Jurisdiction of Writs and It’s execution in Bangladesh
A writ is intended to avail the remedial right for enforcement of law, against governmental or statutory public bodies. Writ implies a written document calling or requiring the public body to do or refrain from doing anything. Writ is only applicable to a public body. In the case law of Abu-al-Siddique (Md.) Vs. Bangladesh and Ors., Writ Petition No. 7074 of 2012, Supreme court, public body is defined as “Any authority, body, corporation or institution constituted or established by or under any law and includes any other body, authority or institution owned, controlled or managed or set up by the Government. The terms and conditions of any person holding service in any public body is subject to the uniform grades and scales and uniform terms and conditions of service.”
This scenario for an application of a writ may occur if a government body takes any undeserved adverse action against people. The High Court Division’s writ jurisdiction is dealt with in Article 102, whereas Article 104 of the Constitution refers to that of the Appellate Division. Article 102 of the Bangladesh Constitution contains various kinds of orders which may be issued by the High Court Division in the exercise of its writ jurisdiction.
Classification of Writs
There are five writs to avail according to the constitution of Bangladesh, which are Prohibition, Habeas Corpus, Certiorari, Mandamus and Quo-Warranto.
In the first part of Clause (2) of Article 102 of the Constitution of the People’s Republic of Bangladesh 1972, the High Court Division is empowered to direct a person carrying out any functions relating to the affairs of the Republic or a local authority to refrain from doing what it is not permitted by law to do 16. It therefore deals with the prohibition writ, that is given to refrain an individual from acting if the conditions listed are met. The conditions are (a) An application filed by an aggrieved person, (b) No equally effective remedy is available, (c) acts without jurisdiction or in excess of jurisdiction and (d) done by a person performing functions in connection with the affairs of the public body.
(a) An application filed by an aggrieved person:
The prohibition writ may be given only if it’s filed by an aggrieved person. The Constitution does not define the term aggrieved individual. Having respect to the facts and conditions of each specific situation, the Court has determined the significance of the expression in distinct instances. As a general rule, if an individual has a direct private interest in the subject matter for which the writ is sought, a person is considered as an aggrieved individual. This rule was applied to both people and the body of people. As in Bangladesh, Sangbad Patra Parishad vs. Bangladesh questioned an award from the Wage Board by the association of newspaper owners, in rejecting the petition, the High Court Division ruled that’ The association did not have a direct private stake in the Wage Board award law. It is not liable to pay anything under the award to any body in question, but it is the owners of the individual newspapers who have to pay and they are in fact grieved.
(b) No equally effective remedy is available
It is a constitutional necessity that the Supreme Court of Bangladesh be satisfied before issuing any prerogative (in the form of different types of orders under Article 102 of the Constitution), that the aggrieved individual has exhausted the other similarly effective remedies provided by law. If the aggrieved individual does not prefer the alternative solution and there is no adequate explanation for not doing so, the individual will not be entitled to the High Court Division’s exceptional remedies in exercising their writ jurisdiction.
(c) Acts without Jurisdiction or in excess of Jurisdiction
No Authority can exceed the statute’s jurisdiction. Any action made by an agency is invalid and ultra vires beyond the jurisdiction conferred upon it. This is so even if portion of the law has jurisdiction and the other portion of the law has no jurisdiction. And the jurisdictional portion cannot be divided from the other part without prejudice to anybody. As Kaji Shafiuddin, J. observed in Abdul Khaleque vs. Court of Settlement, “There can be no doubt that if a Tribunal or Court acts wholly without jurisdiction, its action would be a nullity … if the actions done with jurisdiction and without jurisdiction are so inextricably mixed up, and action done with jurisdiction cannot be separated without causing prejudice to either party, then the whole action may be declared null and void.”
(d) By a person performing functions in connection with the affairs of the public body
The prohibition letter may be given not only to judicial and quasi-judicial bodies, but also to administrative officials. Like mandamus and certiorari (to be dealt with later), it may be issued against any authority, regardless of the nature of the function, if it performs functions related to the Republic’s or any local authority’s affairs.
The term ‘ Local Authority’ means a body or individual authorized to carry out certain administrative tasks by law or by the government. Some part of the government’s sovereign function is assigned to it. Such tasks must be performed for the advantage of the public. It must be an individual performing tasks related to the Republic’s affairs.
Mandamus is an order or order of the Court which directs any person, corporation or tribunal inferior requiring him to do something specific as his duty when a court, tribunal, authority or person has failed to fulfill his statutory duty, the High Court compels the Court or person to do his statutory duty.
The second part of clause (2) (a) (i) of Article 102 authorizes the Division of the High Court to issue instructions in the nature of mandamus writs to compel an individual performing tasks in connection with the Republic or Local Authority’s affairs to do something that is needed by law.
The distinction between mandamus and prohibition is that mandamus commands the public official to do what they are under a legal duty to do, while prohibition is given to avoid them from doing what they are not allowed to do by law. Like a ban, mandamus will also not be awarded if an aggrieved individual does not apply or if there is any other similarly effective remedy given by law. Mandamus may issue duties to any individual in relation to the Republic’s or local authority’s affairs.
Mandamus cannot enforce a public policy or anything short of a public duty. The petitioner must be legally entitled to perform the public duty in order to be entitled to a mandamus writing. In the event of Fisherman Telekhal Progressive vs Bangladesh, The petitioner questioned the settlement of two fisheries in on the ground that the settlement was made contrary to government policy as contained in government memoranda. The government memorandum was the ventilation without any statutory force attached to it of a government policy.
Certiorari is intended to supervise the superior courts action and make sure they have not surpassed their jurisdiction. Like a prohibition, certiorari is awarded by the High Court Division when
(a) An aggrieved individual applies for the same
(b) No other similarly effective remedy is given by law
(c) The individual to be prosecuted is a person performing tasks in relation with the Republic’s or local authority’s affairs.
However, unlike a prohibition, it is issued after the act or proceeding has been completed to declare that such an act or proceeding has been carried out without legal power and has no legal impact. While a prohibition is issued to prevent the act or proceeding when it is not complete and something remains to be prevented, when the act or proceeding is complete, certiorari is issued.
Under provision (2) (b) (i) of Article 102 of the Bangladesh Constitution, 1972, the High Court Division is authorized to order an individual in custody to be brought before him in order to be satisfied that he is not in custody without legal power or unlawfully.
Habeas Corpus is a writ which is issued to safeguard freedom, and freedom that is thought to be very essential. It is awarded by the police authority against wrongful detention or deportation. Habeas Corpus is a kind of court order that commands an individual to be held in custody by the authorities to take that person to court. Then the authorities have to clarify why he’s being kept. If the explanation is unsatisfactory, the Court may order the individual’s release. Habeas corpus is thus a method to secure the subjects private freedom.
Such an individual must have a government office. A public office implies a constitutional office or a law pertaining to the Republic’s or a local authority’s affairs. Only when the government functionary has a public duty under a law and has refused to fulfill his obligation will it be awarded. The obligation may be administrative, quasi-judicial or judicial.
Thus, when a individual is arrested without lawful power or in an illegitimate way, the writing of habeas corpus lies. If the law providing for imprisonment is unconstitutional or invalid or if the law is valid the order is illegitimate or ultra vires, it will be awarded. An action shall be unlawful if it is malafide, a colorful exercise of power, or if it is done on insignificant or foreign account or grounds, or if the detaining authority does not apply its mind. In the caselaw Abdul Latif Mirza vs. Bangladesh, during which the detention period ordered by the Deputy Commissioner expired and a fresh detention order passed by the government was served on the detainee two days later, while the detention was declared unlawful for the two days that followed.
Quo-Warranto is a writ verifying a person’s title to the office by the High Court and thus dismissing the unlawful occupants by judicial order. When an individual illegally holds a law-created public office, the High Court may, by issuing quo-warranto, ask the individual to demonstrate on what power he holds the office and may require him not to hold such office any further. Clause (2)(b)(ii) of Article 102 of the Constitution of Bangladesh, 1972, authorizes the High Court Division to create an order in the nature of quo-warranto. A individual holding or purporting to hold a government office may be required to demonstrate under what power he claims to hold that office. If there is an application praying for the same thing and there is no other similarly effective solution given by legislation, this writing may be given. It should be pointed out here that, like habeas corpus, an aggrieved individual does not need to file the request for quo-warranato. But unlike habeas corpus, while the former is compulsory in nature, it is discretionary.
It gives the judiciary jurisdiction and power to monitor executive action against the appropriate statutory provisions in matters of appointing government officers. A individual will be discovered to hold the public office without a legal power if he is not eligible to hold the office or when making the appointment or entering the office some compulsory provisions of law have been breached. The quo-warranto writing also prevents a citizen from being deprived of a public office to which he may be entitled.
Counsel Law Partner has significant experience and knowledge in judicial review applications, seeking remedies for central and local government administrative choices or other bodies that have performed public duties or functions in a manner that is alleged to be illegal, irrational or procedurally unfair. We have been engaged in several legislative acts judicial review including effective challenge on behalf of our customers against several public bodies.
The CLP frequently advises on constitutional law issues and has been engaged under the skilled management of Barrister Hafizur Rahman Khan in numerous groundbreaking instances of public administration cases.
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