Writ

Writ is a formal written order issued by a court with administrative or judicial jurisdiction; in modern usage in common law. Warrants and prerogative writs two kinds of writs but there are many others. A petition is a request to do something which is most commonly addressed to a government official or public entity. A petition is a formal written request for judicial action; to make a request, commonly in written form; a formal written request made to an official person or organized body, often containing many signatures; a collection of signatures built in order to exert moral authority in support of a specific cause.[1]

Writ Petitions is a special request that the Court of Appeal grant immediate relief from a trial court order. Writ Petitions are rarely granted. According to H. P. Ranina “The Constitution has given the High Court the power to issue writs, directions and orders, as may be necessary to meet the ends of justice, subject to their maintainability, which is determined by cause of action, merits of the case and jurisdiction of the court.”[2]

Writ petition is a very powerful weapon available to a citizen, by any order of an authority who feels offends which offers to take or takes action not authorized by law. A citizen can, to protect his rights and appeal to the aid of the court under Article 44 and 102 of the Constitution where any illegal violation of rights is attempted by an authority.[3] Under this articles (44 and 102), to meet the ends of justice the High Court has the power to issue writs, directions and orders, as. In respect of both administrative action and judicial or quasi-judicial action a writ can be issued.[4]

Against the arbitrary or illegal actions of any authority or the lower court, writ Petition is legal instrument of the superior courts for remedies to persons, natural. In England writ Petition first originated, on behalf of the King these writs were exercised by the Judges of the King’s Bench and called prerogative writs exercised by that Court. For granting remedies similar to that of the above writs article 102 of the Constitution of Bangladesh provides, though it does not speak of any of such writs in specific terms. “Sub-clause (i) of clause (a) of sub-article (2) of article 102 provides for remedies similar to that of writs of prohibition and mandamus. Sub-clause (ii) of clause (a) of the same article provides for remedy similar to writ of certiorari. Sub-clause (i) of clause (b) of the sub-article (2) of article 102 provides for remedy similar to that of habeas corpus and sub-clause (ii) of the same clause (b) provides for remedy similar to that of quo warranto”.[5]

A writ petition, also known as 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,” according to the Tech Law Journal website. Most of the appeal writ petitions deny by the Courts and are heard just a few of them.[6]

Alternative Remedy for writ petition:

Part III of the constitution contains Fundamental Rights and “Article 102 provides a guaranteed remedy for the enforcement of the fundamental rights and this remedial right is itself is made a fundamental right by being included in Part III of the constitution, the protector and guarantor of fundamental rights and so long as the fundamental rights specified under Part III remain in force, and it is the constitutional responsibility of the Supreme Court to protect them when the right conferred under clause (1) of Article 44 of the Constitution is invoked.” [7]

It cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy; therefore, the High Court can entertain the appeal whether the writ is maintainable on the ground of availability of alternative remedy, even after the writ petition was admitted.

The power of the high court in issuing writ is discretionary. An appropriate writ can only be issued if the petitioner succeeds in showing that grave injustice has been or will be done to him, in other word that is legal right has been or is threatened to be infringed unless the court comes to his aid. And for the reasons he must fast exhausted all other remedies open to him. If another remedy is available the high court may refuse to exercise its discretion in favor of the petitioner. But there are maybe extraordinary situations or circumstances which may be warrantor different approach the court can not be a silent spectator in such extraordinary situation.  The court must as certain before rejecting a writ petition on the ground of the alternative remedy. Whether the alternative forum has jurisdiction to decide the question rose in the writ petition.

A right without a proper and efficacious remedy would be meaningless consequently the constitution not only confers rights but also provides for remedies in case of their infringement. To enforce fundamental rights the constitution of the people republic of Bangladesh, 1994 enforces on 30th June vested the high court in Bangladesh the writ jurisdiction by its article 102.

ARTICLE 102:

Powers of High Court Division to issue certain orders and directions, etc.

(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 the fundamental rights conferred by Part III of this Constitution.

(2) 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 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 law to do or to do that which he is required by law to do; or

(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 of no legal effect; or

(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; 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 contained in the foregoing clauses, 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 programme, or any development work; or

(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 of the application and he (or an advocate authorized by him in that behalf) has been given an opportunity or 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 services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.[8]

Some other alternative remedy for writ petition:

  • Ordinarily this jurisdiction is not available in cases where there are adequate and specific remedy provided under the statute.
  • Adequate remedies one which is equally beneficial, speedy and sufficient and not merely one which at sometime in the future will bring about relief.
  • Writ jurisdiction-alternative remedy-the rule as to alternative remedy is not a rule of law but a rule by which court regulates its own proceeding and does not generally entertain any such proceeding which can be more appropriately investigated in an alternative forum but in a case where the order is absolutely without jurisdiction and does not involve any investigation of facts or consideration of evidence the necessarily relief can be more appropriately and expeditiously given in the jurisdiction.
  • The question of availability of alternative remedy comes up for serious consideration in election disputes.
  • The court observe that the real and longer issue of completion of free and fare election with rigorous promptitude for timely emergence and functioning  of the elective bodies must take procedure over -settlement of private disputes and all the election disputes must wait pending completion of the election and be taken to special forum created by the election law.

Writ petition is an extraordinary remedy provided by the high court division to an aggrieved person when no other equally efficacious remedy is provided by law to him because whenever there is a wrong done to a person he should have a remedy against the same.

When the situation remedies is efficacious:

The statutory remedy must be judged in relation to three separate considerations:

a.       The nature and extent of the relief

b.      The point of time when that relief would be available

c.       The conditions on which that relief would be available

Condition for writ petition:-

Part III of the Constitution talks about Fundamental Rights. Under the Fundamental Rights, Article 26 (Laws inconsistent with fundamental rights to be void), 32 (Protection of right to life and personal liberty), 35 (Protection in respect of trial and punishment), 102 (Powers of High Court Division to issue certain orders and directions, etc.) are talk about the rights of the general people with this Fundamental Rights anyone can appeal to the Supreme Court for further consideration of his or her issue. Under Article 102 every person has the right to reconsider their issue. Articles 102 infect deals with both the condition for writ petition and also alternative remedy.[9] Conditions for writ petition are:-

  • Writ would not be issued in aid of injustice.
  • Writ petition filed without awaiting decision in alternative remedy availed of by writ petitioner, could merit dismissal as not maintainable.
  • A writ petition involving determination of disputed question of fact as to tempering of record would not be competent.
  • Writ petition suffering from non- joiner of necessary parties would be dismissed.
  • Writ petition against order of transfer of a civil servant is not maintainable.
  • A Writ petition would not be competent when petitioner’s appointment is non statutory.
  • Writ jurisdiction would not be exercised when its exercise would not only frustrated intentions of legislature but would also deprived other party of remedy of appeal.
  • High court can refuse to issue writ case in which there are laches on behalf of petitioner or there is enquiry in favor of respondent.
  • Writ jurisdiction cannot be exercise in favor of a person who does not come to court with clean hands where conduct is not above board.
  • Product of fraud and forgery, shall not be protected in equitable jurisdiction.
  • Writ jurisdiction would not be exercised against refusal to grant license to vend liquor.
  • Power of writ jurisdiction can not be exercised in order to perpetuate illegally or to protect ill-gotten gains.
  • Disputed questions of facts which requires a detain lead enquiry, cannot examine in writ jurisdiction.
  • Jurisdiction cannot be exercised when service relationship of employees of corporation is governed by principal of master and servant.
  • Writ jurisdiction can not be invoked to enforce rights which were not in existence when offending enactment were maid.
  • Controversy raised in writ petition which is hit by doctrine of past and closed transaction can not be agitated or adjudication in writ jurisdiction.
  • Factual inquiries are not punishable in writ jurisdiction.
  • Findings of fact recorded by a court of competent jurisdiction, which does not suffer from any misreading or non consideration of any material piece of evidence, would not be open in interferences in writ jurisdiction.
  • Contention cannot be permitted to be raised for first time in writ jurisdiction in such case writ petition would be dismissed.
  • Suppression of relevant material would disentitle petitioner to relief in writ jurisdiction.
  • Writ petition would merit dismissal when no constitutional right of  petitioner has been infringed,
  • Court cannot issue prerogative writ directing the government to implement its policy. That is a matter for the executive government
  • Army act and army rule are not amendable to writ jurisdiction.
  • Interminstrial communication not creates any legal right. A letter from the secretary to other secretaries of the ministers informing decision of the government to return unutilized excess land remaining such as for long time dose not confer any title to original owner and such writ jurisdiction under article 102 can not invoked.
  • Circular does not create any legal right.
  • Preliminary inquiry in the nature of fact finding by an enquiry committee is not illegal such as action relates to the terms and conditions of service and such writ jurisdiction is ousted,
  • Writ not applicable to non-statutory body.

A case on writ petition:

BLAST vs. Bangladesh and others [‘Child’s Detention under SPA’ Case]

Writ Petition No. 4191 of 1998

High Court Division of the Supreme Court of Bangladesh

Facts: BLAST filed a writ petition challenging the detention of Md. Zaved, a ten year old boy, under the Special Powers Act, 1874 (SPA), based on a news item published in the Mukta  Kantha on  28.12.1998. The detainee was falsely implicated under Section 25B of the Act and the District Magistrate had issued an order for his detention for 30 days under Section 3(2).

Argument: The petitioners argued that the grounds of detention were vague, indefinite and short of material particulars as to time, place and manner, which prevented the detainee from making any effective representation before the Magistrate. The order of detention and grounds thereof were illegal inasmuch as the grounds did not attract the mischief of Section 2(f) of the SPA. They argued that the detention was in contravention of rights to be treated in accordance with law, to life and liberty, to safeguards regarding arrest and detention, to protections in respect of trial and punishment and to right to movement as guaranteed under Articles 31, 32, 33, 35 and 36 of the Constitution. The petitioner sought compensation for the illegal and unlawful detention.

Order: The High Court issued a Rule Nisi, and upon hearing delivered judgment on 18.04.1999, the Court discharged the Rule without costs as the Government had in the meantime revoked the detention order following the publication of the report. After citing a number of reported cases from domestic and foreign jurisdictions, and discussing at length the abuse of power by police forces, the Court observed that provisions of law should not be indiscriminately misused or abused in curtailing the fundamental rights of citizens.

Laws cited: Constitution, Articles 31, 32, 33, 35 and 36; The Special Powers Act, 1974

Status: Judgment delivered

Reported: 4 BLC (1999) 600 [10]

Finally writ petition another source of appeal when the person is aggrieved[11]. An aggrieved person has right to use writ petition. A person is said to have right to use writ petition when he is aggrieves by actions or inactions of public servant or officials or authority. In Bangladesh, it is not possible to file public interest litigation.

Reference

Constitution of Bangladesh, Article- 102

Muhammad Abdullah Jabir, j. in Government of Bangladesh vs. Ahmed Nazir, 27 DLR (AD) 41,

para 38.

Tech Law Journal,   http://www.techlawjournal.com/

Wikipedia, http://en.wikipedia.org/wiki/

Writ Petition- Banglapedia,    http://www.banglapedia.org/httpdocs/HT/W_0075.HTM

Writ Petitions — Maintainability matters,

http://www.thehindubusinessline.com/2006/08/05/stories/2006080501481000.htm

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[1] Wikipedia

[2] Writ Petitions — Maintainability matters

[3] Article 44, 102-CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH

[4] Writ Petitions — Maintainability matters

[5] Writ Petition- Banglapedia

[6] Tech Law Journal

[7] Per Muhammad Abdullah Jabir, j. in Government of Bangladesh vs. Ahmed Nazir, 27 DLR (AD) 41 at para 38.

[8] Article- 102; Constitution of Bangladesh

[9] Constitution of Bangladesh 1994

[10] Bangladesh legal aid and services trust.

[11] A person said to be aggrieved when he has i) suffered a legal injury by reason of violation of his legal right or interest. Ii) Shown that he has a direct personal interest in the act which he challenges.

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