a study on writ jurisdiction

View with images and charts A Study on Writ jurisdiction and its Comparative Study INTRODUCTION According to the Article 101 of the Bangladesh Constitution there are two sources of power and jurisdiction of the High Court such as the Constitution and ordinary law. Hence, the Jurisdiction of the High Court Division (HCD) may be divided into two categories ordinary or general jurisdiction and constitutional jurisdiction. For example, section 113 of the Code of Civil Procedure (C.P.C.) gives the High Court Division (HCD) reference jurisdiction. The Constitution itself has conferred on the HCD the following three types of jurisdictions (a) Writ Jurisdiction (b) Jurisdiction as to Superintendence and Control over courts. (c) Jurisdiction as to Transfer of Cases.

WHAT IS WRIT JURISDICTION The Constitution has conferred on the High Court Division (HCD) original jurisdiction only in one case and that case is the field of writ matters. The basis of writ jurisdiction is Article 102 of the Constitution of Bangladesh. 1Writ jurisdiction means the power and jurisdiction of the HCD under the provisions of the Constitution whereby it can enforce fundamental rights as guaranteed in part III of the Constitution and can also exercise its power of judicial review.

Like Article 32 of the Indian Constitution and article 22 of the Pakistan constitution of 1956 conferred power on the supreme court to enforce fundamental right and made the right to apply to supreme court for enforcement of fundamental rights itself a fundamental right.

2 Under the constitution, the High Court Division has power under art.102(1) to pass necessary orders to enforce fundamental rights under article 44(1) the right to move the High Court Division under article 102(1) is itself fundamental right. 3In view of the provision of art-44 the High Court Division cannot refuse to entertain an application under article 102 (1) on the ground that the petition involves resolution of disputed question of fact. If necessary in appropriate cases, the court will have to take evidence. The constitution does not stipulate the nature of the relief which may be granted. It has been left to the High Court Division to fashion the relief according to the circumstances of a particular case. 4The constitution has not stipulated any procedure for the remedy and it is for the court to adopt its own procedure.

The high Court Division follows certain rules of procedure and practice in respect of all writ petitions, whether one involves enforcement of fundamental rights or not. 5A person may apply for enforcement of fundamental right when there is a threat to infringe it and need not wait till the threat is carried out. The threat must be real and the mere apprehension that the petitioner may be deprived of his fundamental right is not sufficient to invoke the jurisdiction of the court.

WRIT JURISDICTION MATTERS OTHER THAN FUNDAMENTAL RIGHTS Article 170 of the Pakistan constitution of 1956 conferred power of judicial review on the provincial High Courts by way of issuing writs in the nature of Mandamus, Certiorari, Prohibition, Habeas Corpus and Quo Warranto. The Indian constitution also confers power of 1

Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective, p-366 second edition.

Mahmudul Islam, Constitutional Law of Bangladesh.p.447, second edition.

3 Mahmudul Islam, Constitutional Law of Bangladesh.p.449, second edition.

4 Mahmudul Islam, Constitutional Law of Bangladesh.p.451, second edition.

5 Opcit, Mahmudul Islam,p.452 .

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judicial review on the High court of every state in the same language. 6Article 102 (2) of the constitution confers power of judicial review on the High Court Division in the same language as used in article 98 of the Pakistan constitution of 1962. Article 102 (2) (a) (i) empowers the High to issue orders in the nature of prohibition and mandamus, article 102 (2) (a) (ii) empowers the High Court Division to issue orders in the nature of certiorari, art 102 (2) (b) (i) vest the power to issue orders in the nature of habeas corpus and art 102 (2) (b) (ii) invest the HCD with the power to issue orders in the nature of quo warranto. Writ of certiorari and prohibition are intended to prevent public functionaries from exceeding their power, the difference between the two being that prohibition is issued when the act or proceeding is not complete.

Article109 of the Constitution says that the HCD shall have superintendence and control over all courts and tribunals subordinate to it. This power is also called the supervisory power of the HCD. Therefore, the condition for supervisory power is that the court or tribunal must be subordinate to the HCD. DISTINCTION BETWEEN ARTICLE 102 AND ARTICLE 109 There is a Distinction between Writ Power under Article 102 and the Supervisory Power under Article 109 of Bangladesh Constitution. It is as follows.

1. The writ power under Article 102 can be exercised only on application by a party, while the supervisory power under Article 109 can be exercised Suo-moto by the HCD without any application by any party.

2. The supervisory power under Article 109 can he exercised only in respect of courts and tribunals subordinate to it. 7But the writ power under Article 102 can be exercised irrespective of the question whether the court or tribunal is subordinate to HCD. Ofcourse, this writ power is not applicable to those tribunals which come under the preview of Article 102(5).

3. The supervisory power is purely a discretionary power with the HCD and no litigant can invoke this jurisdiction as of right. But the writ power under Article 102 is not a discretionary power. A person whose fundamental rights have been infringed can file, as of right, which is guaranteed in Article 44, an application for enforcement of his rights and if the (HCD) finds that his fundamental rights have been isolated, then ills obligatory on the (HCD) do give remedy. In addition, if the applicant is not satisfied with the (HCD) remedy, he may appeal to the appellate Division under Article 103 of the Constitution.

WHAT IS WRIT The word Writ means a written document by which one is summoned or required to do or refrain from doing something. 8Historically writ originated and developed in British legal system As defined by Blackstone, ‘writ is a mandatory letter from the king-in-parliament, sealed with his great seal, and directed to the Sheriff of the country wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer or party caused either to do justice to the complainant, or else to appear in court and answer the accusation against him.�

The Writ is a legal instrument of the superior courts for remedies to persons, natural or jural, against the arbitrary or illegal actions of any authority or the lower court. There are five kinds 6

Mahmudul Islam, Constitutional Law of Bangladesh.p.456, second edition.

Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective, p-368 second edition.

8 Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective, p-369 second edition.

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of writs, namely certiorari, habeas corpus, mandamus, prohibition and quo warranto.

9 Originated first in England, these writs were exercised by the Judges of the King's Bench and called prerogative writs exercised by that Court on behalf of the King. Article 102 of the Constitution of Bangladesh provides for granting remedies similar to that of the above writs, though it does not speak of any of such writs in specific terms. Sub-clause (i) of clause (a) of sub-article (2) of article 102 provides for remedies similar to that of writs of prohibition and mandamus. Sub-clause (ii) of clause (a) of the same article provides for remedy similar to writ of certiorari. Sub-clause (i) of clause (b) of the sub-article (2) of article 102 provides for remedy similar to that of habeas corpus and sub-clause (ii) of the same clause (b) provides for remedy similar to that of quo- warranto.

Initially writs were royal prerogatives. Since only the King or Queen as the fountain of justice could issue writs, they were called prorogate writs. “They were called prerogative writs because there were conceived as being intimately prerogative writs because they were conceived as being intimately connected with the rights of the crown. A Prerogative writ was issued only on some probable cause being shown to the satisfaction of the court. Why the extraordinary power of the crown is called in to the party’s assistance.

The king issued writs through the court of Kings’ Bench or the Court Chancery. The prerogative writs were five in number—Habeas Corpus, Certiorari, prohibition, Mandamus, and Quo-Warranto. 10The King issued them against his officers to compel them to exercise their functions properly or to prevent them front abusing their powers.

Subjects being aggrieved by the actions of tile king’s officials came to the King and appealed for redress. And the King through the above mentioned two courts issued them against his officials to give remedies to his subjects. Gradually as tile governmental functions increased and the concept of rule of law emerged and the courts became independent. These writs came to be the prerogatives of the courts instead of the King and lastly they came to be tile prerogatives of the people, for they are now guaranteed rights in the constitutions (If many countries and citizens can invoke them as right.

WRIT JURISDICTION AGAINST WHOM AVAILABLE Writ of certiorari, mandamus and prohibition lie against ‘any person’ performing functions in connection with the affairs of the Republic or of a local authority and not against a private individual or body. 11Thus the ‘person’ must be a public functionary. A writ petition will not lie even against a public functionary in respect of functions performed not in connection with the affairs of the Republic or a local authority, but in his private capacity. Writ of Habeas Corpus lies against any person, be he a public functionary or private person, while quowarranto lies against a person holding or purporting to hold a public office. Article 102(5) stipulates that the expression person in art 102 includes a statutory authority and any court or tribunal except (i) a court or tribunal established under a law relating to defence service or any discipline force and (ii) a tribunal to which art.117 is applicable. The definition of person is both inclusionary and exclusionary. Person thus includes all statutory authorities and courts and tribunals except the ones excluded. Statutory public authorities are defined in art152 as the authorities whose activities are authorized by statutes or instruments having statutory force. It must also include all authorities whose activities are authorized by the Constitution.

12 In view of the Provisions of art 105 (5) a writ will lie against all those who come within the meaning of person except those who have been excluded from the definition for the purpose 9

Smit’s Judicial Review of Administration Action P.167 Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective, p.370 second edition.

11 Mahmudul Islam, Constitution law of Bangladesh,p.616 ,Mullick Brothers, second edition 12 Mahmudul Islam, Constitutional Law of Bangladesh.p.617, second edition.

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of exercise of the writ jurisdiction. The definition of person given in art.102 (5) is inclusive and not exhaustive. By virtue of art. 152 the definition of person and local authorities given in General clauses Act will be attracted.

Writ of habeas corpus lies against M.P. Vs’ Ankatel, AIR 1985 Sc 901 (Referring to some earlier decisions, the court observed that the principles of unjust enrichment laid down in those decisions were based on speech statutory provisions, But the same principles can be safely applied to the cases where no such statutory provision is in over Roles (India) Ltd Vs. India. AIR 1989 Born 183.

NO WRIT SHALL LIE For the reason of exclusionary clause no writ shall lie against a court or tribunal established under a law relating to the defense services or any disciplined force or a tribunal to which art.117 applies. However, writ petition will lie against the military authorities other than a court or tribunal of the specified kind.

No writ petition shall lie for decision on an abstract question of law. Such abstract question of law can be decided with reference to facts in an appropriate case.

Person having no background information or for that matter any expertise cannot maintain a writ. 13A mandamus cannot be issued to violate the law or to act in violation of the law. In Bangladesh V. A.K.M. Zahangira question arose as to the meaning of tribunal within the meaning of art.102(5).

Applying the principle of ejusdem generic the Appellate Division by a majority judgment held that the expression tribunal having been used along with the expression court must be understood in the narrow sense of a tribunal performing quasi judicial functions and opined that the authorities empowered to take disciplinary action against police officers.

HISTORICAL DEVELOPMENT OF WRIT ENGLAND In origin a writ was a letter, or command, from the King, or from some person exercising franchise jurisdiction. Early writs were usually written in Latin and royal writs were sealed with the Great Seal. 14At a very early stage in the English common law, a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. The writ would act as a command that the case be brought before the court issuing the writ, or it might command some other act on the part of the recipient.

Where a plaintiff wished to have a case heard by a local court, or by an Eyre if one happened to be visiting the County, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint, which may not necessarily need to be written down.

However if a plaintiff wished to avail themselves of Royal -- and by implication superior -justice in one of the King's courts, then they would need a writ, a command of the King, to enable them to do this.15 Initially for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay.

13

Dr.Durga Das Basu & A.K.Nandi, Constitutional Remedies and Writs, p25, Kamal law House , Second edition.

14 www.wilkipedia.com>History of writ remedies in England 15 www.freeencyclopedia.com>writ remedies in England

For Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the Exchequer, being in essence another government department, was able to issue its own writs.

While originally writs were exceptional, or at least non-routine devices, Maitland suggests that by the time of Henry II, the use of writs had become a regular part of the system of royal justice in England.

At first, new writs could be drafted to fit new situations, although in practice the clerks of the Chancery would re-use old forms, and there were many books which were collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a legal document each time they wish to create one.

The problem with this approach was that the ability to create new writs amounted to the ability to create new forms of action. 16A plaintiff's rights (and by implication those of a defendant) would be defined by the writs available to them: the ability to create new writs was close to the ability to create new rights, a form of legislation.

There was increasing opposition to the creation of new writs by the Chancery. For example, in 1256, a court was asked to quash a writ as "novel, unheard of, and against reason" (Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44). This resulted in the Provisions of Oxford 1258, which prohibited the creation of new forms of writ without the sanction of the King's council. 17New writs were created after that time, but only by the express sanction of Parliament and the forms of writ remained essentially static. Each writ defining a particular form of action.

With the abolition of the Forms of Action in 1832 and 1833, there no longer needed to be a variety of writs, and one uniform of writ came to be used.

After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered so that it conformed more to the subpoena that had been in use in the Chancery. 18A writ was a summons from the Crown, to the parties in the action, with on its back the substance of the action set out, together with a 'prayer', which requested a remedy from the court (for example damages).

In 1980, the need for writs to be written in the name of the Crown was ended, from that date a writ simply required the parties to appear. Writs applied to claims that were to be issued in one of the courts that eventually formed a part of the High Court of Justice. The procedure in a County Court, which was a creature of statute, was to issue a 'summons'.

In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court and the County Court in civil matters. These reforms ushered in the Civil Procedure Rules. Under these almost all civil actions (other than those connected with insolvency) are now begun by the completion of a 'Claim Form' as opposed to a 'Writ', 'Originating Application', or 'Summons'.

The royal legal system revolved around a system of writs: a royal order, which authorized a court to hear a case and instructed a sheriff to force the accused to appear. The writ or order had a special name and stated certain facts. For example to recover personal property, the plaintiff would get a writ of Replevin. One of the most important writs was the writ of Right in which the plaintiff sought title to property via a claim of hereditary descent. As the basis of the economy and social structure land disputes were key issues in medieval England and this writ is secured in Magna Carta.

The King to the sheriff, greeting. Command [praecipe=Latin for right] N. that justly and without delay he render to R. one hide [about 120 acres] of land in such a vill [a township], 16

R.v.Russell,(1969)1 Q.B.342 R.V. Greater London Council(1976)3 All E.R 184 Halsbury(4th Ed)vol.11.para 1451 18 www.wilkipedia.com.> History of writ remedies in England 17

whereof the said R. complains that the said N. deforces [wrongfully take possession of] him.

In addition, if he does not do this, summon him by good summoners that he is before me or my justices on the morrow of the second Sunday after Easter at such a place to show why he did not do it. In addition, have there the summoners and this writ.

Originally, writs were reserved for special cases because most cases were heard in the eye.

However, the trend became to create new writs so that the royal courts could hear more cases.

In 1189, there were about 40 writs, by the time of Edward I (1272-1307) there were more than 400. In the 1300's the number of writs became fixed and if a writ didn't fit the facts of a particular case it would be thrown out of court. Thus the maxim "no writ, no remedy." In order to find out if you had a case you needed to consult the register of writs which listed all the writs available.

What happened was really a historical accident; writs were originally very rigid because the royal court could only hear certain types of cases, the bulk of the disputes were settled in local courts.19 However, when the royal courts became the places where every day disputes were heard the old writ system was still rigidly in place. As a result many common legal problems were cut off from the legal system. This of course didn't deter the ingenious Englishman who then proceeded to invent a complex system of legal fictions to get his case into court.

The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto, prohibito, mandamus, procedendo, and certiorari.

The due process for petitions for such writs is not simply civil or criminal, because they incorporate the presumption of nonauthority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be an issue of standing. From English law writ provision expand to many countries.

UNITED STATES OF AMERICA Early law of the United States inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. The All Writs Act (28 U.S.C. § 1651) authorizes United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 20However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil procedure in the United States district courts, provide that there is only one form of action in civil cases, and explicitly abolish certain writs by name. Relief formerly available by a writ is now normally available by a lawsuit (civil action) or a motion in a pending civil action.

Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts: 1. The writ of habeas corpus, usually used to test the legality of a prisoner's detention, has expressly been preserved. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts.

2.By statute, the Supreme Court of the United States uses the writ of certiorari to review cases from the United States courts of appeals or from the state courts.

19

20

www.wilkipedia.com>history of writ remedies in England

Gregory A. Caldeira and John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, American Political Science Review 82 (December 1988): 1109–1127.

3.In extraordinary circumstances, the United States court of appeals can use the common-law writ of prohibition under the All Writs Act to control proceedings in the district courts.

4.Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common-law writ of error coram nobis under the All Writs Act to set aside a conviction when no other remedy is available.

5.The United States district courts normally follow state-court practice with respect to certain provisional remedies and procedures for enforcement of civil judgments, which may include writs of attachment and execution, among others.

6.Certain other writs are available in theory in the United States federal courts but are almost never used in practice. In modern times, the All Writs Act is most commonly used as authority for federal courts to issue injunctions to protect their jurisdiction or effectuate their judgments.

The situation in the courts of the various U.S. states varies from state to state but is often similar to that in the federal courts. 21Some states continue to use writ procedures, such as quo warranto, that have been abolished as a procedural matter in federal courts.

In an attempt to purge Latin from the language of the law, California law has for many years used the term writ of mandate in place of writ of mandamus, and writ of review in place of writ of certiorari. Early efforts to replace writ of habeas corpus with writ of have the body never caught on. Other writs we may see: Writ of Bodily Attachment: A writ commanding law enforcement to physically bring in a person in contempt of court. Evidently, you cannot get out of this writ just by paying the fine, the court can hold you up to 48 hours to meet with the person issuing the writ directly.

The primary means by which a case comes before the United States Supreme Court. Litigants who seek review by the Supreme Court petition the Court for the writ, and if granted, the case comes before the Court for disposition. The party seeking review is known as the petitioner, and the opposing party is the respondent. The Supreme Court, like any court, must have jurisdiction before it can decide a case. Its jurisdiction is determined by Article III of the Constitution and by congressional statute. The Certiorari jurisdiction is given to the Court by Congress, accounts for the vast majority of cases.

In addition to certiorari, there are four other ways a case can come before the court: by original jurisdiction, on appeal, by certification, or by an extraordinary writ. The last two are rarely used. Appeals and cases of original jurisdiction have mandatory review in the Supreme Court, whereas the decision to grant certiorari, or “cert,” is solely at the discretion of the justices.22 Article III of the Constitution identifies the cases that qualify for original jurisdiction, and Congress has established categories of cases that qualify as appeals. The terminology can be a bit confusing because the word appeal is commonly and generically used to mean taking a case to a higher court for review. Technically, however, when a case is “on appeal” before the U.S. Supreme Court, it means that Congress has mandated review for this type of case. Since 1988, however, most categories of appeals have been eliminated.

Therefore, except for cases of original jurisdiction, which usually constitute about one or two cases a year.

The Court has not always had broad discretion in case selection. Before 1925 most of its docket consisted of cases for which review was obligatory. The workload had grown to such an extent, however, that on 13 February 1925, an act known as the “Judges' Bill” was passed.

The most ardent supporter of the legislation was Chief Justice William Howard Taft.

21

H. W. Perry, Jr., Agenda Setting and Case Selection, in American Courts: A Critical Assessment, edited by John B. Gates and Charles A. Johnson (1990), pp. 235–253.

22

www.Wikipedia.com>writ remedies in United States.

The act greatly expanded the Court's certiorari jurisdiction, which meant that its docket was to become largely discretionary. 23By the 1970s, certiorari accounted for about 90 percent of the Court's workload. Appeals constituted about 10 percent of the Court's docket until the 1988 legislation effectively eliminated most categories of appeals (see Judicial Improvements and Access to Justice Act). Even prior to 1988, however, the Court often finessed its appellate jurisdiction by “dismissing” appeals.

Of the approximately five thousand cases a year for which review by the Supreme Court is sought, fewer than 5% percent are granted certiorari. If a case is denied certiorari, the decision below stands, and with a few exceptions, there are no further avenues of review.

As a matter of law, a denial of cert has no meaning other than that the particular case will not be reviewed. It does not mean that the Court believes that the case has been correctly decided in the court below, nor may lawyers cite a denial of cert as evidence of the Court's position on the issue. 24Some observers, however, argue that a denial of cert can be read to mean something more, which of course it may, although the Court continues to disavow such a position.

A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefore.

With one exception, the criteria that follow the statement offer little guidance as to what the Court really looks for when selecting a case. In short, the rule is almost a tautology: cases are important enough to be reviewed by the justices when the justices think they are important.

Or as Justice Frank Murphy put it, “Writs of certiorari are matters of grace” (Wade v. Mayo, 1948, p. 680). 25The one criterion in rule 10 that is helpful in determining whether or not a case will be deemed “certworthy” is when federal circuit courts of appeals are in conflict over an issue. Though a “circuit split” does increase the likelihood that a case will be reviewed, it does not guarantee review. It is not always obvious when circuit courts are in conflict.

Moreover, the Court often prefers to wait for additional courts of appeals to weigh in on a matter before it decides to resolve it. Nevertheless, the justices do see resolving conflicts among the circuit courts as one of their primary responsibilities.

Deciding what to decide is one of the most important functions performed by the Supreme Court. Given the difficulty of access to the Court, understanding how and why one case is selected and another rejected is important both in determining how the Court works and how access is achieved. Agenda setting has both behavioral and normative implications.

To the extent that there has been scholarly interest in agenda setting beyond jurisdictional and procedural questions, it has mostly been by political scientists. They have focused much of their research on trying to determine factors that increase the likelihood of review. 26Results have been mixed, although there seems to be credible evidence to suggest that the likelihood of review is enhanced if there is a genuine conflict among circuit courts of appeal; or, if the United States is the petitioning party in the case; or if an amicus brief is filed urging a grant.

Likewise, it has been demonstrated that a justice's vote on certiorari is related to his or her later vote on the merits, that is, the decision to affirm or reverse the decision below.

If four justices vote in favor, certiorari is granted. This “rule of four” is an informal rule of long standing developed and adhered to by the justices. Cert votes are not made public. Some justices have recorded cert votes and left them in their private papers, but usually it is impossible to know how the justices voted. From time to time, a justice will feel strongly enough about a case to note publicly a dissent from the denial of certiorari. This may be accompanied by an opinion outlining why the case should have been taken. Some justices, 23

Linzer, peter(1979)The meaning of Certiorari, Review 79(7):1227-1305 Davis Warehouse Co.v. Bowles, 321 US 144, 25 Home Tel & Tel Co.v.Los Angels, 211 US265 26 U.S. v. Raines, 262 US17, 24

however, disapprove of any public airing of cert votes and refuse to write dissents from denials. 27Dissents from denial of cert are uncommon except that Justices William Brennan and Thurgood Marshall always noted that they would grant cert in cases involving the death penalty because they believed capital punishment is unconstitutional.

In law, a writ issued by a superior court for the reexamination of an action of a lower court.

The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court.

It was later expanded to include writs from the equity (chancery) courts. In the U.S., certiorari is the most common means by which cases from the United States Courts of Appeals are reviewed by the Supreme Court of the United States. For the Supreme Court to issue a writ of certiorari, at least four justices must agree to hear the case.

The U.S. Supreme Court has the authority, given by Congress (according to Article a lower court to prepare the record of a case and submit it to the Supreme Court for review. The Latin term certiorari means “to be informed.” A party to a case seeking review by the Supreme Court submits a petition to the Court for a writ of certiorari. If at least four justices vote in favor of it, Each year approximately 5,000 petitions are sent to the Court seeking a writ of certiorari.

Less than 5 percent are granted “cert.” 28If the writ of certiorari is denied, the decision of the lower court is sustained. However, a denial of “cert.” cannot be used as evidence of the Supreme Court's opinion on the issue in the case.

The rules of the Court provide general guidelines for accepting or rejecting appeals from lower courts. For example, the Court will likely accept a case for review if there appears to be an error in lower court proceedings, if the issue in the case involves an unsettled question of federal law, or if there are conflicting opinions on the case from the highest state court and a federal court of appeals.

29

According to Rule 10 of the Rules of the Supreme Court of the United States, “A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.” Making decisions about which cases to review, and which ones to reject, is among the most important judgments the Court makes.

These decisions go a long way toward setting the agenda of the Court and determining who will and will not have access to it. Although there are other means by which a case comes before the U.S. Supreme Court, the writ of certiorari is the primary means for bringing a case to the Court for its review and disposition.

At common law, an original writ or order issued by the Chancery or King's Bench, commanding officers of inferior courts to submit the record of a cause pending before them to give the party more certain and speedy justice.

A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce a certified record of a particular case it has tried, in order to determine whether any irregularities or errors occurred that justify review of the case. A device by which the Supreme Court of the United States exercises its discretion in selecting the cases it will review.

27

Nixon Vs. US,506 US 224 Garner v. Louisiana, 368 US 157 29 Baker v.Carr,369 US 186 28

Certiorari is an extraordinary prerogative writ granted in cases that otherwise would not be entitled to review.30 A petition for certiorari is made to a superior appellate court, which may exercise its discretion in accepting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or from an intermediate appellate court to a superior appellate court, is regulated by statute. Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court.

A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court. The petition must specifically state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identifying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute. 31The rules of practice of the appellate court to which the petitioner has applied for relief govern the procedure to be observed. For example, a petition for statutory certiorari made to the Supreme Court of the United States must be prefaced by a motion for leave, or permission, to file such a petition. If a common-law writ is sought, however, the petitioner need only file a petition for certiorari.

After evaluating the petition, the appellate court will decide whether to grant or deny certiorari. Certiorari is issued, designated as "cert. granted," when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so, such as when the issue has been decided differently by a variety of lower courts, thereby creating confusion and necessitating a uniform interpretation of the law. Certiorari is denied when the appellate court decides that the case does not present an appropriate matter for its consideration. In the practice of the Supreme Court, if a petition has been granted certiorari as a result of a mistake, such as where the petitioner misrepresents the case or the case has become moot, the Court will dismiss the petition as "having been improvidently granted," which has the same effect as an initial denial of the petition. Practically speaking, this rarely occurs.

UNITED STATES LAW In the United States, certiorari is the writ that an appellate court issues to a lower court in order to review its judgment for legal error and review, where no appeal is available as a matter of right. Since the Judiciary Act of 1925, most cases cannot be appealed to the U.S. Supreme Court as a matter of right; therefore, a party who wants that court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court.32 If the Court grants the petition (see Procedures of the Supreme Court of the United States), the case is scheduled for the filing of briefs and for oral argument.

Four of the nine Justices are required to grant a writ of certiorari, referred to as the "rule of four." 33The great majority of cases brought to the Supreme Court are denied certiorari (approximately 7,500 petitions are presented each year, but just 80 to 150 are typically granted), because the Supreme Court is generally careful to choose only cases in which it has jurisdiction and which it considers sufficiently important (especially cases involving deep constitutional questions) to merit the use of its limited resources.

30

Powell v.McCormack,395 US 486 Toombs v.Citizens Board of Wynesboro.281 US 643 32 www.wilkipedia.com>U.S laws about writ remedies 33 www.encyclopedia.com>law regarding writ matter in U.S.A 31

The granting of a writ does not necessarily mean that the Supreme Court has found anything wrong with the decision of the lower court. Granting a writ of certiorari means merely that four of the Justices think that the circumstances described in the petition are sufficient to warrant the full Court reviewing the case and the lower court's action. Conversely, the legal effect of the Supreme Court's denial of a petition for a writ of certiorari is commonly misunderstood as meaning that the Supreme Court approves the decision of a lower court.

However, such a denial "imports no expression of opinion upon the merits of the case, as the bar has been told many times." Missouri v. Jenkins, 515 U.S. 70 (1995). In particular, a denial of a writ of certiorari means that no binding precedent is created, and that the lower court's decision is authoritative only within its region of jurisdiction.

Certiorari is sometimes informally referred to as cert, and cases warranting the Supreme Court's attention as certworthy. One situation where the Supreme Court sometimes grants a writ of certiorari is when the federal appeals courts in two (or more) federal judicial circuits have ruled different ways in similar situations, and the Supreme Court wants to resolve that "circuit split" about how the law is supposed to apply to that similar kind of situation. Issues of this type are often called "percolating issues."

STATE COURTS Some U.S. state court systems use the same terminology, but in others, writ of review, 34leave to appeal, or certification for appeal is used in place of writ of certiorari as the name for discretionary review of a lower court's judgment. A handful of states lack intermediate appellate courts; their supreme courts operate under a mandatory review regime, in which the supreme court must take all appeals in order to preserve the loser's traditional right to one appeal.35 However, mandatory review remains in place, in all states where the death penalty exists; in those states, a sentence of death is automatically appealed to the state's highest court.

In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the U.S. for judicial review of decisions made by an administrative agency after an adversarial hearing. Some states have retained this use of the writ of certiorari in state courts, while others have replaced it with statutory procedures. In the federal courts, this use of certiorari has been abolished and replaced by a civil action under the Administrative Procedure Act in a United States district court or in some circumstances a petition for review in a United States court of appeals.

INDIA Under Indian Legal System jurisdiction to issue 'prerogative writs' is given to Supreme Court and High Courts of Judicature of all Indian states. Law relating to the writ jurisdiction is provided in the Constitution of India. Supreme Court of India, which is the apex court in the country, can issue writ under Article 32 of the Constitution. 36While for High Courts, which are the apex court in any state, can issue writ under Article 226 and 227 of the Constitution of India. 'Writ' is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. Constitution of India broadly provides for five kinds of 'prerogative writs', namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as follows: 34

O’Reilly V.Mackman,1982,3 All E.R.1124,1129 Ransom v.Higgs,1974,3 All E.R. 36 Maitland F.D. The forms of Action of Common law, Cambridge University press 35

1.The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. In doing so, the higher court seeks a transfer of the case to itself 2.The writ of habeas corpus means 'let us have the body'. 37 It is a writ issued to a detaining authority to produce the detained person in court to know cause for detention. If the detention is found to be illegal, the court issues an order to set the person free.

3.The writ of certiorari is one of the writs issued by the High Court or the Supreme court to protect the Fundamental rights of the citizens. 38It is issued to a lower court directing it that the record of a case be sent up for review with all the files, evidence and documents with an aim to overrule the judgment of the lower court.

4.The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties.

5.The writ of quo warranto is issued against a person who claims or usurps a public office.

Through this writ the court inquires 'by what authority' the person supports his or her claim.

A writ, direction or order may be issued by the High Court under Article 226 to a person or authority amenable to the Court’s jurisdiction either by residence or location within the State, 39 even if the petitioner and other parties are from other States.

This power can be exercised, under Article 226(2) of the Constitution, though the person or authority is outside the territories in relation to which the High Court has jurisdiction, provided the cause of action arises, wholly or in part, within such territories.

Under Article 226 of the Constitution, the High Court has the power to issue not only writs of certiorari, prohibition and mandamus, but also other writs, directions and orders. In other words, even if the case is one in which a High Prerogative Writ proper as known in England cannot be issued, the Indian High Court has jurisdiction to issue such directions and orders as may be necessary to meet the ends of justice, in respect of administrative action and judicial or quasi-judicial action.

Similar powers to issue writs, directions and orders are conferred on the Supreme Court under Article 32 of the Constitution, but they are restricted to the enforcement of fundamental rights. The fact that an inappropriate writ has been asked for is not a ground for refusing to grant appropriate relief.

Section 293 of this Act cannot override Article 32 or Article 226 of the Constitution, and therefore in appropriate cases writs, directions or orders under Article 32 or Article 226 may be issued even in respect of something “in good faith done or intended to be done under this Act”.

The question of constitutional validity or vires of a provision of the Act has been held by the Supreme Court to be foreign to the jurisdiction of authorities appointed under this Act. 40 Therefore, such questions can be decided only in a suit or a writ petition.

IN INCOME-TAX CONTEXTS The High Court may issue a writ of prohibition to prohibit the income-tax authorities from acting in excess of their jurisdiction, or a writ of mandamus or an order under Article 226 of the Constitution to compel the income-tax authorities to perform their statutory duties or to refund moneys wrongfully recovered from the petitioner.

37

Baker, J.H.An Introduction of English Legal History,Butterworths 1990 Mathen v.Dr.Magistrate of trivandrum 43 C.W.N.981 (PC) 39 Dr.Durga Das Basu and A.K.Nandi, Constitutional remedies and Writs p.14,15 40 Nilima Textile Co.V Punjab Industrial Tribunal, (1957) S.R.355 38

Further, 41the High Court may issue a writ of certiorari to quash quasi-judicial proceedings taken by the income-tax authorities without jurisdiction or in excess of jurisdiction, or to quash an order that is vitiated by an error apparent on the face of the record or which is passed in violation of the principles of natural justice, or to quash a summons or order that has been issued without application of mind. The Court will interfere by a writ if the action is mala fide or arbitrary or does not comply with the statutory requirements, or if the action amounts to merely an exercise in futility.

The remedy under Article 226 by way of judicial review is purely a discretion. Where the petitioner fails to avail of the effective statutory alternative remedy within the prescribed time due to his own fault, he cannot be permitted to seek remedy under Article 226 of the Constitution of India (A.V. Venkateswaran Collector of Customs v. Ramchand Sob raj Wadhwani (AIR 1961 SC 1506).

In Collector of Central Excise v. Dunlop India Ltd (1 SCC 260), the Supreme Court held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the vires of the statute is in question or where private or public wrongs are inextricably linked and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the Constitution. 42A writ will not ordinarily be issued by the Court where the impugned order, not patently erroneous, is made by an authority within his jurisdiction.

However, where the defect of jurisdiction is apparent on the face of the proceedings, or there is an abuse of power, a writ of prohibition or other appropriate writ or order will be issued despite some delay in filing the petition or the existence of an alternative remedy, e.g. the right of appeal.

Likewise, the existence of an alternative remedy is not an absolute bar to the issue of a writ of certiorari and a writ of mandamus would not be refused merely because the assessed could have filed a suit.

43 A writ of prohibition or mandamus may be issued to restrain recovery proceedings in pursuance of an assessment order made without or in excess of jurisdiction, even if such a plea as to jurisdiction was not raised in the assessment proceedings. Where an order is quashed by the Court for a reason other than want of fundamental jurisdiction, in appropriate cases the Court may direct the authority concerned to pass a fresh order.

COURT REVIEW OF ORDER The High Court is entitled to review its order passed in a writ petition. A second writ petition challenging the same order on different grounds would not normally be entertained.

Dismissal of a writ petition by the High Court on merits — whether after contest, or without notice to the other side but by a speaking order — bars a petition to the Supreme Court under Article 32; the only remedy of the petitioner is to appeal against the order of dismissal. If the Court rejects a writ petition at the admission stage or after issuing a rule nisi, it should record reasons for such rejection.

The Madras High Court held in Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376) that the relief under Article 226 of the Constitution of India can be granted in spite of the availability of alternate remedy under the statute, only based on undisputed facts. When the High Court finds that factual disputes are involved, it would not be desirable to deal with them in a writ petition.

PAKISTAN 41

Dr.Durga Das Basu, Constitutionals Remedies and Writs.p.256, Second Edition Opcit,Dr.Durga Das Basu and A.K.Nandi,p.257 43 Ibid p.257 42

Part II Chapter 1 of the Constitution of The Islamic Republic of Pakistan deals with the fundamental rights of a person. 44This part is also called the heart of the Constitution, which provides right to life and liberty, equality before law, freedom of speech and expression, liberty of thought belief and worship, cultural, education, right.

A writ can be filed before High Court or Supreme Court in case of infringement of the fundamental rights under Article 199 & Article 185 of the constitution of The Islamic Republic of Pakistan Supreme Court entertain writ only in those cases where there is violation of fundamental rights, 45however under Article 199 a writ petition can be filed in High Court even in case of infringement of legal rights.

Who can file a writ: Any citizen of Pakistan can file a writ petition, however, a foreigner can also file writ petition for enforcing his right to life and equality before law. Court can also issue writ in the interest of justice and public interest.

Types of Writs in Islamic Republic of Pakistan as follows.

1. Habeas Corpus 2. Mandamus 3. Prohibition 4. Certiorari 5. Quo warranto HABEASCORPUS Writ of Habeas Corpus is sought to enforce the right to life. When the life of a person is in peril this writ is sought. 46Normally this writ is issued in case of illegal detention. This writ can be issued even on a post card sent to the Judge by victim or his relatives.

MANDAMUS Mandamus is sought for direction to the subordinate court/tribunal or government officer to perform mandatory duties correctly. Writ of mandamus is most popular writ, which is issued against the arbitrary, illegal acts of government officials including police officers, municipal bodies etc.

PROHIBITION Prohibition is an extraordinary writ usually sought requesting an order from the Appellate Court that an inferior court tribunal be prohibited from undertaking further action on a case pending before it; commonly know as stay of proceeding.

CERTIORARI Certiorari reviews and quashes the decision of an inferior court tribunal or other statutory body where such decision order is passed in utter violation of principle of natural justice or without jurisdiction. 47This writ is also sought in case of service related matter for quashing the decision of departmental enquiry proceeding and punishment imposed upon the delinquent employee.

44

www.wilkipedia.com>Writ Jurisdiction of Pakistan Constitution Babur Khan, Jurisdiction of High Court Division of Pakistan, NWFP Peshawar 46 www.wilkipedia.com>Writ remedies in Pakistan 47 Balooch v.Pakistan,20 DLR (SC0 249 45

QUO-WARRANTO The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office.

It is issued when (a) the office is of public and of a substantive nature; (b) created by statute or by the Constitution itself, and (b) the respondent has asserted his claim to the office.

Apart from this classification the writ petitions are also divided into two categories according to its nature, Civil Writ Petition and Criminal Writ Petition.

Civil Writ Petition is filed in those case where the issue is of civil nature, ie. Writ for direction to municipal bodies to provide sanitation and water facilities etc. If issue is relating to criminal nature criminal writ is filed, ie. Writ for quashing of FIR, registration of FIR, further investigation of transfer of investigation.

AGAINST WHOM A WRIT CAN BE FILED A writ can be filed only against State and the same is not maintainable against private individual or corporations. However, a private individual or corporation can be a party in the writ partition if relief sought in the writ petition affects his interest.

Who is “State”: “State” 48has been defined under Part III of the Constitution as "the State" includes the Governmental and Parliament of Pakistan and the Government and the Legislature of each of the States and all local or other authorities within the territory of Pakistan or under the control of the Government of Pakistan. All those organizations, organs where, Government has control in the appointment removal of office bearer employees, funding and functions of such authorities. Now the societies registered under societies Act, Universities, Boards etc.are“state”.

GROUNDS FOR GRANTING WRIT A writ is granted when there is violation of fundamental right or legal rights of person and when the inferior court, tribunal, board, or public officer has acted illegally or exceeded its jurisdiction or have no jurisdiction or there is violation of principle of natural justice.

The petitioner has not been grant opportunity to be heard or the allegations against him has not been disclosed to him and there is no other equally speedy and adequate remedy is available.49 Writ of habeas corpus can be filed for illegal detention if a person is illegally detained for more than 24 hours without producing him before a magistrate within 24 hours.

The issues are resolved in the writ when there is only disputed question of law. The issues of pure facts which need trial are not resolved in the writ.The High Court has such jurisdiction as is conferred on them by the Constitution or by law (Art. 175(2) of the 1973 Constitution).

Article 199 of the Constitution of 1973 deals with the extra-ordinary jurisdiction of the High Courts. It provides for the issuing of directions and orders by the High Courts to any person or authority in the country, prohibiting, commanding, calling in question acts done or intended to be done by such person or authority, in specified circumstances.

In fact, the jurisdiction to issue these orders is analogous to the jurisdiction of issuing the well-known prerogative writs, which have not been mentioned by their traditional names of 48 49

Amir Ali , Protection of Fundamental Rights,pp.235 Lahore Press, Amir Ali , Protection of Fundamental Rights,pp.221 Lahore Press,

the writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus. The system of writs derives its origin from Common Law, but since 1938, in England the word “writ” has been replaced by “order” and the same precedent has been followed in the Constitution of 1973. The effect of omission of the traditional names of the writs has been calculated to give to the court a wider scope to issue a particular direction, because the court would not be bound in the issuance of such direction to restrict itself to the rigid rules applicable to prerogative writs.

Extraordinary Jurisdiction Under the 1956 Constitution, the Supreme Court and the High Courts had the power to issue the prerogative writs of mandamus, habeas corpus, certiorari, prohibition and quo warranto; the Supreme Court could issue these writs only to protect a fundamental right, whereas the High Courts could also issue them “for any other purpose”.

The position under the 1962 Constitution was however changed. The basic content of each form of writ has been set out at length in the Constitution itself, probably in order to define with certainty the limits within which the courts could act.

The Constitution of 1973 followed the scheme of the Constitution of 1962 which gave Extraordinary Jurisdiction to the High Courts as follows:- Article 199 Jurisdiction of High Court:- Subject to this Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law(a) on the application of an aggrieved party, make an order(i) directing a person performing within the territorial jurisdiction of the Court functions in connection with the affairs of the Federation, a Province or a Local authority to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, 50a Province or a Local Authority has been done or taken without lawful authority, and is of no legal effect; or (b) On the application of any person, make an order(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office, or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government, exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of part-II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of part II shall not be abridged.

It is clear from above, that without using their technical names, the writs of prohibition and mandamus were provided by Clause (2) (a) (i), the writ of certiorari by Clause (2)(a)(ii),. the writ of habeas corpus by Clause (2)(b)(i) and the writ of quo warranto by Clause (2)(b)(ii) of Article 199. The fact that the writs had not been mentioned by their technical names, has been interpreted by the courts as giving wider jurisdiction to the courts and not restricting them to the limited circumstances in which a particular writ could issue. 51The wide interpretation and liberal attitude of the courts in this respect was indicated in a case where the petition had been 50 51

www.encyclopedia.com>Writ Jurisdiction in Pakistan www.wilkipedia.com>different types of writ matters in Pakistan.

drawn up inartistically and ending abruptly without even a formal prayer; the relief was spelled out by the courts itself by reading the petition in free and liberal manner.

Despite the view of courts that the new jurisdiction under Art. 199 was significantly different from the traditional writ jurisdiction, practice has proved that the courts, whenever called upon to exercise this power, have been dealing with cases as if they were exercising the wellknown writ jurisdiction, partly to maintain the distinction between different classes of cases and partly to enable them to apply the general guiding principles for the issuance of writs, which are fairly settled in relation to each writ. The courts generally follow the well settled writ procedure with a cosmetic change that writs are now termed as “orders�.

ORDER OF MANDAMUS An order of mandamus is a direction issued to any natural person, corporation or inferior court within the jurisdiction of the High Court requiring them to do some specific thing therein particularized, and which appertains to their office of duty. Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law. The person claiming a mandamus, in order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and in the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office. A right found purely on private contract, however clear it might be, is not enforceable by mandamus.

ORDER OF PROHIBITION The Article gives to the High Court jurisdiction to issue an order of prohibition where a Court or Tribunal other than the Supreme Court of Pakistan, the High Court or a Tribunal established under the law relating to Defence Services acts in excess of or without jurisdiction. In case of quasi-judicial proceedings generally an order of prohibition does not issue. 52It is issued only against a Court or a judicial body which though may not be called a Court but has been created specifically under a statute.

ORDER OF CERTIORARI Order of certiorari is of two kinds (1) for removal and adjudication; and (2) for quashing the proceedings. Order will be issued (1) for correcting errors of jurisdiction as when an inferior Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it; or (2) When the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties, to be heard, or violates the principles of natural justice. An order under this article may be issued only to a body acting judicially or quasi judicially because Certiorari lies in all cases where there is a duty to act judicially or where there is a judicial act or order or when the proceedings are judicial or quasi-judicial.

QUO WARRANTO Quo warranto is the remedy or proceeding whereby the Court inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded to have the same forfeited, and to recover it if having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser. Provided it is a substantive corporate office of a public nature, and the person proceeded against is in actual possession and use of the office in question.

WRIT JURISDICTION IN BANGLADESH 52

www.wilkipedia.com>different types of writ matters in Pakistan.

According to the Article-102 of the Bangladesh Constitution (1) the High court division on the application of any person aggrieved, 53may give such directions or orders to any person or authority including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by the part –iii of the constitution.

(2) The High court Division may, if satisfied that no other equally efficacious remedy is provided by law (a) On the application of the any person aggrieved, make an order. (i) Directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by the law to do or to do that which he is required by law to do. (ii) Declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is no legal effect. (b) On the application of any person, make an order (i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in unlawful manner or (ii) Requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

(3) Notwithstanding anything contain in the foregoing clause, 54the High court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

(4) Whereon an application made under clause (1) or sub clause (a) of clause (2) an interim order is prayed for and such interim order is likely to have the effect of (a) Prejudicing or interfering with any measure designed to implement any development programmed or any development work. (b) being otherwise harmful to the public interest, the high court division shall not make an interim order unless the Attorney General has been given reasonable notice unless the application and he has been given an opportunity of being heard, and the high court division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b) (5) In this article unless the context otherwise requires, person includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence service of Bangladesh or any discipline force or a tribunal to which article 117 applies.

Section-491 of the Code of Criminal Procedure: Power to issue directions of the nature of a Habeas Corpus- (1) 55The High Court Division may, whenever it thinks fit, direct(a) That a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law. (b) That a person illegally or improperly detained in public or private custody within such limits be set a liberty: (c) That a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court:

53

The Constitution of the People’s Republic of Bangladesh, 30th may 2000 Modified.p.42 The Constitution of the People’s Republic of Bangladesh, 30th may 2000 Modified.p.43 55 Muhamed Sohul Hussain, Cr..P.C. Today .p283 54

(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such courtmartial or commissioners respectively; (e) That a prisoner, within such limits be removed from custody to another for the purpose of trial; and (2) The Supreme Court may, from time to time, frame rules to regulate the procedure in cases under this section.

(3) Nothing in this section applies to persons detained under any law for the time being in force providing for preventive detention.

Article-44 of Bangladesh Constitution, 56Enforcement of fundamental rights:(1): The right to move the High Court Division in accordance with clause (1) of the article102 for the enforcement of the rights conferred by this part is guaranteed.

(2) Without prejudice the to the power of the High Court Division,under article 102, parliament may by law empower any other court, within the local limits of its jurisdiction to exercise all or any of those powers.

The name of various writ have not been used in Article-102 of Bangladesh Constitution. But true contents of each of the writs have been set out. It was 1962’s Constitution of Pakistan where for the first time a change was introduced in writ matters. Unlike earlier the Supreme Court was not given any original writ jurisdiction. 57Only the High Courts were empowered under Article 98 to issue writs but unlike earlier the particular names of specific writs were not used in wording of this Article. Provisions were made instead where true contents of each of the major writs had been set out in self-contained propositions. As to this change Cornelius, C.J. said Now in Pakistan, we have Article 98 and the ancient names of the writs have been eliminated from the Constitution. Although the categories distinguish themselves easily under those names, and they will always he used with their specific meanings in judgments. In Article 08 true content of each ot the major writs has been set out in the long form of words. The object probably was to attain certainty as to the limits within which the courts may act. Previously, in each case the courts referred to precedents horn England, the United States, India and several other countries. To determine whether they had power to interfere in the case before them. It is perhaps supposed that this may not he necessary now that the powers are stated not by label, hut by full expression. However, it is to he remembered that the earlier precedents will lose their value as guidance. In the new article there are verbal changes in respect of the availability of the writ to public servants, for the protection of their rights in the public service.

Following the instance of the Pakistan 1962 Constitution, the Constitution makers of our country also did not incorporate the specific names of various writs in Article 102 of the Constitution; rather contents of each of the writs have been kept in self-contained provisions.

58 Why have the specific names of various writs been omitted?

Various writs were omitted in 1962 Constitution of Pakistan and the same applies to the Bangladesh Constitution as well. First, in Britain the Administration of Justice 56

The Constitution of the People’s Republic of Bangladesh, modified as 2000,p. 13 Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective, p.374. second edition 58 PLD1964, Journal section, pp74-79 57

(Miscellaneous Provisions) Acts, 1933 and 1938 were passed whereby mandamus, prohibition, Certiorari and quo-warranto were abolished as writs, Of these mandamus, prohibition, and certiorari have been turned into orders and quo-warranto into injunction.

Therefore, in Britain there is only one independent writ and it is habeas corpus. This might have influenced the Constitution makers of 1962 Constitution of Pakistan.

Second, some writs have limited scope in their application. For instance, prohibition and certiorari these—two writs are judicial writs and are applicable only in respect of judicial and quasi- judicial bodies. Thus if the specific names of prohibition and certiorari are used, then the courts will not he able to apply them to control administrative actions for which separate procedure is to he provided for. To avoid these inconveniences the specific names of writs have not been incorporated; rather provisions have been inserted so that the contents of those writs are retained and the control of administrative actions may, as well, be possible by the same device.

Now we will investigate Article 102 of our Constitution to see how the true contents of each of the major writs have been set out in self-contained propositions. As Article 102 proceeds—59 “The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law (a) On the application of any person aggrieved, make. An order — (i) “Directing a person performing any function in the affairs of the Republic or of a local authority to refrain front doing that is not permitted hi law to do.

This italic portion of the section contains the true idea of prohibition. 60Herb “which he is not permitted by law” means that he may be about to misuse or abuse his power or to act in excess of his jurisdiction prescribed by law. Thus in these cases the High Court division, on application, will issue the writ of prohibition with a view to prohibiting or refraining the person from doing that act.

The same sub-Article continues— to do that which he is required by law to do “—this portion. This part of the article contains the true concept of mandamus. “to do that which he is required by law to do” means that he is under statutory obligation to do something but he has refused or failed to perform his obligations. In such case the HCD by issuing the writ of mandamus, can compel the person or authority to perform his statutory obligation. Now the sub-Article 102(2) (a)(ii) proceeds— “declaring that any act done or proceeding taken by a person.

The writ Habeas Corpus directs that a person in custody be brought to court so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Here the very conception of the writ of habeas corpus is hidden. Lastly sub-Article 102(2) (h)(ii) states— ‘requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that of the” this part contains the concept of Quo-warraiito, THE CONCEPT OF AGGRIEVED PERSON 59 60

Ibid-p.375,376 Mahbub Ali Malik V.province of West Pakistan PLD 1963 Lah 575

Under the Article 102 except for an application for habeas corpus or quo warranto a writ petition can be filed only by a person aggrieved. Thus in order to have locus standi to invoke the jurisdiction an applicant has to show that he is an aggrieved party in an application for certiorari, mandamus and prohibition.

The leading English case on 61locus standi is Exparte Sidebotham where the court held that a person aggrieved is a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongly refused him something or wrongfully affected his title to something. From the five writs two can he invoked by any person according to the provisions of Article 102 of our Constitution.

These are writs of habeas corpus is and quo-warranto. But other three writs (prohibition,, certiorari, and mandamus) can be invoked only by an ‘aggrieved person’. 62It is important to mention here that in one sense these latter three writs are most important. Because most of the public authorities, bodies and officials frequently violate law and act in excess of jurisdiction causing repeated suffering to the people and giving rise to huge grounds of application these three writs. But any one cannot apply for these writs due to the following two barricades Firstly, writ powers of the (HCD) is not any discretionary power. As result, it cannot issue writs against any public bodies. 63Secondly, a person cannot apply for these three writs; only an ‘aggrieved person’ has locus standai (right to sue).

A person is said to have locus standi when he is aggrieved by actions or inactions of a public servant or official or authority. Now when a person is said to be aggrieved? A person is said to he aggrieved. (i) When he has suffered a legal injury by reason of violation of his legal right or interest and (ii) when he has shown that he a direct personal interest in the act which he has challenges.

If these two conditions are not fulfilled, the High Court Division will not allow a writ petition. This is why in Bangladesh it is no Possible to file public interest litigation (PIL).This barricade of ‘aggrieved person’ does not, of course, exist in India. Because under Articles 32 and 226 of the Indian Constitution the writ jurisdiction of the Supreme Court and High Courts depends on their discretion. As a result, they can issue suo moto writs even based on a letter or information in a newspaper. Again, unlike ours in Indian Constitution it is not mentioned who can apply for enforcement of fundamental rights and Constitutional remedies.

As a result, any person may file petition for any of the writs and this has made PIL a great success in India.

The first 64reported case on PIL in India is S.P. of India AIR 1982 SF. 149 where Bhagwati case observed—— It may now he taken as well as established that where a legal wrong or injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right and such person or determinate class is by reason of poverty or disadvantaged position unable to approach the court relief, any member of the public can maintain an application an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental rights of such person or persons in the Supreme Court under Article 32.” Justice Bhagwati also described PIL as the strategic of the legal aid movement and he said that it aims at bringing justice within the means of the poor vulnerable masses and helpless victims of injustice.

61

Mahmudul Islam, Constitutional law of Bangladesh, p. 601 second edition.

Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective. P.377 63 S.P. Gupta Vs. India AIR 1982 SC 149 at para 14-16 64 Ibid .p 378 62

It brings justice to the doorsteps of the weak, the unorganized and exploited section of the society who have no access to the courts because of the prohibitive cost of litigation.

Following the footsteps of the Indian Supreme Court, both the Srilanka and Pakistan Supreme Courts, despite the Constitutional limitation are widely allowing PIL. But in our Constitutional system the court confines itself to asking whether the petitioner is an ‘aggrieved person’ -a phrase which has received a meaning and dimension over the years. No doubt, it is a Constitutional rule, as the expression, ‘any aggrieved person’ is worded, that the petitioner must be an aggrieved person for the enforcement of his rights.

But who is an aggrieved person? When can a person be said to he aggrieved?——All these are questions to be decided and explained by the judges themselves. Here is the sphere where judges can launch their contribution to the development of judicial review. The court can explain a word e.g. the ‘aggrieved person’ either in liberal sense or in narrow senses. 65To be mentioned here that the concept of ‘aggrieved person’ has much wider consideration in the present Constitutional jurisprudence than the old 19th century’s conception. During the 19th century, these words were construed very restrictively in Britain. It was said that a man was not a ‘person aggrieved’ unless he himself had not suffered particular loss in that he had been injuriously affected in his money or property rights. But in 1957 in a case Lord Justice Parker and Lord Denning departed from this old conception. It was Blackburn Cases which extended the concept of ‘aggrieved person’ and particularly the scope of locus standai.

In one of these Blackburn cases Lord Denning stated the liberal concept of ‘aggrieved person’ “regard it as matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law or is about to transgress in a way which offends or injures thousands of her Majesty’s subjects then any one of those offended or injured can draw it to the attention to the courts of law and seek to the law enforced and the courts in then discretion can grant whatever is appropriate.”

Finally, he says about locus standi — “But I do not think grievances are to be measured in pounds shillings and pence. 66If a rate-payer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the court is not to he put off by the plea that he has suffered no damage.

The court will not listen to a busy body who is interfering in things which do not concern hint, But it will listen to an ordinary citizen who comes asking that the law should he declared and enforced, even though he is only one of a hundred or one a thousand or one of a million who are at located.

Following the decision of these Blackburn cases in England new Rules of Court were brought into force in 1978 providing for that applicant having a sufficient interest’ in the matter to which the application relates will he considered as aggrieved person (Order 53 of the Rules of the Supreme Court).

Thus, in today’s world, revolutionary changes are taking P11cc in the judicial process and the problems of the deprived section of the community are coming on the forefront. The courts in various countries have to in to at methods and devices, new strategies for the purpose of providing access to justice to large masses to peoples who are deprive ed and to whom freedom and liberty have no meaning. Considering all these developing judicial trends the 65 66

R. V. Blackburn (1973) QB 241 R. V. Commissioner of police of the Metropolis

Supreme Court of Bangladesh should expressly come forward to allow P1L. In favor of liberal interpretation of the earn “aggrieved person” some more important points should he mentioned—— Article 102 of our Constitution uses the term ‘any person aggrieved. It does not use the the expression as aggrieved party or any person personally aggrieved. Srilanka and Pakistan these two neighbouring countries have, althouth they have same constitutional constraints as we have in our Constitution, already overcome the barricade of aggrieved person, they are now widely allowing the Public Interest Litigation. (PIL) Besides the question of locus standi and procedural rules there is yet another aspect of public right which need special mention. 67In the increasing and expanding role of the state in socioeconomic activities public are affected by the legislative and executive action. It often involves public money. Sales or purchase with public fund. State purse as well as the state sales are used for political or personal gains. This also breads corruption and nepotism.

From political side, there is neither any provision individuals responsibility of ministers nor strong committee system exists in Bangladesh. This has resulted in uncontrolled corruption and nepotism iii every department of the government. In such a situation if the highest court, the supreme object and functions of which are to protect fundamental rights and to control the arbitrary actions on the part of the government, does not come forward from within its possible hounds, then promises of the people of equality, justice, rule of law etc. as enshrined in the preamble to the Constitution will remain as meaningless versions.

BREAKING THE BARRICADE As to the issue of ‘locus standai’ and ‘aggrieved person’ which issues knocking the door of the Supreme Court for nearly a decade Justice Mustafa Kamal commented in I 994. 68‘But the emerging trend of constitutional litigation is that is not only the person whose interest is adversely affected by an ‘order of a public who is coming to the court to seek redress, but also other persons, voluntary societies, representatives organizations, trade unions etc. Lastly, Our Supreme Court has come forward to untie the knots of procedural technicalities in respect of locus standi and respond to the loudly raised voice for access to justice.

It was the case of Bangladesh Environmental lawyers Association (BELA) Chairman Dr. Mahiuddin “Farooque VS. Bangladeshi (Civil Appeal No, 24 to’ l995)I where the Supreme Court extended scope of not jurisdiction through which voluntary society, representative organizations,trade unions and constitutional activists and individuals having no personal interest in the case would be able to test the validity of a law or an action of the executive affecting public interest. 69We hope that this judgment will act as a beacon—light for future initiation of PIL in Bangladesh, which can ultimately pave the way for ensuring social justice and legal aid to all.

It is, of course pertinent to mention here that in Bangladesh the first challenge to the concept of locus standai was thrown in the case of Kazi Mukhlesur Rahman V. Bangladeshi 26 ILR (Al)) 44 But the implications of this decision have not yet been fully grasped, for there has been no follow-up of the decision, either from the Bar or from the Bench, blossoming the decision in varied directions. However After 22 years of this decision allowing PIL our Supreme Court has again moved towards the positive turn of PIL In Dr. Mahiuddin Farooques case.

67

Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective. P.380 Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective. P.381 69 Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective.p.382 68

PROCEDURE AND PLEADING OF WRIT REMEDIES A proceeding under all 102 is either a civil or a criminal proceeding depending on the nature of the case. The proceedings in certiorari, prohibition, mandaus, quo warranto are civil proceedings while habeas corpus is treated as criminal proceeding. Under article 107, subject to any law made by parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court.

70 No rule regarding the procedure in the writ jurisdiction has been made under art 107. In exercise of the power under the High Courts (Bengal) order, 1947, certain rules were made and published on 23 December 1958 regarding writ petitions under art.170 of Pakistan constitution of 1956. By virtue of Section 24 of General Clauses Act, 1897 those rules are applicable in respect of the writ petitions under art. 102 of the Constitution. For writ petitions other habeas corpus the provisions of the Code of Civil Procedure may apply in respect of matters not covered by the High Court Rules of 1960, by virtue of section.117 of the code of civil procedure.

In Moni Begum v. RAJUk the Appellate Division found the proceedings in the writ jurisdiction to the civil proceedings, but having regard to the summary nature of the proceedings held that s.141 of the Code would not in terms apply.

The court observed the Court in its discretion can apply the principles as distinguished from the technical provision of the Code of Civil Procedure to meet the exigencies of the situation in appropriate cases on the ground injustice, equity and good conscience. 71In what situations the principles will he applied and to what extent may perhaps be left to the wise discretion of the Court itself. In other words, barring what is specifically provided tar in the Rules themselves, the Court is the master of its own procedure and it will exercise both its procedural and substantive discretion only on the ground of justice, equity and good conscience.

The High court, however, cautioned against steps which would destroy the Summary nature of the proceeding and turn it into a proceeding like a suit by lavish use of the provisions of the Code.

The High Court Rules provide that an application for a writ other than a writ of habeas corpus shall be made in the form of a petition setting out in numbered paragraphs the statement of facts and the grounds on which the writ is prayed for and shall be affirmed on oath by the petitioner himself. The rules relating to an application for writ of habeas corpus also require that the application shall be verified by affidavit,72 but are silent as to who has to affirm the affidavit. As a matter of practice, affidavit by the petitioner is required and the petitioner has to be a person who is close in relationship with the detenu to know the circumstances in which the detenu has been detained.

The rules further provide that “all questions arising for determination of such petitions shall be decided ordinarily upon affidavits. But the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and make such orders as may appear to it to be just.� Thus the rules contemplate a situation where the court may in the interest of justice feel the necessity of taking oral evidence. In J.T.O. v. M/S Seth Brothers where serious allegations were made, the Indian Supreme Court held that the High Court has power to take 70

Mahmudul Islam, Constitutional law of Bangladesh, p.589, Mullick brothers, second edition.

Hussain Baksh v. Settlement Commr, 21 DLR (SC) 456, 72 Mahmudul Islam, Constitutional law of Bangladesh, p.590, Mullick brothers, second edition.

71

or call for appropriate evidence at any stage of the proceeding when such a course appears to it to be essential for a just decision of the case and the exercise of such power is certainly called for where it seems necessary for the protection of the court against any fraud or deception attempted to be practiced upon it.

We have come across cases in which a public authority detained persons without serving the order of detention and the court had been reluctant to issue a rule a without proof of detention. Personal liberty is a precious thing and it cannot be jeopardized by the simple device of not serving the detention order.

Where a person sufficiently close to the detenu comes and alleges illegal detention by affirming an affidavit, the court may ask the respondent to admit or deny the fact of detention and, if necessary, take oral evidence to ascertain whether the detenu has at all beeii arrested and detained. In one case, the detaining authority’ claimed that the detenu escaped from custody and the court required the PLEADINGS AND PROOF As regards pleadings, the principles of Order VI of the Code of Civil Procedure will be applicable and all necessary facts are to be pleaded. As the dispute is to be decided mainly on affidavit, it is necessary to state the essential facts to make out a case for interference and except for mentioning the grounds, the statements need not be argumentative. The pleading must be straight and clear. The same rule applies in respect of affidavit-in-opposition.

Though a it petition is expected to be precise, mere wrong mention of the law in lie cause title or a mistake in framing the relief sought will not render lie writ petition liable to be thrown out. 73While in suits the plaint and he written statement should contain only facts and not evidence, in the writ petition and the affidavit-in-opposition not only facts but also the evidence in proof of the facts need be pleaded and annexed. If fraud or malafide is pleaded, the burden of proving it is on the person pleading. 74All necessary particulars constituting such fraud malafide must be given and once one kind of malafide is alleged, the petitioner cannot be allowed to prove another kind of mala fide.

The person against whom an allegation of fraud or malafide is made must be impleaded as a respondent. Where a specific allegation of fraud or malafide is made against a public functionary and the allegation is of such nature that it can be controverted only by that public functionary, he must himself controvert the allegation, and otherwise the court will be entitled to act on the allegation of fraud or malafide.

Specific particulars must also be given in support of an allegation of arbitrary exercise of or individual discrimination’. Statement of facts made in the petition should be conterverted in the affidavit-in-opposition. If any averment is not Controverted in the affidavit-in-opposition, the court is to proceed as if such averments have been admitted by the respondent. Fact asserted in the affidavit-in-opposition, if not controverted by an affidavit-in-reply, shall be deemed to have been admitted. As in a suit, pleadings in the writ jurisdiction may be amended within the limits permitted by Order.6 rule .17 of the Code of Civil Procedure and in allowing the amendment the court will see that the other party is not prejudiced. 75A petition cannot be allowed to be amended so as to give it a new and altogether different complexion. The court should ordinarily insist on the parties 73

Mahmudul Islam, Constitutional law of Bangladesh, p.591, Mullick brothers, second edition.

Mohsin Sharif V. Bangladesh, 27 DLR 186 75 Mahmudul Islam, Constitutional law of Bangladesh, p.592, Mullick brothers, second edition.

74

being confined to their specific written pleadings and the parties should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment.

The burden of proof is primarily on the petitioner who is required to bring sufficient materials on record in support of his case. Like the presumption of constitutionality of law, there is a presumption that official business has been regularly performed and the burden to prove the contrary is on the petitioner. Where both the sides have led evidence in support of their respective cases, the question of onus of proof fades into insignificance and the court is to take decision on the preponderance of evidence. In the absence of relevant and reliable materials on both sides, the court may, in certain circumstances, come to a finding as to whether the impugned action is arbitrary or not.

AFFIDAVIT As the petition is to be disposed of on affidavit, it is necessary to comply with the provisions of Or.XIX of the Code of Civil Procedure, particularly those relating to verification. 76Any affidavit not complying with those provisions are not acceptable.’ If necessary the court may require the deponent to present himself for cross examination by the other side. The affidavit is to be sworn by the person who has knowledge of the facts or who is acquainted with the fact on information received from reliable source. If the averment is not based on personal knowledge, the source of information must be disclosed. However, a person other than the writ petitioner can affirm affirm affidavit only with the leave of the court producing either letter of authority power of attorney from the writ petitioner.

NEW PLEA A petitioner will not ordinarily be allowed to raise a new plea before the High Court Division which was not raised before the inferior tribunal, particularly when it is a question of fact or a mixed question of fact and law except in special circumstances. Further, a petitioner will not be permitted to travel beyond his pleadings. 77But a plea though not taken in the petition may be allowed to be urged if it is specifically taken in the affidavit-in-reply giving the respondent sufficient notice of it. A new plea is also allowed to be taken when it had gone to the root of the matter or was otherwise of considerable importance or had something to do with interpretation of statute.8 This limitation does not apply in the case of a point of law which does not require ascertainment of facts.

PARTIES IN THE PROCEEDING A writ petition must be filed by the person aggrieved’ and he must affirm the affidavit unless for special reasons the court allows any other person to affirm it.

An aggrieved person may, 78however, have the petition filed or the affidavit affirmed by his constituted attorney. Ordinarily, two or more persons cannot join in a single petition to enforce separate claims or challenge separate orders. But where the right to relief arises from the same act or transaction and there is a common question of law or fact, or where, though the right to relief claimed does not arise from the same act or transaction, the petitioners are jointly interested in the causes of action, one petition is maintainable at their instance.

Where the claims of the petitioners are separate and independent, they may be required to pay separate court- fees. All persons, who may be directly affected in the event of the writ being issued, are necessary parties and they must be impleaded as issuance of writ in the absence of 76

Mahmudul Islam, Constitutional law of Bangladesh, p.592, Mullick brothers, second edition.

Ibid p.593.

78 Mahmudul Islam, Constitutional law of Bangladesh, p.594, Mullick brothers, second edition.

77

such persons will be a violation of the principle of natural justice. A writ petition will not fail for a mere misdescription of a necessary party.7 Rule 9 of the High Court Rules provides that if at the hearing of the petition the court is of the opinion that a person who ought to have been served with the notice of the petition has not been so served, the court may order that notice be served on such person and adjourn the hearing upon such terms as it thinks proper.

In one case in which an order of compulsory retirement was challenged, the High Court Division while making the Rule absolute made a finding of malafide against the Minister-incharge who was not a party to the proceedings and then issued a suo moto Rule upon the Minister to show cause why he should not pay a cost of Tk.1O,000/- to the petitioner. After hearing, the court made the Rule absolute. The Appellate Division held that if the High Court Division wanted to proceed against the Minister, r.9 of the High Court Rules ought to have been followed. Malafide cannot be found against a person without impleading him in the petition and the Appellate Division quashed the observation than relating to malafide. The Appellate Division further held that upon disposal of the petition the High Court Division became functus officio and had no legal authority to issue the suo moto Rule s Inch was issued as a ‘belated attempt to regularize the irregular procedure followed in disposing of the writ petition.” When a petitioner does not implead a necessary party the writ petition is liable to be dismissed for defect of parties.’

Where, however, the number of affected , parties is too large to be impleaded as respondents individually, it would It permissible to have at least some of them impleaded as respondents it representative capacity. A question arose whether the provisions of order I rule 8 of the Code of Civil Procedure relating to representative nit could be availed of in the writ jurisdiction.

Upon a view that the ode is not applicable in respect of writ petitions the High Court of East Pakistan answered the question in the negative.

But in Hussain Baksh Settlement Commissioner 79 it was held that the provisions of the Code are applicable in writ petitions as these are civil proceedings. In General manager, South Central Rail way v. Siddhanti the Indian Supreme (‘Court held that non-impleading of affected parties was not fatal when the validity of the policy decision of the Railway Board regulating seniority of staff was challenged on the ground of violation of fundamental right and relief was claimed against the Railway. If a party impleaded is not a necessary or proper party, the court may strike out his name and in a proper case the court may in its discretion add or implead proper parties to decide all questions that may be involved in the controversy either suo moto or on the application of any party. On the question of addition of party on an application, the Appellate Division observed, “The scope and purpose of a writ petition are manifestly different from a civil suit The principle relating to addition of party in a civil suit are not protanto applicable to a writ petition. 80Ordinarily the aggrieved person seeking relief under Article 102 has the right and duty to choose his adversaries and a respondent cannot thrust another into that category whom the writ petitioner does not want, may be to his peril.”

AWARD OF COST The court in disposing of a writ petition can award cost in appropriate cases. In awarding cost, the court must give some reason, otherwise it may appear to be arbitrary. Imposition of a huge cost against the petitioner is not justified when the petition is dismissed in limine and no reason for awarding the cost is given. When respondent auction purchaser suffers loss for 79 80

Mahmudul Islam, Constitutional law of Bangladesh, p.594, Mullick brothers, second edition.

Mahmudul Islam, Constitutional law of Bangladesh, p.595, Mullick brothers, second edition.

not being able to take delivery of goods auction sold due to the action of the petitioner, the High Court Division awarded substantial cost to the auction purchaser.

DISMISSAL OF THE PETITION If a petition has been dismissed for default of the petitioner or has been allowed ex-parte, the principles of Or.IX of the Code of Civil Procedure may be applicable and in an appropriate case the court may restore the petition or, as the case may be. re-hear the petition. Where the application prima .facie discloses a case for interference the court should not summarily dismiss the application.6 In dismissing an application whether summarily or upon hearing all the parties, the court should give reasons for the order. 81 If the respondent has not controverted the averments of the petition and has not even resisted the same, dismissal of the petition is not proper. Where the petitioner has withdrawn his petition without taking leave of the court to file a fresh petition, he cannot file a fresh petition.

COMMISSION In appropriate circumstances, the court may issue a commission for ascertaining facts as provided by Or. XXVI of the code of Civil Procedure. The Indian Supreme Court issued commission. when there was serious allegation of violation of fundamental rights in life and personal liberty of citizens.

RES JUDICATA A decision given in a writ petition or suit between the same parties on an issue, operates as res-judicata and no fresh petition or suit can be brought to re-agitate the issue. When the plaint of a suit in respect of an election dispute has been rejected holding that the election tribunal has the exclusive jurisdiction, a writ petition. 82Can not be maintained for deciding that election dispute.41n the same way lie principle of constructive res-judicata will be applicable. When a decision has been given on merits, a second petition will not lie on a plea which was available at the hearing of the first petition but was not taken.

On the same principle a relief which was prayed for but not ranted will be deemed to have been denied. When a proceeding stands terminated by a final decision in a writ petition, the court cannot re-open the proceeding by means of a miscellaneous application in respect of a matter which provides a fresh cause of action. But the principle of res judicata will not be applicable if the petition is dismissed as being withdrawn or has not been dismissed on merits8, or if’ the petition is rejected on the ground of lack of standing, or on the ground of availability of efficacious remedy’° or where the statutory provision on the basis which the previous decision was given has been materially lied’. The previous decision will not also be a res judicata when the mid petition is brought on a different cause of action.

FUTILE AND PREMATURE WRITS The court will not issue a writ subject is here it will be futile. Thus though the cancellation of a contract was malafide illegal, the Indian Supreme Court in Guruswamy v. Mysore instead of issuing the writ awarded cost to the petitioner as in the meantime the period of the contract expired. 83An Act will not be declared void if during the pendency of the proceeding the Act has been repealed.”

81

Ibid, p.596, Mullick brothers, second edition.

Mahmudul Islam, Constitutional law of Bangladesh, p.597, Mullick brothers, second edition.

83 Mahmudul Islam, Constitutional law of Bangladesh, p.598, Mullick brothers, second edition.

82

When the validity of an Ordinance was challenged on the ground that there was no emergent situation necessitating promulgation of the Ordinance, the Appellate Division declined to go into the question as in the meanwhile it was replaced by an Act of Parliament. The Pakistan Supreme Court held that the court would not grant a writ when the law gives power to one of the parties affected by the writ to nullify the courts writ unilaterally.

POWER OF REVIEW The Constitution has not specifically conferred power on the High Court Division to review its own judgment. 84The question is whether such a power is available to the High court division under the provisions of section.114 of the Code of Civil Procedure.

The Pakistan Supreme Court answered the question in the alternative’ In Ara Zatnan v.

Bangladesh the High Court Division held that it cannot review its judgment in writ jurisdiction. The view of the court that a proceeding in the writ jurisdiction cannot be safely and exclusively called a civil proceeding really avoided the real issue. The Pakistan Supreme Court pointed out Whether a proceeding is civil or not depends on the nature of the subjectmatter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought is to he enforced by having recourse to the writ jurisdiction.

The High Court Division found inconsistency in Hussain Baksh as the Pakistan Supreme Court found the power of review in writ jurisdiction even after holding that the right of review is a substantive right which is a creature of statute. It is submitted that there is no inconsistency in Hussain Baksh inasmuch as the Pakistan Supreme Court found the power by reference to ss. 114 and 117 of the Code only after finding that when matters of civil nature are dealt with in the writ jurisdiction, it is a civil proceeding.

COURT-FEES AND COSTS The High Court Rules have provided for court-fees for the petition and for annexing documents and have left the matter of awarding cost to the discretion of the court. But the rules are not detailed. For matters not covered by these rules resort must be had to the provisions of the Code of Civil Procedure. The court in disposing of a petition may award cost. 85Rule 15 describes the expenses which may be included in the cost. The court has the discretion in awarding cost. But such discretion must be exercised judicially and in accordance with law and practice of the court. The court does not award cost against a person who is not a party to the proceeding, but in view of the language section.35 of the Code of Civil Procedure, 86the court may award cost even against stranger to the proceeding provided he is given an opportunity of being heared. Such a hearing must be given in the proceeding itself by starting a separate proceeding after disposal of the writ proceeding.

DIFFERENT TYPES OF WRIT There are five types of writ which are details described as follows.

84

Ibid, p.599, Mullick brothers, second edition.

Mahmudul Islam, Constitutional law of Bangladesh, p.600, Mullick brothers, second edition.

86 Ibid, p.601, Mullick brothers, second edition.

85

1. WRIT OF HABEAS CORPUS 2. WRIT OF MANDAMUS 3. WRIT OF PROHIBITION 4. WRIT OF CERTIORARI 5. WRIT OF QUO WARRANTO WRIT OF HABEAS CORPUS The word ‘habeas Corpus’ means “have his body’. To have the body before the court. So it is a kind of order of the court that commands the authorities holding an individual in custody to bring that person into court. The authorities must then explain in the court why tile person is being held. The court can order the release of the individual if the explanation is unsatisfactory. 87Thus the writ of ‘Habeas Corpus’ is a process for securing the personal liberty of the subjects by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. 88This writ is the most important weapon forged by the Ingenuinity of man to secure the liberty to the individual.

There is no judicial process more familiar or important than this. Lord Acton points out that it is often said that the British Constitution “attained its find perfection in 1679 when Habeas Corpus Act was passed”.

This is a British Law for the protection of liberty of a subject against his illegal detention in public or private custody since 1640. The King's Bench issues writ of habeas corpus to examine as to whether a person was illegally detained in custody.

Under sub-clause (i) of clause (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 is being held in custody with or without lawful authority. If the Court finds that he is being illegally held in custody by the authority, it then can declare the same to be without lawful authority. 89Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a write of habeas corpus to bring before it a person detained in public or private custody in order to see as to whether he is being detained illegally or improperly. If the High Court Division finds that such a person is being held in custody, illegally or improperly, it then directs the detaining authority or person to set him at liberty.

Art. 102(2)(b)(i) invests the High Court division with power and obligation to issue a writ in the nature of habeas corpus when a case of unlawful detention is made out. 90It provides that on the application of any person the court may direct the person having custody of another to bring the latter before it so that it can satisfy itself that the detenu is not being held in custody without lawful authority or in an unlawful manner. The expression ‘custody’ is not confined to executive custody4 and includes custody of private person also. The High Court Division has power to issue the order of release of a person in custody under section-491 of the Code of Criminal Queen vs. Mawr & Justices of Bodin. [1892] 2 QB 21: I).

87

Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh perspective. P.370 Zabrisky V.General Officer 1974 ALL C246 Quted by Pirzada.p435 89 Mahmudul Islam, Constitutional of Bangladesh,p.535 90 Mahmudul Islam, Constitutional law of Bangladesh, p.535 second edition.

88

But this power is hedged with limitation and can be taken away or curtailed by ordinary legislation. In codifying the writ of habeas corpus, the framers of the Constitution have freed the jurisdiction from any limitation and have conferred wide power of judicial review which can in no way be curtailed by any legislative device.

An application91 for habeas corpus can be made by any person who need not be a person aggrieved, We may note here that for enforcement of all fundamental rights the application has to be filed by an aggrieved person and apparently when the detention of a person is challenged as violation of fundamental right guaranteed by art.32 or 33 the application has to be filed by an aggrieved person but the application can be filed by any person if the violation of fundamental right is not alleged or involved.

All illegal detentions by public functionaries involve in fragment of fundamental rights guaranteed by arts. 31,32 or 33 and as such the jurisdiction to issue the writ of habeas corpus shall have to be understood with particular reference to these articles of the Constitution.

Speaking about this constitutional power, D.C. Bhattacharya J observed The Constitution having highlighted the rule of law and the fundamental human rights and freedom in the preamble of the Constitution, and personal liberty being the subject of more than one fundamental right as guaranteed under the Constitution, a heavy onus is cast by the Constitution itself upon the authority, seeking to take away the said liberty on the avowed basis of legal sanction, to justify such action strictly according to law and the Constitution.

Abdul Baqui Balooch Vs. Pakistan, the Pakistan Supreme Court related this position in law and referring to the expressions ‘without ,,willful authority’ and ‘in an unlawful manner’ observed in West Baluchistan v. Beguni Shorish Kashniiri, “The Constitution, it appears, ,its a heavy responsibility upon the court to satisfy itself with regard to the these two matters.” 92 The Appellate Division affirmed this position a law, while interpreting the nature and extent of the power of the High court Division under art. 102(2)(b)(i) and held that though a statute may e power to the executive authority to detain a person if in the opinion the authority the condition for the exercise of the power under the title is fulfilled, the authority must have such materials before it as satisfy a reasonable person to come to the conclusion which has ‘en reached by the authority and the authority must disclose the ii aerials upon which it has so acted in order to satisfy the court that has not acted in an unlawful manner.

Now the question is what is meant by the expressions ‘without lawful authority’ and ‘in an unlawful manner’. 93According to Hamoodur Rahman J. “It is agreed that within lawful authority will he comprised all questions of vires of the statute itself and of the person or persons acting under the statute, i.e. there must be a competent law authorizing the detention and the officer issuing such an order must have been lawfully vested with the power”, while “in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law.” The same view has been expressed by the .appellate Division in Abdul Latif Mirza v. Bangladesh.

But art. 102(1) makes specific provision for judicial review of legislation so that the question of virus of a statute need not always be covered in an inquiry as lawful authority’ which will cover the question whether the authority competent under a statute to detain a person and the 91

Mahmudul Islam, Constitutional law of Bangladesh, p.542 second edition.

Mahmudul Islam, Constitutional of Bangladesh,p.537 93 Ibid.p537 92

authority having competence all other questions relating to the exercise of the power be covered in an inquiry as to ‘unlawful manner’. This distinction, however, is insignificant as it does not make any difference in the power the High Court Division.

In stating what will bean unlawful action, Mahmudur Rahman Justice stated, Law here is not confined to statute law alone but is used in generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. 94It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American ‘due process’ clause in a new garb. It is in this sense that an action which is malafide or colorable is not regarded as action in accordance with law. Similarly, action taken upon no ground at all or without proper application of mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner.

In another case the Indian Supreme Court observed that the court has to consider the legality of the detention of the date of hearing and if on the date of hearing it cannot be said that the detenu is wrongfully deprived of his personal liberty the writ cannot issue. But the Pakistan Supreme Court held that the court will have to consider the legality of the detention as on the date of commencement of the detention. In Ghulam Jilani v. West Pakistan it was held that if the initial detention is illegal, the illegal detention cannot be continued by a subsequent valid and legal detention order. Having regard to the provision of art.2 of the Pakistan Constitution of 1962 (which is now incorporated as a fundamental right in art.3 1 of the Constitution) the Pakistan Supreme Court was correct in taking this view and the Appellate Division has taken the same view.

It has been noticed that to avoid the difficulty, the detaining authority often cancelled the initial detention order and passed another legal order claiming that the subsequent order of detention was an independent detention order and the question turned on whether the subsequent order was at all an independent order or not. In Abdul Latif Mirza ’. 95Bangladesh the period of detention ordered by the Deputy Commissioner expired and two days thereafter a fresh order by the government was served. The detention for the intervening two days was illegal.

But the court rejected the plea, stating -We cannot take a too technical and legalistic view on one of the most cherished fundamental human right, that of liberty of an individual We, therefore find that an illegal order of detention cannot be continued by a subsequent order of detention even though the latter is otherwise valid. An illegal detention equally cannot be continued by an alleged independent valid order of detention, if it, in effect, continues an illegal detention The order of the Government is no doubt an independent order, but it purported to continue the earlier detention. The detenu was not released on the expiry of thirty days of the order of the Deputy Commissioner. He continued in detention without any order whatsoever, and so his detention became an illegal detention, after the expiry of the thirtieth day. The Government continued this illegal detention by its order of 24.5.74. The order is independent but detention is not. ‘There is no correlation between an independent order and the fact of independent detention. The order of detention purporting to continue an illegal detention cannot he sustained.

94 95

Mahmudul Islam, Constitutional of Bangladesh,p.539 Opcit 540

It is submitted that the majority view is correct and rightly points out that a technical and legalistic view cannot be taken in respect of one of the most cherished fundamental rights. In a habeas corpus proceeding, the court is concerned with the detention and looks at the detention order only to determine the validity of the detention as has been very clearly found by the court in Sajeda Parvin v. Bangladesh. Unless the detenu is released actually and not merely on paper, a subsequent order of detention howsoever independent in fact continues the detention which is found.

If the minority view is adopted a citizen can be treated otherwise than in accordance with law and the illegal detention can be continued in fact by terming the latter order to be an order independent of the illegal order and the rule of law will be undermined.

In Abdul Baqui Balooch v. Pakistan,96 the Pakistan Supreme Court, while dealing with the contention of the government that the validity of a detention today has to be judged on the basis of the altered law, observed, “... a law is not to be given retrospective effect unless it is expressly or by necessary intendment made retrospective.

An application for habeas corpus can be made by any person, who need not be a ‘person aggrieved’. We may note here that for enforcement of all fundamental rights the application has to be tiled by an aggrieved person and apparently when the detention of a person is challenged as violative of fundamental right guaranteed by art.32 or 33, the application has to be filed by an aggrieved person, but the application can be filed by any person if violation of fundamental right is not alleged or involved. It is very difficult to accept a contention that the condition for enforcement of the fundamental right relating to personal liberty is more onerous than the condition for issuance of an ordinary writ of habeas corpus. A reasonable and harmonious interpretation should be given and it should be taken that the requirement of a ‘person aggrieved’ to apply for the enforcement of fundamental rights is not applicable in respect of a petition involving detention of any person. 97In fact, the courts have not insisted on an application by an aggrieved person even though the petition for habeas corpus alleged violation of fundamental rights.

The next inquiry is whether the detaining authority acted within the limits and fulfilling the conditions of the law. A preventive detention law authorizes public functionaries to order detention of a person on being satisfied or on having formed an opinion that the detention is necessary to prevent the person from doing certain acts specified in the law. This satisfaction or opinion must be based on materials. If it is found that the detaining authority has acted mechanically without applying its mind to the question, the detention will be found invalid.5 When the detention order did not mention that the detention of the detenu was necessary to prevent him from doing any prejudicial act, the detention was held to be without any legal authority.98 the facts and materials must co-exist with the order of detention and the has them.

Mohammad Vs. Bangladesh, 47 Ill Il 350 (A writ of habeas corpus will not he maintainable here the detention order can be passed hut the person concerned has not been detained) However, it is not every detail in the possession of the government in respect of a detenu that must be cited in the grounds furnished. It is not the intention of the Constitution that the grounds to be furnished should be set out with particularity and exactness of a charge of a 96

Mahmudul Islam, Constitutional of Bangladesh,p.542 20 DLR (SC) 249, 259 98 Mahmudul Islam, Constitutional of Bangladesh,p.545 97

criminal trial. The document containing grounds must be construed as a whole. It is a fundamental mistake to make a dissection of the grounds which is a composite piece and then to analyze them in isolation finding fault with each dissected part. For failure to procure sufficient quantity of paddy from the Union, its Chairman was detained under the Special Powers Act, but the court held that any activity which may prejudice the supply and services essential to the community did not include the failure to procure paddy and declared the detention to be unlawful.

This maybe a correct proposition when it involves minor offences. But where the specific case involves a serious offence and the nature of the act is such that the detaining authority acting reasonably may form an opinion that it is necessary to detain the person to prevent him from doing prejudicial acts, the detention may not be unlawful. Thus if a man is involved in a number of cases of rioting with deadly weapon. it may be the basis of a valid detention order even though a specific case has been started.

When an order of detention is challenged, the burden of proof that the detention is valid is on the State which has to be discharged by an affidavit and producing the materials. If no affidavit is filed controvert the allegations made in the writ petition, the State will be taken to have failed in discharging the burden. But if it is manifest from the writ petition itself that the cause or the manner of detention stands adequately explained and justified on the face of it, the State may not file an affidavit and may support the detention orally relying on the writ petition.

In exercising the power under art.l02(2)(b)(i) the court is concerned with the detention of the detenu and the court will examine the detention order to find out whether the detention is valid. Thus 99the writ will lie when the detention continues even after the period mentioned in the detention order has expired. Where the detention order under challenge becomes stale with the lapse of time or is withdrawn and the detention is continued by a fresh order, it is not necessary to file a fresh application challenging the subsequent detention order as the The petition is maintainable so long as the detention continues whether tinder the impugned order or under any subsequent order.’ A habeas corpus proceeding is not maintainable if the person concerned has been pleased. But a certiorari proceeding is maintainable after release from detention for declaration that the order of detention was without lawful authority.

WRIT OF MANDAMUS Literally the term ‘mandamus’ means ‘we command’ and reminds one of the times when the king of England “as the autocratic head of a vast administrative system had occasion to mandamus his subjects many times in the course of the day”. 100 In Halsbury’s Laws of England’ mandamus is described as follows The order of mandamus is an order of a most extensive remedial nature, and is in form, a command issuing from the High Court of Justice directed to any person. Corporation or inferior tribunal, requiring him or them to do some particular thing therein specibed which appertaining to his or their office and is in the nature of public duty.

99

Mahmudul Islam, Constitutional of Bangladesh,p.545 Md.Abdul Halim, Constitution, Constitutional law and Politics, Bangladesh perspective.p371

100

101

Thus it can he said that when a court or tribunal or an authority or a person has refused or failed to perform his statutory obligation, it is the writ of mandamus by which the higher court can compel the authority or court or person to do his statutory obligation. So mandamus is a positive remedy.

By writ of mandamus, the superior court directs any person, corporation, lower court or government to do something, specified therein, which pertains to his or their office and is in the nature of a public duty. This writ is issued when the lower tribunal has declined to exercise jurisdiction vested in it or any public authority declined to do what he is required by law to do. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing functions in connection with the affairs of the Republic or a local authority to do what he is required by law to do.

This remedy is available when any right of a person, arising from any law and not from any contract, is violated. 102The applicant must show that he has a legal right to the performance of legal duty by the person or authority against whom the writ is prayed for.

Writ of Mandamus The second part of clause (2)(a)(i) of I 102 confers power on the High Court Division to issue writs in the of mandamus to compel a person. as accepted as establishing that an applicant must establish legal specific right to ask for the interference of the court’ by order of mandamus I agree with Lord Denning MR in thinking this was a deplorable decision. It was at total variance with the view of Lord Mansfield CJ. Yet its influence has lingered on, and is evident even in the decision of the Divisional Court in this case. But the tide of developing law has now swept beyond it.

In Lakhi Rant v. Haryana’ the appellant prayed for mandamus challenging the action of the government expunging adverse remarks in the annual confidential report of an officer claiming that the judgment would prejudice his chance of promotion. The High Court dismissed the application on the ground that the appellant had no locus standi.

The Indian Supreme Court reversed the decision and remanded the case for disposal on merits. 103In Fertilizer Corp Vs. Kamgar Union of India (r some observations have been made which further eroded the application of Lewishain Union principle. But the Indian Supreme Court has not clearly discarded that principle. In the Pakistan jurisdiction emphasis on the existence of a legal right of the petitioner to demand performance can he found. In Masucuf Hasan v. Khadim fiussain the appellant who was a member of a Town Committee applied for mandamus for removal of the respondent as member of Town Committee because if the respondent remained a member of the committee it would materially affect the forthcoming election of the (hairinan and thereby wrongfully injure the appellants right.

In England the Lewistam Union principle was given up as it still have the effect of allowing the public functionaries a free hand in joining their public duties. In countries like ours it will have a far more serious effect as many instances of non-performance of legal duty by servant and public functionaries will remain without remedy, ‘misery eroding the concept of rule of law and constitutionalism. This principle originated in England and when it has been discarded there. here is no rationale for insisting on the application of this principle in are country. It is submitted that the language of art. 104102(2) leaves nope for application of the Lewis Liam Union principle in our jurisdiction. Art.102(2) does not require that the applicant 101

Mahmudul Islam, Constitutional of Bangladesh,p527 R v.Tottenham District Tribunal, 1956 , 2 ALL E.R 103 Mahmudul Islam, Constitutional of Bangladesh,p.528 104 Pakistan V. Md.Sayeed, 13 DLR (SC) 94 102

for indiums must have a specific legal right’ the only requirement is he must bean aggrieved party’. It is important to note that art.31 give no ideas a guarantee that no person in Bangladesh can be adversely selected except in accordance with law, Thus if a person is going to be elected by the failure of a public functionary to do shat he is required law to do, he can claim performance of the legal duty of the public stationary whether or not he has a specific legal right to claim performance of the duty.

Mandamus may issue on any person performing functions in connection with the affairs of the Republic or of a local authority. Such a person must hold office of a public nature’, that is, an office under the Constitution or a law relating to the affairs of the Republic or of a local authority. 105It will issue only when that public functionary has a public duty under a law and he refused to perform his legal duty; the duty may be judicial, quasi-judicial or purely administrative. The duty sought to be enforced must be a duty of a public nature, i.e., a duty created by the provisions of the Constitution or a statute or some other rule of common law or some rules or orders or notifications having the force of law. The public duty need not, however, be always a statutory duty.3 No mandamus can issue to compel the government to implement its policy nor it can be issued merely on consideration of equity. Inter-ministerial communications are mere policy guidelines which do not create legal right and cannot be enforced.

Thus mandamus may issue on the government to implement its own decision under certain circumstances8, to pay leave salary, or allowance, or future salary, to restore seniority of a government servant’ or to forward to the President a competent appeal of a government servant to issue necessary clearance for delivery.

The court does not issue writ of notwithstanding it futile. But there may be situation in which may pose serious threat to the policy. The court felt that one-time direction may not cure the inertia and decided to issue directions from time to time keeping the matter pending requiring the investigating agency to report the progress of investigation so that the court could ensure continuance of the investigation. It is not feasible for the court to adopt such a measure generally, but dire situation needs drastic measures and there is no constitutional or legal bar to our Supreme Court adopting the method in appropriate cases.

The first trade union applied to the Registrar for cancellation of registration of the second trade union complaining that the second trade union did not have 30% of the workers of the establishment as its members and had obtained registration by misrepresentation. The Registrar without making an inquiry into the allegation ordered for election for determination of the collective bargaining agent. On the application of the first trade union the High Court I)division found that the Registrar had a discretion coupled with duty to take action and directed the Registrar to hold the inquiry.

The court cannot, however, dictate how or in which manner the authority is to exercise the discretion. But where the authority having the discretion exercised it on irrelevant or wrong grounds or in exercising the discretion has left any relevant fact or circumstance out of consideration vitiating the exercise of the discretion or otherwise abused the discretion, the court may treat it as a failure to exercise discretion and direct the authority to exercise the discretion on consideration of the proper grounds. When the discretion has been exercised properly in good faith, the court will not issue mandamus to control the exercise of discretion.

105

Mahmudul Islam, Constitutional of Bangladesh,p.532

Enforcement of the writ of mandamus: Art. 112 mandates that all authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court. Thus it is the obligation of the executive government to comply with the direction given by the High Court Division. 106If it does not comply with the direction given by the High Court Division, the usual method of enforcing the judgment granting a writ of mandamus is committing the concerned authority for contempt. But in order to commit for contempt, the direction must be of an absolute nature and not one allowing any discretion or option on the part of the concerned authority.

WRIT OF PROHIBITION Prohibition is an original remedial writ, as old as the common law itself. Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts.

Prohibition as a writ means one which prevents a tribunal possessing judicial or quasijudicial posers from exercising jurisdiction over matters not within its cognizance. 107Thus prohibition is originally a judicial writ since it can be used against a judicial or quasi-judicial body and not against an administrate e body or public corporation or body. But no longer ii remains limited to he used only against judicial and quasi-judicial body. 108The wording in 1962 Constitution of Pakistan and also in present Bangladesh Constitution make it clear that this writ can be used against any public body.

It may, therefore, he said that hen a court, or a tribunal or an authority or a person is about to violate the principles of natural justice or is about to abuse the power or is about to act in excess of its jurisdiction, the higher court by issuing a writ of prohibition can prohibit the tribunals, or court or authority from doing such act. The Principle 0f natural Justice basically means principles of 1. No one should he condemned unheard: & 2.No one can he a judge of its own Cause. Prohibition can prohibit the tribunal, court or authority from doing such act.

So prohibition is a preventive remedy.

Prohibition means 'to forbid' from doing something. In other words, it is a writ issued by the superior court to a lower court, tribunal or administrative authority prohibiting it from doing something which it is not authorized by law to do. Prohibition is a preventive writ and issued to stop illegal exercise of power of jurisdiction to the detriment of any legal right of a person.

Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing any functions in connection with the affairs of the Republic or local authority to refrain from doing what he is not permitted by law to do.

Since both certiorari and prohibition have the same object in view, the prevention of usurpation of jurisdiction by judicial and quasi-judicial bodies, the primary difference between the two writs being as to the stage at which the writ is available, it follows that the grounds on which prohibition will issue are the same as those on which v will issue (if the Petitioner comes to court after the tribunal has already made the order without jurisdiction) Thus, prohibition will issue to prevent the tribunal from proceeding further, when the tribunal — (a) Proceeds to act without or in excess of jurisdiction. (b )proceeds to act in violation of the rules of natural justice. (c) Proceeds to act under a law, which is itself.

106

Bangladesh V. Shafiuddin Ahmed ,50 DLR (AD) 27 Md.Abdul Halim, Constitution, Constitutional law and politics, Bangladesh Perspective. P. 371 108 Ibid-p.371 107

( d)proceeds to act in contravention of fundamental rights.

Prohibition will lie only against judicial or quasi-judicial proceedings and not against the exercise of legislative or executive " 109functions, or against private persons or associations, who cannot he called an 'authority' In short, a writ of prohibition is available only against such authorities as are amenable to the jurisdiction.

The writ in the nature of prohibition lies where It proceeds to act (a) without or in excess oh jurisdiction, (b) in intention of some statute or the principles of common law, (c) in lit ion of the principles of natural justice , (d) under law which itself lies or unconstitutional5, or (e) in contravention of fundamental rights.

Writ of prohibition lies against judicial and quasi—judicial bodies. But because of the formulation of the jurisdiction at art. 102(2) a (ii) in the nature of prohibition under our constitutional dispensation against any person (other than those mentioned iii clause (5) When a public officer of the kind mentioned in 102(2)(a)(i) is doing an act without or in excess of jurisdiction given H law, a writ may issue without any inquiry as to whether he is acting quasi-judicially. If want or excess of jurisdiction is found valid objection can be taken that the officer is acting in executive or administrative capacity. No such writ will be available where the officer jurisdiction, but exercises it irregularly or erroneously as distinguished from illegally. Under our Constitution if the error is one it goes to jurisdiction and the writ will issue. The jurisdiction to me a writ in the nature of prohibition is different from the jurisdiction Issue an injunction. Injunction is issued against any party in a ceding, but a writ in the nature of prohibition is addressed to title or public officer whose jurisdiction is challenged.’ In R. v. County of London Quarter Sessions one Arthur as bound over by the magistrate and was directed to execute personal incognizance bond for good behavior. 110Arthur gave notice of appeal to the Quarter Sessions against the order. An application was moved to prohibit the Quarter Sessions from hearing the appeal and as the law did not provide for the appeal, a writ of prohibition was issued. Where the petitioner was being prosecuted under section-7 of the Special Powers Act for the offence of absconding and failing to surrender pursuant to a detention order passed against him, the High Court Division issued a writ of prohibition as the detention order having been found to be without lawful authority, the Special Tribunal had no jurisdiction to proceed with the trial.

A writ in the nature of prohibition issues on the same grounds on which a writ in the nature of certiorari is issued; the only difference between the two is in the stage of the proceeding. A writ of certiorari will be issued when the proceeding is closed, while an order of prohibition can be issued only so long as the proceeding remains pending. It cannot be issued after the authority has ceased to exist or becomes functus officio.

But if a tribunal after becoming functus officio assumes jurisdiction to do something further the writ will lie.6 Where a proceeding is partly within and partly without jurisdiction, the prohibition will lie against doing what is in excess of jurisdiction. Thus when a Collector of Customs imposed an invalid condition for the release of gold on payment of fine in lieu of confiscation, a writ was issued prohibiting the customs authorities from enforcing the invalid condition.7 An application for an order of prohibition is never too late so long as there is 109 110

Mahmudul Islam, Constitutional of Bangladesh,p.524 Mahmudul Islam, Constitutional of Bangladesh,p.526

something left for it to operate upon. As regards the use of the remedy Lord Goddard observed — It would not be at all desirable to lay down a definite rule when a person should go to the tribunal or when he should come here for prohibition here the objection is that the tribunal has no jurisdiction For myself I should say that where there is a clear question of law not depending.

WRIT OF CERTIORARI The term ‘certiorari’ means ‘to be certified’ or ‘to be more fully informed of’. The writ of ‘certiorari’ is so named because in its original form it required the King ‘should be certified’ of the proceedings to be investigated. 111This writ was drawn up for the purpose of enabling the Court of King’s Bench to control the action of inferior court and to make it certain that they should not exceed their jurisdiction; and therefore, the writ of certiorari is intended to bring into the High Court the decision of inferior tribunal, in order that the High Court may be certified whether the decision is within the jurisdiction of the inferior courts.

Initially at common law in England certiorari used to be used either form the King’s Bench or the Chancery for the purpose of exercising superintending control over inferior courts. 112So certiorari was necessarily a judicial writ at initial stage. But gradually, the jurisdiction was enlarged to include within its fold all authorities performing judicial, quasi-judicial and even administrative functions. Thus certiorari’ is no longer a judicial writ.

So it can be said that when a court or a tribunal or an authority or a person has already violated the principle of natural justice, or misused the power or acted in excess of its jurisdiction, the higher court by issuing certiorari can quash that act i.e. can declare that act illegal.

In the ultimate analysis, on the question of fact, our position approximates the American position that “where a question of fact is at issue, the court determines only the reasonableness of the agency answer. 113If the agency answer is reasonable, even though it is not necessarily the one which the court would have given had it sat as to the exist before an inferior tribunal have up indication, they can inquire into the facts in order to decide whether or not they have jurisdiction, but cannot give themselves jurisdiction by a session wrong decision upon them; and this Court may, by means of proceeding It is certiorari, inquire into the correctness of the decision. The decision us to these facts is regarded as collateral because, though the existence of jurisdiction depends on it, it is not the main question which Had the existence of those materials been up is decisional lack, the court have allowed full review of such facts, heard as we as ill see.

A purely administrative officer who is empowered to pass an order of certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void. 114Of course, although the officer has been granted no jurisdiction to determine any facts he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order but his conclusion as to the existence of those circumstances binds no body and it is open to any 111

Md.Abdul Halim, Constitution, Constitutional and politics. Bangladesh perspective. P.372 Mahmudul Islam, Constitutional of Bangladesh,p.457 113 Mahmudul Islam, Constitutional of Bangladesh,p.458 114 Jamal Shah v. Election Tribunal, 18 DLR, (SC) 1 112

person affected to challenge his act on the ground that those circumstances do not in fact exist.

An administrative officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case he will act in a quasi- judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. For instance the government may be empowered to acquire property if it is ‘satisfied’ of the existence of a public purpose for such acquisition. If the government validly reaches a conclusion as to the existence of a public purpose its order will be legal provided of course that the circumstances which it has found to exist do in law constitute a public purpose.

R. vs. Lincolnshire Justices exp. When an adotticer acts illegally, he acts without jurisdiction.

An administrative officer try to pass order or to take action if certain facts exist, If those essential listed not exist his order or action is void.”Writ of certiorari misinterpretation of ‘public purpose’. It is the Court which will decide what is meant by ‘public purpose’. In the same way Professor Wade observed, “In administrates prescribed statutory ingredients will more readily he lies’ collateral. This is probably because, in contrast to judicial ii”.

In central question committed to the administrative it’, will commonly be whether to exercise some discretionary Powel. prescribed statutory ingredients will more naturally be preliminary or collateral questions.”

The distinction drawn by Lord Esher is not workable in practice as the parliamentary intent in this regard is rarely, if ever, clearly manifested’ and it is not clear on what basis certain facts are classed apart as jurisdictional fact. It is difficult to see why the doctrine should he applied to rent tribunal cases2 and shall not be applied in cases of reinstatement tribunal. 115 It may be argued that in one case Parliament had conferred the power to decide conclusively the jurisdictional fact and in others it had not done so. 116But Parliament had not conferred such power expressly and one has to search in vain for an implied legislative intent which may be said to be present in reinstatement case, but not in rent tribunal cases.

Because of this difficulty the Pakistan Supreme Court observed, “It is possible. of course, that special tribunal may be made the judge of its own jurisdiction, but this would be a very exceptional provision and one should be made by altogether clear words.

One such method adopted by legislature is by way of providing for conclusive presumption as in the case of Lilavati vs. Bombay 117where a law empowered the government to requisition premises which remained vacant for a specified period and made a provision to the effect that a declaration of such vacancy after such inquiry as the government deemed fit shall be conclusive evidence of such vacancy. The court held that the finding of the government on the question of vacancy is not reviewable as the legislature has conferred final power of determining the question on the government. Another method of making the administrative authority the final judge of the jurisdictional fact is to leave the finding of the jurisdictional fact to the subjective satisfaction of the administrative authority.

115

Mahmudul Islam, Constitutional of Bangladesh,p.465 R. v. Greater Manchaster, Corporation.ex. p. Tal. (1985) 117 Mahmudul Islam, Constitutional of Bangladesh,p.476 116

118

This, however, has not freed the agency finding of jurisdictional fact from judicial review because of the substantial evidence rule2 followed in the American jurisdiction. To avoid the difficulty inherent in the application of the jurisdictional fact rule our courts may adopt the American substantial evidence rule which will not be inconsistent with the scheme and objectives of our Constitution as the High Court Division will retain control over the jurisdictional fact though in a lesser degree.

Failure to exercise jurisdiction: Failure to exercise jurisdiction is an error going to the root of jurisdiction. The principle is well established that if a statutory tribunal fails to exercise jurisdiction vested in it by law, such a failure will be open to correction in exercise of the power of judicial review. If in the exercise of jurisdiction a tribunal fails to decide a material issue which may affect the ultimate decision, it will be an error going to jurisdiction. The reviewing court may either remit the case to the tribunal or determine the matter itself if the relevant material is already there.

Other ways of stepping out of jurisdiction: Apart from committing jurisdictional error by committing error of law or error of jurisdictional fact or by failing to exercise jurisdiction vested in it, an authority may step out of jurisdiction in various ways by not complying with the statutory procedures, or by violating the principles of natural justice or by acting in bad faith, dishonestly or for improper motive or purpose or by exercising the power on wrong grounds or by acting unreasonably, arbitrarily or capriciously. The authority may also act without lawful authority by taking into consideration extraneous or irrelevant circumstances or acting in disregard of public policy. All these cannot be conveniently grouped under one head, nor can they be in a clear-cut way treated as separate grounds. What is unreasonable may be said to have been done in bad faith or when relevant circumstances are left out of consideration, the action may be said to be unreasonable.

Procedural ultra vires: An authority may go wrong in law for non-compliance of statutory procedures, breach of the principles of natural justice or acting contrary legitimate expectation. 119Statutes conferring power on public functionaries often impose conditions relating to procedure for exercise of the power, e.g. notice, hearing, time-limit etc, but rarely stipulate the consequence of non-compliance with such conditions. The question then arises whether non-fulfillment of the conditions renders the exercise of power a nullity. Answer to it depends on whether compliance with such conditions is mandatory or directory. Noncompliance of mandatory conditions is fatal to the validity of the action taken by a public functionary, while nonobservance of directory conditions does not affect the validity of the action.

Fair procedure: 120The basic principle of fair procedure is that before taking any action against a man the authority should give him notice of the case and afford him fair opportunity to answer the case against him and to put his own case.3 The person sought to be affected must know the allegation and the materials to be used against him and Bangladesh v. Ghulani Azam, 46 DLR (AD) 192; Abul Ala Mouddodi v. West Pakistan, 17 DLR (SC) 209; Manneka Gandhi v. India, AIR 1978 SC 597 There may also be exceptional situations when the court may ignore the non-service of notice, as happened in UP. Singh v. Board of Governors� where some students were guilty of 118

Md.Jamil Asghar V. Improvement Trust, Rawalpindi, 17 DLR(SC) 520 ,para 7 Mahmudul Islam, Constitutional of Bangladesh,p.479 120 Mahmudul Islam, Constitutional of Bangladesh,p.488 119

gross violence against other students which called for immediate action as it created tension in the area, but notice could not be served in spite of the best efforts of the authority as they had absconded. 121No notice need be given for termination of the appointment of a Government Pleader who held office at the pleasure of the government and no misconduct is alleged in terminating the appointment.

Abdur Rahman v. Sultan, 35 DLR (AD) 51 (Where the person complaining knew of holding of local investigation by Advocate Commissioner, hut did not take step to file any objection against the report) The authority on receipt of complaint issued a notice to show cause why action to cancel or suspend the permits should not be taken.

The court found the notice to be bad as the proposed action had to be particularized with reference to each of the permits detailing particular conditions for breach of which action was sought to be taken in connection with each of the permits. A bald notice covering all the permits could not be issued.

The statutory provisions may prescribe the form in which the notice is to be issued and ordinarily this form has to be complied with by the authority. But minor deficiencies and technical irregularities will be ignored by the court.’ In one case, the statute required the issuance of notice mentioning the date, 122time and place of hearing, but the notice did not mention the place of hearing. The court held that this did not invalidate the proceeding as the party concerned was not a stranger to the place of office of the tribunal.

Thus whether a judge gave an actually biased judgment is not material, the judgment is vitiated if there a real likelihood of the judge being biased. We come across three ‘steppes of bias - pecuniary, personal and official and we shall deal with them.

In the case of pecuniary or proprietary interest the law raises a conclusive presumption of bias. 123The pecuniary interest must be a direct one. But in one ease the interest of the father sufficed as a pecuniary interest of the son even though it might not have given rise to a reasonable likelihood of bias. The disqualification will also attach in the same way if the decision-maker is himself involved in the dispute.

Apart from pecuniary or proprietary interest, arise because of decision-maker’s attitude of’ hostility or favorite sin loss aids a party for one reason or another. The person complaining need show that bias has, in fact, affected the decision. But the English courts shall divided in their opinion as to whether a reasonable suspicion of bias or a real likelihood of bias would invalidate a decision, The preponderant view was that the disqualification would be attracted on showing of a al likelihood of the judge being biased. 124The other view was that would he attracted if there be only a reasonable suspicion of bias.

In practice the test of ‘reasonable suspicion’ and ‘real likelihood’‘1 bias will generally lead to the same result. Seldom indeed will one a situation in which reasonable persons adequately apprised of the acts will reasonably suspect bias, hut a court reviewing the facts will told that there was no real likelihood of bias.

121

Mahmudul Islam, Constitutional of Bangladesh,p.496 Mahmudul Islam, Constitutional of Bangladesh,p.500 123 Mahmudul Islam, Constitutional of Bangladesh,p.514 124 Dr.Nurul Islam Vs.Bangladesh.1981 BLD 12 122

The concept of bad faith eludes precise definition, but in relation to the exercise of statutory power it may be said to comprise dishonesty (fraud) or malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. For example, a local authority committee would exercise in had faith its power to exclude interested members of the public if it deliberately chose to hold the meeting in a small room. The intention may be to promote another public interest or private interests.

A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise.

Abuse of discretion: “Parliament constantly confers upon public authorities powers which on their face might seem to be absolute and arbitrary. 125But arbitrary power and unfettered discretion are what the courts refuse to countenance.” Douglas J of the American Supreme Court observed in (Distort. vs. Wunderlich , “Law has reached its finest moment when it has freed man from the unlimited discretion of some ruler where discretion is absolute, man has always suffered.” When Parliament granted discretionary power without any limitation, the House of Lords refused to accept the conferment of the power as unfettered. Refuting the claim of unfettered discretion of the Minister, Lord opinion observed -My Lords, I believe that the introduction of the adjective ‘unfettered and its reliance thereon as an answer to the appellants’ claim in one of the fundamental matters confounding the Minister’s attitude, bona fide though it be .

But the use of that adjective, even in an Act of Parliament, can do nothing to unfetter the control which the Judiciary have over the executive, namely, that in exercising their powers the latter must act lawfully, and that is a matter to be determined by looking it the Act and its scope and object in conferring a discretion.

It is essential that a discretion conferred by a statute should be exercised by the authority upon whom it is conferred and by nobody else. When the licensing authority required films to be certified by the British Board of Films, an unofficial body established by the film industry, it was held to be a surrender of the discretion by the licensing authority. 126Discretion vested in a particular body or authority cannot he exercised as a means of extracting money which Parliament has given no mandate to demand.

Mofizur Rahman Vs. Bangladesh, 1982 BLD (AD) 120; Venkataraman v. India, AIR 1979 SC 49 (court struck down an order of compulsory retirement when government record produced before the court showed nothing to justify retirement in public interest) Westminster Corporation’.The Corporation was authorized to construct public conveniences, 127 but not pedestrian subways. Underground conveniences were designed in such a way that the subway leading to them provided a means of crossing busy street. When challenged the court observed.

“It is not enough to show that the corporation contemplated that the public might use the subway as a means of crossing the street. In order to make out a case of had faith, it must he shown that the corporation constructed the subway as a means of crossing the street under color and pretense of providing public conveniences not really wanted.’)

125

Mahmudul Islam, Constitutional of Bangladesh,p.516 Mahmudul Islam, Constitutional of Bangladesh,p.517 127 Mahmudul Islam, Constitutional of Bangladesh,p.518 126

ROMAN LAW In Roman law, an action of certiorari was suggested in terms of reviewing a case—much as the term is applied today—although the term was also used in writing to indicate the need or duty to inform other parties of a court's ruling. Certiorari was a highly technical term appearing only in jurisprudential Latin, most frequently in the works of Upland. 128The term "certiorari" is often found in Roman literature on law but applied in a philosophical rather than tangible manner when concerning the action of review of a case or aspects of a case.

Basically, it grants that the case will be heard.

Certiorari is available as an incidental remedy to the remedies of mandamus, prohibition, or injunction in the High Court of Australia - due to the effect of s75(v) of the Australian Constitution .Historically, in the United Kingdom, Certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for trial in that court. It evolves now as a general remedy to bring decisions of an inferior court or tribunal or public authority before the superior court for review so that the court can determine whether to quash such decisions.

DISTINCTION BETWEEN CERTIORARI AND PROHIBITION I. The grounds of both the writs are same but the distinction lies in that prohibition is a preventive remedy while certiorari is a curative or corrective remedy. 129Thus prohibition applies where the authority is about to misuse the power whereas certiorari applies where the authority has already abused the proper.

2. A writ of certiorari will be issued when the proceeding is closed, while an order of prohibition can be issued only so long as the.

Proceeding remains pending. It cannot be issued after the authority has ceased to exist or becomes functus ofiicio.

3. Prohibition is issued with a view to stop an act 4Lilstarting whereas certiorari is to quash or declare the act illegal.

WRIT OF QUO WARRANTO The term “Quo-warranto” means “by what warrant or authority.” 130Quo-warranto is a writ by which any person who occupies or usurps an independent substantive public office or franchise or liberty, is asked to show by what right he claims it, so that the title to the office, franchise or liberty may he settled and unauthorized occupants ousted by judicial order.

More precisely, it can he said that when a person illegally holds a public office created by law the higher court, on the application of any person, can, by issuing quo-warranto, ask the person to show Of what authority he holds the office and can make him not to hold such office further.

Writ of quo warranto provides remedy against illegal occupation or usurpation of any public office or franchise or liberty. It enables inquiry into the legality of the claim, which a person asserts to an office or franchise and to oust him from such position, if he is an usurper. 131The holder of the office has to show to the court under what authority he holds office. Such remedy is available under sub-clause (ii) of clause (b) of sub-article (2) of article 102 of the Constitution from the High Court Division.

128

www.wilkipedia.com>writ of certiorari Md.Abdul Halim, Constitution, constitutional law and politics, Bangladesh perspective. P. 372 130 Opcit. P. 373 131 Mahmudul Islam, Constitutional of Bangladesh,p.552 129

Art. 102(2)(b)(ii) provides that on the application of any person the High Court Division may inquire whether a person holding or purporting to hold any public office is holding it under a legal authority. This is jurisdiction to issue writ in the nature of quo warranto. This writ is used to ensure that no one can hold any public office without having a valid claim to that office.

The writ lies “against a person who claimed or usurped an office, franchise or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. It also lay in cases of non-user, abuse, or long neglect of a franchise.

A writ of Quo Warranto will issue in respect of an office only if the following conditions arc satisfied: I. The office must be public. 132It will not lie in respect of office of a private charitable institution or of a private association. Thus, the Managing Committee of a private school, even though a small section of the public, the students and their guardians are interested in the school, is not an office of a public nature of the purpose of Quo Warranto.

The test to a public office is whether the ditties of the office are public in nature in which the public are interested whether it is or is not remunerated. However, payment of remuneration out of public funds will be a specific test. ' II. The office must be substantive in character, i.e., an office independent in title. ~ It is not, therefore, applicable to ministerial offices who hold office at the pleasure of the master.

Broadly stated, the quo warranto proceeding affords judicial inquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it. the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matters of making appointments to public offices against the relevant statutory provisions; 133it also protects a citizen from being deprived of a public office to which he may have a right. In order that this writ may issue, the office must he a public office of a substantive character’ created by the Constitution, statute or authority power.’

A public office is a right under his duty, created and conferred by law, by which an individual with some portion of the sovereign functions of the government to hi exercised by for the benefit of the public, for the his the tenure prescribed by law’’ and thus it is an office public have interest.

But the writ will lie in respect of held at pleasure. provided that the office is one of a public character. It has been held that the office of Speaker of a public office and writ can issue to him to inquire by the petitioner prayed for the writ on the allegation that the respondent was not qualified to be the Advocate-Genial as 1ie exceeded the age limit and the court held that the office of the Advocate-General is a public office. the membership of Privy Council was held to be a public office though held at the pleasure of the Crown. The office the of Chief Justice or a Judge of the High Court is a public office and a writ may lie against him.

132 133

University of Mysore v. Govindrao, AIR 1965, SC 491 Mahmudul Islam, Constitutional of Bangladesh,p.553

The writ will lie against Ministers,’5 members of Parliament’. (‘chairman of municipality”, members of Municipal board administrator of Municipal Corporation appointed by the government’.

Engineer of Municipal Board’ member of Bar Council, Chairman or member of Union Parishad, member of Senate or Syndicate of a University, Dean of a Faculty in a University, Chief Metropolitan Magistrate6, government pleader or against members of civil service. If there was any complaint about the appointment or promotion of an officer who was not eligible under the rules to be appointed or promoted, the proper remedy was to make an application for quo warranto. The writ will not issue to question the claim to any office of a private association, institution or college or school or a private corporation.’° Professors and Readers of Major University were not held to be holding any public office and no writ would lie against them.” Appointment made as stop-gap arrangement such as an appointment of a Chief Minister pending his election within six months was held not liable to be questioned.’

The person asked to show cause as to his entitlement to the office must be in actual possession of the office. Thus a writ petition in the nature of quo warranto questioning the election of the President of the Republic was not maintainable when the President elect had not yet taken oath of office.’134 Similarly, where the election of a Chairman of a local council was challenged after declaration of the result of the election, but before the respondent took oath and entered the office the application for writ was held non-maintainable.’ While a member of a legislature has tendered resignation, but the Speaker has not determined its genuineness, it was held that the writ petition tiled before the decision of the Speaker was premature.

The writ will issue where there is a celebration of any constitutional provision or any provision having the lowest law4 as distinguished from an administrative instruction3 in citrating of holding the public office. 135A person will be found to hold public office without lawful authority if he is not qualified to hold the oh ice’ or some mandatory provision of law which cannot he cured as he has been violated in making the appointment or in entering the office or when the appointment has been made by a person who had no authority to appoint.

The court will issue the writ in respect oh an elective notice if the holder of the office is disqualified at the time of election or thereafter” or where the election has been held without any authority of law’ or there was an irregularity resulting in people being unable to express their views properly’’ or the election was held on the basis of an electoral roll prepared in contravention of the mandatory provision of law’.

Nature of the proceedings: As we have seen, a writ of habeas corpus is not discretionary. It is obligatory on the part of the High Court Division to be satisfied that a person is not being held in custody illegally or in an unlawful manner. All other writs are generally discretionary.

The avowed purpose of the exercise of writ jurisdiction is to further justice. 136If in a case it appears to the court that the issuance of the writ prayed for would work injustice or perpetuate illegality or subvert the public interest, the court may refuse to grant the relief.

The High Court Division will exercise its discretion in accordance with judicial consideration and well established principles8 and will interfere where any improper exercise of power or non-exercise of jurisdiction has caused manifest injustice. Where a settlement of dispute 134

www.encyclopedia.com> writ of Quo-warranto.

Mahmudul Islam, Constitutional of Bangladesh,p.555 136 Mahmudul Islam, Constitutional of Bangladesh,p.557 135

between the management and one of the two rival groups of officers of a registered trade union is found to be beneficial to the substantial body of workmen of the factory and the office bearer of the other rival group lie parliamentary election.

Efficacious remedy: In England prerogative writs particularly writs of mandamus were not issued by the court when alternative remedy under the statute was available. This was a selfimposed rule of the court on the ground of public policy. Issuance of writs when alternative remedies were not availed would undermine the subordinate courts and tribunals.

Under the Pakistan Constitution of 1956 the Supreme Court and the High Courts in issuing writs in the nature of the prerogative writs used to follow the rule of the English court.

It was, ever, pointed out that this rule of exhaustion of alternative remedies v’. as a rule of the court and did not affect the jurisdiction of the court to entertain writ petitions. But the Pakistan Constitution of 1962 provided that the High Courts would interfere only when there was no other adequate remedy available to the petitioner. The same position has been maintained in the Constitution which stipulates non-availability of cit meacious remedy as a condition for interference by the High Court.

In Abdul Mukit Chowdliury vs. Chief Election Commissioner, it was stated that where a special forum is created by a statute for enforcement of a special right, the High Court Division should normally decline to exercise the constitutional power. It is submitted that in view o137f the constitutional mandate in this regard, it was not necessary to resort to this principle of special remedy provided by special law. It is also doubtful if in the absence of any constitutional mandate or practice such a principle can be invoked to prevent the exercise of the constitutional jurisdiction.

In principle alternative statutory remedy is available an application wider Article 102 may not he entertained to circumvent a statutory procedure. There are, however, exceptions to the rule. Without attempting an exhaustive enumeration of all possible extraordinary situations have may note a few of them. In spite of an alternative statutory remedy an aggrieved person may take recourse to Article 102 of the Constitution where the virus of a statute or a statutory provision is challenged; where the alternative remedy is not efficacious or adequate; and where the wrong complained of is so inextricably mixed up that the High Court Division may, for the prevention of public injury and the vindication of public justice, examine that complain. It is needless to say that the I ugh Court Division is to see that the aggrieved person must have good reason for by-passing an alternative remedy.

Thus apart from the question as to when a remedy is efficacious, alternative remedy provided by a statute will be no bar to a writ petition if a statute or a provision of a statute under which the impugned action has been taken is itself challenged as unconstitutional or if private and public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to art.102(2).2 In the same way, if the impugned action is wholly without jurisdiction in the sense of not being authorized by the statute or is in violation of a constitutional provision a writ petition will he maintainable without exhaustion of the statutory remedy.3 Where the appeal provided by law was not filed due to misconception as to availability of appeal and the misconception was not unfounded, the High Court found the petition maintainable.

137

Mahmudul Islam, Constitutional of Bangladesh,p.564

The High Court Division the plea of the bar as the respondent could not show that the demand for payment of short-levied customs duty had been made on substantial compliance of the provision of the law.138 Malafide vitiates everything and it goes to the root of jurisdiction and if the impugned action is nia1afide the alternative remedy provided by the statute need not be availed. Another exception has been made in MA. Hai vs. T. C. B. where the Appellate Division held that availability of alternative remedy by way of appeal or revision will not stand on the way of invoking writ jurisdiction raising purely a question of law or interpretation of statute.

In Farzana Haque v. Dhaka University the High Court Division held a writ petition maintainable in spite of non-exhaustion of the remedy of appeal as the University did not supply necessary papers which were necessary for filing the appeal. In Lutfunnessa v.

Bangladesh’ the appellant moved the High Court Division challenging the governments action treating a property as abandoned property, but the High Court Division refused to interfere on the ground that she had efficacious remedy before the Court of Settlement. 139The Appellate Division agreed with the finding of the High Court Division, but granted the relief to the appellant stating, “The High Court Division would have been justified in taking the view that the Government was expected to be upright and fair in dealing with a citizens property and the very fact that the Ministry of Home Affairs did not care to file an affidavit could be held to be sufficient for the purpose of the present case disentitling the government from claiming possession and making a list including the appellant’s is created by a statute which provides a special remedy for it. the remedy provided by the statute is to be availed.

The High Court Division refereed to the decision of the Amir Khan v. Controller, Estate Duty and Jamal Shah v. Member of Election Commission. The first decision which held that alternative remedy did not affect the jurisdiction of the court was not applicable as it was a case of 1961 and the second case came up in writ jurisdiction after election petition was filed and disposed of. The High Court Division relied on a Full Bench decision of High Court of West Pakistan at Lahore which held that where the authority declined or neglected to perform its functions properly writ jurisdiction would be attracted to determine the legality of the act done or proceeding taken. 140It is submitted that all these questions can be appropriately dealt with by the election tribunal and in view of the decisions of the Pakistan Supreme Court and the Appellate Division, it cannot preclude application of the rule of exhaustion of statutory remedy.

The facts of the case, however, clearly evinced the bad faith of the Presiding Officer and it may have worked in the mind of the court to find the maintainability of the writ petition, though not expressed in the judgment.

In the Pakistan Constitution of 1962 the expression used was ‘adequate remedy’ and this expression was interpreted by the courts. Having regard to those decisions, the framers of the Constitution used the expression ‘efficacious remedy’ which is more apposite. In Mehmood vs. West Pakistan, it was pointed out that the adequacy of the statutory remedy must be judged in relation to three separate considerations - (1) the nature and extent of the relief; (2) the point of time when that relief would be available; and (3) the conditions on which that relief would be available - particularly the conditions relating to the expense and inconvenience involved in obtaining it.

138

Mahmudul Islam, Constitutional of Bangladesh,p.566 Rahima Food Corporation v. Deputy Collector of customs, 49 DLR 510 140 Mahmudul Islam, Constitutional of Bangladesh,p.567 139

In Faziul Huq Chowdhury v. Bangladesh the High Court Division held that review by the President of the Republic provided under the Government Servant (Discipline and appeal) Rules, 76 was an efficacious remedy. It may be noted that the said Rules of heared absolutely discretionary power on the President who might reject the petition even though he found the impugned action to be illegal.

Furthermore, the scope of review is narrower than that of an appeal. As such review may not be held to be an efficacious remedy. It may be that the court did not give sufficient thought to this question as the court found the writ petition maintainable on the ground that the impugned action was ex facie void for want of jurisdiction. Remedy under s.561A of the Code of Criminal Procedure has not been held to be an efficacious remedy.Where in the facts of the case the petitioner had no reasonable opportunity to avail the statutory remedy.’ Where the High Court Division is satisfied by exercising its discretion judicially that the remedy provided by law is not efficacious, the Appellant Division will not interfere with such exercise of discretion:’ Disputed questions of fact: 141The proceeding under art. 102(2) is a summary one and it is decided on the statements made on affidavits filed by the parties and the documents annexed to the application and the affidavit-in-opposition. Hence it is often held that the court will decline to exercise jurisdiction when the application involves resolution o disputed questions of fact.3 In this summary proceeding examination of disputed question of fact of a complicated nature is not as a general rule undertaken, nor investigation of title to property made5 and it is neither desirable nor advisable to enter into the merit and record a finding as to disputed question of fact.142 The court will neither decide the complicated question of title nor disputed questions of fact relating to damages or compensation.

This rule is subject 10 some exceptions. One is in the field of contract of employment. though an employment in the service of the Republic initiates in contract, the relationship of the government with the servant is more of a status than contract and is controlled by the provisions of the Constitution and the laws and rules.

Because of the provisions of art.117 read with art.102(5) writ jurisdiction cannot be invoked in the matter of terms and conditions of service except when infringement of fundamental right is alleged. 143There was a question whether employment under the local authorities are controlled by the private law rule of master and servant so that the writ jurisdiction would not be attracted. The question has been finale settled by the Appellate Division in B.S.I.C. vs.

Mahbuh Hossain and the court came to the following conclusions: (a) If an employee is dismissed or his service is terminated in contravention of a mandatory statutory provision, the employee has a right of action either in a Superior Court in its writ jurisdiction or in a civil court. (b) If the service of its employee is terminated in violation of the principle of natural justice, the employee has a similar right of action as in (a). (c) If the office is a statutory one, the holder of the office has similar right of action as in (a) in case of termination of the said office not in accordance with law, under which the said office has been created.

141

www.bangladesh legal studies.com> Writ of Quo-Warranto Mahmudul Islam, Constitutional of Bangladesh,p.569 143 Mahmudul Islam, Constitutional of Bangladesh,p.576 142

(d) In spite of the office being a statutory one or of public character, terms and conditions of the office may be regulated by contract, and termination of service in contravention of such contract, but otherwise than in the manner mentioned in (a) and (b) is not actionable for the purpose of reinstatement in office. (e) Terms and conditions of service prescribed by rules, regulations or any other form of delegated legislation made by a body under statutory powers are not contractual, but have a statutory force and the dismissal or termination of service in substantial disregard of them will entitle the The appellant unsuccessfully moved the High Court Division in the writ jurisdiction. The Appellate Division found the action of the government to be arbitrary and without lawful authority. But the question of maintainability was not raised or answered in this case. 144The question was, however, raised in Sharping M.S. Sarnity v. Bangladesh and the high Court Division found in favour of the petitioner as it was pointed out that the contract of lease of the fishery was entered into by a public authority invested with statutory power. Later the lease of the fishery having been cancelled, the lessee challenged the cancellation order in writ jurisdiction and the High Court Division this time discharged the Rule holding that contractual rights cannot he enforced in writ urisdiction.5 On appeal the Appellate Division reversed the decision stating — Review of all these decisions point out that judicial thinking.

However, these questions do not appear to have been raised before the court. In an unreported case the High Court Division issued writ in respect of award of a commercial contract for construction of a Bailey bridge over a river and the Appellate Division refused to grant leave to appeal.’ A reading of the judgment and order of the two divisions does not show that any objection relating to the maintainability of the writ petition in respect of commercial contract was raised. But the question came up for consideration in another case where the High Court Division issued writ in respect of a tender for sale of self- propelled barges by the government. Though the High Court Division took the view that Shaping was not applicable, the writ was issued upon a view that a right having been created in favour of the petitioner, to enforce the right so created by the persons performing the functions in the affairs of the Republic the writ can be issued. 145The leave petitions of the government and B.I.W.T.C. were dismissed.

In M.D. WASA v. Superior Builders & Engineers ltd a commercial contract was involved.

WASA illegally terminated the contract. The High Court Division held the writ petition maintainable to give relief. The Appellate Division rejecting the plea of non- maintainability of the writ petition observed, “Basically, the principle is that, a writ petition cannot be founded merely on a contract, but when a contract is concluded the contractor has a legitimate expectation that he will be dealt with fairly.” The doctrine of fairness was introduced to give aggrieved persons a right to a hearing. The doctrine of legitimate expectation is a further extension of the fairness doctrine to give a right to hearing. The doctrine is now being pressed in aid to deal with arbitrary change of policy.

The High Court Rules provide that an application for a writ other than a writ of habeas corpus shall be made in the form of a petition setting out in numbered paragraphs the statement of facts and the grounds on which the writ is prayed for and shall be affirmed on oath by the 144 145

Mahmudul Islam, Constitutional of Bangladesh,p.577 Mahmudul Islam, Constitutional of Bangladesh,p.580

petitioner himself. The rules relating to an application for writ of habeas corpus also require that the application shall be verified by affidavit, but are silent as to who has to affirm the affidavit. As a matter of practice, affidavit by the petitioner is required and the petitioner has to be a person who is close in relationship with the detenu to know the circumstances in which the detenu has been detained.

The burden of proof is primarily on the petitioner who is required to bring sufficient materials on record in support of his case. Like the presumption of constitutionality of law, there is a presumption that official business has been regularly performed and the burden to prove the contrary is on the petitioner.’ Where both the sides have led evidence in support of their respective cases, the question of onus oh proof fades into insignificance and the court is to take decision on the preponderance of evidence. In the absence of relevant and reliable materials on both sides, the court may. In certain circumstances, come to a finding as to whether the impugned action is arbitrary or not.

Parties in the proceeding: A writ petition must be filed by the person aggrieved1 and he must affirm the affidavit unless for special reasons the court allows any other person to affirm it.

An aggrieved person may, however, have the petition filed or the affidavit affirmed by his constituted attorney. Ordinarily, two or more persons cannot join in a single petition to enforce separate claims or challenge separate orders. But where the right to relief arises from the same act or transaction and there is a common question of law or fact, or where, though the right to relief claimed does not arise from the same act or transaction, the petitioners are jointly interested in the causes of action, one petition is maintainable at their instance.

Where the claims of the petitioners are separate and independent, they may be required to pay separate court- fees. 146All persons, who may be directly affected in the event of the writ being issued, are necessary parties and they must be impleaded as issuance of writ in the absence of such persons will be a violation of the principle of natural justice.

A writ petition will not fail for a mere misdescription of a necessary party. Rule 9 of the High Court Rules provides that if at the hearing of the petition the court is of the opinion that a person who ought to have been served with the notice of the petition has not been so served, the court may order that notice be served on such person and adjourn the hearing upon such terms as it thinks proper. In one case in which an order of compulsory retirement was challenged, the High Court Division while making the Rule absolute made a finding of malafide against the Minister-in-charge who was not a party to the proceedings and then issued a suo moto Rule upon the Minister to show cause why he should not pay a cost of Tk. 10,000/- to the petitioner.

After hearing, the court made the Rule absolute. The Appellate Division held that if the High Court Division wanted to proceed against the Minister. Rule (r) 9 of the High Court Rules ought to have been followed. Malafide cannot be found against a person without the principles relating to addition of party in a civil suit are lot applicable to a writ petition.

Ordinarily the aggrieved person seeking relief under Article 102 has the right and duty to choose his adversaries and a respondent cannot thrust another into that category whom the writ petitioner does not want, may be to his peril.�

Award of cost: The court in disposing of a writ petition can award cost in appropriate cases.

In awarding cost, the court must give some reason, otherwise it may appear to be arbitrary.

Imposition of a huge cost against the petitioner is not justified when the petition is dismissed in liming and no reason for awarding the cost is given.

146

www.Banglapedia.com.>Writ matters.

When respondent auction purchaser suffers loss for not being able to take delivery of goods auction sold due to the action of the petitioner, the High Court Division awarded substantial cost to the auction purchaser.

Dismissal of the petition: If a petition has been dismissed for default of the petitioner or has been allowed exparte, the principles of Or .IX of the Code of Civil Procedure may be applicable and in an appropriate case the court may restore the petition or, as the case may be. re-hear the petition.

Where the application prima facie discloses a case for interference the court should not summarily dismiss the application. In dismissing an application whether summarily or upon hearing all the parties, the court should give reasons for the order. If the respondent has not controverter the averments of the petition and has not even resisted the same, dismissal of the petition is not proper. Where the petitioner has withdrawn his petition without taken leave of the court to file a fresh petition, he cannot file a fresh petition.

WHEN QUO - WARRANTO MAY BE REFUSED. Quo warranto is a discretionary remedy which the Court may grant only or refuse according to the facts and circumstances of each ease.147 Thus, the Court may refuse it on following grounds. (a) Where it would be vexatious. (b) Where it would be futile in its results. Where the respondent has ceased to hold the office, the appointment to which has been questioned in the proceeding or persons senior to him have in the meantime resigned or retired. Where the respondent has been appointed to another officiating post (c) Acquiescence is no ground for refusing Quo Warranto in case of appointment to a public office of a disqualified person, though it may be a relevant consideration in the case of election. (d] That the respondent has resigned or has been transferred from the office subsequent to issue of the Rule. “The case of expiry of the term of office may be different. (e) Where the result of granting a Quo Warranto in the matter of election to a corporate office would be to disturb the peace and quiet of the Corporation. (f) Where the Petitioner is guilty of laches.

Futile and premature writs: The court will not issue a writ where it will be futile.3 Thus though the cancellation of a contract was found illegal, the Indian Supreme Court in Guruswamy v. 148Mysore instead of issuing the writ awarded cost to the petitioner as in the meantime the period of the contract expired. An Act will not be declared void if during the pendency of the proceeding the Act has been repealed.6 When the validity of an Ordinance was challenged on the ground that there was no emergent situation necessitating promulgation of the Ordinance, the Appellate Division declined to go into the question as in the meanwhile it was replaced by an Act of Parliament. The Pakistan Supreme Court held that the court would not grant a writ when the law gives power to one of the parties affected by the writ to nullify the court’s writ unilaterally.8 The same proposition was reiterated in R. 147 148

Dr.Durga Das Basu and A.K. Nandi. Constitutional Remedies and writs. P. 204 Ibid-p.204

Sim & Co. v. D.M. Tippera, but the court took the view that the question of the writ being futile did not arise.

The court will not entertain a writ petition on premature grievances. Thus where an international treaty provided that it would be elective only on exchange of the instruments of ratification, a writ petition challenging the treaty was not maintainable until the instruments ratification were exchanged.

The court will not take cognizance of an .action re-opening a dropped disciplinary proceeding until punitive action is taken. A writ petition challenging the recommendation of a candidate by the Public Service Commission on the ground of lack of necessary qualification was rejected as it was open to the appointing authority not to accept the recommendation.

But an application can be presented not only after the applicant’s legal right has been invaded but also when they have been threatened with an immediate peril.

Power of Review: The Constitution has not specifically conferred power on the High Court Division to review its own pudgiest. Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object. and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought is to be enforced by having recourse to the writ jurisdiction.

The High Court Division found inconsistency in Hussain Baksh as the Pakistan Supreme Court found the power of review in writ jurisdiction even after holding that the right of review is a substantive right which is a creature of statute. It is submitted that there is no inconsistency in Hussain Baksh inasmuch as the Pakistan Supreme Court found the power by reference to as. 114 and 117 of the Code only after finding that when matters of civil nature are dealt with in the writ jurisdiction, it is a civil proceeding.

Court fees and costs: The High Court Rules have provided court-fees for the petition and for annexing documents and have left the matter of awarding cost to the discretion of the court. 149 But the rules are not detailed. For matters not covered by these rules resort must be had to the provisions of the Code of Civil Procedure. The court in disposing a petition may award cost.

Rule 15 describes the expenses which may he included in the cost. The court has the discretion in awarding cost. Bit such discretion must be exercised judicially and in accordance with law and practice of the court.

PRINCIPLE OF NATURAL JUSTICE A word used to refer to situations where audi alteram partem 150(the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply.The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis. These two basic legal safeguards govern all decisions by judges or government officials when they take quasijudicial or judicial decisions.

The right to a hearing in accordance with the Rules of Natural Justice may be expressly provided for or the courts may imply such an obligation exists. There are essentially two sections to the Rules of Natural Justice, the first being derived from the Latin maximum "audi altarem partem" (let the other side be heard). This is the duty of to allow persons affected by a decision to have a reasonable opportunity of presenting their case.

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The second part of the Rules of Natural Justice is derived from the Latin maxim "nema judex in causa sua" ( no one can be the judge in his own cause). 151This gives rise to a duty to act fairly, to listen to arguments, and to reach a decision in a manner that is untainted by bias.

In an article entitled "Fair Procedures for Students in Universities and Colleges" presented by Sheila M. Devine at the Canadian Society for the Study of Higher Education, June 1987, Mc Master University, Ms Devine quotes from A. de Smith in Judicial Review of Administrative Action in stating that the following principle is a good one for university administrators to note: The government Principle ought to be that authorities empowered to make decisions that are seriously detrimental to the liberty, proprietary rights, livelihood, status or reputation of individuals should be required to give prior notice and opportunity to be heard to those who are directly affected, except where the imposition of such duties would be impracticable or manifestly contrary to the public interest or Parliamentary intent.

In my view, the basic Rules of Natural Justice should be followed by any University hearing involving faculty, staff and students. 152These Basic Rules usually include the following procedural guidelines: 1.Individuals should be provided notice, in sufficient detail, as to the scope of the hearing and the allegations against such individual and or any negative information to fairly enable the individual to show any error that may exist; 2. The hearing should be held within a reasonable time after the notice has been provided; 3. The information should have an opportunity to be heard and reply to the allegations and/or negative information; 4. The individual should be entitled to question witnesses, especially those giving evidence against the individual; 5. The individual should be entitled to call witnesses; 6. The individual should be entitled to request an adjournment or postponement for a reasonable period, especially if the individual or one of the individual's witnesses has a legitimate inability to attend; 7. The persons hearing the matter should be possessed of a reasonable level of expertise relative to the matters being dealt with. In a University setting, this would meant that faculty, staff and students would constitute the Hearing Committees, as appropriate, and would possess sufficient knowledge of University issues to bring to the tribunal the necessary expertise: 8. The Committee hearing the matter has a duty to approach the hearing with an open mind listen fairly to both sides, and to reach a decision untainted by bias; 9.Members of the hearing panel should ensure that grounds for setting aside the hearing on a reasonable apprehension of bias do not exist, and they, therefore, should absent themselves if there is a special relationship or association with the individual appearing before the hearing; 10. A record of the proceedings of the hearing should be kept; 11. The individual should be provided with a copy of the record or at least a summary of the evidence of the proceedings; 12. The individual should be provided with a copy of the hearing committee's decision or recommendations, together with the reasons; 13. In cases concerning discipline, where a decision is made and the consequences of the finding may have serious consequence on an individual's future, consideration should be given to permitting the individual to make submissions as to the penalty; 151

Nan Aron (1989) Liberty and Justice for All: Public Interest Law in the 1980s and Beyond, Boulder and London, Westview Press at 6.

152 www.wilkipedia.com>Natural Justice

14. Where matters are dealt with in an oral hearing, 153the panel members ruling on the decision should be present throughout the course of the proceedings; 15. Depending on the seriousness of the allegations and the consequences of a negative decision and the complexity of the issues involved, the individual may be entitled to representation or legal counsel, but there is no absolute right to such counsel.

The minimum Rules of Natural Justice are codified in Ontario in The Statutory Powers Procedure Act, and, where the procedural rules of a tribunal are deficient, then the provisions of the Act should be looked to in order to compensate for such deficiency. It will likely be a procedural error, unless the parties agree otherwise by waiving their rights, not to fellow the basic Rules of Natural Justice in a hearing.

The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power by the State. As the State powers have increased, taking within their ambit not just the power of governance but also activities in areas such as commerce, industry, communications and the like, it has become increasingly necessary to ensure that these powers are exercised in a just and fair manner.

The common law, which is a body of unwritten laws which govern the legal systems of England, USA, Canada, Australia and other commonwealth countries including India, has responded to this need to control the exercise of State powers through applying the principles of natural justice to the exercise of such powers.

There is only one more principle that has slowly taken root as a part of natural justice. This is the principle that every decision must contain reasons for the decision. Reasons may be elaborate or may be brief. But these are beginning to be considered necessary to ensure fair decision making.

What exactly are these principles? 154 Basically, these are principles which are necessary for a just and fair decision making. These principles are often embedded in the rules of procedure which govern the judiciary. For example, the Civil Procedure Code prescribes a detailed procedure under which the Defendant has the right to reply to the Plaint; both sides have the right to inspect the documents relied upon by the other side and both sides have the right to cross-examine one another’s witnesses. The judgment must give reasons for the decision.

In the case however, of quasi-judicial or administrative Tribunals or bodies, the common law has laid down some basic principles which such bodies must follow. If there is any substantial departure from these principles of natural justice, the decision can be challenged and set aside through the judicial process. One of the well known enunciations of the principles of natural justice is in the case of Ridge vs. Baldwin (1963) 2 AER 66 (HL). In that case Lord Hudson observed: “No one, I think, disputes that three features of natural justice stand out. (i) The right to be heard by an unbiased Tribunal, (ii) The right to have notice of charges of misconduct, (iii) The right to be heard in answer to that charge.�

Thus decisions of quasi-judicial bodies became open to scrutiny to ensure that these rights are not violated. This was in sharp contrast to the old traditional dictum to the effect that King can do no wrong.

Officers of the King became subject to judicial scrutiny when they delivered quasi-judicial decisions. For a long time considerable judicial effort was spent on making a distinction between quasi-judicial bodies and administrative bodies because it was held for a long time that administrative decisions were not subject to such scrutiny. Indian judiciary was the first to do away with the distinction between administrative decisions and quasi-judicial decisions, 153 154

As quoted in Strasser, as above at 1.

realizing that the line between administrative decisions and quasi judicial decisions was very thin. It also shows how administrative law has evolved from case to case as a response to the need to have a check over arbitrary exercise of power.

In the famous case of A.K. Kripak vs. 155Union of India AIR 1970 SC 150 the Supreme Court held that administrative decisions were also subject to judicial scrutiny and could be tested on the anvil of natural justice. In the case of Kripak, the acting Chief Conservator of Forest was a part of the Selection Committee along with the Members of the Union Public Service Commission to select a permanent incumbent to the post of Chief Conservator. He was also one of the candidates for the post. When his file was scrutinized he excused himself from the Selection Committee saying that he cannot be a party to a decision which would affect him.

He, however, remained on the Selection Committee which looked at the files of other candidates.

The acting Chief Conservator of Forests was selected by this Committee for the post of Chief Conservator. The Supreme Court came down heavily against this decision calling it contrary to the principles of natural justice. The Court also held that it would no more accept in this country any distinction between administrative decision making and quasi-judicial decision making.

Other countries have slowly come around to the same view. In another classic decision in the case of Maneka Gandhi vs. Union of India (1978)1 SCC 248 the Supreme Court discussed in detail the various aspects of the rule of natural justice.

Basically there are two norms which a decision-making body must follow. Both are expressed in Latin maxims but are in essence very simple principles; audi alteram partem which means that the person concerned must be heard before a decision is taken; and the second principle is nemo judex in causa sua which means a person will not judge a case in which he is himself interested. Recently a third principle has also been added which is in plain English because it is a more recent development. It says that the decision must give reasons.

Unless the laws are fair and are fairly implemented, there cannot be justice in the true sense.

Secondly, procedural safeguards do not necessarily ensure a fair outcome. Procedural lapses may result in upsetting even good decisions against individuals who may be guilty of a breach of law.

There are several refinements or facets to these principles which have evolved as a result of extensive case law dealing with an amazing variety of circumstances. Many of these refinements or variations have evolved in cases dealing with service matters – selection of candidates, disciplinary enquiries, dismissal or discharge of employees and so on. 156Other decisions have dealt with granting of licences or permissions by public authorities, allotment of petrol pumps and the like. I must make it clear that these principles do not apply to legislative decision-making although it may affect the rights of citizens. Legislatures do not have to hear the persons whose rights are affected.

This is under a belief that different view points are represented by the legislators in Parliament since the legislators represent the people. There are, however, areas where the power of legislation is delegated to subordinate authorities, usually to the executive. Is it necessary to hear the persons affected before such subordinate legislation is framed? This is a grey area where any clear judicial authority is absent.

Let us therefore come back to the decision-making process of quasi-judicial and administrative bodies. Natural Justice requires that the person who is likely to be affected by the decision must be heard before a decision is given. The hearing may be oral or it can be through a written representation. This, in turn entails that such a person must be informed 155 156

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about the nature of the enquiry and if any charges have been framed against him, of the charges.

There are many income tax cases where it has been said that the documents on which the Department relies must be disclosed to the other party. What is more, the Department should disclose to the other parties not just the documents on which it relies but all relevant documents on which it may be able to rely. So from the right to be heard, one travels to the right to disclosure of documents because without such documents a proper representation cannot be made.

Then, one comes to the right of cross examination. If one is relying on a document of a third party, an opportunity should be given to cross examine the third party. The right of cross examination may not be absolute or available in all circumstances. In fact principles of natural justice cannot be put in a straitjacket. These will have to be applied depending upon the facts and circumstances of the case. The right of cross examination can be more readily inferred in the case of a formal enquiry. 157But when the enquiry is informal and is conducted in the presence of all concerned, a formal right of cross examination may not be inferred. The judicial trend appears to be towards expanding the application of principles of natural justice to cover the right of cross examination.

However, there have been cases where the Court has declined to infer such a right. In a case where the inmates of a girl’s hostel had complained to the Principal about misbehaviour and molestation by boys of the adjoining hostel, the Court accepted the plea that the request of the boys to cross examine the girls could not be granted in public interest.

There are also exceptions to the doctrine of audi alteram partem. In a case of urgency, action can be taken without a hearing. For example, if a smuggler is about to abscond to another country, his passport can be seized without waiting for a hearing. Therefore, in an emergency, if you have to do something so quickly that the very mischief sought to be averted will take place unless the principles of natural justice are waived, such waiver is permissible. Even here, the Courts have introduced the principle of a post-decisional hearing so that the person against whom the order is passed gets a right to make a representation to have the decision revoked or altered. In the Maneka Gandhi case, where the passport was cancelled, the Supreme Court ultimately sustained the cancellation subject to a post decisional hearing being given.

There are also other cases where the decision may be upheld although no hearing has been given. For example, if the conclusion which is arrived at is obvious and no amount of hearing could have made any difference to the decision, the decision will not be invalidated because a hearing is not given.

In another case, where pursuant to the Supreme Court’s order the status quo ante was restored without giving a hearing to the party who had benefited in the meanwhile, the Court refused to set aside the action although no hearing had been given to the benefited party.

The second important maxim is to the effect that a person will not be a judge in his own cause. In fact, the Kripak case is a typical example of a decision-maker being personally interested in the decision. 158In the Bombay High Court, we have the convention of a Judge not hearing the case of a company in which he has purchased shares. This convention has resulted in a judge recusing himself from a case because in a multi-crore company he holds a few hundred shares.

But it is always preferable to err on the safe side rather than invite the comment of being an interested person. Interest, of course, can be of various kinds. And it is best to bear in mind that justice must not merely be done but must be seen to be done.

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A fair and impartial hearing is at the root of this principle. You might remember the famous Pinochet’s case in the House of Lords where one of the Law Lords who had heard the case was a trustee of a charity which was associated with one of the parties. The entire case had to be re-heard. On a smaller scale, we have many cases where committees appointed to select, for example, text books for educational institutions, have as their members, authors of some of these books. Clearly the decision of such committees is vulnerable. There are also cases where the decision of the committee is arrived at on the basis of dictates of third parties such as Ministers. Allotment of flats in public housing schemes or petrol pumps can be thus affected and would be susceptible to challenge.

There is only one more principle that has slowly taken root as a part of natural justice. This is the principle that every decision must contain reasons for the decision. Reasons may be elaborate or may be brief. But these are beginning to be considered necessary to ensure fair decision making. There are many grounds for requiring reasons. In the first place, it ensures application of mind by the decision maker to the material before them which will be reflected in the reasons given.

A non-speaking order does not do this. 159That is why under the new Arbitration and Conciliation Act, it is now mandatory for Arbitrators to give reasons. Secondly, the exercise of giving reasons prevents prejudices from creeping into the decision making process.

The decision maker is forced to examine the material and apply appropriate principles to the decision. It also makes it easy for the Appellate Body if there is one, or the Court exercising writ jurisdiction to ascertain the reasons which prompted the decision impugned before it.

There is, therefore, an increasing tendency to insist on reasons for administrative and quasijudicial decisions. Of course, not all decisions are reasoned decisions. When the cricket captain opts for heads or tails, he cannot be expected to give reasons for his choice.

Fortunately, one hopes that administrative decisions which affect others are not decisions of this kind. In fact, asking for reasons ensures that they are not just ipse dixit of the decision maker. It is in this context that Article 14 of the Constitution must also be looked at because Article 14 has been interpreted as a protection against arbitrary action.

It is also interesting to note that the protection of the principles of natural justice is available not just to citizens but also to non-citizens in our country. In the case of Det Norske Veritas vs. Reserve Bank of India 1989 Mah. 160Law Journal 107. the Bombay High Court held that the refusal of a licence to a non citizen who had been operating in India for some years must comply with the principles of natural justice. This is in sharp contrast to the decisions, for example, of English Courts while dealing with orders of immigration authorities in their country or the decisions of the U.S. Courts while dealing with protection to non-citizens. We have rightly held that the principles of natural justice relate to fair and impartial decision making. Such decisions must be made in all cases, whether they pertain to citizens or noncitizens.

Natural justice includes the notion of procedural fairness and may incorporate the following guidelines: 1. A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).

2. A person making a decision should declare any personal interest they may have in the proceedings.

3. A person who makes a decision should be unbiased and act in good faith. He therefore can not be one of the parties in the case, or have an interest in the outcome. This is expressed in the Latin maxim, nemo iudex in causa sua: "no man is permitted to be judge in his own cause".

159 160

www.naturaljustice .com Bijoy kumar Ghos, Natural law. Pp.254

4. Proceedings should be conducted so they are fair to all the parties - expressed in the Latin maxim audi alteram partem: "let the other side be heard".

5. Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.

6. A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.

7.Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.

Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law (Latin: jus naturale) which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, particularly the UK and Australia.[1][2] According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator.

161 The assertion in the United States' Declaration of Independence, "We hold these truths to be self-evident," expresses some of this sentiment. The rules or principles of natural justice are now regularly applied by the courts in both common law and civil law jurisdictions.

Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.

WRIT AS PUBLIC INTEREST LITIGATION The term public interest litigation (PIL) a new phenomenon in our legal system, is used to described cases where conscious citizens or organizations approach the court bona fide in public interest .

In Bangladesh , concern citizen and organizations have challenged illegal detestation of an innocent person for 12 years without trail , importation of radio active milk , 162 environmental damage resulting from defective flood action program, appointment of the chief metropolitan magistrate without prior consultation with the supreme court and so on. Within its scope which is continuously expanding , 163PIL includes cases involving poverty related problems police atrocities , illegal detention, environmental and consumer matters health related problems, rights of children and women, minorities appears and other human rights issues . The eighth Amendment case (Eighth Amendment) Act (No. XXX of 1988).of the Constitution is the pioneer in public interest Litigation.

This is a significant new development from at least two stands points. First, the courts are for the first time concern with public interest matters. This is beyond the traditional role of the judges who previously adjudicated private disputes only. Second, it involves a public law approach with respect to the rules of standing, procedure and remedies so that private citizens can advanced public aims through the courts.

The development of Public Interest Litigation (PIL) in the country has very recently uncovered its own pitfalls and drawbacks. The genuine causes and cases of public interest have in fact receded to the background and irresponsible PIL activists all over the country have started to play a major but not a constructive role in the arena of litigation.

161

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Nan Aron (1989) Liberty and Justice for All: Public Interest Law in the 1980s and Beyond, Boulder and London, Westview Press at 6.

163 For a general account of Indian legal history, see VD Kulshreshtha (1995) Landmarks in Indian Legal and Constitutional History, 7lh edition, Revised by BM Gandhi, Lucknow, Eastern Book Company.

162

They try to utilize this extraordinary remedy, available at a cheaper cost, as a substitute for ordinary ones. This mini article briefly narrates the ill effects of the emerging malady and possible remedies.

Over the years, Public Interest Litigation (PIL) has emerged as an effective tool for seeking judicial responses and subsequent government actions to the socio-economic challenges of the unorganized, powerless and those segments of the society who are precluded from resorting to legal redress owing to resource or knowledge constraints. PIL has enabled publicspirited individuals, groups and conscious citizens to litigate in the interest of the poor and disadvantaged; and widened the scope for NGOs and civil society to participate in formulation of pro-people policies and laws.

The colonial legacy is responsible for many of the shortcomings of the Bangladeshi legal system. The fact remains, however, that even after gaining independence twice in the last fifty years, we find the system fundamentally unaltered. When the British started to reform, change and eventually transform the legal system inherited from the Mughals, they attempted to import and transplant the common law system and the Anglo-Saxon jurisprudence. In many cases this was compromised because of the difference of society, culture, politics and religion.164 But essentially, the rulers believed that they were introducing the common law system for the betterment of the colony. In any case, the prime motive was to create a system that would help to rule the colony effectively.

In British India, therefore, we had imitations of the British bench and the bar. The lawyers and judges of Indian origin were important and leading members of a new Indian aristocracy created to facilitate the colonial rule. They were not only trained in English law but also believed the common law system to be the best and utterly indispensable for the Indian society. It was a 19th century colonial legal system, with all its goods and evils which the newly independent nations of India and Pakistan inherited in 1947.

Muslim-dominated East Bengal joined Pakistan and the legal developments in Pakistan and India took two separate roads after 1947. Although in both countries the written constitutions attempted a conscious departure from the colonial legacy, Pakistan was not as successful as India in maintaining democratic practices in the political field.

For Bangalis, the Pakistan period was full of clashes and power struggles between different interest groups and especially between the Western and a PIL (a petition brought before the High Court Division of the Supreme Court of Bangladesh in the nature of writ under Article 102 of the Constitution) is generally instituted for the enforcement of the constitutional and legal rights of the poor and excluded groups as well as ensuring accountability of concerned government and public authorities towards issues of public importance. Persistent efforts by NGOs and social action groups through PIL has, in many occasions, prompted the High Court Division to issue directives and orders that in turn addressed the socio-economic concerns of the poor and the marginalized groups.

HISTORY OF PIL & ADVOCACY Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances problems. Thus, the initiation and continuance of 164

Other major organization that come forward include the centre for Law and Social Policy, the centre for law in Public Interest, the Citizens Communication Centre, the Institute for Public Representation, the Natural Resources Defense Council, public Advocates Inc. etc

litigation was the prerogative of the injured person or the aggrieved party. 165Even this was greatly limited by the resources available with those individuals.

However, all these scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party.

In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so.

And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. However, all these scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the apex court of India into a Supreme Court for all Indians. And as a result any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil litigation.

PIL is a term of US origin. In the US, 166PIL means 'Public Interest Law'. But, in Bangladesh it means 'Public Interest Litigation', which is one of the tools used in a number of countries including the US in PIL movement. Some of the PIL activities in countries of the world have been influenced by the PIL movement in the US, which had a particularly productive period in the 1950s, 1960s and 1970s. The US experience drew attention to the potential for law to serve as an instrument for change, and began the processes of thinking law not simply as a method of dispute resolution, but also as an instrument of social justice.

1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved inthis.

2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. And the abuse of PIL is also increasing along with its extended and multifaceted use.

Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs. Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus standi requirement has permitted privately motivated interests to pose as public 165 166

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interests. 167The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests.

The court will not listen to a busy body who is interfering in things which do not concern hint, But it will listen to an ordinary citizen who comes asking that the law should he declared and enforced, even though he is only one of a hundred or one a thousand or one of a million who are at located.

BLAST'S APPROACH TO PIL & ADVOCACY The Advocacy and Public Interest Litigation (PIL) Cell of BLAST 168was conceived with the objective of effecting systemic pro-poor changes in legislative policy and practice through advocacy as well as litigating in the interest of the poor and the marginalized.

BLAST, through its unit offices, has effective presence in 18 districts across the country. It also has a very close-knit network with all bar associations, leading human rights organizations, civil society and the media. BLAST has the advantage of having a very knowledgeable and illustrious Board of Trustees comprising eminent jurists and legal luminaries, retired and experienced Supreme Court Judges and prominent journalists of the country.

Since its inception in April 2003, the Advocacy and PIL Cell is endeavoring to ensure increased safety and security and access to justice for the poor and the disadvantaged who are deprived of their basic human rights owing to resource and knowledge constraints. BLAST believes that a 'just society' governed by the Rule of Law can best ensure and protect the fundamental and human rights of the people and the activities of the Advocacy and PIL Cell of BLAST are geared to achieve these objectives.

As a matter of policy and basic mandate, BLAST engages all its strength to ensure an equitable, fair and accessible legal system through which the economically disadvantaged and vulnerable segments of the society, especially women, men and children, can establish and enforce their fundamental rights to life, liberty and property. Simultaneously, the organization is committed to the protection of other fundamental as well as social and economic rights of the indigent people in particular. BLAST strives to empower the poor, women and disadvantaged people through legal aid; legal rights awareness campaigns, mediation and public interest litigation in the establishment of their rights. 169It also aims to create an enabling legal environment through reviewing and proposing changes to impugned and repressive laws and policies those are discriminatory and oppressive against the poor and the marginalized. The Advocacy and PIL cell is meant to supplement BLAST to achieve its above-noted objectives. To this effect, issues under the following categories will, as a matter of general policy, be prioritized and taken up for advocacy and PIL 1. Legal problems encountered by the hardcore poor 2. Reduction of inequality; 3. Fundamental human rights violations of the poor in particular 4. Legal issues having vast implication on the overwhelming majority of the impoverished population of Bangladesh 5. All forms of discriminations (particularly against women); 6. Burning issues that have a direct linkage to poverty alleviation 167

www.Banglapedia.com >publicinterestlitigation. www.legalstudies.com. >public interest lItigation 169 www.Blast.com.

168

7. Laws those are repressive, discriminatory against the poor and women in particular 8. Legal issues concerning safety and human security; and Regulatory reform The Advocacy and PIL unit of BLAST filed seven public interest litigations during 1 April 2004- 31 March 2005 covering a range of issues which include, amongst others, challenging the wholesale and blanket arrests of mass people (most of whom are indigent) by law enforcement agencies; money suit claiming compensation to the tune of Taka 290 million on behalf of 121 plaintiffs in a damage suit following the M.V. Nasreen Launch capsize that caused damage to life and property of hundreds of poor people; challenging the forced eviction of 40,000 landless people in Noakhali Chars and residents of Agargaon Basti in Dhaka; challenging the ban on sale and distribution of publications by the Ahmadiya community in 170Bangladesh; and challenging the legality, lawful authority and propriety of a public notification relating to ... issued by the Additional Divisional Commissioner (General), Chittagong styling himself and acting as Ex-Officio Sessions Judge of Rangamati, Khagrachari and Bandarban districts.

In the landmark case of Raunaq International Limited vs IVR Construction Ltd, Justice Sujata Vs Manohar rightly enunciated that - when a stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. In other words the public must be compensated both for the delay in the implementation of the project and the cost escalation resulting from such delay.

One important aspect of PIL is that it entails 'litigation' - the process of settling legal disputes in a court of law under appropriate procedures. From a wider viewpoint, it includes cases not only in law courts but also at the instance of quasi-judicial or administrative authority. Yet, PIL being a specific type of litigation and nothing more, it excludes legislative activities and other extralegal means of promoting public interest, e.g. lobbying, negotiation, etc.

Public Interest Litigants, all over the country, have not taken very kindly to such court decisions. They do fear that this will sound the death-knell of the people friendly concept of PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who prefer to file frivolous complaints will have to pay compensation to then opposite parties. 171 It is actually a welcome move because no one in the country can deny that even PIL activists should be responsible and accountable.

It is also notable here that even the Consumers Protection Act, 1986 has been amended to provide compensation to opposite parties in cases of frivolous complaints made by consumers. In any way, PIL now does require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.

DOCTRINE RELATING TO WRIT REMEDIES DOCTRINE OF ESTOPPEL The doctrine of estoppel cannot be applied to prevent exercise of discretion.� But where once discretion has been exercised, the doctrine can be applied to prevent detriment suffered by a party relying on the representation of the authority. Similarly a statutory authority cannot obtain power which does not belong to it merely because the parties agree to it.

170 171

www.Blast.com Dr. Mohiuddin Farooque v. Bangladesh and others

Exercise of discretion will invalid if the authority in exercise of it has either taken into consideration matters which are not relevant or has left out of consideration matters which are relevant. 172Where the authority cancelled the purchase of a newspaper because it did not approve the publishers’ action in an industrial dispute between the publishers and their employees or where a council decided to award a council house to a councilor influenced by the view of the chairman of a developed urban area must put up with some noise.

The licence include he refused only in the public interest, but the dislike of a body whoever prestigious it may be, is not an adequate substitute for public interest.

Discretion must be exercised taking into account matters mentioned in the statute or if not mentioned. The matters relevant to the ‘purpose for which the discretion has been conferred.”

However, to alidade a decision it is not enough that considerations have been ‘noted which could have been.

Estoppel is a doctrine which prevents a party from denying the existence of a fact which he represented as existing and upon such representation another party has been induced to act to his detriment.

It is often described as a rule of evidence, but the whole concept has to be viewed as a substantive rule of law because it absolutely precludes a person from asserting what otherwise is his right.173 Estoppel is generally treated as of three types of which equitable estoppel is relevant for the present discussion.

Porneroy defines equitable estoppel as follows -Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquired some corresponding right, either of property, of contract, or of remedy.

In running the governmental functions, the public authorities often make representations in the shape of information, instruction and assurance and people invariably rely on those information, instruction or assurance in shaping their conduct. In many cases the public authorities adhere to their representation. But due to various reasons, the public authorities are found to repudiate their representation leaving the people to suffer for their good faith reliance. Doctrine of equitable estoppel is based on notions of morality and justice and it can be argued that a governmental action should exhibit even higher standard of morality and justice. But the government and public authorities invariably claim immunity against estoppel.

The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the doctrine of ultra vires if it were possible for the donee of a statutory power to extend his power by creating an estoppel.

Secondary justification offered for the governmental immunity against estoppel is that the government with its myriad field of activities cannot feasibly keep track of the activities of its

172 173

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Mahmudul Islam, Constitutional law of Bangladesh.p.584

officials and the general application of the law of principal and agent in its relation with its officials will have a harmful effect on the public interest174.

Because of these considerations, there was initial reluctance of the courts in the English and American jurisdictions to apply the doctrine of equitable estoppel against the government and public authorities. Though sticking to the basic objection of want of authority, the courts have now been more inclined to apply the doctrine where the want of authority is not clear or when the public official misrepresented within the scope of his authority.

The Appellate Division applied the doctrine of promissory estoppel in Collector of Customs v. Abdul Hannan where to avoid the obtained approval for building a house at a particular location, hut wanting to deviate from the approved plan submitted a revised plan for approval. The borough engineer of the planning authority informed the builder that the deviation was not material and required no approval. When the house was near completion according to the revised plan, the planing authority declared that the deviation was material and issued notice for demolition of the house. The court applied the doctrine of estoppel.); Robertson v. Minister of Pensions. [19481 2 All ER. 767 (the decision was not approved by the House of Lords in Howell vs. Wharton, 514 F.2d 406 (U.S. brought an action for ejectment of the defendants from 40 acres of public land.

Predecessor of the defendants who originally entered into those lands approached the officials of the Bureau of Land Management to determine what his family could do to gain title to the lands and the government officials misrepresented that there was no way at a time when it was still possible to gain title by filing a new desert-entry application. The court found the misadvice to be affirmative misconduct and estopped the government.)

Estoppel may operate against the legislature.’ Promissory estoppel cannot be invoked to enforce a promise contrary to law. The doctrine of promissory estoppel is an equitable doctrine and it must yield when the equity so requires.

So the Indian Supreme Court observed in M.P. Sugar Mills v. UP. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promise against the Government the burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the court would insist on a highly rigorous standard of proof in the discharge of this burden.

Even in the absence of overwhelming public interest, the government or its instrumentalities may reside from the promise if no one is adversely affected thereby or if it provides a reasonable opportunity to the promise to resume his position and restoration of status quo ante is possible.175 It being an equitable principle, a person who plays fraud in obtaining a benefit cannot plead estoppel against the withdrawal of the benefit. The courts are still reluctant to invoke the doctrine of ostensible authority for the application of the doctrine of estoppel.

The curt observed the Court in its discretion can apply the principles as distinguished from the technical provision of the Code of Civil Procedure to meet the exigencies of the situation 174 175

Mahmudul Islam, Constitutional law of Bangladesh.p.585 Mahmudul Islam, Constitutional law of Bangladesh.p.587

in appropriate cases on the ground of justice. Equity and good conscience. In what situations the principles will be applied and to what extent may perhaps be left to the wise discretion of the Court itself. In other words, barring what is specifically provided their in the Rules themselves, the Court is the master of its own procedure and it will exercise both its procedural and substantive discretion only on the ground of justice, equity.

The High Court Rules provide that an application for a writ other than a writ of habeas corpus shall be made in the form of a petition setting out in numbered paragraphs the statement of facts and the grounds on which the writ is prayed for and shall be affirmed on oath by the petitioner himself.

The rules relating to an application for writ of habeas corpus also require that the application shall be verified by affidavit, but are silent as to who has to affirm the affidavit. As a matter of practice, affidavit by the petitioner is required and the petitioner has to be a person who is close in relationship with the detenii to know the circumstances in which the detenu has been detained.

AGGRIEVED PARTY According to article 102 except for an application for habeas corpus or quo warranto a writ petition can be filed only by a person 176aggrieved. Under the terms of the Constitution the directions and orders of the High Courts could only be made on the application of an aggrieved party. The aggrieved party entitled to apply for the issue of an order is a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully affected his title to something; the expression “aggrieved party” does not include a person who is disappointed of a benefit which he might have received if some other order had been made. A person cannot be said to be an aggrieved party within the meaning of Art. 199 of the Constitution, if his rights and interests are not adversely affected or if he suffers no loss or injury by a particular order.

The “aggrieved party” would include any person who has been hit by an unlawful act. He is not required to establish that he has been “injured” by violation of pecuniary or proprietary right vested in him or by contravention of any franchise that he claims.

However, for the issue of an order of quo warranto, the petitioner need not necessarily be an aggrieved party. The same is the rule for an order of habeas corpus; it may be filed by any person other than the person detained.

LOCUS STANDI The leading English case on locus standi is Exparte Sidehotham where the court held that a person aggrieved is a man “who Iris suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.” The same view was taken in subsequent cases.4 The Pakistani and Indian courts were greatly influenced by these English decisions. In Tariq Transport vs. Sarçodha-Vera Bus station (a petition under art.170 the of Pakistan Constitution, 1956)177 the Supreme Court observed a person seeking judicial review must show that he has direct personal interest in the act which he challenges before his prayer or review is entertained.” The same view was taken in respect of curse statute under art.98 of the Constitution of Pakistan, 1962.’ Therefore, an ,association, though registered, did not have locus standi to vindicate the personal or individual grievance of its members.

176 177

Mahmudul Islam, Constitutional law of Bangladesh.p.601 Md.Abdul Halim,Constitution, constitutional law and politics Bangladesh perspective.p.380

In Fazal Din vs. Lahore, the Pakistan Supreme Court took somewhat liberal view stating, the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise.”

The Indian Supreme Court also followed the English decisions in the matter of standing both for the enforcement of fundamental rights and for other constitutional remedies.

In Kazi Mukhlesur Rahman vs. Bangladesh, an advocate challenged the legality of the Delhi Treaty of 1974 regarding demarcation of the land boundary between India and Bangladesh and the Appellate Division took a liberal view of the standing of the appellant stating The fact that the appellant is not a resident of South Berubari Union No.12 or of the adjacent enclaves involved in the Delhi Treaty need not stand iii the way of his claim to be heard in this case178.

We heard him in view of the constitutional issue of grave importance raised in the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as to an impending threat to his certain fundamental rights guaranteed by the constitution, namely, to move freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his right of franchise. Evidently, these rights attached to citizen are not local. They pervade and extend to every inch of the territory of Bangladesh stretching up to the continental shelf.

But the court continued to stick to the traditional view of locus standi. Referring to Fazal Din, the High Court Division observed, We also are of the opinion that any person who is affected by any order can maintain a petition under article 102In order to show that they have been affected, it is necessary to establish that they have some right in the subject-matter of the dispute and that they are affected by the interest. Speaking about this traditional view of locus standi, Prof. Theo in his book Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of public (Jurisdiction de droit objective) or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjective’? The first contention rests on the theory that courts are the final arbiters of what is legal and illegal ... Requirements of locus standi are therefore unnecessary in this case since they merely impede the purpose of the function as conceived here.

Before we proceed further in quest of the meaning of ‘person aggrieved’ in art.102, it will be worthwhile to note the development in other jurisdictions in this regard.

With the increase of governmental functions, the English courts found the necessity of liberalizing the standing rule to preserve the integrity of the rule of law. When a publicspirited citizen challenged the policy of the police department not to prosecute the gaming clubs isolating the gaming law, the court heard him though no definite answer to the standing question was given.

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Md.Abdul Halim,Constitution, constitutional law and politics Bangladesh perspective.p.382

In all the cases the duty owed by the public authorities was to the general public and not to an individual or to a determinate class of persons and the applicants were found to have locus standi as they had ‘sufficient interest in the performance of the public duty. By the time the House of Lords was deciding the case of J.R.C. v. Federation of Self Employed, the court was asking whether the applicant had sufficient interest and not whether he was an aggrieved person. Referring to the above quotation, Lord Diplock observed, “The reference here is to flagrant and serious breaches of the law by persons and authorities exercising governmental functions which are continuing unchecked.

It is not sufficient, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out.

In subsequent cases the Supreme Court found in favor of the standing of public-spirited individuals and organizations in bringing matters of grave public importance where there were no particularly affected persons, or where there were, the affected persons were disabled from approaching the court for various reasons.

The wave of the development also reached Pakistan. 179In Benazir Bhutto v. Pakistan the Supreme Court held that as the provision of art.184(3) (which corresponds to Indian art.32) is open- ended, the proceedings could be maintained by an individual whose fundamental rights are infracted or by a person bona fide alleging infraction of the fundamental rights of a class or a group of persons, as there is no rigid incorporation of the notion of aggrieved party in art.184(3). Later the Supreme Court took cognizance of a case on the basis of a telegram for the enforcement of fundamental rights of the bonded labour.4 It appears that the Supreme Court took advantage of the absence of the expression ‘person aggrieved’ in art.184(3) to take a liberal view on the question of standing. But the presence or absence of that expression neither concludes, nor forecloses the issue. The question is what meaning is to be given to that expression having regard to the Constitution as a whole.

In Bangladesh Sangbadpatra Parishad vs. Bangladesh the association of newspaper-owners challenged an award given by the Wage Board and the High Court Division dismissed the petition holding that the association had no locus standi. The Appellate Division upheld the finding of the High Court Division. Dealing with the Indian In England, various tests were applied. Sometimes it was said that a person must be ‘aggrieved’ or he must have a specific legal right or he must have a ‘sufficient interest’. Now after the introduction of the new Rules of the Supreme Court, Order 53 Rule 3, any person can apply for ‘judicial review’ in England under the Supreme Court Act. 1981 if he has a ‘sufficient interest’.

Therefore the decisions of the Indian jurisdiction on public interest litigation are hardly apt in our situation. We must confine ourselves to asking whether the petitioner is an ‘aggrieved person’, a phrase which has received a meaning and a dimension over the years.

In this case public interest litigation was not involved. There was no difficulty on the part of the newspaper-owners to challenge the award themselves. The Appellate Division was certainly right in denying standing to the association of newspaper-owners. The observation quoted above must be understood in the light of the facts of that case. In Bangladesh Retired 179

www.encyclopedia.com.>doctrine relating writ remedies.

Government Employees Welfare Assn. V. Bangladesh, the High Court Division accepted the standing of the association holding, “Since the association has an interest in ventilating the common grievance of all its members who are retired government employees, to our view, this association is a ‘person aggrieved’ CONDUCT OF THE PETITIONER A petitioner must come to the Court with clean hands, that is, he must not attempt to mislead the court by misrepresentation or suppression of facts in his petition or supporting affidavit.

As the issue of an “Order” is discretionary, in the exercise of this power the High Court is entitled to take into consideration the conduct of the petitioner, if it is found that the petitioner has not come with clean hands, it would disentitle him to a relief by way of writ, even if he is found on merits to have a good case.

LACHES Delay in the filing of a petition or Laches has been regarded as a relevant factor in the exercise of the extraordinary jurisdiction of the court. 180When a petition was filed more than three years after the passing of the impugned order, the delay was held amounting to acquiescence. Where a plea of continuous wrong can legitimately be urged by the petitioner, the objection to a petition on the basis of laches cannot be sustained.

The courts are normally reluctant, 181when hearing petitions, to enquire into questions of fact, especially when such enquiry was likely to be protracted. The courts were also normally reluctant to listen to points not mentioned in the petition or affidavit and raised for the first time at the hearing.

CONCLUSION AND RECOMMENDATION The judicial power of the Republic is vested in the judiciary consisting of the Supreme Court and the subordinate courts. The guardianship of the Constitution is vested upon the Supreme Court, which is invested with the power of judicial review.

The High Court Division has statutory jurisdiction to entertain suits and petitions and hear appeals and revisions from the decisions of the subordinate civil and criminal courts and adjudicative bodies (Art. 101). Save in some specified situations, the High Court Division in exercise of its power of judicial review, can not only review the state actions to ensure that those do not contravene any provision of the Constitution or the laws of the land, but can also strike down any law for inconsistency with any provision of the Constitution including the provisions guaranteeing fundamental rights (Art. 102).

The High Court Division can, in exercise of this power, issue writs in the nature of certiorari, mandamus, prohibition, habeas corpus and quo warranto. Only a person aggrieved by any state action can file a writ petition before the High Court Division.

But this standing rule has been modified by the Appellate Division in case of public interest litigation allowing any enlightened person to espouse the cause of the poor and downtrodden to ventilate their grievance in the court and to bring before the court an issue of great importance and public interest.

The sole object of Art. 102 is the enforcement of the fundamental rights guaranteed by the Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to complain under Art. 102 where no 'fundamental' right has been infringed.'

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It follows that no question other than relating to a fundamental right will be determined in a proceeding under Art. 102 including interlocutory relief." A writ under Art. 102 would not lie for enforcement of government policy or Directive Principle.

Where the Supreme Court will not interfere under Art.102 since Art. 102 is a remedy available only for the enforcement of fundamental rights, it follows that— No question other than relating to a fundamental right will be determined in a proceeding under Art. 102. So from this research work I personally find out the followings findings or recommendation about the writ petition in our country, which is as follows.

01. The remedies of writ are not very close to hand of the general people of our country. Most of the people of our country are not well-known about the writ provision. They do not know about the procedure, court fees and in which court the petition should lie. So the Governments itself and media, voluntary organization should work to inform the general people about writ remedies.

02. In our country the writ petition may filed only to the High Court Division which is situated in Dhaka City. But the people who live in rural area is a great burden for them to come in Dhaka city and file a writ petition to the high court division. I personally believe that it is impossible for the villagers to come Dhaka city just for filing a writ petition to protect their fundamental rights. So it would be better to give the writ jurisdiction to every District Judge Court like as India.

03. Majority people of our country live under poverty line; they are not able to pay the court fees for filing writ petition. Therefore, Government should allow the petitioner to file writ petition without any fees.

04. The procedure of writ petition is more complex than any other procedure. The writ procedure should make easy that general people can to the court and file petition to protect their rights.

05. The provision of writ remedies is stated in Article -102 of our Constitution. But it is not clearly mention their different types of writ. It should clearly mention that general people can easily understand.

06.To grant a writ petition the Court must look at the locus standi of the petitioner. In that case the Court may grant the writ petition of any body without looking the locus standi.

Because all person are not well known about the writ procedure and remedies. Therefore, the locus standi should relax.

07. At present the writ petition can filed only against the Government. But government should make rules that petition can file against any person. It will be more effective to protect the fundamental rights.

08. The Government, NGO,s , all kinds of Media should publishes the whole procedure about the writ matter and make the awareness among general peoples to protect their fundamental rights. In Village area people even heard the writ remedies ever.

Initially the development of Writ and PIL in Bangladesh was show due to the threshold problem. This was mainly because of the prolonged periods of Martial Laws and autocratic

regimes that curtailed the fundamental rights and disrupted the normal functions of the judiciary. Once the democratic institutions had a changed to operate the judiciary boldly reasserted its proper constitutional role. As a result, progressive interpretations of the Constitution, including the development of PIL, became possible.

Finally, it needs to be mentioned that Writ Jurisdiction is an important issue of the High Court Division. This jurisdiction is for the benefit of the all people, citizen and public interest. Therefore, the judges should be liberal about granting the writ petition.

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