Writs in Bangladesh: Types, Jurisdiction, and Execution

The purpose of this article is to clarify writs in Bangladesh:  the five types of writs, the court process and jurisdiction, who can apply for a writ, the grounds on which a writ can be applied, and how writs are executed. 

What are Writs?

A writ is a formal, legal document drafted by courts that commands an individual or entity to conduct  or stop doing  a certain action or deed. The right to a writ is a crucial legal remedy that citizens  have when their fundamental rights have been violated, such as by an illegal act of government, a legal error, etc., in order to enforce and apply substantive law. According to Article 102 of the People’s Republic of Bangladesh Constitution, this right is exercised in Bangladesh by submitting a written petition, or writ petition, to the High Court Division of the Supreme Court, asking for the court’s recommendations or rulings on the topic.  The opposing parties, or respondents, are then summoned by the court and ordered to do or  to refrain from doing something.

There are five types of writs in Bangladesh:

• Habeas Corpus
• Certiorari
• Prohibition
• Mandamus 
• Quo-Warranto

1. Writ of Habeas Corpus

The first type of writ in Bangladesh is referred to as Habeas Corpus. Habeas Corpus is Latin for “have his body.” Since 1640, this law has protected the liberty of British subjects against their unlawful imprisonment in public or private custody. The King’s Bench issues a writ of habeas corpus to determine if an individual was unlawfully detained. In accordance with sub-clause I of clause (b) of sub-clause (2) of article 102 of the Bangladesh Constitution, the High Court Division, upon the application of any person, directs that a person in custody be brought before it so that it may determine whether he is being detained with or without legal authority. Illegally detained individuals may file a petition for the writ of habeas corpus. However, if the prisoner is unable to make such an application, any other interested party may do so on his behalf. Thus, a wife, a father, or even a friend may apply for the writ of habeas corpus in such situations.

Every request for a writ of habeas corpus must be accompanied by an affidavit detailing the facts and circumstances that led to the request. If the court determines that there is a prima facie case for granting the petition, it will issue a rule directing the detaining authority to show cause on a certain date why the ruling  should not be made absolute. The court will assess the merits of the case and issue an appropriate order on the specified date.

If the court determines that he is being unlawfully detained by the authority, it can declare that authority to be without legal jurisdiction. Section 491 of the Code of Criminal Procedure also permits the High Court Division to issue an order in the manner of a writ of habeas corpus to summon a person imprisoned in public or private custody before it in order to determine whether he is being detained illegally or inappropriately. If the High Court Division determines that the detainee is being detained illegally or improperly, it orders the detaining authority or person to release him.

Case Law References:

• AKM Azizul Hoque Vs. Bangladesh, 42 DLR 189
  When a specific criminal accusation has been lodged and a specific criminal case is ongoing, the executive authority should not commit resources to preventative detention. The administrative authority has a solemn constitutional commitment to assist the Supreme Court.
• Habiba Mahmud Vs. Bangladesh, 45 DLR (AD) 89
  The Court must maintain a balance between the State’s duty to prevent harmful actions and the citizen’s right to personal freedom.
  Government of Bangladesh v. Sajeda Parvin, 40 DLR (AD) 178
  Important is the reality of detention, not the date of the order for detention.
• Bangladesh and Others v. Jamil Huq, 1 BLD (AD) 488
  The only thing that can be asserted is that the grounds on which a Court Martial established under the Army Act can be challenged by habeas corpus will be analogous to those available under Article 102, subsection 5, of the Constitution.

2. Writ of Certiorari

Certiorari is Latin meaning “to be certified” or “to be more completely aware of.” Initially, certiorari was a court order. With the passage of time, the scope of this writ was expanded to include judicial, quasi-judicial, and even administrative powers. This writ power enables the High Court Division of the Supreme Court to control the actions of the inferior or subordinate courts, i.e. to determine whether the subordinate courts in Bangladesh are operating within their jurisdiction or beyond it.

A writ of certiorari may be submitted by the aggrieved party or, in some circumstances, by anyone against a lower court, tribunal, or authority that abused its power or breached the principle of natural justice.

The court should give ex.debito justitiae relief if the application is made by the party directly impacted by the lawsuit. However, if the application is made by a person not directly affected by the litigation, the court has complete discretion to grant the writ.

A writ of certiorari may be issued on the basis of the following:

1. Error evident on the face of the record

By issuing a writ of certiorari, a decision of a lower court or a tribunal can be overturned if there is an obvious mistake of law on the face of the record.

2. infringement of natural justice

A writ of certiorari may be issued when the standards of natural justice have been violated.

3. Error of jurisdiction

A writ of certiorari may be granted against a lower court or tribunal that acts without jurisdiction, exceeds its jurisdiction, or fails to exercise the jurisdiction conferred in it by law.

4. Jurisdictional fact

Insufficient jurisdiction may also result from the absence of certain preliminary facts that must exist before a court exercises its authority. These facts are referred to be “jurisdictional” or “collateral.”

Case Law References:

• Secretary, Ministry of Home Affairs v. Sk Ali Ahmed, 40 DLR (AD) 170; 48 DLR (AD) 20.
  Even though the statute is silent, notice must be given if a person’s right, interest, property, or character is to be affected. When the law mandates service of notice, the authority cannot evade this obligation.
• Regional Transport Authority of Dhaka versus Momin Motor Company (1958) 10 DLR 284
  A writ of certiorari was granted when a quasi-judicial entity, such as the regional Transport Authority, issued an order negatively impacting a person’s interests without his knowledge.
• Ashraf Ali & Others v. Bangladesh, 5 BLT (AD) 261
  The learned Judges of the High Court Division exceeded their jurisdiction when they exercised their certiorari authority to overturn the decision of a lower court.

                  3. Writ of Mandamus

Mandamus is Latin for “we command.” By writ of mandamus, the superior court orders any individual, corporation, lower court, or government to perform a defined public duty related to their office. This writ is issued when a lower court has refused to exercise the jurisdiction vested in it, or when a public official has refused to comply with the law. In accordance with sub-clause I of clause (a) of subparagraph (2) of article 102 of the Constitution the High Court Division may direct a person performing tasks related to the affairs of the Republic or a local authority to comply with the law. This remedy is accessible when a person’s legal rights, as opposed to contractual rights, are breached. The applicant must demonstrate that he has a legal right to the fulfilment of a legal obligation by the individual or entity against whom the writ is sought.

The following requirements must be met by the petitioner before a writ of mandamus can be issued:

(i) Legal duty:

A legal obligation must have been imposed on the authority, and the fulfilment of that obligation must be mandatory, not voluntary or discretionary. There must be a right for the applicant to compel the opponent to undertake some obligation. Therefore, if the government grants dearness allowance to its employees at its own discretion, there is no legal obligation and a writ of mandamus cannot be filed against the government for fulfilment of such duty. Such a duty must be statutory, i.e. imposed by the constitution, another statute, or some rule of common law, but should not be contractual in certain circumstances. However, the writ of mandamus may be issued for the enforcement of such a duty if discretionary power is conferred on the authority and statutory provisions are made for the exercise of such power. This obligation must be of a public character. The writ of mandamus may be issued if the public authority vested with discretionary power abuses the power, exceeds it, acts maliciously, fails to apply its mind, or takes irrelevant circumstances into account.

(ii) Legal privilege:

The petitioner must possess legal standing. Thus, when a petitioner claimed that he was passed over for promotion by the government and it was determined that he was not qualified for the position, his petition was denied.

(iii) Demand and refusal:

A demand for justice and its denial must precede the petition for a writ of mandamus. In Halsbury’s Laws of England, it is stated: “as a general rule, the order will not be granted unless the party complained of knew what he was required to do, so that he could weigh whether or not to comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus wishes to enforce, and that demand was refused.”

(iv) Good faith:

A request for mandamus must have been submitted in good faith and without any ulterior motive or covert objective. Even though a petition for mandamus is filed in good faith, it will not be granted if it is intended to annoy the respondent or exact personal revenge.

 Case Law References:

• Government of Bangladesh vs. Zamiruddin Ahmed, 1 BLD (HCD) 304
  Mandamus may be issued even though no demand for justice has been made previous to the filing of the writ petition if specific circumstances suggest that a demand for justice would be useless.
• M. Walid Ahmed Chowdhury versus Mahfuzul Huq Chowdhury, 8 DLR 429 (1956).
  A mandamus will not be issued unless the party seeking it has not only stated on affidavit that he demanded of the party against whom the mandamus is sought to be enforced by the writ and that such demand was refused, but has also satisfied the court that this is a principle that has been universally accepted and insisted upon as an essential and invariable condition for the issuance of the writ.

                    4. Writ of Prohibition 

Another type of common writ in Bangladesh is called prohibition. The term prohibition refers to a preventive writ. It empowers the High Court Division to prevent a court, tribunal, authority, or person from engaging in conduct that is prohibited by law. A writ of prohibition is appropriate where there is a lack or excess of jurisdiction, an abuse of power, or a violation of the principle of natural justice.

If judicial or quasi-judicial authorities issue an order that is illegal or exceeds the court’s jurisdiction, the aggrieved party may file a writ petition with the superior court, i.e. the High Court Division of the Supreme Court, and if the court finds the complaint to be valid, it may issue a writ of prohibition against the lower court, i.e. the District Judge Court etc.
Prohibition is the opposite of mandamus in that, although mandamus requires the authority to act, prohibition stops a court or tribunal from acting where it lacks the authority to do so. 

In essence,  writs of  prohibition may be issued on the following grounds: 

i. Absence or excess of jurisdiction

ii. Violation of natural justice

iii. Statute’s Unconstitutionality

iv. Violation of fundamental human rights

When the lack of jurisdiction is clear on the face of the proceedings, not only the injured party but also a third party may file a motion for prohibition. The rationale underpinning this rule is that usurpation of authority constitutes a breach of the royal prerogative and an insult to the crown. Therefore, it is irrelevant who informs the court about the usurpation.

However, administrative authority cannot  be prohibited from performing administrative, executive, or ministerial duties. Similarly, it would not lie against the legislature to prevent it from passing or enforcing a law.

                     5. Writ of Quo-Warranto 

     The final type of writ in Bangladesh that will be discussed in this article is called writ of quo-warranto.  The term quo-wattanto means  “what is your authority” in Latin. It is judicial  remedy against an occupant or usurper of an independent public office, franchise, or liberty. It imposes jurisdiction and authority on the judiciary to control executive conduct in terms of making appointments to public positions contrary to relevant statutory provisions, so protecting citizens from being denied a public post to which they may be entitled. In a writ of quo warranto, the petitioner challenges the legitimacy of the claim of the incumbent of a public office. Therefore, this writ can be requested by anyone, regardless of whether they have a personal stake in the outcome.
The purpose of the writ of quo warranto is to prevent a person who has illegitimately seized a public office from remaining in that position. Therefore, an application for a writ of quo warranto challenging the legitimacy and validity of an appointment to a public position may be filed by any private individual, even if he has no personal stake in the matter.
Before the quo warranto can be issued, the following specifications must be met:

i. . Before issuing the writ, the court must be convinced that the post in question is public in nature and that the occupant lacks the legal authority to retain said office. This writ will not lie in relation to a private office, such as a private school’s governing board.

ii. The position must be substantive in nature. The phrase “substantive character” indicates that the office in question must be independent. 

iii. The office must be created by statute or the constitution. 

iv. The holder must have made a legitimate claim to the office. 

 Quo warranto is a discretionary remedy, and the petitioner has no inherent right to obtain this writ. Taking into account the facts and circumstances of the case, the court may decline to grant this writ. This may include situations when the issues of a writ would be vexatious, where the petitioner has consented, or where it would be pointless since the incumbent of the office in question has resigned. It may also be denied if there is a simple electoral irregularity.

A writ of quo warranto may also be denied on the grounds that the petitioner has access to alternative statutory remedies. Thus, when it was sought to issue a writ of quo warranto against a member of the State legislature, it was denied on the grounds that an election petition provided an alternative remedy.

Case Law References: 

• The District Registrar and Others v. Mohammad Abdur Rab Mia, 19 BLD (AD) 24.
  The petitioner did not appear before the writ court to establish a public right; rather, he did so to further his own interests. A quo warranto cannot be used in such a manner or for such a purpose.
• Sajda Parvin v. Bangladesh, 40 DLR (AD) 178; Ahmed Nazir v. Bangladesh, 27 DLR 199; Alam Ara Huq v. Bangladesh, 42 DLR 98.
  No public office can be held without a legitimate claim to that office.

Are you planning to do a writ or looking for criminal and civil remedies in Bangladesh?

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