‘Russel & Partners’ has extensive experience and knowledge in judicial review applications seeking redress for central and local government administrative decisions, as well as other bodies that have performed public duties or functions in an allegedly illegal, irrational, or procedurally unfair manner. We’ve been involved in judicial review of many legislative acts, including effective challenges on behalf of our clients against many public agencies.
Writ Petition:
A Writ Petition is a legal document used by superior courts to provide remedies to natural or legal people who have been subjected to arbitrary or unlawful actions by any government authority or lower court. The purpose of writs is to establish authorised regions of exercise of power, authority, and jurisdiction over any State’s administrative acts. Judicial writs are constitutional remedies granted to courts to maintain the administration within the bounds of the law.
In Bangladesh, anyone who believes or has experienced that an order issued by a lower court is unconstitutional or beyond the lower court’s jurisdiction can submit a writ petition against the court, and if the Supreme Court determines the complaint to be legitimate, it can issue a writ of prohibition against the lower court.
The High Court can issue a writ to enforce fundamental rights or for any other reason, such as a statutory authority’s failure to perform its duty. As a result, a writ petition can be brought against a private individual before the Supreme Court.
Classification of Writs:
According to Bangladesh’s constitution, five writs are available: Mandamus, Certiorari, Prohibition, Habeas Corpus and Quo-Warranto.
Mandamus:
Mandamus means a command. Mandamus is a judicial remedy in the form of an order from a superior court (the Supreme Court or a High Court) directing any government, court, corporation, or public authority to do or refrain from doing some specific act required by law to do or refrain from doing, as the case may be, and which is like a public duty and, in some cases, a statutory duty.
A writ of mandamus can be issued if the following conditions are satisfied by the petitioner: the petitioner must have legal right, a legal duty must have been imposed on the authority and the performance of that duty should be imperative, not discretionary or optional, the petition for a writ of mandamus must be preceded by a demand of justice and its refusal, an application for mandamus must have been made in good faith.
A writ of mandamus is available against parliament and legislatures and other authorities falling under the definition of state and it will not be refused on the ground of alternative remedy being available. A person whose right has been violated may seek a writ of mandamus, but it will not be valid against the president of the government of a state for the exercise and performance of his office’s powers and duties, or any act done or purportedly done by him in the exercise and performance of those powers and duties.
Certiorari:
Certiorari’ means ‘to certify’. Certiorari is used to monitor the higher courts’ actions and ensure that they are not exceeding their jurisdiction. If the following circumstances are met, a writ of certiorari can be issued: a) The judicial or quasi-judicial authority must have legal jurisdiction; b) Such authority must have the capacity to consider matters affecting subjects’ rights; c) It must have a responsibility to act judicially; and d) It must have acted outside of its power. Again, a writ of certiorari may be issued on the following grounds: a) Error of jurisdiction; b) Error apparent on face of record and c) Violation of natural justice.
The writ of certiorari is a judicial writ that can be used against lower courts, lower tribunals, quasi-judicial authorities, and adjudicating authorities. A writ of certiorari is normally requested by the person whose rights are infringed upon. However, if the issue impacts the general public, anybody can apply. The difference is that if the application is filed by the aggrieved party, the court should give relief as a matter of right, however, if it is made by a person who is not directly impacted by the case, the court has complete discretion over whether or not to grant the writ.
Prohibition:
Prohibition is a judicial writ issued by a superior court and directed to a lower court to prevent the lower court from usurping jurisdiction that was legitimately conferred in it or to compel courts entrusted with the judiciary to stay within their authority’s limitations.
A prohibition can be imposed, when a lower court or tribunal acts without or over its authority, or when it acts in violation of natural justice principles, or when it operates under an ultra vires statute, or when it acts in violation of fundamental rights.
A prohibition writ is a judicial writ. It can be issued against courts, tribunals and other quasi-judicial authorities. However, it precludes administrative authorities from performing administrative, executive, or ministerial tasks. It would also not lie against the legislature to prevent implementing or executing a law.
Habeas Corpus:
The Latin phrase ‘habeas corpus’ means ‘have the body’. Habeas Corpus is a writ that is given to protect freedom. It is given by the police department in the event of wrongful detention or deportation. Habeas Corpus is a form of a court order that requires authorities to hold a person in custody until they can be taken to court. The authorities must then explain why he is being held. The court may order the individual’s release if the explanation is inadequate. As a result, a habeas corpus is a tool for ensuring a subject’s private liberty.
The individual who has been unlawfully held may file a habeas corpus petition. If the prisoner is unable to make such an application, any other person with an interest in the prisoner may do so such as, a wife, a father, or even a friend may apply to habeas corpus. However, he should not be a stranger. The individual to whom a writ of habeas corpus is issued by the Supreme Court or a High Court must obey it. Willful interference by the person to whom it is given is considered contempt of court and is punished by property attachment and even imprisonment of the condemner.
Quo-Warranto:
Quo Warranto means ‘by what warrant or authority’. It is a judicial remedy for an occupier or usurper of a constitutionally protected independent public office, franchise, or liberty. The individual serving with this writ is required to demonstrate to the court by what authority he holds the office, franchise, or liberty. If the holder does not have the authority to occupy the position, he might be removed from it. However, the bearer of a public position is protected against being deprived of something to which he may be entitled.
The purpose of a writ of quo warranto is to prohibit someone from continuing to hold a public position who has wrongfully usurped it. As a result, even if a private person is not personally offended or involved in the subject, an application for a writ of quo warranto challenging the legitimacy and validity of a public office appointment can be filed at the request of any private person.
Public Interest Litigation (PIL):
Litigation in which the public interest is protected is referred to as public interest litigation. It is a type of lawsuit filed in a court of law by the court or any other private person, rather than the injured party. The individual who is the victim of a breach of their right does not need to physically approach the court for the court to exercise its jurisdiction. The individual making the petition, however, must demonstrate to the court that the petition is being submitted in the public interest rather than as a frivolous lawsuit by a busybody.
Basic difference between Writ and PIL:
Any individual might submit the writ for personal gain. Articles 102 and 104 of Bangladesh’s Constitution are used to issue the writ. The rule of locus standi and evidence is strictly applied in the writ.
PIL, on the other hand, can be filed by the court or any other private individual for the benefit of the general public. The same articles apply to PIL as they do to the writ however, the rule of locus standi and evidence are eased.
When a writ is treated as PIL:
A PIL is a writ petition filed by an aggrieved person, whether on behalf of a group or together with a group of individuals. However, the writ petition should address a problem that affects the general public or a group of individuals rather than a single person. A particular request should be included urging the court to direct the state authorities to take notice of the complaint or accusation. Some lawyers also believe that a “representative suit” filed under the Code of Civil Procedure 1908 might be considered a PIL if it reflects the interests of a significant group of individuals.
Laws Concerning Writ:
The writ is a very powerful weapon that an individual can use to safeguard his rights by filing a petition with the Supreme Court’s Appellate Division and High Court Division. An individual can file a writ petition with the High Court Division and the Appellate Division of the Supreme Court of Bangladesh under Article 102 and Article 104 of the Constitution of the People’s Republic of Bangladesh respectively. Again, Public Interest Litigation (PIL) can be filed under the Article 102 of the Constitution.
Procedure of Writ and PIL:
Any aggrieved individual can file a writ by providing an affidavit with their allegations. If you file a writ in the High Court, you must submit two copies of the petition and serve an advanced copy of the petition to the opposing party. If the writ is filed in the Appellate Division, a total of five petitions are required. The writ’s procedures are conducted in the same way as any other court proceeding. PIL is also filed and proceedded in the same way as writs; however, in between the proceedings a judge may appoint a Commissioner to inspect the allegation.