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TABLE OF CONTENTS

Title Page No.Acknowledgement 1Introduction 2

Part-A : Writ JurisdictionDefinition of Writ 3

Origin and History of writ 3

Condition for writ petition 4

Constitutional Recognition

Extra Ordinary Writs

5

The writ of Habeas Corpus Origin Examples of the Writ of Habeas Corpus

6

The writ of mandamus Legal requirements Types Examples of the Writ of Mandamus

8

The writ of certiorari Examples of the writ of Certiorari

10

The writ of prohibition Why Issue a Writ of Prohibition? Examples of the writ of Prohibition

11

The writ of quo warranto History Examples of the writ of Prohibition

12

Part-B : Public Interest Litigation ( PIL )Public Interest Litigation (PIL)in BangladeshIssues in PIL When PIL can be filed ?Who can file PIL?When a Writ Petition can be treated as PIL ?Against whom PIL can be filed in Bangladesh ?Procedure to file PIL In High Court In Supreme Court ProcedureRemedies available by PILThe nature and problems of Public Interest Litigation (PIL) in BangladeshThe future of PIL in BangladeshExamples of Public Interest Litigation (PIL) in Bangladesh

14141515151515

16161718

Conclusion 20References and Bibliography 21

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AcknowledgementI am grateful to the Almighty Allah that finally I have finished my assignment properly .

Then with due respect I am recognizing the efforts of Professor Musleh Uddin Tareq , Department of Public Administration ,University of Dhaka and course instructor ( Course Title : Gender and Development ) , who advised me to conduct this assignment under the academic course .

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Introduction“The Constitution has given the High Court the power to issue writs , directions and orders , as may be necessary to meet the ends of justice , subject to their maintainability , which is determined by cause of

action , merits of the case and jurisdiction of the court. ”-H. P. Ranina

Writ Jurisdiction is the instrument for enforcement of fundamental rights. A writ is only permitted when the defendant has no other adequate remedy, such as an appeal. For example, a defendant is only allowed to lodge one appeal. If the appeal is unsuccessful, the defendant may file a writ as long as it does not simply mimic the unsuccessful appeal because a defendant can file multiple writs. If the writ simply mimics the unsuccessful appeal, it will immediately be dismissed. Examples of writs include: writ of mandamus, writ of prohibition, writ of habeas corpus, writ of error, and writ of Certiorari. There are other circumstances under which a writ may be the best option for a defendant.

Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Courts directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man.

As a part of my academic activities (Course title –Administrative Law and Ethics , course no:-PA-314 ) , I’ve completed this assignment on writ jurisdictions and Public Interest Litigation (PIL) . After Introduction , in the first part of this assignment (Part-A) I discussed the conceptual issues about Writ jurisdiction including definition of writ , history , types of writ , explanation of five types of writs and their examples etc, . In Part –B , I discussed briefly about Public Interest Litigation (PIL) it’s applications citing Bangladesh , and finally the conclusion of the assignment .

Part-A : Writ Jurisdiction

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Definition of Writ :A writ means a letter, often written by an attorney. However, in most modern jurisdictions, an writ is an order from a higher court to a lower court or to a government official. Thus , Writ is a formal written order issued by a court with administrative or judicial jurisdiction; in modern usage in common law. A petition is a request to do something which is most commonly addressed to a government official or public entity. A petition is a formal written request for judicial action; to make a request, commonly in written form; a formal written request made to an official person or organized body, often containing many signatures; a collection of signatures built in order to exert moral authority in support of a specific cause.

Increasingly in recent years, lawyers and parties have sought legal action or relief through use of the "extraordinary remedies" – prohibition, mandamus, quo warranto, habeas corpus and, to a lesser extent, certiorari. The "extraordinary remedies" are so called because they involve unusual procedures (not followed in the normal lawsuit) and because they sometimes involve unusual or urgent issues that cannot be resolved through normal legal procedures.

Origin and History of writ : The origin of writs can be drawn from the English Judicial system and during the time of Henry II the use of writs had become a regular part of the system of justice in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the king which acted as groundwork for the subsequent proceedings. However, with different segments writs took various forms and names. The writs were issued by the crown and in the interest of the crown but with the passage of time it became available for ordinary citizens also. However a prescribed fee was charged for it and the filing of these writs were known as Purchase of a writ.

The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court was established at Calcutta. The charter also established other High courts and these High Courts had analogous power to issue writs as successor to the Supreme Court. The other courts which were established subsequently did not enjoy this power. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act, 1877.

In our constitution, the law of writ is mandated in Article 102  and the remedial measures in different forms are amalgamated to be taken under this provision of law. All sorts of relief under writ jurisdiction are available in our constitutional dispensation but not in categorical terms as discussed above in the light of the Indian Constitution. Spelling out our constitutional provision for invoking the writ jurisdiction as enshrined in Article 102 can be equated with (1) Art. 226 of the Constitution of India,(ii) Art. 199 of the Constitution of Pakistan, 1973 ,(iii)  Art. 98 of the Constitution of Pakistan ,1962, (iv) Art.22 & 170 of the Constitution of Pakistan,1956, (v) Ref. Halsbury’s Laws of England (4th Edn.), Vol.L para 8o and Vol. 11, para 145,for prerogative writs in UK. (vi) Art. 1, Section 9(2) of the Constitution of the US. Scope and Application. ( vii) Section 223A of India  Act of 1935.

Condition for writ petition:- Part III of the Constitution talks about Fundamental Rights. Under the Fundamental Rights, Article 26 (Laws inconsistent with fundamental rights to be void), 32 (Protection of right to life and personal liberty), 35 (Protection in respect of trial and

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punishment), 102 (Powers of High Court Division to issue certain orders and directions, etc.) are talk about the rights of the general people with this Fundamental Rights anyone can appeal to the Supreme Court for further consideration of his or her issue. Under Article 102 every person has the right to reconsider their issue. Articles 102 infect deals with both the condition for writ petition and also alternative remedy. Conditions for writ petition are:- Writ would not be issued in aid of injustice. Writ petition filed without awaiting decision in alternative remedy availed of by writ

petitioner, could merit dismissal as not maintainable. A writ petition involving determination of disputed question of fact as to tempering of record

would not be competent. Writ petition suffering from non- joiner of necessary parties would be dismissed. Writ petition against order of transfer of a civil servant is not maintainable. A Writ petition would not be competent when petitioner’s appointment is non statutory. Writ jurisdiction would not be exercised when its exercise would not only frustrated intentions

of legislature but would also deprived other party of remedy of appeal. High court can refuse to issue writ case in which there are laches on behalf of petitioner or

there is enquiry in favor of respondent. Writ jurisdiction cannot be exercise in favor of a person who does not come to court with

clean hands where conduct is not above board. Product of fraud and forgery, shall not be protected in equitable jurisdiction. Writ jurisdiction would not be exercised against refusal to grant license to vend liquor. Power of writ jurisdiction can not be exercised in order to perpetuate illegally or to protect ill-

gotten gains. Disputed questions of facts which requires a detain lead enquiry, cannot examine in writ

jurisdiction. Jurisdiction cannot be exercised when service relationship of employees of corporation is

governed by principal of master and servant. Writ jurisdiction can not be invoked to enforce rights which were not in existence when

offending enactment were maid. Controversy raised in writ petition which is hit by doctrine of past and closed transaction can

not be agitated or adjudication in writ jurisdiction. Factual inquiries are not punishable in writ jurisdiction. Findings of fact recorded by a court of competent jurisdiction, which does not suffer from any

misreading or non consideration of any material piece of evidence, would not be open in interferences in writ jurisdiction.

Contention cannot be permitted to be raised for first time in writ jurisdiction in such case writ petition would be dismissed.

Suppression of relevant material would disentitle petitioner to relief in writ jurisdiction. Writ petition would merit dismissal when no constitutional right of  petitioner has been

infringed, Court cannot issue prerogative writ directing the government to implement its policy. That is a

matter for the executive government Army act and army rule are not amendable to writ jurisdiction. Interminstrial communication not creates any legal right. A letter from the secretary to other

secretaries of the ministers informing decision of the government to return unutilized excess

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land remaining such as for long time dose not confer any title to original owner and such writ jurisdiction under article 102 can not invoked.

Circular does not create any legal right. Preliminary inquiry in the nature of fact finding by an enquiry committee is not illegal such as

action relates to the terms and conditions of service and such writ jurisdiction is ousted, Writ not applicable to non-statutory body.

Constitutional Recognition : Writ Jurisdiction is the instrument for enforcement of fundamental rights. In Bangladesh fundamental rights are provided in Article-26 to Article-47 that is, the Part-(iii)III of the Constitution. The High Court Division is empowered with writ jurisdiction by Article- 44 and Article-102 of the Bangladesh Constitution. Article-44(1) of the Constitution, declares that right to move to the Supreme Court, in accordance with clause (1) of Article-102, for the enforcement of fundamental rights conferred by part-(iii)III is guaranteed.

According to Article-102(1) the High Court Division for the enforcement of fundamental rights may give directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic for the enforcement of fundamental rights. Article-102(2) of the Constitution defines various kinds of writ jurisdictions but it does not mention the names of the writs. However, but by analysing this Article, all the writ jurisdictions can be found. According to Article-102(2) the High Court Division may, if satisfied that no other equally efficacious remedy is available-

(a) on the application of any aggrieved person, may make an order - (i) directing any person performing any functions in connection of the Republic or of a local authority to refrain from doing that which he is not permitted by Law to do - this is clearly the Writ of Prohibition. or to do that which he is required by law to do - this is the Writ of Mandamus.

(ii) declaring that any act done or any proceedings 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 of no legal effect - this is the Writ of Certiorari.

(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 an unlawful manner - this is the Writ of Habeas Corpus.

(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office - This is the Writ of Quo- Warranto.

It is also found that the Appellate Division is empowered with Writ Jurisdiction too. Article-104 of the Constitution provides that Appellate Division shall have power to issue directions, orders or writs whenever necessary.

Extra Ordinary Writs

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The writ of habeas corpus , writ of mandamus, , writ of certiorari , writ of prohibition and the writ of quo warranto, are known as extraordinary writs. These extra ordinary writs explained below :

The writ of Habeas Corpus

The Latin term Habeas Corpus means ‘have the body’. It is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.

It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged.

The incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom ”. The writ of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable detention. It objects for providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can be filled by any person on behalf of person detained or by the detained person himself. It is a judicial order issued by Supreme Court or High Court through which a person confined may secure his release. The writ of Habeas Corpus can be filed by any person on behalf of the other person.

Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

Origin : In the 17th century the foundations for habeas corpus were "wrongly thought" to have originated in the Magna Carta. This charter declared that

No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.

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The first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679 . A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the eighteenth century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed. In that case these famous words are said to have been uttered "The air of England has long been too pure for a slave, and every man is free who breathes it". Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.

Examples of the Writ of Habeas Corpus :

Example-1 : A writ of Habeas Corpus (Petition No. 2851 of 2010) was filed by Mrs. Nazma Begum, the wife of the disappeared person, Mr. Salim, with the High Court Division of the Supreme Court of Bangladesh regarding the disappearance of her husband.

The Habeas Corpus Petition claims that Mr. Salim Miah disappeared after the Rapid Action Battalion (RAB) arrested him on 19 February 2010 from the Kapasia area under the jurisdiction of Kapasia police station of Gagipur district. The petitioner has asked the court that: "A direction upon the respondents to bring the detenu before the Hon’ble High Court Division so that the Hon’ble Court can be satisfied that the detenu is not being held in custody without lawful authority or in an unlawful manner".

The respondents of the petition were the Secretary of the Ministry of Home Affairs, Inspector General of Police, Director General of Rapid Action Battalion (RAB), Commander of the RAB-4, Deputy Commissioner of Gazipur district, Superintendent of Police of Gazipur district and the Officer-in-Charge (OC) of Kapasia police station of Gazipur district. The petition was supplemented by another petition supported by an affidavit from Mr. Mohammad Ali Hossain, who was also arrested from the same place along with the Mr. Salim.

According to the documents, Assistant Sub Inspector (ASI) of the Kafrul police station of the Dhaka Metropolitan Police (DMP) had produced Mr. Mohammad Ali Hossain before the Chief Metropolitan Judicial Magistrate's Court of Dhaka in a case registered with the Kafrul police on 25 February 2010 along with 28 others. It is learned the police have brought charges of suspicious movement at the area of the Bangladesh Road Transport Authorities (BRTA). The police claim that such movement was a crime under Section 84 of the Dhaka Metropolitan Police (DMP) Ordinance-1976 and arrested the 29 persons under Section 100 of the same law. The police requested the Court to conduct a non-FIR (First Information Report) prosecution of the case. The Court released the detained persons, including Mohammad Ali Hossain, upon receiving a penalty of BDT 100.00 (USD 1.30), which is the punishment under Section 84 of the DMP Ordinance-1976.

Example-2 : 12 year old Shazedul Islam was arrested by the Tangail police on 14.03.96. He was a student of class seven of Khash Shahzani M.A..Karim High School, Tangail. An order for

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his detention for one month under the Special Powers Act, 1974 was issued on 18.3.96 and the detention order was extended for another three months on 17.4.96. The detention order was again extended for another two months on 17.7.96. His detention was declared illegal by the High Court Division and he was released from detention.

The writ of mandamus In Latin Mandamus means we command. It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Mandamus will not lie where the law has given another specific remedy.

A writ of mandamus is a court order which compels someone to execute a duty which he or she is legally compelled to complete. This type of writ can also be used to order a lower court to complete a duty which is assigned by law. The writ of mandamus is rarely used, because it must be demonstrated that there is no other remedy available and that someone is suffering an injustice as a result of the failure to complete a legally required duty. It can also be very disruptive and for that reason judges are reluctant to grant such writs unless they are truly necessary.

In some cases, the writ of mandamus may order someone to complete a task, while in other cases, it may order that an activity be ceased. For example, if a couple wanted to get married and they were refused a marriage license by the clerk despite the fact that there were no legal barriers to their marriage, they could file for a writ of mandamus to compel the clerk to issue the marriage license. Conversely, someone could file for a writ to ensure that a court will not pursue a case which is outside its jurisdiction.

When a writ of mandamus is imposed on a court, the writ must come from a higher court which has authority over the lower court. In situations where the highest court appears to be neglecting its legal duties or performing tasks which are outside its scope of authority, people may have to resort to other measures to compel the court. The person or court subjected to the writ can also oppose it if it can be argued that the writ of mandamus is not appropriate to the situation.Writs like this can only be used when there is a clear legal duty which is not being met. A writ of mandamus could not, for example, be used to compel someone to do something which she or he is not obligated to do by law and position. Likewise, if there are over equitable remedies which can be pursued they must be considered before a writ of mandamus will be granted.

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Legal requirements : The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities: It must be a duty of public nature and the duty must be imperative and should not be discretionary.

Types : There are three kinds of mandamus:

1. Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.

2. Peremptory Mandamus : An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.

3. Continuing Mandamus : A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.

Examples of the Writ of Mandamus :

Example-1 : The High Court asked the government to establish in a year a national building code enforcement authority to enforce the provisions on workplaces, health and safety of the construction workers stipulated in the Bangladesh National Building Code 2006. The bench of Justice Syed Mahmud Hossain and Justice Gobinda Chandra Thakur also ordered Rajdhani Unnayan Kartripakkha, Chittagong Development Authority, Khulna Development Authority, city corporations and local government authorities to act as interim building code enforcement authority until the enforcement authority was formed in a year in accordance with the code.

The court also asked the housing and public works ministry to report to the court every three months on the development in the implementation of the directives and the building code enforcement. The court passed the order in its verdict in a writ petition filed by rights organisation Bangladesh Legal Aid and Services Trust on January 27, 2008 after the Rangs Bhaban collapse in Dhaka on December 8, 2007 that killed several workers and injured many others.

The writ petition will be treated as a pending matter and the directions on the respondents will be a continuing mandamus, the court said. Earlier on January 29, 2008, the High Court issued a rule asking the government to explain why it should not be directed to establish the code enforcement agency in keeping with Section 2.1 of Chapter 2 of the Bangladesh National Building Code 2006.

Example-2 : In the case of Md. Abdul Mannan Bhuiyan vs. University of Rajshahi & Others. 25 BLD (2005) (HCD) 138, respondantrespondent was the Rajshahi University. Here, Rajshahi University was directed to re-examine the examination paper of Md. Abdul Mannan Bhuiyan. It was the 13th Paper of LL.B.(Hons.) Part-iv IV of 1999. Direction was further given to re-examine the paper impartially, in accordance with relevant provisions of re-examination and in accordance with law.

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The writ of certiorari Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to". A writ of certiorari is an order a higher court issues in order to review the decision and proceedings in a lower court and determine whether there were any irregularities. When a court issues a writ or certiorari it is referred to as "granting certiorari", or 'cert.'

A supreme court has power to review the proceedings of all lower tribunals and to rule upon their authority to hear the case and their decisions on questions of law. However, the lower court's determination on questions of fact will rarely be disturbed, although a state statute may authorize a higher court to do so.

A writ petition, also known as a petition for writ of certiorari, is a “document the losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court,” according to the Tech Law Journal website. Most of the appeal writ petitions deny by the Courts and are heard just a few of them.

There are several conditions necessary for the issue of Writ of Certiorari, which are as under:

(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially.

(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.

Examples of the writ of Certiorari :

Example – 1 : In Dr. Nurul Islam v. Bangladesh , before the emergence of Bangladesh the East Pakistan Government wanted to make the post of Director of the Institute of Post Graduate Medicine a non-practicing post and offered the post to the appellant , but the appellant declined the offer . In 1972 the appellant was appointed as Director and Professor of the Institute . The right to continue as professor of Medicine carried with the right to private practice . In 1978 the government issued a notification relieving the appellant of his duties and designation of professor of Medicine and the said notification also made the post of Director a non-practicing post. The appellant challenged the notification and the notification was declared to be without lawful authority by HC Division. The government thereafter in 1980 compulsorily retired the appellant under the Public Servants Retirement Act, 1974 . The appellant challenged the order of retirement . Though from the facts malice in fact can be suspected, because of the difficulty of proving it, the appellant urged malice in law stating that the order was passed to circumvent the earlier decision of the HC Division in his favour . The Appellate Division found the allegation to be correct and held the order of compulsory retirement vitiated by malice in law.

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Example-2 : Soya-Protein Project Ltd. V. Secretary, Ministry of MDMR , the government initiated “School Feeding Programme” and entered into contract with the petitioner for supply of soya-protein biscuits to schools for a fixed period. On the expiry of the contract period , government discontinued the programme, violating its own policy, was in gross violation of the legitimate expectation not only of the petitioner but also of the millions of under-nourished children warranting interference of the court and directed the government to implement it’s policy decision .The judgment doesn’t show that there was any promise in the shape of statement of policy to continue the programme and there couldn’t be any legitimate expectation of anybody of the continuity of the programme.

The writ of prohibition Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. A writ of prohibition is a writ directing a subordinate to stop doing something that they may not do, according to law, but are doing. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction.

When an agency of an official body is the target of the Writ of Prohibition, the Writ is directed to the official body over which the court has direct jurisdiction, ordering the official body to cause the agency to desist.

The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure .’

Why Issue a Writ of Prohibition? : Should there be issues about jurisdiction and a court passes judgment about a case that it not within its rights, then the validity of the case would be questioned. As a result, the individuals involved in the case would have to transfer to another court to continue the case or the accused could have the whole proceeding stopped altogether. This is one of the top reasons why a Writ of Prohibition is issued as immediately as possible. Without it, time and effort spent on a case might well be wasted if the rules of jurisdiction are not followed.

There are different types of jurisdiction namely: Personal, Territorial and Subject-matter, Concurrent and Exclusive.

Personal Jurisdiction-This refers to the authority on the person himself no matter where he or she is currently located.

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Territorial Jurisdiction-This refers to the geographical location or an area in which a court has authority over. Anyone who is within this stated location as well as any occurrences within the boundary is considered to be within the authority of a certain court.

Subject-matter Jurisdiction-This refers to the authority on the subject matter of the legal case.

Concurrent Jurisdiction-Concurrent or shared jurisdiction means that multiple courts have the authority to pass judgment on a particular case.

Exclusive Jurisdiction-As the name suggests, exclusive jurisdiction means that a certain court is the sole institution that has authority over a certain case.

Examples of the writ of Prohibition :

Example – 1 : Anisul Islam Mahmud v. Bangladesh , a petition was being prosecuted under s.7 of the Special Power Act for the offence of absconding and failing to surrender pursuant to a detention order passed against him , the HC Division issued a writ of Prohibition as the detention order having been found to be without lawful authority, the special Tribunal has no jurisdiction to proceed with the trial .

Example – 2 : In Abdul Latif vs. Govt. of West Pakistan, PLD 1962 (SC) 384, a Deputy Commissioner was prohibited from proceeding further with recovery of amounts as arrears of land revenue, since the action was found to be in violation of the principle of natural justice.

The writ of quo warranto Quo Warranto means “by what warrant or authority”. Quo Warranto writ is issued against the person of public who occupies the public seat without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office.

A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondant claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing , to present proof of his authority to execute his claimed powers. If the court finds the proof insufficient, or if the court fails to hold the hearing, the respondant must cease to exercise the power. If the power is to hold an office, he must vacate the office.

The writ is unlike a petition or motion to show cause, because the burden of proof is on the respondant, not on the demandant.

History : Quo warranto had its origins in an attempt by King Edward I of England to investigate and recover royal lands, rights, and franchises in England, in particular those lost during the reign of his father, King Henry III of England. From 1278 to 1294, Edward dispatched justices throughout the Kingdom of England to inquire “by what warrant” English lords held their lands and exercised their jurisdictions (often the right to hold a court and collect its profits). Initially, the justices demanded written proof in the form of charters, but resistance and the unrecorded

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nature of many grants forced Edward to accept those rights peacefully exercised since 1189. Later, quo warranto functioned as a court order (or "writ") to show proof of authority; for example, demanding that someone acting as the sheriff prove that the king had actually appointed him to that office (literally, "By whose warrant are you the sheriff?").

The most famous historical instance of quo warranto was the action taken against the Corporation of London by Charles II in 1683. The King's Bench adjudged the charter and franchises of the city of London to be forfeited to the Crown though this judgment was reversed by the London, Quo Warranto Judgment Reversed Act 1689 shortly after the Glorious Revolution.

Examples of the writ of Prohibition :

Example : Sajeda Parvin v. Bangladesh , when brought to the notice of the court each and every order passed while the detention continues will come under scrutiny for satisfaction of the court that the detenu is not being held in the custody without lawful authority or in unlawful manner .

Part-B : Public Interest Litigation ( PIL )Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity: the public in general. 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.

According to Black's Law Dictionary- "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest.

Public Interest Litigation (PIL)in Bangladesh : Public Interest Litigation (PIL)’s entrenchment in-Bangladeshi constitutional jurisprudence in the mid-1990s . Public Interest Litigation (PIL) is one of the judicial way through which administrative accountability can be ensured in Bangladesh. A PIL, a petition brought before the High Court Division of the supreme court of Bangladesh in the nature of write under Article 102 of the constitution, is an effective tool for the enforcement of the constitutional and legal rights of the poor and excluded groups as well as ensuring accountability of

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concerned govt. and public authorities towards the issues of public importance. PIL is same as judicial Review in the public interest. The distinction between judicial review and PIL is that in writ petition is linked with private interest and PIL only deals with public interest. It aims to enhance social and collective justice and there must be a public cause involved as opposed to a private cause. In short, PIL may be described as a type of litigation where the interest of the public is given priority over all other interests with an aim to ensure social and collective justice, the court being ready to disregard the constraints of the adversary model of litigation.

PIL is a kind of judicial procedure in the form of legal activism on the part of court. It’s a strategic arm of the legal aid movement. PIL is central to the principles of social justice, i.e. justice for the weak. PIL has enlarged the door of the administrative accountability through judiciary. Through PIL accountability is ensured by the courts for injustice committed by the agencies of the government or persons in contraventions to the fundamental rights guaranteed by the constitution, rights emanating from other laws of the country and the principle of natural justice. It’s a medium for social and economic charge in the country by removing the unfairness and injustices in society. It supports and aims for public accountability of the govt.

Issues in PIL : Unlike mainstream law, PIL is not oriented, to the individual nor does it deal with a range of ‘single’ disputes. PIL is invariably group-oriented. It deals with the assertion of group or collective rights, involves questions of injustice pertaining to a group or collectivity, or may involve a legal action where an individual is representative of a group. PIL sees in this group dimension to its work the opportunity to make more profound structural changes in society and initiate larger ripples of change.PIL has also flourished in countries of the world, because it provides a way for civil society to become actively involved in questioning public decision-making, including decisions on political structure and democratic space. It provides a way to challenge and change major public policy decisions and campaign for social, economic and political reform.

This age-old principle of locus standi caused Bangladesh not to have any successful PIL. For example in [Kazi Mukhlasur Rahman vs Bangladesh] (1974), also known as “Berubary case”, had a strong PIL backing and was very close to establishing the principle of judicial review in the public interest. Here the Appellant’s locus standi was questioned since he was not a resident of the territory. Although the Appellate Division (AD) had granted the locus standi as it constituted an impeding threat to his fundamental right to move freely throughout the country and settle any where but it did not authoritatively establish PIL in the sense understood today. When PIL can be filed ? : A PIL can be filed only in a case where “Public interest” at large is affected. Some of the possible areas where a PIL can be field are-a) Where a factory or industrial unit is causing air pollution and people nearby are

getting affected.b) Where some construction company is cutting down trees, causing environmental

pollution. Writ & PIL 16

c) Where, in an area there are no street lights, causing inconvenience to commuters. d) Where there is regular loud “miking” in a residential area causing noise pollution. e) Where poor people are affected because of govt’s arbitrary decision to impose

“tax” heavily. f) For maintaining roads, sewer etc. in good condition. g) For removal of big hoarding and signboard from the busy road to avoid traffic

problem.

Who can file PIL? : Any public-spirited person can file a PIL on behalf of a group of persons whose rights are affected. For example a lawyer may file a PIL for release of some under trial in jail, who has spent more number of years in jail than the period proscribed as punishment for persons the offence they are being tried for.

When a Writ Petition can be treated as PIL ?:According to Article 102 of Bangladesh Constitution Writ can be applied to all government authorities. The Writ petition should involve a question, which affects public at large or group of people and not a single petition, depending upon the nature of case.

Against whom PIL can be filed in Bangladesh ?:i. A PIL can be filed only against state/central government, municipal authorities

but not my private party. ii. However “Private Party” can be included in PIL as “Respondent”, after

making concerned state authority party.

Procedure to file PIL:PIL is filed in the same manner as a writ petition is filed.

In High Court:If a PIL is filed in a High Court, then two (2) copies of the petition have to be filed. Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party. In Supreme Court:If a PIL is filed in the Supreme Court then 5 sets of petition has to be filed apposite party is served, the copy only when notice is issued.Procedure:

i. Proceeding, in PIL start and carry on in the same manner, as other cases. ii. However in between the proceedings if the judge feels he/she may appoint a

commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems etc.

iii. After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.

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Remedies available by PIL:There are many kinds of remedy which can be given in a PIL to secure the public interest at large. For example interim measure such as;

1. Release of under trial on personal bonds ordering release of all under trial persons who have been imprisoned for longer time than punishment period.

2. Closure of industrial plant emitting poisonous gas, setting up victim compensation scheme, ordering the plant reopening subject to extensive direction.

3. Prohibiting cutting of trees or making provisions for discharge of sewage, till disposal of final petition.

Relief in most of the PIL cases in the Supreme Court is obtained through interim orders.

The nature and problems of Public Interest Litigation (PIL) in Bangladesh : PIL in Bangladesh was a major push in the struggle for social justice and the fight against the state's abdication of its duties. It seems that there is no disagreement as to these objectives of PIL, if not as to how to achieve them.

In Bangladesh , PIL does not reach the grassroots' level, and its elitist use undermined the much-needed focus on social justice and socio-economic empowerment of the in disadvantaged.

Most of the new PIL involve political motivations and are still principally driven by the el (consisting of individuals, associations of elitist individuals, political press groups such as lawyers' bodies, civil society representatives, and r governmental organizations). After all, PIL has a political and social function that it seeks constantly to reshape and rebalance power relations.

The elitist mobilization of PIL in Bangladesh is reflected virtually the total absence of true epistolary PIL.s or of real victim litigants, an the dearth of PILs by less elitist but more genuinely public-spirited citizens sue academics or independent social activists.

Moreover, rights groups that utilize PIL as social impact litigation do so as a strategic part of their job description.

Also, their resources and willingness to litigate public causes are limited by own internal agenda-setting interests in addition to other apparent and hl< external factors such as government interference.

Furthermore, there is no instance where the court has appointed fact-finding or expert commissions, nor has it awarded costs or compensation in any PIL.'1" Judicial conservatism in expanding the remedial regime was reflected in Sultana Nahar v Bangladesh (1998), where the court not only refused standing to a lawyer, but also held that constitutional remedies were unavailable against the illegality (eviction of sex-workers) committed by private parties."

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Yet, despite recent techniques of retaining judicial supervision ('rolling review') and issuing time-bound reportage directives, the court's inability to engage public officials in the court-directed reform activities, to strongly monitor PIL decisions or to resort to the armoury of contempt jurisprudence to ensure executive compliance has retarded PIL's optimal performance. The lack of adequate judicial capacity to ensure that promising court decisions are actually implemented is a major problem of Bangladeshi judicial activism.

The future of PIL in Bangladesh : To give a neat account of PIL's achievements in Bangladesh is not yet possible, but it has certainly had some impact on social ordering and the executive's behaviour. For instance, it is because of PIL that the environmental law of Bangladesh is gradually taking a pro-people shape and has been attracting some measure of legislative-executive activism. On several occasions, PILs filed immediately after the initiation of clear-out actions resulted in judicial interventions stopping the eviction of slum dwellers until those petitions were disposed of, or procuring a government promise not to throw people on the streets without providing them with suitable shelter elsewhere. More encouragingly, following a prominent anti-eviction PIL , some dramatic impact emerged in the form of a rehabilitation scheme for slum dwellers. These cases reveal how judicial activism can yield an environment of executive-judiciary cooperation in the public interest. Legal developments in other areas, particularly with regard to the principles of rule of law and constitutionalism, are also in the process of being dealt with.

However, the future of PIL-based judicial activism seems to depend much on the judiciary's capacity to increase its focus on justice and generate a dialogic atmosphere to enhance decisional legitimacy, ensure executive compliance and solicit legislative cooperation. The first task calls for a change in judges' intellectual and functional approach to the concepts of law, rights, justice and their judicial role. The latter, closely related with the former, demands judicial pragmatism and/or craftsmanship in engaging other government branches within the process of public interest adjudication.Building a just society demands sustained efforts on many fronts, of which PIL is but one, albeit essential, strategy.131 Clearly, PIL is not a wonder-drug providing 'deliverance' from all social evils. It is a participatory means that increases not only public access to justice, but also the efficiency of a particular legal system in providing justice. By taking justice seriously, the courts can transform PIL decisions from mere court pronouncements into an aspect of justice-based PIL that would have far greater impacts on society.'

The supply side of judicial public interest activism is quite weak in Bangladesh where-public interest groups suffer from a multiplicity of chronic problems such as funds and resource (legal and human) shortages, government interference and internal policy problems. Moreover, civil societies are weak, unorganized and less rights-centric. While individual lawyers are not generally apathetic towards PIL, they are largely ignorant of its importance and pro-people ramifications. Barring certain exceptions, a committed group of

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willing and able PIL lawyers is virtually absent, and those few lawyers who have litigated in the public interest have often been 'one-shooters' rather than 'repeat players'.

Despite these usual problems, the strong patronizing base of judicial activism from above has cemented the support structure below. The most demonstrable 'support for this claim comes from the well-working Indian rights regime constructed by the 'world's most active judiciary', amidst what identifies, incorrectly in my view, as 'a weak support structure'. In the Bangladeshi context, PIL's under-use, limited subject coverage and the dearth of PIL lawyers all point to the absence of sustained judicial activism. The attitude of most judges that PIL cases should be argued by senior lawyers rather than 'junior' staff lawyers has cast a shadow on the PIL strategy of civil society organizations, which sometimes find it difficult to engage senior lawyers. The dialogic function of PIL-based judicial activism may be considered. A process of democratic dialogue through judicial constitutional and public interest activism is emergent in Bangladesh, but has a long way to go before becoming a well-established participatory method of justice delivery.

Examples of Public Interest Litigation (PIL) in Bangladesh :

Example -1 : Dr. Mohiuddin Farooque v. Bangladesh & others Writ Petition No. 7422/1997 (Gulshan Lake Fill-up) : A division bench of the High Court Division issued a Rule in a petition filed in 1997 against implementation of an agreement called the “Banani, Gulshan, Baridhara Lake Development Project Agreement” signed between RAJUK and Indus Valley Investment Pvt. Ltd. to undertake a huge construction in the said areas, defying and violating the constitutional and legal requirements.

The Court directed them to show cause as to why “the agreement and the subsequent agreements to lease out a total area of 220 acres of public land should not be declared to have been entered/undertaken without lawful authority in violation of law and the constitution against public interest and as such be declared null and void and of no legal effect.”

The Government subsequently cancelled the project.

Example -2 : Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 3916 of 2006 (MT Alfaship not to be Allowed to Proceed Further) : A writ petition filed by BELA challenging the legality of the entry of the vessel MT Alfaship (listed as one of the 50 dangerous ships by the Green Peace) into the territorial waters of Bangladesh for scrapping purposes has been moved on 2nd May, 2006 before a division bench of the High Court comprising Mr.

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Justice Awlad Ali and Mr. Justice Zinat Ara. Upon hearing the petition, the Hon’ble Court issued a Rule Nisi calling upon the respondents to show cause as to why their failure to prevent the entry of MT Alfaship into the territorial waters of Bangladesh and why the arrival of the vessel MT Alfaship without the approval of the DG, Department of Shipping shall not be declared to be without lawful authority and is of no legal effect. The Rule has been made returnable for 3 weeks.

The Court has further required the government to show cause as to why it should not be directed to take steps for banning importation to Bangladesh any of the 50 ships identified as hazardous by the Green Peace.

Pending hearing the rule, the Court has directed the Director General, Coast Guard, the Director General, Department of Shipping, the Collector of Customs and the Chairman, Chittagong Port Authority not to allow the vessel MT Alfaship to proceed further towards Chittagong Port or the internal water of Bangladesh for the next two months.  

Worth mentioning considering the environmental hazards that breaking of MT Alfaship may cause to the environment, the Green Peace has listed the ship amongst the 50 most hazardous ships. The Directorate of

Shipping, on consideration of the environmental hazards of the ship, has successively refused to allow opening of L/C for importing the ship for scrapping purposes.  Despite the warning of Green Peace and the refusal of the Directorate of Shipping, MT Alfaship has already entered the outer anchorage of Bangladesh for scrapping purposes the legality of which has been challenged by BELA.    

The rule has been made absolute.

Conclusion

The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion however should be exercised on sound legal principles. In this respect it is important to emphasis that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits.

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Under Article 102 of the Constitution the People's Republic of Bangladesh the High Court Division exercises its power of judicial review by issuing writs in the nature of prohibition, mandamus (do it), certiorari (lack or excess of jurisdiction) and quo warranto, against the concerned public functionaries and a writ of habeas corpus [have the corps (body) before us (Court)] against anyone, including a private individual, if there is a violation of any relevant provision of this Article.

Being a Constitutional enforcement it cannot be taken away or curtailed by ordinary legislation or even by amendment of the Constitution. The jurisdiction under this Article is known as Special Original Jurisdiction or writ jurisdiction. The Rule Nisi, which may be issued under this Article, requires the respondent to explain that his action is not unlawful and the temporary injunction in the form of 'stay', which also may be granted under this Article, impedes the concerned public functionaries for a certain time or until the adjudication of the matter from overstepping their power in violation of the Constitution.

Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. In the end , with the hope once expressed by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.

References and Bibliography

1. Sufian, Md. Ashraful Arafat , PREVENTIVE DETENTION IN BANGLADESH: A GENERAL DISCUSSION , BANGLADESH RESEARCH PUBLICATIONS JOURNAL , ISSN: 1998-2003 Volume: 1, Issue: 2, Page: 166 -176, July - August, 2008

2. Abdul, Md. Halim, “Constitution, constitutional law and politic: Bangladesh Perspective” Dhaka (1998)

3. Choudhury , Asad Hossain , ALL ABOUT THE LAW OF WRITS , Dhaka4. Ali , Syed Gouseuzzaman Haideri , Delegating Writ jurisdiction, Dhaka 5. Islam , Barrister M. Moksadul , Constitutional rights vis-a-vis writ6. R Hoque, Judicial Activism as a Golden Mean: A Critical Study of Evolving Activist Jurisprudence with

Particular Reference to Bangladesh (unpublished Ph.D. Thesis, School of Oriental and African Studies, London, 2007)

7. Constitution of People Republic of Bangladesh8. http://www.wordiq.com/definition/Writ

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9. http://en.wikipedia.org/wiki/writs

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