Writ of Habea’s Corpus:
The word “Habeas Corpus” means, 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 the person is being held. The court can order the release of the individual if the explanation is unsatisfactory. Does the right 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. This right is the most important weapon forged by the ingenuinity of man to secure the liberty of the individual. There is no judicial process more familiar or important.
Writ of Error:
A writ of error is a writ issued out of a court of competent jurisdiction, directed to the judge of a court of record in which final judgment has been given, and commanding them, in some cases, themselves to examine the record; in others to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceeding may be corrected. The object of the writ of error is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail
Writ of Certiorari:
A petition for writ of Certiorari is a document the losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ. Certiorari is a Latin word meaning “to be informed of, or to be made certain in regard to”. It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. The writ of Certiorari is a decision by the Supreme Court to hear an appeal from a lower court.
Writ of Execution:
Many people have heard of garnishments and levies. These are types of writ of execution. Writ of executions are court orders that are entered (granted) when plaintiffs seek monetary judgments.
When a court issues a writ of execution, the court is giving law enforcement officials, such as sheriffs, to take possession of property and organize sales (levy.) Writs also allow people to garnish wages and seize bank accounts and other assets. These special writs can also be used to freeze titles to real property.
DIFFERENCE BETWEEN CERTIORARI’ AND PROHIBITION’
1. 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. Thus prohibition applies where the authority is about to misuse the power whereas certiorari applies where the authority has already abused the power.
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 can not be issued after the authority has ceased to exist.
3. Prohibition is issued with a view to stop an act at its starting whereas certiorari is to quash or declare the act illegal.
DIFFERENCE BETWEEN CERTIORARI AND EXECUTION
While writs of certiorari and execution are prerogatory writs, they serve very distinct purposes. Writ of certioraris are directed to compel courts and the writ of execution are used to compel defendants to satisfy judgment debts.
The confusion between the two come when people heard the word execution. Writs of Certiorari are linked to those proceedings involved in executions of criminals. Stays are requested by different levels of court to stop the final punishments. However, for debtors and creditors, Writs of Executions are specifically needed to accomplish final resolution of a financial matter. Through levies, garnishments, liens, creditors are added in resolving outstanding debts owed.
Conclusion
It is therefore, the cause that the citizen –applicant or the indigenous and native association espouses which will determined whether the applicant has the competency to claim a hearing or not. If he espouses a purely individual cause, he is a person aggrieved if he is own interest are affected. If he espouses a public cause involving public wrong or public injury, he need not be personally affected. The public wrong or injury is very much a primary concern of the Supreme Court which in the scheme of our Constitution is a constitutional vehicle for exercising the judicial power of the people.
The High Court Division will exercise some rules of caution in each case. It will see that the applicant is in fact espousing a public cause, that his interest in the subject matter is real and not in the interest of generating some publicity for himself or to create mere public sensation, that he is acting bona fide, that he is not a busybody or an interloper, that it is in the public interest to grant him standing and that he is not acting for a collateral purpose to achieve a dubious goal, including serving a foreign interest.
As to the apprehension of floodgate, the people as a whole are no doubt a flood and the Constitution is the sluice-gate through which the people control its own entry. Our Courts will be prudent enough to recognize the people when the people appear through an applicant as also those who masquerade, under the name of the people. Taking up the people’s causes at the expense of his own is a rare phenomenon, not a common place occurrence.
Bibliography
- Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.
- Baker, J. H. An Introduction to English Legal History. Butterworth’s 1990.
- Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981
- http://www.constitution.org/writ/writ_def.htm
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[1] English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States except Louisiana (as opposed to civil law or pluralist systems in use in other countries). It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to the American Revolution is still part of the law of the United States through reception statutes, except in Louisiana, and provides the basis for many American legal traditions and policies, though it has no superseding jurisdiction.
[2] Habeas corpus (Latin: “you may have the body”) is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action. It is a writ requiring a person to be brought before a judge.