Discussions on this last lesson of the course

Writ

Writ

by Handam HOSSAIN -
Number of replies: 0

In the legal system of Bangladesh, writs are judicial orders issued by the High Court Division of the Supreme Court to ensure justice and protect the fundamental rights of citizens. The Constitution of Bangladesh grants the High Court Division the authority to issue writs for the enforcement of fundamental rights and for other purposes. Here's an overview of writs in Bangladesh:


### Constitutional Basis


The writ jurisdiction of the High Court Division is derived from Articles 44 and 102 of the Constitution of Bangladesh.


1. **Article 44**: Guarantees the right to move the High Court Division for the enforcement of fundamental rights.

2. **Article 102**: Empowers the High Court Division to issue certain writs, orders, and directions for the enforcement of fundamental rights and other legal purposes.


### Types of Writs


The High Court Division can issue the following types of writs:


1. **Habeas Corpus**: This writ is used to secure the release of a person who is unlawfully detained. It requires the detaining authority to bring the detained person before the court to justify the detention.

2. **Mandamus**: This writ commands a public authority to perform a public duty that it has failed or refused to perform. It is used to enforce the performance of duties by government officials or public bodies.

3. **Prohibition**: This writ is issued to prevent a lower court or tribunal from exceeding its jurisdiction or acting contrary to the law. It essentially prohibits a lower authority from continuing proceedings in a particular case.

4. **Certiorari**: This writ is used to quash the decision of a lower court, tribunal, or public authority that is found to be illegal or made without jurisdiction. It serves to correct errors of law apparent on the face of the record.

5. **Quo Warranto**: This writ challenges the legality of a person’s claim to a public office. It requires the individual to show by what authority they hold or claim the office, and it can result in their removal if the claim is found to be invalid.


### Grounds for Issuing Writs


The High Court Division may issue writs on several grounds, including:


1. **Violation of Fundamental Rights**: If any fundamental rights guaranteed by the Constitution are violated, a writ can be issued to address the violation.

2. **Lack of Jurisdiction**: If a lower court or public authority acts without jurisdiction or exceeds its legal powers, a writ can be issued to correct this.

3. **Failure to Perform Duty**: When a public official or body fails to perform a mandatory public duty, a writ of mandamus can compel performance.

4. **Error of Law**: A writ of certiorari can be issued to quash decisions made with an apparent error of law on the face of the record.

5. **Illegal Detention**: Habeas corpus is specifically designed to address cases of unlawful detention.


### Procedure for Filing a Writ Petition


1. **Filing the Petition**: The aggrieved party files a writ petition in the High Court Division, clearly stating the grounds for the writ and the relief sought.

2. **Court's Consideration**: The High Court Division reviews the petition and may issue a rule nisi (a preliminary order) requiring the respondent to show cause why the writ should not be granted.

3. **Response from Respondent**: The respondent submits a written response, justifying their actions or decisions.

4. **Hearing**: The court conducts a hearing, where both parties present their arguments and evidence.

5. **Judgment**: After considering the submissions, the court delivers its judgment, either granting or denying the writ.


### Importance of Writs


1. **Protection of Rights**: Writs serve as a vital tool for protecting the fundamental rights of individuals against unlawful actions by the state or public authorities.

2. **Judicial Oversight**: They ensure judicial oversight over the actions of lower courts, tribunals, and public authorities, maintaining the rule of law.

3. **Administrative Accountability**: Writs promote accountability and transparency in the functioning of public authorities and officials.


### Conclusion


Writs in Bangladesh are crucial legal instruments that uphold the principles of justice and protect individual rights. The High Court Division’s power to issue writs ensures that any abuse of power, illegal actions, or failure to perform public duties by state authorities can be effectively challenged and rectified. This system is fundamental to maintaining the rule of law and safeguarding the constitutional rights of the citizens of Bangladesh.