Writ Petition

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

Certiorari means 'be certified' of the proceedings of any lower court or tribunal to be investigated by the superior court. Records of any pending or concluded proceedings before any authority or court including a tribunal can be called for by the High Court Division of the Supreme Court of Bangladesh for its examination as to the legality or otherwise of the said proceedings. Under sub-clause (ii) of clause (a) of article 102, not only legality of a proceedings but also any act done by a person, performing functions in connection with the affairs of the Republic or a local authority, can be declared to have been done without any lawful authority and with no legal effect. Thus remedy under the aforesaid sub-clause (ii) is wider than that of the remedy available in a writ of certiorari. In a writ of certiorari, superior court interferes when the lower court or tribunal acts without any jurisdiction or in excess of its existing jurisdiction or in cases where it fails to exercise its jurisdiction; for example, when it decides a case without giving an opportunity to the parties to be heard or violates the principle of natural justice or if there is an error apparent on the face of the record of such proceedings. But under sub-clause (ii) of clause (a) of article 102, the High Court Division can also declare any act done by any authority, which is neither a judicial nor a quasi-judicial, to be without lawful authority.

Habeas Corpus means 'have his body'. 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. Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a writ 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.

Mandamus means 'we command'. 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. The 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.

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.

Quo Warranto means 'by what warrant or authority'. 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. The 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. [Kazi Ebadul Hoque]