Supreme Court of Bangladesh
In the context of constitutional law of Bangladesh, a writ means an application filed in the High Court Division under Article 102 of the Constitution of the People's Republic of Bangladesh for enforcing of a fundamental right or challenging the decision or action of a public or statutory body. Traditionally known as judicial review, the powers of the High Court Division to review or examine decisions of executive or administrative bodies is conferred by the Constitution.
At the outset, it must be stated that the judicial review or writ, as called in the Bangladesh legal system, is a pivotal means for challenging the illegal actions or decisions of the executive bodies. The executives may exercise their power illegally or abuse it to the prejudice of the citizens. The writ jurisdiction of the High Court Division provides an important check and balance mechanism by which the judiciary ensures that the executive arm of the State does not abuse its power, act ultra vires or curtails the fundamental rights of a citizen. The writ jurisdiction of the High Court Division is thus an important facet of the Rule of Law and it is also consistent with the principle of separation of power.
Part III of the Constitution lays out 17 (seventeen) fundamental rights of a citizen. By Article 44 of the Constitution these fundamental rights can be enforced by way of filing of an application under Article 102 of the Constitution in the High Court Division.
Clause 1 to the Article 102 allows the Court to give any appropriate direction or pass order for enforcement of any fundamental rights of a citizen. Clause 2 of Article 102 essentially provides for five categories of writ, specifically writ of certiorari, writ of mandamus, writ of prohibition, Habeas Corpus and Quo Warranto.
Certiorari is a form of writ whereby an ultra vires act or proceeding of an executive body is challenged. The Court is empowered to review the act or proceeding and declare it to have been done or taken without lawful authority and is of no legal effect. A mandamus is a type of writ which allows the Court to direct the executive body to do which it is required by law to do. The administrative bodies often do not exercise their power as conferred by the law or sits idle in which case an aggrieved citizen can recourse to the writ forum and the relief granted by the Court in the writ of mandamus is in the form of a mandatory injunction directing the concerned executive body to do the act in accordance with law.
In a writ of prohibition, the High Court Division directs the government authority to refrain from doing that which it is not permitted by law to do. The remedy granted by the High Court Division is generally in the nature of an injunctive relief. Thus, the Government authority will be prevented or restrained from doing a particular act which is carried out by exceeding its power.
A writ of Habeas Corpus permits the Court to require that any person who is subject of illegal detention or held in custody in an unlawful manner to be brought before it and the Court can then examine the legality of such detention or confinement.
The final form of writ is Quo Warranto which is a Latin term and it means 'under what authority'. It is often the case that a person is holding a post in the Government or public office without being duly appointed in accordance with law. Therefore, the High Court Division is vested with the power to require the said person to provide an explanation that under what authority he/she is holding such public office.
A writ petition can be filed by a person having locus standi or right to sue. The locus standi can be divided into two categories, individual standing and representative standing. An individual or person aggrieved by a decision or action of a public authority can challenge the said decision or action. In other words, the individual must have sufficient interest on the matter to which the writ petition relates. Article 102 also talks about 'any person aggrieved' and this is essential for filing of a writ of certiorari, mandamus or prohibition.
A writ can also be filed in representative capacity and this is applicable for writs filed for public interest. However, the association or group purporting to represent its members or citizens must have a genuine cause or interest in the subject-matter and the Court is cautious to prevent busy bodies from filing writ petition in the form of public interest litigation or PIL.
It is apparent from the preceding discussion that a writ can be filed against a public body or executive authority. Article 102 of the Constitution refers to 'a person performing functions in connection with the affairs of the Republic or local authority'. Therefore, a writ can be filed against the Government department, statutory body or Government-owned companies and corporations. Article 102(5) clarifies that a person includes a statutory public authority and any court or tribunal. In determining whether a body is a public body or not, the Court scrutinizes the source of power of the body and also the functions it carries out.
If the High Court Division is satisfied during motion hearing that the writ petition is maintainable and there is prima facie merit in the grounds pleaded in the writ petition, the Court will issue a Rule Nisi against the respondents which means that the respondents will be required to provide an explanation within a prescribed time as to why the action or decision challenged in the writ shall not be declared to be without lawful authority and is of no legal effect. In other words, the concerned respondents will have to file a reply in the form of an affidavit-in-opposition stating as to why the petitioner is not entitled to obtain remedy as pleaded in the writ petition.
In an application filed under Article 102 of the Constitution, the Court has the authority to pass an interim order at the time of motion hearing subject to issuance of Rule Nisi. It can be a stay order, injunction or direction to do an act, the object of which is usually to maintain a status quo in respect of the subject-matter so that the Rule or writ petition is not rendered infructuous prior to its final hearing.
To read Article 102 of the Constitution, please click here.
