![]() Writ Jurisdiction is the instrument for enforcement of fundamental rights and to check the abuse ofadministrative actions. In Bangladesh fundamental rights are provided in Article-26 to Article-47 that is, the Part III of the Constitution of Bangladesh.The High Court Division is empowered with writ jurisdiction by Article- 44 and Article-102 of the Bangladesh Constitution. Article-44(1) of the3Constitution,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 is guaranteed.
According to Article-102(1) the High Court Division for the enforcement of fundamental rights may give directions or ordersto 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 thisArticle, all the writ jurisdictions can be found. Classification of Writ in Bangladesh Writ of Quo Warranto Quo Warranto means ‘by whatwarrant or authority’. Writ of quo warranto provides remedy againstillegaloccupation or usurpation of any public office or franchise or liberty.Itenables inquiry into the legality of the claim, which a person assertsto anoffice or franchise and to oust him from such position, if he is anusurper.The holder of the office has to show to the court under what authorityhe holdsoffice. Such remedy is available under sub-clause (ii) of clause (b) ofsub-article (2) of article 102 of the Constitution from the High CourtDivision. Writ of Prohibition Prohibition means‘to forbid’ from doingsomething. In other words, it is a writ issued by the superior court toa lowercourt, tribunal or administrative authority prohibiting it from doingsomethingwhich it is not authorized by law to do. Prohibition is a preventivewrit andissued to stop illegal exercise of power of jurisdiction to thedetriment ofany legal right of a person. Sub-clause (i) of clause (a) ofsub-article (2) ofarticle 102 of the Constitution authorizes the High Court Division to direct a person performing any functions in connection with the affairs of theRepublicor local authority to refrain from doing what he is not permitted bylaw to do. Writ of Mandamus Mandamus means ‘wecommand’. By writ of mandamus, the superior court directs any person,corporation, lower court or government to do something, specifiedtherein,which pertains to his or their office and is in the nature of a publicduty.This writ is issued when the lower tribunal has declined to exercisejurisdiction vested in it or any public authority declined to do whathe isrequired by law to do. Sub-clause (i) of clause (a) of sub-article (2)ofarticle 102 of the Constitution authorizes the High Court Division todirect aperson performing functions in connection with the affairs of theRepublic or alocal authority to do what he is required by law to do. This remedy isavailable when any right of a person, arising from any law and not fromanycontract, is violated. The applicant must show that he has a legalright to theperformance of legal duty by the person or authority against whom thewrit isprayed for. Writ of Habeas Corpus Habeas Corpus means ‘havehis body’. This is a British Law for the protection of liberty of asubjectagainst his illegal detention in public or private custody since 1640.TheKing’s Bench issues writ of habeas corpus to examine as to whether aperson wasillegally detained in custody. Under sub-clause (i) ofclause (b) of sub-article (2) of article 102 of the Bangladesh Constitution, the High Court Division, on the application of any person, directs that a person in custody be brought before it to satisfy itself as to whether he isbeing held in custody with or without lawful authority. If the Courtfinds thathe is being illegally held in custody by the authority, it then candeclare thesame to be without lawful authority. Section 491 of the Code ofCriminalProcedure 1898 also authorizes the High Court Division to issue adirection inthe nature of a write of habeas corpus to bring before it a persondetained inpublic or private custody in order to see as to whether he is beingdetainedillegally or improperly. If the High Court Division finds that such aperson isbeing held in custody, illegally or improperly, it then directs thedetainingauthority or person to set him at liberty. Writ of Certiorari Certiorari means ‘becertified’ of the proceedings of any lower court or tribunal to be investigated by the superior court. Records of any penoding or concluded proceedings before any authority or court including a tribunal can be called for by the High Court Division of the Supreme Court of Bangladesh for its examination as to the legality or otherwise of the said proceedings. Under sub-clause (ii) of clause (a) of article 102, not only legality of a proceedings but also any act done by a person, performing functions in connection with the affairs of the Republic or a local authority,can be declared to have been done without any lawful authority and with no legal effect. Thus remedy under the aforesaid sub-clause (ii) is wider than that of the remedy available in a writ of certiorari. In a writ of certiorari, superior court interferes when the lower court or tribunal acts without any jurisdiction or in excess of its existing jurisdiction or in cases where it fails to exercise its jurisdiction – for example, when it decides a case without giving an opportunity to the parties to be heard or violates theprinciple of natural justice or if there is an error apparent on the face of the record of such proceedings. But under sub-clause (ii) of clause (a) ofarticle 102, the High Court Division can also declare any act done by any authority, which is neither a judicial nor a quasi-judicial, to be withoutlawful authority. For the protection off undamental rights there are many Law Chambers in Bangladesh. They are trying to provide full rangeremedy to their clients by applying constitutional laws of Bangladesh. But most of them failed to provide proper remedy to their clients. In that circumstance, Anwar Chowdhury & Associates our firm has great contributions in solving many Writ Cases before High Court Division of the Supreme Court of Bangladesh. We have many Constitution expert and they have high quality to explain many constitutional issues in the light of law. Since the inception of the Anwar Chowdhury & Associates, its plays a great role in establishing the right of the people by applying their intellect, sincerity,professional exposer and legal ethics and norms in solving writ matter. If you would like us to examine your particular situation and assist or represent you in your case, it is possible to arrange an appointment by telephone or e-mail for detailed consultation. Pleasecontact us by telephone or send us e-mail at [email protected] |