Introduction
Law
means any Act, Ordinance, Order, Regulation, bye law, notification or other
legal instrument and any custom or usage having the force of law. Law is
enacted for the benefit of mankind.1 Law is such a matter where
individual statements or opinion carries no value. A right is an
advantage, benefit or interest conferred upon a person by law. A legal right is
one which is protected or enforced by law. A writ
is a remedial right for the enforcement of substantive law. Writ means a
written document by which one is summoned or required to do or refrain from
doing something. 2 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”.3 Writ is a very important piece
of legal remedies which aims at to provide measure for the infringement of
fundamental rights of the people of a country.
___________________________________________________________________________
1 Siddiqur Rahman Miah, Law of Writs in Bangladesh (Dhaka: New
Warsi Book Corporation, 2007), p.ix.
2 Ibid.,
p.ix.
3 Sharifuddin Pirzada, Fundamental Rights and Constitutional
Remedies in Pakistan (Lahore: All Pakistan Legal Decisions, 1966), p. 417.
As
a judicial control of the administrative action, constitution provides power
upon the High Court to issue any writ as required, so that the speedy measure
may be taken against the administrative power ultra vires. Historically, writ originated and developed in British
legal system .Initially writs were Royal prerogatives. Since
only the king or queen as the fountain of justice could issue writs, they were
called prerogative writs.’’ They were called prerogative writs because they
were conceived as being intimately connected with the rights of the crown.’’.4
The king issued writs through the court of king’s Bench or the Court of
Chancery. The prerogative writs were five in number-Habeas Corpus, Certiorari,
Prohibition, Mandamus and Quo-Warranto.
The king issued them against his officers to compel them to exercise their
functions properly or to prevent them from abusing their powers. Subjects being
aggrieved by the actions of the 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 the
government functions increased and the concept of rule of law emerged and the
courts became independent, these writs came to be the prerogatives of the court
instead of the King and lastly they came to be the prerogative of the people
for they are now guaranteed rights in the constitutions of many countries and
citizens can invoke them as of right.5 In Bangladesh, there is no prerogative power belonging to any
organ of government. But the power to issue writ corresponding to English
prerogative writ has been vested in the High Court Division under Article 102
of the Constitution.6 Article 102 of the Constitution of the
Peoples Republic of Bangladesh is the core of writ jurisdiction. To move before
the High Court Division is also a fundamental right enshrined in the Part III
of the Constitution of Bangladesh and the same has been emphasized and
guaranteed by Article 44 of the said Constitution.
______________________________________________________________________________
4 Amin Ahmed, Judicial
Review of Administrative Action (Dhaka: University of Dhaka, 1969), p.33.
5 Md.Abdul Halim, Constitution,
Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB
Foundation, 2006), 3rd ed. pp.363-64.
6 Siddiqur Rahman Miah, Ibid.,p.ix.
The
provision of Article 102(1) of the Constitution of Bangladesh is applicable in
every kind of writ if any of the fundamental rights guaranteed in Part III of
the Constitution of the People’s
Republic
of Bangladesh is infringed or violated.7 The writs are five in
number Habeas Corpus, Certiorari, Prohibition, Mandamus and
Quo-Warranto. Habeas Corpus is a kind of order of the Court that commands the
authorities hold an individual in custody to bring that person in the Court.
The authorities must then explain why he is being held. The Court can order the
release of the individual if explanation is unsatisfactory. Thus Habeas corpus is a process for securing
the personal liberty of the subjects.8 Certiorari is meant to control the action of the inferior Courts
and to make it certain that they have not exceeded their jurisdiction.9
Prohibition prevents a tribunal
possessing judicial or quasi-judicial powers from exercising jurisdiction over
matters not within its cognizance. The purpose of prohibition is to limit the
jurisdiction of the Court.10 Mandamus
is an order or command of the Court directing to any person, corporation or
inferior tribunal requiring him to do some particular thing as his duty when a
Court, Tribunal, Authority or person has failed to perform his statutory
obligation, High Court, compels the Court or person to do his statutory
obligation.11 Quo-Warranto
is a writ by which the High Court verifies the title of a person to the office
and thus the unauthorized occupants are ousted by judicial order. When a person
illegally holds a public office created by law, the High Court on the
application of any person can by issuing quo-warranto,
ask the person to show on what authority he holds the office and can make him
not to hold such office further.12
___________________________________________________________________________
7 Kamruzzaman Bhuiyan, Article
102,1st ed. (Dhaka: Kamruzzaman Bhuiyan, 2008), p.1.
8 Siddiqur Rahman Miah, Ibid., ix.
9 Ibid.
10 Ibid.
11 Ibid.
12 Ibid.,
p.x.
These
5 classes of writs have not been mentioned in the said Article 102.
After
examining the statement of Article 102(2) we have to presume the existence of 5
kinds of writ.
1.
Article
102(2) (a) (I) deals with the functions relating to the Writ of Mandamus as well as Writ of Prohibition,
2.
Article
102(2) (a)(ii) is the provision relating to the Writ of Certiorari,
3.
Article
102(2) (b) (i) is concerned with the Writ of Habeas Corpus
4.
While the provision of 102(2) (b) (ii) is
concern with the Writ of Quo-Warranto.
On
the other hand, the provision of Article 102(3) deals with the saving
clauses regarding writ cases against which remedy under writ jurisdiction is
not available. Article 102(4) is concerned with the functions relating
to ad-interim relief in writ jurisdiction, and lastly the provision of Article
102(5) is related with functions of government officials as well as their
remedy under Article 117 of the Constitution. For getting remedy under writ
jurisdiction the petitioner has to keep in mind the provisions of Article 117
of the Constitution of Bangladesh because the matters which fall within the
ambit of Administrative Tribunal will not come under the purview of their
jurisdiction.13
Since
these writs are found on the express provision of the constitution, the High
Court Division is also free to issue appropriate orders in the nature of those
writs, embedding their essential principles. In Bangladesh those writs are
available not only for the enforcement of fundamental right created by various
statutes and other laws enforced for the time being.14
_____________________________________________________________________________
13 Kamruzzaman Bhuiyan, Ibid., p.1.
14 Siddiqur Rahman Miah, Ibid., p.x.
General Concepts of Writs
2.1. Definition of
Writ
Writ
means a written document by which one is summoned or required to do or refrain
from doing something. 1 A writ is remedial right for the
enforcement of substantive law. A writ literally means a written order.2
“Writ means” a written command,precept,or formal order issued by a court,
directing or enjoying the person or persons to whom it is addressed to do or
refrain from doing some act specified therein.3
Writ defined,
According to:-
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, required him
to command the wrong-doer or party accused, either to do justice to the
complainant or else to appear in Court, and answer the accusation against him. Carter:-It was the king’s order to his
liege, written on parchment and sealed with the Royal Seal, and disobedience of
the writ was contempt of the royal authority and punishable as such
Stroud:-A writ is the process by which civil
proceedings in the High Court are generally commenced. There are many other
kinds of writ, e.g. writ of execution, writ of error, writ for the election,
writ of a Member of Parliament, etc. issued in the name of the reigning
monarch, for the doing, or not doing, of some act or thing.Historically writ
originated and developed in British legal system. In England, the writs are
issued by the Crown as the head of the judicial system. Where there is no
statutory source and the Crown issued it by virtue of prerogative, it was
called the prerogative writ e.g. the writ of habeas corpus, mandamus, prohibition, certiorari, and quo-warranto.4
________________________________________________________________
1 Md.Abdul Halim, Constitution, Constitutional Law and
Politics: Bangladesh Perspective (Dhaka: CCB Foundation, 2006), p.363.
2
Siddiqur Rahman Miah, Law of Writs in Bangladesh (Dhaka: New
Warsi Book Corporation, 2007), p.2.
3
Concise law Dictionary, 3rd ed. (London,
LexisNexis Publication, 2005), p.899.
4
Siddiqur Rahman Miah, Ibid., p.2.
In Bangladesh, there is no prerogative power
belonging to any organ of government. But power to sue the writ corresponding
to the English prerogative writ has been rested in the High Court Division
under Article 102 of the constitution. Since these writs are founded on the
express provisions of the constitution, the High Court Division is also free to
issue appropriate orders in the nature of those writs, emboding their essential
principles. However, these writs are available not only for the enforcement of
fundamental rights but also for the enforcement of non-fundamental legal rights
created by various statutes and other Laws in force for the time being. This
jurisdiction to enforce the legal rights is vested in the High Court Division
under Article 102 of the constitution.5
2.2. Classification of Writs:-
The
prerogative writs were five in number:-
(I).Habeas Corpus
(II).Certiorari
(III).Prohibition
(IV).Mandamus
(V).Quo Warranto
Brief
idea as about five kinds of writs and decisions thereto will be discussed and
the thesis will proceed to evaluate our constitutional provision regarding
various aspects of writ.
(I). Writ of Habeas
Corpus
Habeas Corpus means 'have his body' i.e.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 before Court. The
authorities must then explain in the Court why the person is being held.6
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.7
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.
6
Ibid.
7
The Constitution of People’s Republic
of Bangladesh, 1972; Art.102.
Sec.
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.8 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. 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.9 This writ is the
most important weapon forged by the ingenuinity of man to secure the liberty of
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 final perfection in 1969 when Habeas
Corpus Act was passed”.10
(II). Writ of Mandamus:-
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.11 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.12 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.
______________________________________________________________________________
8
The Code of Criminal Procedure,
1898; Sec 491.
9 Zabrivsky v. General
Officer (1947) All C 246.
10 M.Hidayatullah, Democracy
in India and Judicial Process (New Delhi: Asia Publishing House, 1965),
p.76.
11 Siddiqur Rahman Miah, Ibid.,,
p.154.
12 The Constitution of People’s Republic of Bangladesh, 1972;
Art.102.
According to Ferris,’ Generally speaking, it may be said
that mandamus is a summary writ,
issuing from the proper court, commanding the official or board to which it is
addressed to perform some specific legal duty to which the party applying for
the writ is entitled of legal right to have performed”.13 In
Halsbury Laws of England, 14
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 specified which appertaining to his or their office and is in the
nature of public duty”. Thus it
is clear 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.
(III). Writ of prohibition:-
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.15
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.16
_____________________________________________________________________
13Ferries, The Law of Extra-ordinary Legal Remedies (London: Sweet and
Maxwell, 1999), p.187.
14
vol.11, 3rd, Para 159, p.84.
15
Kamruzzaman Bhuiyan, Article 102 (Dhaka: Kamruzzaman Bhuiyan,
2008), p.36.
16
The Constitution of People’s
Republic of Bangladesh, 1972; Art.102.
Prohibition has been defined as the name of a
writ issued by a superior court, directed to the judge and parties to a suit in
an inferior court, commanding them to cease from the prosecution of the same,
upon a suggestion that the cause originally, or some collateral matter arising
therein, does not belong to that jurisdiction, but to the cognizance of some
other court.17 Prohibition
is an ordinary remedial writ, as old as the common law itself.Orginally the
primary purpose of prohibition was to limit the jurisdiction of the
ecclesiastical courts. Writ of Prohibition is a judicial order issued
by the High Court to any constitutional, statutory or non-statutory agency to
prevent these agencies from continuing their proceeding in excess or abuse of
their jurisdiction or in violation of the principles of natural justice or in
contravention of the law of the land.18
(IV). Writ of Certiorari:-
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.19 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.20 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.21
_____________________________________________________________________
18
Concise law Dictionary, Ibid., p.899.
19
Kamruzzaman Bhuiyan, Ibid., p.37.
20 The Constitution of People’s Republic of Bangladesh, 1972;
Art. 102.
21 Md.Abdul Halim, Ibid.,
pp.367-68.
Writ
of certiorari is a judicial order
operating in personam and made in original legal proceedings, directed by the
High Court to any Constitutional, statutory or non- statutory body or
person ,requiring the records of any action to be certified by court or dealt
with according to law.22
(V).Writ of Quo Warranto:-
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.23 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. Writ of quo warranto
is a judicial order issued by the High Court by which any person who occupies
or franchise or liberty is asked to show by what right he claims it, so that
the title to the officer, franchise or liberty may be settled and any
unauthorized person ousted.24 This writ of Quo warranto is issued to show by what authority a person is
holding or purporting to hold a public office. The High Court Division can
enquire into the legality of the claim of a party to an office. A writ of quo-warranto may be applied at the
instance of any person even who has no personal or special interest. A stranger
can also file such writ petition. It is discretionary relief which the Supreme
Court may grant or refuse according to the facts and circumstances of each
case. Thus, the Supreme Court may refuse it where the application was actuated
by ill-will, or malice or ulterior motive. It is a settled practice not to
interfere with the discretion of the High Court Division, if the discretion has
not been exercised reasonably or perversely.25
________________________________________________________________
22 Concise
law Dictionary, Ibid., p.899.
23 Md.Abdul Halim,Ibid.,
p.367.
24
Concise law Dictionary, Ibid., p.900.
25 Latifur Rahman, The Constitution of the People’s Republic of
Bangladesh with Comments &Case-Laws (Dhaka: Mullick Brothers, 2005),
pp.134-5.
2.3. Writ on Public Interest
Litigation
Public
interest litigation is a proceeding in which an individual or group seeks
relief in the interest of the general public and not for its own purpose.
Public interest litigation has enlarged and enriched the traditional doctrine
of lucas standi and had opened new
remedies and procedures.26 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 a class of the community have
pecuniary interest or some interest by which their legal rights or liabilities
are affected.27 At present, many changes are taking place 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 innovate
new methods and devices, new strategies for the purpose of providing access to
justice to large masses of people who are deprived and to whom freedom and
liberty have no meaning, Considering all these developing judicial trends, the
Supreme Court of Bangladesh should strongly come forward to allow public
interest litigation (PIL).Normally the person aggrieved may bring writ
petition. In case of public interest litigation, any interested person may
bring writ petition for the interest of public.
____________________________________________________________________
26
Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD), 1.
27
The Janata Dal v. Harinder Singh and others, AIR 1993 SC 892 at 906.
Interpretation of Statutes
3.1. Definition of Interpretation
An
Act, statutes or Code is enacted in brief. Its language is not very detail.
While applying the principles laid down in the Act, statute or Code the
authority very often finds it difficult to be sure if particular section,
sub-section or clause applies to the problem in hand or not. The authority,
however, must ensure whether the alleged principle shall apply or not. This
process of applying, the principle laid down in the Act is termed as
interpretation. For example, if a person is alleged to have committed theft one
has to see what are the ingredients of the offence of ‘theft’ as defined in
Section 378 of the Penal Code, and whether the allegated act falls squarely
within the definition of theft or not. If it does, it is a case of theft
otherwise not.1
3.2. Who is competent to interpret
Statute?
The
responsibility to interpret and apply the existing statutory law rests on the
Court. One of the most important functions of the Courts is the construction of
statutes. In Statutory law the written words (litera scripta or literal
legis) constitute a part of law itself. The actual words used themselves
are the part of law. The words not only contain the law, they themselves are
the law. Thus in a statutory law, every word is important and the judge has to
interpret or construct these words. They are to be construed according to the
intention and spirit of the Legislature which has enacted it.
1H.N.Tewari, Legal Research Methodology (Faridabad: Allahabad Law Agency, 1997),
p.90.
In
other words, the role of the Court is very important in making a statutory law
effective and efficient.2
3.3. Principles of Interpretation of Statutes
Necessity
of interpretation of statute arises when a case involves a statute. One of the
functions of the judiciary is to interpret and analyse the provisions of
statutes in reaching a decision or providing clarification of true meaning of
the enactment. Sometimes the provisions of a statute have a plain and
straightforward meaning. But in most cases, there is some ambiguity or vagueness
in the words of the statute that must be determined by the judge. Sometimes,
the judges have to fill the gaps in statute on the footing that the legislature
might be presumed to cover such gaps. The judiciary interprets the statute on
the basis of some established principles, and methods, which are called
principles of interpretation of statutes. These principles are also frequently
applied in interpretation of treaties concluded under international law.3
3.4. Rules of Statutory
Interpretation
There
are three traditional rules of interpretation which are as follows:-
(I).The
Literal Rule
(II).The
Golden Rule
(III).The
Mischief Rule
(I).The Literal Rule: - Under this rule the judge is
required to consider what the legislation actually says rather than what it
might mean. In other words, words used in a statute must be given their plain,
ordinary or literal meaning even if the outcome of that meaning would be
undesirable.4According to the literal rule; the judges consider
themselves as bound by the words of a statute when these words clearly govern
the
2 Ibid.
3
M.Shah Alam, Somokalin Antojartik Ain (Contemporary International Law), 2nd
ed. (Dhaka: New Warsi Book Corporation, 2008), pp.276-82.
4 Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective
(Dhaka: CCB Foundation, 2006), p.252.
situation
before the court. Thus, the court can neither extend the statute to a case not
within its term nor curtail it by leaving out a case that the statute literally
includes.5
Lord Esher said “If the words of an Act are clear
then you must follow them even though they lead to a manifest absurdity. The
court has nothing to do with the question whether the legislature has committed
an absurdity.”6
Case Illustration:-
In
Whiteley
vs. Chappell 7, The defendant pretended to be someone who
had recently died in order to use that person’s vote. It was an offence to
‘personate any person entitled to vote’. As dead people cannot vote, the
defendant was held not to have committed an offence. Obviously the purpose of
the Act was to stop voter fraud, here a fraud had taken place but the narrow
interpretation applied meant the person escaped punishment.
(II).The Golden Rule:-According to golden rule, if the
natural meaning of the statute leads to injustice, or hardship, then the court
may modify the meaning of the statute to such an extent as would be required to
find out the intention of the legislature.8This rule of
interpretation also called Wensleydale’s9
golden rule is applied in circumstance where the application of literal rule is
likely to produce an absurd result.
Lord Wensleydale said “the grammatical and ordinary
sense of the words is to be adhered to, unless that would lead to some
absurdity or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified,
so as to avoid that absurdity and inconsistency, but no farther.” 10
______________________________________________________________________________
5 James A, Webb, Julian S &
Holland, Learning Legal Rules, 5th
ed.(Oxford: Oxford University Press, 2003), p.201.
6
R v. Judge of the City of London Court (1982) 1QB 273.
7 (1868) LR QB 147.
8 H.K.Mukherjee, A handbook of Legal Language Legal Writing and General English(Kolkata:Law
Point,2004),p.133.
9 Lord Wensleydale called this rule
“golden rule” and adopted it in Grey vs.
Pearson (1857) 6 HL 61,106 and thereafter it is usually known as Lord
Wensleydale’s Golden Rule.
10 Grey
v. Pearson (1857) 6 HL Cas 61
Case Illustration:-
In
R
v. Allen 11 ,The defendant was married and married again. It
was an offence for a married person to ‘marry’ again unless they were widowed
or divorced. When caught the defendant argued that he did not commit this
offence as the law regarded his second marriage as invalid. The court held that
the word ‘marry’ could also mean a person who ‘goes through a ceremony of
marriage’ and so the defendant was guilty.
(III).The Mischief Rule:-The mischief rule is contained in Heydon’s
Case12 and
allows the court to look at the state of the former law in order to discover
the mischief in it which the present statute was designed to remedy. The
utility of the rule depends to some extent upon the means that the courts are
entitled to employ in order to ascertain what mischief the Act was intended to
remedy.13
In
order to take recourse to mischief rule, the following four issues are to be
considered:-
(a).What
was the common law and the statute law prior to the making of the Act?
(b).What
was the mischief and defect for which the common law and the statute law before
the making of the Act did not provide?
(c).What
remedy Parliament had resolved to cure the defect?
(d).The
reason of the remedy. 14
_______________________________________________________________________________
.
11 (1872) LR 1 CCR 367.
12 (1584) 3 Co Rep 7.
13 Glanville Williams, Learning the Law, 11th ed.
(London: Stevens and Sons, 1982), p.103.
14
H.K.Mukherjee, Ibid., p.132.
Case Illustration:-
In
Smith
v. Hughes15, Six women had been charged with soliciting “in
a street or public place for the purpose of prostitution”. However, one woman
had been on a balcony and others behind the windows of ground floor rooms. The
court held they were guilty because the mischief aimed at was people being
molested or solicited by prostitutes.
In
DPP
v. Bull 16, a man had been charged with loitering or
soliciting in a street or public place for the purpose of prostitution. The
court held that the term ‘prostitute’ was limited to female prostitute. The
mischief the Street Offences Act 1959 was intended to remedy was a mischief
created by woman.
3.5. Purposive Approach
The
purposive approach is one that will “promote the general legislative purpose
underlying the provisions”.17There will be a comparison of readings
of the provision in question based on the literal or grammatical meaning of
words with readings based on a purposive approach.
Lord Browne Wilkinson said “the purposive approach to
construction now adopted by the courts in order to give effect to the true
intentions of the legislature”.18
Case Illustration:-
In
Jones
v. Tower Boot Co Ltd19, The complainant suffered racial
abuse at work, which he claimed amounted to racial discrimination for which the
employers were liable under section 32 of the Race Relations Act 1976.The CA
applied the purposive approach and held that the acts of discrimination were
committed “in the course of employment”. Any other interpretation can counter
to the whole legislative scheme and underlying policy of s.32.
______________________________________________________________________________
15 (1960) 2 All ER 859.
16
(1994) 4 All ER 411.
17 Notham
v. London Borough of Barnet (1978) 1 WLR 220.
18 Pepper
(Inspector of Taxes) v. Hart (1993) AC 593.
19 (1997) 2 All ER 406.
3.6. Gap Filling Role of the Supreme Court of Bangladesh:-
Though
the legal system in Bangladesh is based on common law system as opposed to
continental system, courts here have all along adhered to the doctrine of
purposive approach wherever necessary. Unlike in the UK, this has been possible
because of the absence of the doctrine of parliamentary supremacy. Bangladesh
has a written constitution with constitutional supremacy and the constitution
has invested the Supreme Court with the power of judicial review. This power of
judicial review is the source of purposive construction. It has been held that
where a plain construction will lead to absurd result and fail to carry out the
purpose, the legislature had in view; the court has the power to supply the
desideratum and fill in the gap.20Likewise, an omission, which the
context shows with reasonable certainty to have been unintended may be
supplied.21 It has also been held that the language of a statute may
be modified by court to give effect to manifest and undoubted intention of the
legislature.22 The safest course for getting legislative intent is
to supply the golden rule of construing an enactment as a whole.23
3.7. Role of the Supreme Court of
Bangladesh in interpreting a statute:-
In
a tripartite system of government, it is for the legislature to make the law
and the court’s duty is to enforce the law as passed by the legislature.24It
is often said that the function of the judiciary is to apply the law to settle
disputes coming before it and the court cannot in the name of interpretation of
a law create a new law.25
________________________________________________________________
20 Abdus
Sattat v.Arag Ltd (1964) 16 DLR 335.
21 Jadu
Nath v.Bangladesh, 25 DLR 335.
22 13 DLR (SC) 105, 27 DLR 523.
23 Jadu
Nath ,Ibid., 25 DLR 335.
24 Duport
Steels Ltd v. Sirs, (1980) 1 All ER 529.
25 Abdus Sattar,Ibid.,
16 DLR 335.
According
to Maxwell, the function of a court is to interpret a statute according to the
intent of the legislature and in doing so it must be bear in mind that its
function is jus dicere, not jus dare 26 : the words of a
statute must not be overruled by the judges, but reform of the law must be left
in the hands of Parliament.27 In the construction of statutes,
courts in Bangladesh are to ascertain the intention of Parliament. The courts
in Bangladesh are to apply the law as expressed by the legislature. However,
the Constitution of Bangladesh has set certain norms limiting the power of
Parliament and the Constitution conferred power on the Supreme Court to oversee
that Parliament in exercising its plenary power of legislation does not
transgress the limit. Thus, notwithstanding the clear and unambiguous language
used in the statute to keep it within the bounds set forth by the Constitution.
The Supreme Court may modify the meaning of a provision to avoid the conflict
of the statute with the provisions of the Constitution.28
Article 31 of our Constitution has adopted the due process concept in general
and without any limitation and properly construed article 31 of our
Constitution prohibits anything arbitrary, unreasonable or unjust. Having
regard to the provisions of article 31 of the Constitution, the courts cannot
enforce a law which is arbitrary, unreasonable or unjust even if the language
used by Parliament is clear beyond doubt. In such situation the maxim of ut res magis valear quam pereat(it may
rather become operative than null) comes into play. The court is required to
examine whether any other interpretation avoiding the apparent arbitrariness,
unjustness or injustice is available and, if so available, adopt that
interpretation. If this is not possible in view the specific language used by
Parliament, the court is duty bound to refuse enforcement of the law as being
inconsistence with the provisions of article 31and may be with the provision of
article 27 of the Constitution. Even though the court cannot make a law for the
Parliament, reading down a statute in such situation is a well-established
constitutional principle.29
______________________________________________________________________________
26 P.St .J.Langan, Maxwell on the Interpretation of Statutes, 12th ed.(Bombay:
LexisNexis, 2003), pp.1-2.
27 Md
.Ismail v. State, 21DLR (SC) 161.
28 Mahmudul Islam, Interpretation of Statutes and documents,
1st ed.(Dhaka: Mullick Brothers, 2009), p.13.
29 Ibid., p.16.
In
order to provide a constitutional dress-up, the court may limit the reach of
the offending law even though the language of the statute permits its reach far
beyond.30 It is for this reason, that notwithstanding the plenary
power of legislation remaining vested in Parliament, article 111 of the
Constitution specifically provides that pronouncement of the Supreme Court as
regards law would operate as the law of the land. It is said that there is no
need of interpretation when the meaning of the words is clear and beyond doubt
and the court will not go for interpretation if the language of the provision
is clear and beyond doubt ant the court will not for interpretation if the
language of the provision is clear. But this isolationist approach is not
correct. The court is to read a provision of a statute in its context which
includes other provisions of the statute and to see if on reading of the
statute in its context the language appears to be vague, ambiguous or equivocal
needing interpretation. A statute should be given an informed construction
taking into account its context and the court is to find the legal meaning of
the provisions of the statute which corresponds to the original legislative
intention.31Court is not concerned with the presumed intention of the
legislature-its task is to get at the intention as expressed in the statute.32When
the language of an enactment is ambiguous and admits of more than one meaning,
then the court is to find out which one of the meaning is in accord with the
legislative intent and that meaning is the legal meaning.33But when
the literal meaning is found to be contrary to the purpose of the legislation,
Court can modify the language of a statute to affect the manifest and undoubted
intention of the legislature.34 Where two meanings are possible, the
one that avoids absurdity or anomaly should be adopted. Hamooddur Rahman, CJ.in
Rasid
Ahmed v. State (1969)35 states: “If the words used by a
legislature, in their primary sense, do not mean what the legislature intended
then it is for the legislature to amend the statute and not for the courts to
attempt the necessary amendment by speculating as to the true intent of the
legislature. It is only where the words of a statute are obscure or doubtful or
the literal construction involves the creation of un-intended anomalies that a
departure from this rule is permissible.”
_____________________________________________________________________________________________________________________________________________
30 A.B.Mohiuddin
v. Bangladesh, 49 DLR 353.
31
Bennion, Bennion on Statute Law, 3rd ed. (London: LexisNexis,
2007), p.204.
32 40 DLR (AD) 116.
33
Bennion,Ibid.,p.204.
34
48 DLR 170.
35 21 DLR (SC) 297.
Some Important Case Analysis on
Writs in the Supreme Court of Bangladesh
Case Reference-1
4.1. The 5th Amendment: The Moon
Cinema Case
Constitution
has a body as well as a psyche. Physically it is the accumulation of
fundamental rules but psychologically it is the harbor of aspirations core to
the nationhood. This is a sacred charter requiring sacred allegiance and
defence to the last breath. Unfortunately ours was invaded and tormented
erratically for selfish ends 'both during the time when it was functioning and
during the time when it was not allowed to function.( MH Rahman, Our experience with Constitutionalism,
BJL 2:2, 1998, p 118.)
Like
others, our judiciary also remained cold to those hot political issues, of
course until recently a Division Bench of the High Court Division thought it
'best for the country that we put our records correct, once and for all'. This
was in the Bangladesh Italian Marble Works Ltd v. Government of Bangladesh and
Others 2006 (Spl) BLT (HCD) 1, the famous Moon Cinema case. Mentioning
the page numbers in brackets the present write-up tries to dig out the key
principles laid down by the Court in that 242-page judgment.
The
moon cinema controversy
After
1971, the Holding No 11 and 12, Waisghat was declared to be abandoned property.
Though the Holding No 12 was released later, Holding No 11 housing the Moon
Cinema House was not released. The petitioner challenged the order declaring
the said property as abandoned. The High Court Division in Writ Petition No 67
of 1976 directed the respondents to hand over the possession in favor of the
petitioners. In due course the Ministry of Industries deleted the 11, Waisghat
from the list of abandoned property and released that in favour of the
petitioner with a direction to the Freedom Fighters' Welfare Association to
handover the possession. But the Association filed the petition for Special
Leave to Appeal No 291 of 1977 which was dismissed on 20.1.1978. Even then the
Association declined to release the property on a new excuse.
It was the Martial Law Regulation VII of 1977.
Section 6(1) of the MLR VII declared that if any property was taken over as an
abandoned property, any judgment of any court in that regard would stand
annulled and be of no effect notwithstanding any defect in such taking over.
That MLR VII of 1977 was given constitutional protection through the Fifth
Amendment. Since in the face of MLR VII even the orders of the High Court
Division could not be executed to the prejudice of the petitioners, they filed
three writ petitions in 1994, 1997 and 2000 consecutively. The first two were
summarily dismissed for not challenging the Fifth Amendment itself and the last
one was dismissed for default. So the petitioner filed the present one and
challenged the vires of the Fifth Amendment.
The
Fifth Amendment: a historical account
In the darkness of the night of
August 15, 1975 Bangabandhu was brutally killed along with almost all of his
family members, perhaps with democracy also. On August 20, Khandker Mushtaq
Ahmed declared Martial Law with effect from August 15 and thereby, in the words
of the Court 'committed the offence of sedition against the Republic of Bangladesh
(Bangladesh Italian Marble Works Ltd v. Bangladesh 2006 (Spl) BLT (HCD) 75).
During
the turmoiling 1st week of November, Mushtaq nominated
Justice Sayem as the President. Ziaur Rahman came to the scene as the Deputy
Martial Law Administrator on November 7, 1975. On November 29, 1976 Justice
Sayem was to declare Zia as the Chief Martial Law Administrator to sustain
himself as a figure head President.( 3 Moudud Ahmed, Democracy and Challenge of Development: A study of Politics and
Military Interventions in Bangladesh (Dhaka: UPL 1978), p 51.)
Zia took oath as President on April 20, 1977
due to the 'deteriorating health' condition of Sayem. While even 'a Chairman of
a Union Council had to be elected and couldn't be nominated, nomination could
be made to the highest office of the Republic (Bangladesh Italian Marble Works Ltd
v. Bangladesh,
Ibid., p.93.)
Zia arranged a referendum 'unknown
to the constitution or any other law of the land' to obtain 'confidence'
of the people. He hammered a
99 percent of the total vote cast. The Presidential Poll was scheduled in June
1978 and Zia put his candidature. That time he got 76.73 percent to become a
'democratic' President. After forming BNP in August 1978, he arranged the
Parliamentary Election on February 18, 1979. BNP got 207 parliamentary seats
and 41 percent of the total vote cast. The newly formed rubber stamp parliament
was called in session on April 5 1979. In the very first session it passed the
Fifth Amendment Act which ratified and confirmed all the Proclamations, Martial
Law Regulations and Orders made during the period from August 15, 1975 to April
9, 1979 and judged them to be validly made. But history had its own judgment to
be rendered in due course. The truth finds its way through the historic
judgment of the High Court Division in the present case. The Judiciary, the
third umpire lights the red holding: 'Taking over of power by
Khandaker Mushtaq Ahmed, nomination of Justice Sayem as President, appointment
of Ziaur Rahman as Deputy Chief Martial Law Administrator, handing over of the
office of Chief Martial Law Administrator to Ziaur Rahman, nomination of Ziaur
Rahman as the President and Referendum Order of 1977 - were all without lawful
authority and in an unlawful manner'.
'The
Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) is illegal and void ab
initio.
Should
the Court venture into political questions?
While judicial review of parliamentary
legislation is marked as a precursor of constitutional supremacy, judicial
review of the constitutional amendments is seen with both reverence and
suspicion.(
Mustafa Kamal, Bangladesh Constitution:
Trends and Issues (Dhaka: Dhaka University, 1994), p. 139.)
Some argue that constitutional
amendment involves a Political Question to be better resolved within political
discourse than in the court arena n(Omar Imtiaz and Hossain Zakir, constitution and legal continuity, the Daily Star, Law and Our
Rights, September 17 and 24, 2005.)
Judicial adventure into this field might perturb some fait
accompli settled by the political and historical discourse and create confusion
rather than clarification. But the High Court Division in this instance considered
itself a social, if not political institution and so couldn't keep its eyes
shut to the legal needs of the society (Bangladesh Italian Marble Works Ltd
v. Bangladesh,
Ibid., p.164)
The Judges felt themselves bound to
declare what had to be declared, in vindication of their oath taken in
accordance with the constitution, otherwise they themselves, they noted, 'would
be violating the Constitution and the oath taken to protect the Constitution
and thereby betraying the Nation. In response to the political
warmth of the issue the Court seems not to care who is pleased and who is hurt
by its decision. It is better to hurt 'a few than the country’ to distinguish
between right and wrong.
.
On 'Efficacy' and 'Necessity'
Kelsen's theory of Successful
Revolution and its efficacy has long been a fascinating issue in Martial Law
talk. Faced with intermittent coups
d'etat, the courts used his theory of revolutionary legality, in pure or
modified forms, as a rule of decision to validate the rule of guns while Kelsen
himself emphasized that it is a theory of effectiveness, not a rule of decision
to adjudicate validity.13The Court, in this instance, simply holds
that Kelsen's theory can only be used to explain the past incidents. Any judge
in deciding a case may call upon many a legal theory in establishing his own
point of view but should not regard it as precedent(Bangladesh Italian Marble Works Ltd
v. Bangladesh, Ibid., p.174). As to the doctrine of necessity,
the Court asserts,
“The Constitution is a law for
rulers and people, equally in war and in peace, and covers with the shield of
its protection all classes of men at all times, and under all circumstances”
Emergency must be faced through constitutional method not by extra
constitutional interventions and so, turmoil or crisis in the country is no
excuse for any violation of the Constitution.
On
'Acquiescence'
The
plea that passing of a long time since its adoption without being challenged
immunizes the Fifth Amendment from constitutional challenge was sharply
rejected by the Court. 'No one acquires a vested or protected right in
violation of the Constitution by long use even when that span of time covers
our entire national existence and indeed predates it.
Is
there any 'Martial Law Jurisprudence'?
Relying
on earlier Supreme Court decisions, one of the pleaders appearing before the
Court tried to establish a sort of 'Martial Law Jurisprudence rising from the
wake of two Martial Law regimes.19 The Court rejected the contention
in unequivocal terms, “We are not aware of any such Martial Law Jurisprudence
either under our Constitution or any other laws of the land”.20 There
is no such law in Bangladesh as Martial Law, no such authority as Martial Law
Authority21 and hence no such jurisprudence as Martial Law
Jurisprudence.
An
ill-tailored amendment
While
invalidating the Fifth Amendment Act the Court found six major technical flaws
in
it:
Firstly,
the authority of a Marital Law Administrator to amend the Constitution is
absolutely intolerable. An amendment can be made by proper authority as
enjoined in the Constitution but not by any other person or group of persons
how high or powerful or mighty they may appear to be.
Secondly,
the Amendment being completely alien to the spirit and structure of the
Constitution is attacked by the phrase 'any other law inconsistent with this
constitution shall be void to the extent of inconsistency' in Article 7.
Thirdly,
the provisions sought to be ratified, confirmed and validated by the Fifth
Amendment were illegal. If the provisions sought to be validated were illegal
then how could the instrument itself be legal?
The
Fourth Schedule is not meant to be the dumping ground for all illegalities.
Fourthly,
Article 142(1)(a)(i) of the Constitution provides that no Bill for any
amendment shall be allowed to proceed unless the long title thereof expressly
states that it will amend a provision of the Constitution. The Fifth Amendment
did not contain such long title.
Fifthly,
the term 'amendment' does not mean the abrogation or destruction or a change in
the fundamental character of the Constitution.
The
words 'ratified, confirmed and declared to be validly made' appearing in the
Fifth Amendment Act are anything but amendment.28
Condonation
Taking
care of the concern that a legal vacuum may ensue if all the things from August
15, 1975 to April 9, 1979 were declared void, the Court condoned some
illegalities on the greater interest of the community provided that those acts
could have been legally done at least by the proper authority. Condonations
were made in respect of provisions which did not change the basic structures of
the Constitution and which deleted the various provisions of the Fourth
Amendment but not in respect of omission of any provision enshrined in the
original Constitution. Nor were condoned the amendments made in the Preamble,
Articles 6, 8, 9, 10, 12, 25, 38 and 142. It means the revival of those
provisions as they were in the original Constitution. But
condonation does not mean that for the sake of continuity, 'the Constitution
has to be soiled with illegalities'. Rather, the perpetrators of such
illegalities should be suitably punished and condemned so that in future no
adventurist, no usurper, would have the audacity to defy the people their
Constitution, their Government, established by them with their consent.
Conclusion
Symbolizing an extra ordinary legal scholarship, the judgment has put a high water mark in our constitutional history. Wherever may our political convenience or inconvenience lie, we must bow a judiciary which holds, “The Martial Law Authorities in imposing Martial Law behaved like an alien force conquering Bangladesh all over again, thereby transforming themselves as usurpers, plain and simple” .
Symbolizing an extra ordinary legal scholarship, the judgment has put a high water mark in our constitutional history. Wherever may our political convenience or inconvenience lie, we must bow a judiciary which holds, “The Martial Law Authorities in imposing Martial Law behaved like an alien force conquering Bangladesh all over again, thereby transforming themselves as usurpers, plain and simple” .
Case Reference -2
4.2. The 8th Amendment:
The Doctrine of Basic Structure of the Constitution
The case of Anwar Hossain Chowdhury v. Bangladesh (1989 BLD (SPL) 1.)
Popularly known as the 8th
Amendment case is a historic judgment in the constitutional history of
independent Bangladesh.
Background of the Case
After
martial law was imposed on 24th March, 1982, on 8th May
the CMLA by amending the Schedule to the Proclamation of the 24th
March, 1982 had set up six permanent Benches of the High Court Division
at Chittagong, Commila, Jessore Barishal, Sylhet and Rampur. By a
further amendment of the Proclamation by Proclamation Order no III of 1986
these permanent Benches were designed as “Circuit Benches” and it was provided
that when Article 100 of the Constitution would be revived, the Circuit Benches
should be deemed to be sessions of the HCD at Dhaka under that Article.2Martial
law was withdrawn on 10th November, 1986 and the Constitution was fully
revived on the same date. As the Constitution was revived the Proclamation
Order no III of 1986 was no longer operative and the Chief Justice under the
revived Article 100 in consultation with the President, proceeded to implement
the provisions of six sessions benches in the same places where Circuit Benches
were functioning during the martial law period. The Chief Justice issued six
other notifications specifying the jurisdiction to be exercised by each session
and the areas covered by them. However, when the Chief Justice issued
under the revived Article 100 six other notifications specifying the
jurisdiction to be exercised by each session of area are covered by them, it
added fuel to the fire and the lawyers became more agitated. Perhaps with a view
to stopping this agitation and movement the government passed the Constitution
(Eighth Amendment) Act, 1988 which substituted Article 100 by a new article
creating permanent Benches of the High Court Division in the six aforesaid
places (Article 100 as amended by the 8th
Amendment Act runs the following:-
100.
Seat of the Supreme Court
(1)Subject
to this Article, the permanent seat of the Supreme Court shall be in the
capital.
(2)The
High Court Division and the judges thereof shall sit at the permanent seat of
the Supreme Court and at the seats of its permanent Benches.
(3)The
High Court Division shall have a permanent Bench each at Barishal, Chittagong,
Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such
Benches as the Chief Justice may determine from time to time.
(4)A
permanent Bench shall consist of such number of judges of the High Court
Division as the Chief Justice may deem it necessary to nominate to that Bench
from time to time and on such nomination the judges shall be deemed to have
been transferred to that Bench.
(5)The
President shall, in consultation with the Chief Justice, assign the area in
relation to which each permanent Bench shall have jurisdiction, powers and
functions conferred on the High Court Division by this constitution or any
other law; and the area not so assigned shall be the area in relation to which
the HCD sitting at the permanent seat of the Supreme Court shall have such
jurisdiction, powers and functions.
(6)The
Chief Justice shall make rules to provide for all incidentals, supplemental or
consequential matters relating to the permanent Benches.)
The Constitution (8th Amendment)
Case
By
two writ petitions the amended Article 100 and the notification of the Chief
Justice were challenged as ultra vires.A Division Bench of the HCD dismissed
the petitions summarily. Leave was granted by the Appellate Division to
consider the Constitutionality of the Amendment. After a sound hearing the
Appellate Division by a majority of 3 to 1 struck down the 8th Amendment
as far as it related to the Creation of permanent Benches outside Dhaka by
substitution of Article 100.The ground shown by the court was that the impugned
amended Article 100 changed the character and nature of the function and
jurisdiction of the HCD as envisaged in the Constitution. Such an amendment
changing the basic structure of the Constitution was ultra vires and therefore
not tenable in law. This was a historic judgment in the sense that it was the
first time since the birth of the nation that the Supreme Court of Bangladesh
was striking down on amendment to the Constitution made by the parliament, the
supreme and sovereign law making body under the Constitution. The judgment
aroused serious controversies on the issue of parliaments authority to amend
the Constitution and whether the Supreme Court could restrict the amending
power of the parliament. And whether four or five judges sitting on a Bench
could be more wise or have more authority than the 330 members of parliament
elected by the people.
Principle Arguments on Behalf of the
Appellants
The
unitary character of the Republic is a basic feature of our Constitution and
the plenary judicial power of an integrated Supreme Court completely in line
with the unitary character of the Republic is also a basic feature of our
constitution which cannot be altered or damaged. The power of amendment of the
Constitution under Article 142 is a power under the Constitution and not beyond
it and it is not an unlimited power. The concept that parliament has unlimited
power of amendment is inconsistent with the concept of the supremacy of the
Constitution embodied in the preamble and Article 7of the Constitution. The
impugned Amendment being Contrary to the concept of integrated judicial system
and unitary character of the Republic has destroyed these basic features.
Argument by the State
Article
142 of the Constitution provides that any provision of the Constitution can be
amended by way of addition, alteration, substitution or repeal by an Act of
Parliament. This amendment proceeding is a special one since such an Act can be
passed only by two-thirds of the total number of MPs.So the parliament has
unfettered power to amend any provision of the Constitution, there cannot be
any implied limitation of parliament’s power of amendment of the Constitution.
The power of amendment under Article 142 is a constituent power; not an
ordinary legislative power. The amending power of the parliament is in no
way limited or otherwise controlled by some vague doctrine of repugnancy to the
preamble and Article 7 declaring the supremacy of the Constitution. The
independence of judiciary and separation of powers are basic features of our
Constitution but the impugned amendment has not affected either of the two.
The main issues to be decided by the court were, therefore, the implied
limitation of power of amendment of the Constitution, difference between
legislative power and constituent power, the meaning of the term “amendment”
and the “basic structure” doctrine.
The Principal Arguments of the Judgment
1.
The Constitution stands on certain fundamental principles which are its
structural pillars which the parliament cannot amend by its amending power for,
if these pillars are demolished or damaged, then the whole constitutional
edifice will fall down. Some of the basic structures are:-
(i).Sovereignty belongs to the people.
(ii).Supremacy of the Constitution.
(iii).Democracy.
(iv).Republic government.
(v).Independence of judiciary.
(vi).Unitary state
(vii).Separation of powers.
(viii).Fundamental rights.
This
structural pillar of the Constitution stands beyond any change by amendatory
process. If by exercising the amending power these principles are curtailed it
is the court’s duty to restrain it. The amended Article 100 has created more
than one permanent seat of the Supreme Court thus destroying the unitary
character of the judiciary; the transferability of judges has a likely effect
of jeopardizing the independence of the judiciary, a basic feature of the
Constitution. And the amendment has resulted in irreconcilable repugnancies to
all other existing provisions of the Constitution rendering the High Court
Division virtually unworkable in its original form.
2.
The amended Article 100 is ultra vires because it has destroyed the essential
Limb of the judiciary namely, of the Supreme Court of Bangladesh by setting up
rival courts to the High Court Division in the name of permanent Benches
conferring full jurisdictions, powers and functions of the High Court Division.
Beside this, this amended Article is inconsistent with Article 44, 94,101 and
102 of the Constitution. The Amendment has reduced Articles 108,109,110 and 111
nugatory. It has directly violated Article 114.The Amendment is illegal because
there is no provision of transfer of cases from one permanent Bench to another
Bench which is essential requisite for dispensation.
3.
If any provision can be called the ‘pole star’ of the Constitution, then it is
the preamble. The impugned Amendment is to be examined on the touchstone of the
preamble with or without resorting to the doctrine of basic structure. The
preamble is not only a part of the Constitution; it now stands as an entrenched
provision that cannot be amended by the parliament alone. When parliament
cannot by itself amend the preamble, it cannot indirectly by amending a
provision of the Constitution impair or destroy the fundamental aim of our
society. One of the fundamental aims of our society is to secure the rule of
law for all citizens and in furtherance of that aim part VI and other
provisions were incorporated in the Constitution. By the impugned Amendment
that structure of the rule of law has been badly impaired and as a result the
High Court Division has fallen into sixes and sevens-six at the seats of the
permanent Benches and the seven at the permanent seat of the Supreme Court. The
above quotations from the judgment make it clear that the centre-point on which
the majority judges relied to declare the impugned amendment illegal was the
doctrine of the basic structure of the Constitution.
The Doctrine of Basic Structure
This
doctrine is not a well-settled principle of constitutional law; it is rather a
recent trend in and a growing principle of constitutional jurisprudence. As
M.H.Rahman.J. says in the 8th Amendment case that the doctrine has
developed in a climate where the executive, commanding an overwhelming majority
in the legislature, gets snap amendments of the Constitution passed without a
Green Paper or White Paper, without eliciting any public opinion, without
sending the Bill to any select committee and without giving sufficient time to
the members of the parliament for deliberation on the Bill for amendment.10
The initial trace or origin of the concept of basic structure of the
Constitution can be found in the Sub-Continent, as Dr.Kamal Hossain submitted
in 8th Amendment case, in a decision of the Dhaka High Court (Abdul
Haque v. Fazlul Quder Chowhury PLD 1963,Dac.669).This decision was
upheld by the Pakistan Supreme Court in Fazlul Quder Chowdhury v. Abdul Haque11
where the court held---“franchise and form of government are fundamental
features of a Constitution and the power conferred upon the Presidency by
the constitution of Pakistan to remove difficulties does not extend to making
an alteration in a fundamental feature of the Constitution”.
Problems of the Doctrine of Basic
Structure
There
still remains a considerable controversy and differences of opinion as to the
substance of the doctrine of ‘basic structure’. Because what actually is meant
by the doctrine? What subject-matters will come under the category of ‘basic
feature’? Which particular features of a Constitution are basic and which are
not? These are the questions which are still haunting both the judges and researchers. In
8th Amendment case of Bangladesh the judges could not come into unanimity as to
what constitute ‘basic feature’ of the Constitution. According to B.H.Chowdury
.J.21 features are basic features of our constitution. Justice Sahabuddin Ahmed
has mentioned six features are basic features of our constitution.
Philosophy underlying the Doctrine
of Basic Structure
One
might argue that this doctrine is vague and should be rejected. But Sahabuddin
Ahmed .J. in the 8th Amendment case 1989 BLD (SPL) 1 says
that ‘the doctrine of basic structure cannotbe rejected if consequences of its
rejection is taken into consideration’. The consequence of rejecting the
doctrine of basic structure would be so grave and so opposed to the objectives
of the Constitution that the consequence of uncertainty would be insignificant
by comparison.
Defects of Doctrine of Basic
Structure
There
are some defects in the Doctrine of Basic Structure which are mentioned below:-
Firstly,
any provision of the Constitution may come, if judges so interprets, under the
umbrella of this doctrine giving rise to vagaries of clashing
principles.
Secondly,
this will give rise to differences of opinion among the judges which has been
seen in every case upholding ‘basic structure”
doctrine.
Thirdly,
the judge may, by applying any provision under the umbrella of “basic feature”
principle, reduce or narrow down the justifiable scope of amending power of the
parliament. And the absolute judicial dictation, in other words, the whim of
judiciary may take the place of constitutional limit in respect of amending
power of the Constitution.
Conclusion
Thus
with a view to avoiding some of the defects of the doctrine of basic structure
it also grows as a sound principle of Constitutional law. Both the judges and
researchers should take the ‘basic structure’ principle in a special sense
rather than in general or numerable sense. In special sense or in real or
substantive sense the doctrine of ‘basic structure’ means those fundamental
principles and objectives of the Constitution which are its structural pillars
and on which the whole edifice of the Constitution is erected and if these
principles are taken away or destroyed, the Constitution will lose its original
and inherent identity and character. So if it is found that a constitutional
amendment made by parliament has affected or is likely to destroy any of the
basic features of the Constitution, then the amendment should be declared
unconstitutional and void. And in this substantive sense the doctrine
necessarily indicates and means the ‘preamble’ of the Constitution. This is
because it is the preamble which, in the way of embodying
philosophy
of the Constitution, contains the fundamental principles and objectives as
fundamental aims or goal of the notion. Taking the preamble as a guiding star,
or touchstone or centre point judges should explain and nourish the doctrine.
It is pertinent to mention here that Justice Muhammad Habibur Rahman in 8th
Amendment case specifically and with emphasis meant ‘preamble’ of the
Constitution as the pole star in relation to the doctrine of ‘basic structure’.
Case Reference-3
4.3. The 10th Amendment: Women
Members of Parliament
Introduction
Women
of all continents can look back that they were once marginalized from the
mainstream of society and have come out a long way from that position on the
basis of equality, justice, peace and development. The two concepts-women's
rights and peace- have been interlinked because promotion of women's rights
promotes peace. In other words, peace prevails in society when women's rights
are established and protected as those with men. The origin of women's
subordination lies in political theories, propounded by men. The concern for
individual autonomy and freedom for men has later been extended to a concern
for women's equality, freedom and autonomy. The eligible women voters in the
country are more than those of men. During the general election, women cast
their votes more than men did. This demonstrates that women are conscious to
exercise their rights, if environment is made safe and secure. Although the
1972 Constitution (Articles 10, 19, 27, 28, and 29,) provides equality of men
and women, traditional social norms and orthodox religious precepts have
discriminated between men and women in society. By the 10th
Amendment of our Constitution there is a provision for reserved seats for woman
to ensure the rights of the woman. According to the existing provisions of the
Constitution of Bangladesh woman member may be of two types-general woman
members and special women members. Those who according to Article 65(2) of the
Constitution are elected from single territorial constituencies by direct
election are called general women members of parliament. And those
who according to Article 65(3) of the Constitution as amended by 14th
Amendment Act are elected indirectly in reserved seats for women by the
directly elected members of parliament may be called as special women members
of parliament.
Tenth Amendment: Background of the
Women Members Reserved seats
This
Amendment was passed in the 4th parliament on 12th June,
1990.It was mainly related to the reserved women seats in the parliament as
provided for in Article 65.The original Constitution provided for 15 reserved
seats for women members and this provision remained in force for 10 years. But
in 1979 through the 5th Amendment the number of reserved seats was
increased from 15 to 30 and the period this provision was to remain in force
was extended from 10 to 15 years. This period expired on 10th
December 1987 and as such the 4th Parliament on 10th
December 1987 and as such the 4th Parliament did not have any
reserved women seats. There were, therefore, debates and discussions within
Ershad’s ruling party whether such a reservation was necessary or desirable.
The mode of election for women’s reserved seats and their role in the
parliament had prompted a weekly to term these 30 ladies as “30 sets ornaments
in parliament’.3 However Ershad and his ruling party decided to keep
such reservation for another period of 10 years. To that end the Constitution
(Tenth Amendment) Bill was introduced on 10th June and passed on 12th
June, 1990.This Amendment reinserted clause (3) to Article 65 providing for 30
reserved women seats for a further period of 10 years beginning with the
commencement of the next parliament. However, on 16 May, 2004, the 8th Parliament
passed the Constitution 14th Amendment Act whereby provisions have
been made for 45 women members in reserved seats for another ten years starting
from the 8th Parliament.
The Constitution (10th
Amendment) Case
In
Dr.Ahmed
Hussain v.Banglades (44DLR
(AD),109.), the
petitioner having unsuccessfully challenged the vires of the aforesaid Tenth
Amendment of the Constitution sought leave to appeal from the judgment of the
High Court Division dated 28-11-91 in Writ Petition No.2306 of 1990.The leave
petition was dismissed on 2-3-92,44DLR (AD) 109, decided on March .
2,
1992.The petitioner Dr.Ahmed Hussain challenged the Tenth Amendment of the
Constitution being violation of Article 121 and 122(1) of the Constitution.
Article 121 provides that there shall be one electoral roll for each
constituency for the purposes of elections to Parliament,and no special
electoral roll shall be prepared so as to classify electors according to
religion, race caste or sex.Article 122(1) provides that the elections to
Parliament shall be on the basis of adult franchise. It was held by the Appellate
Division that the principle of single electoral roll for each constituency and
the principle of adult franchise are not violated in the case of election to
reserved seats for 30 women members, because the Constitution on the date of
its commencement provided for two different kinds of elections.300 members in
general seats are to be elected directly on the basis of adult franchise. Additionally,
some seats reserved for women members are to be filled up by a method of
indirect election. There is thus no conflict between the Constitution (Tenth
Amendment) Act and Article 121 and 122(1) of the Constitution. It was argued
that the method of indirect election for the seats reserved exclusively for
women has destroyed the principle of democracy as expressed in the Preamble, in
clause (1) of Article 7 and in Article 8 and 11 of the Constitution. The
Appellate Division held (judgment by M.H.Rahman.J.) that a system of indirect
election cannot be called undemocratic. It is provided in the Constitution
itself. Article 28 clauses (4) of the Constitution provides that nothing in
this article shall prevent the State from making special provision in favour
of, among others, women 7 and therefore the amendment is also not
violation of Article 28.
Justification for Women Members
Reserved seats
The
Constitution of the country recognizes that all citizens are equal before law
and undertakes to give them equal opportunities. However, it is also accepted
that in reality
all
section of society are not equal and therefore, the need for special provisions
for any disadvantaged sections of the society is also recognized. In question
of reserved seats for women members in parliament it is argued that to compare
with men women in our country are in a disadvantaged situation; their status is
unequal and subordinate to that of men in the society. This is why the
provisions of reserved seats for women were incorporated in the Constitution.
The purpose was to ensure a minimum representation of women in parliament, and
to ensure a wider participation by them in national politics.
Criticism of Women Members Reserved
Seats
The
provision of reserved seats for women was made for a specific period of 10
years only but method of election has made the whole pious purpose meaningless.
It is for the method of election that these 45 women members are being used as
a ready tool or ‘vote bank’ at the hand of the majority party rather than true
representation. Because they are elected or selected on the basis of
proportional representation of the parties in the parliament.
Recommendation
Among
the various ways of electing representatives, direct elections are considered
the most democratic. So, it would be better to recommend for direct election.
If we were to follow a system of one person two ballots, women candidates could
be directly elected by the people to the women seats. Each political party
would nominate candidates to the women seats as it does for general seats. Each
voter would have two ballot papers; one for the candidates to the general seats,
and other for the women seat. He or she would cast one ballot for the general
seat and one for the women seat resulting in 330 directly elected members of
parliament. Administratively or logistically this would not be a major problem
if different colored ballot papers are used.
Conclusion
It
cannot be denied that though women constitute half of our population, they
continue to be an under privileged section of our society. So reservation of
seats for women members are nothing undemocratic; rather a good sign of social
and political development. There needs to be a pledge that women are not to be
discriminated in society. The state institutions and mechanisms established to
implement laws are to be strengthened. The rights of women under the
Constitution and laws are not known to women in the countryside and there needs
to be an awareness program of these rights so that they know their position in
the society.
_____________________**__________**_______________________
An analysis of the interpretation of
Law of Writs by the Supreme Court of Bangladesh
In
this dissertation, some of the Principles of Writs have been discussed, which
are found in the decisions of the Supreme Court of Bangladesh. A thorough
analysis of the Law of Writs and its interpretation in the Supreme Court of
Bangladesh reveals the following points:-
5.1. Locus Standi:-By judicial interpretations of the Supreme Court of
Bangladesh, the concept of locus standi
i.e. ‘any person aggrieved’ have been gradually extended to other persons as
well. For filing an application under Article 102 of the Constitution it is not
necessary that the person must be personally aggrieved. Any person or group can
issue relief in the interest of the general public or for the well being of the
society and not for its own purpose. The idea has changed the traditional
doctrine of locus standi and has
opened the door of the Supreme Court even when the person concerned has no
personal interest in moving the application. Thus in our jurisdiction gradually
the door of public interest litigation is expanding which will usher in better
days for the common man of our society (1Dr.Mohiuddin
Farooque v. Bangladesh, 49 DLR
(AD) 1.)
5.2. Local Authority:-The Supreme Court can interfere with
the action of a ‘local authority’ set up by a statute. Where the local
authority is supposed to act within the limits of the statutory boundary and
fails to do so, mandamus may be issued for the performance of that act.Similary,
a local authority having a legal grievance can also file a writ petition. Thus
local authority is opposed to private authority having no sanction of law.
5.3. Natural Justice:-Another judicial rationale for
requirement of reasons is that a person affected by an adverse order is
entitled to know why the decision has gone against him or her. Our Supreme
Court has held that the absence of reasons leads to denial of Justice because
the rule requiring reasons to be given in support of an order is, like the
principle of audi alteram partem
which is the basic principle of natural justice.
5.4. Promissory Estoppel:-There
can be no estoppel against the
constitution and statute. Acting on the assurance or representation is enough
for applicability of the doctrine of promissory estoppel. On the basis of the principle of promissory estoppel the court can direct the
Government on a writ petition to carry out the promise made.
5.5. Public interest litigation:-Public interest litigation is a
proceeding in which an individual or group seeks relief in the interest of the
general public and not for its own purpose. Public interest litigation has
enlarged and enriched the traditional doctrine of locus standi and had opened new remedies and procedures.
5.6. Res judicata:-In
writ jurisdiction, where a decision has been delivered on merits, the rule of
constructive res judicata will be
applicable to bar a second writ application founded on the same cause of action
or as regard relief, which were asked for but not granted in the previous
proceeding under Article 102, or as regards a ground which
ought
to have been taken in the previous application.
5.7. Malafide:-In
a writ petition, Malafide must be
alleged and the same is to established on the basis of facts. There should be
some factual basis for alleging the same otherwise the Court will not accept
the contention of the petitioner.Malafide
vitiates everything and such Malafide
action will not get immunity in any circumstances.
5.8. Service Matter:-Where the fundamental rights of the
petitioner are violated by legislation or rules or by an order of the
Government, the petitioner can move the High Court by filing an application
under Article 102 of the Constitution. The same principle is application to an
employee of a statutory public sector employee. A candidate who has been
illegally denied selection in service matter can approach the court for remedy.
5.9. Passport:-A citizen’s passport cannot be
impounded without any valid ground and cause. Hence the requirement of natural
justice is implicit in case of denial and impounding of a passport of a
citizen.
5.10. Ultra Vires:-This
doctrine simply means that an authority has no power to do act complained of.
An authority can only do things permitted by the statute to be done and things
which are not expressly conferred by the Statute are forbidden to be done. This
doctrine permits the court to strike down the decision made by the bodies
exercising public functions which they have no power to make.
5.11. Latches or unreasonable
delay:-This is a
maxim based on equitable principle that, ‘delay defeats equity’. Inordinate and
unreasonable delay in filing a writ petition may bar the remedy under Article
102 of the Constitution. However, if the delay is unintentional and properly
explained, then at times the writ jurisdiction may be exercised on the facts
and circumstances of each case.
___________________________________________________________________________________
6Abdul
Jalil v.Bangladesh,
4 MLR (1999) (AD) 353.
7
Mustaque Ahmed v. Bangladesh, 34 DLR (AD) 222.
8 Bangladesh v .
A.Rahman, 1982 BLD (AD) 176.
9 Rafique-Ul-Huq v.
Bangladesh, 44 DLR 398.
10 Jamil Huq v
Bangladesh, 34 DLR (AD) 125.
5.12. Disputed question of facts:-In general, a disputed question of
fact is not investigated in a writ petition where an alternative remedy is
available. Rival claims of property and disputed question of title cannot be
the subject matter of writ.12
___________________________________________________________________________________
11 Sarwarjan Bhuiyan and
others v. Bangladesh, 44 DLR 144.
12 Shamsunnahar Salam v.
Md.Wahidur Rahman, 51 DLR (AD) 232.
Observations and Recommendations for
the implementation of writs.
The
dissertation has some recommendations regarding the issue of “Law of Writs in
Bangladesh and Its Interpretation in the Supreme Court of Bangladesh’’, as
following:-
1. Delegating Writ jurisdiction: - The High Court Division of the
Supreme Court is overburdened with all kinds of civil suits, including writ
cases. In this situation, High Court Division may delegate some of its writ
jurisdictions to District Courts. This will not be unconstitutional.
Article-44(2) declares, without prejudice to the powers of the Supreme Court
under Article-102, Parliament may by law empower any other court, within the
local limits of its jurisdiction, to exercise all or any of these powers.(article
44)
(a)Writ Jurisdiction can be shared
with District Courts in the following ways:-
District Courts can receive writ cases and deal with them at their initial stages. District Judges can be given jurisdiction to receive writ cases from plaintiff petitioners and deal with them at their initial stages. District Judges can take evidences, all necessary documents, examine witnesses and determine the question of fact and then send the case to the High Court Division. On receiving the case the High Court Division can conduct the trial, determine the question of law and give final judgment. Here, the role of District Judge will be similar to the role of Magistrate. Section 202(2A) and section-205c of Cr. P.C. provides, when any Magistrate receives a case which is exclusively trialed by a Court of Sessions, then the Magistrate wish all make inquiry into the case by taking documents, articles, examining witnesses, take other evidences which are necessary and wish all send the case to the Court of Sessions for trial.2
District Courts can receive writ cases and deal with them at their initial stages. District Judges can be given jurisdiction to receive writ cases from plaintiff petitioners and deal with them at their initial stages. District Judges can take evidences, all necessary documents, examine witnesses and determine the question of fact and then send the case to the High Court Division. On receiving the case the High Court Division can conduct the trial, determine the question of law and give final judgment. Here, the role of District Judge will be similar to the role of Magistrate. Section 202(2A) and section-205c of Cr. P.C. provides, when any Magistrate receives a case which is exclusively trialed by a Court of Sessions, then the Magistrate wish all make inquiry into the case by taking documents, articles, examining witnesses, take other evidences which are necessary and wish all send the case to the Court of Sessions for trial.2
(b) District Courts can be delegated
with the jurisdiction to dispose some of the writ cases which are less
complicated and involve less questions of law. These are discussed below:-
i) Writ of Habeas Corpus
Some of the Writs of Habeas Corpus can be delegated to
District Judges. Many of the Writs of Habeas Corpus are simple, such as in the
case of Sardar Begum v. Habib Shah Khan3, provide us with an
example. Here the accused escaped from police custody. Petitioner who was the
relative of the accused was detained in police station as hostage for two
months for recovery of the accused who had escaped. Held, such custody of
detainee was without lawful authority and was opposed to provisions of the
Constitution of Pakistan. Moreover, a person can be arrested in remote areas
outside the capital. In such situation, it will be better if a District Judge,
where a person is arrested, gives the jurisdiction of Habeas Corpus.
(ii)Writ
of Mandamus
Some
of the Jurisdiction of Writ of Mandamus
can be delegated to District Judges when the case is simpler and when it
involves an order upon any statutory public authority of a lesser status or of
any inferior tribunal. In the case of Md. Abdul Mannan Bhuiyan v. University of
Rajshahi & Others 4, respondent 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 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.
(iii)
Writ of Prohibition
Writ
of Prohibition is more complicated
than Writ of Habeas Corpus and Writ of Mandamus.
Nevertheless, some jurisdiction regarding Writ of Prohibition can be delegated to District Judges, where it involves
an order upon a statutory public authority of a lesser status. In Abdul
Latif v. Govt. of West Pakistan, 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.
(c)Writ jurisdictions which should
not be delegated to district judges: There are some writ jurisdictions which can never be
delegated to District Judges. These are explained below:-
(i) Writ of Certiorari
Writ of Certiorari is a curative or corrective remedy. It is a complicated
matter. So, this Jurisdiction should remain only with the High Court Division
and not be shared with District Courts.
(ii) Writ of Quo-Warranto
Writ of Quo-Warranto involves, challenging a person, who is holding a
public office. Therefore, this jurisdiction should remain only with the High
Court Division and should not be shared with District Courts. Besides, when
Writ of Habeas Corpus, Mandamus or Prohibition turns out to be of complicated nature, then those cases
should be adjudicated by the High Court Division only and not by District Court.
Hence, by delegating some of the Writ
Jurisdictions to District Judges, the High Court Division can reduce its burden
and it can relieve itself to a great extent. To handle and adjudicate the Writ
Cases, quality, education and position of District Judges should be upgraded by
continuing legal and judicial training. Moreover, rank and status of District
Judges should be
raised.
2. Article 102 of our Constitution uses the term ‘any person
aggrieved’. It does not use the expression as “aggrieved party” or “any person
personally aggrieved’’.So, the Supreme Court of Bangladesh should expressly
come forward to allow PIL.
3. Srilanka and Pakistan—these two neighboring countries have,
although they have same Constitutional constraints as we have in our
Constitution, already overcome the barricade of ‘aggrieved person’ and they are
now widely allowing PIL. So why not our Supreme Court?7
4. In the increasing and expanding role of the state in
socio-economic activities public are affected by the legislative and executive
action. It often involves public money, sales or parchase with public fund.
State purses as well as the state largees are used for political or personal
gains. This also breads corruption and nepotism. From political side, there is
neither any provision for individual responsibility of ministers nor does any
strong committee system exists in Bangladesh. This has resulted in uncontrolled
corruption and nepotism in every department of the government. In such a
situation, the highest court must protect fundamental rights and to control the
arbitrary actions on the part of the government, if the highest court fails to
do so, then promises to the people of equality, justice, rule of law etc as
enshrined in the preamble to the Constitution will remain as meaningless
versions.
5. The courts must be very cautious. When confronted with the
issues that were mainly political in nature, the judges should carefully
separate the legal and constitutional aspects from the political ones. But in
cases with genuine social justice matters, the courts should not hesitate to
pronounce in favour of the petitioner.9
Conclusion
It
is known to all that a system of laws without effective remedies either fails
in its mission or serves very little purpose. An effective system of remedies
would also serve no good purpose unless there is a vast awareness of the
existence and availability of those remedies. Out of all legal remedies, writ
is a very important piece of legal remedies against the infringement of the
administrative action which is increasing day by day in the context of the
multifarious activities of the state. If cordial approaches are taken to the
practical modification in the existing system of Law of Writs in Bangladesh, it
can be proved truly effective as a remedy to the public. The recommended steps,
once adopted, can be further scrutinized to find out better ways to ensure the
utility of this constitutional system.
It can be
said that, writ is the special kind of remedy provided by the High Court
Division of the Supreme Court of Bangladesh. But such kind of remedy is not
always available except in case of protecting the violation of fundamental
rights. But in case of establishing any of the legal rights provided by any law
of the land the aggrieved party has to satisfy the court that he has no equally
efficacious remedy under that law etc.
Appendix
The Constitution of the People’s
Republic of Bangladesh, 1972; Article 102.
102.
Powers of High Court Division to issue certain orders and directions, etc.
(1)
The High Court Division on the application of any person aggrieved may 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 the fundamental rights conferred by Part
III of this Constitution.
(2)
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 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 law to do or to do that which he is required by law to do;
or
(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 of no legal
effect; or
(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; 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 contained in the foregoing clauses, the 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 programme, or any development work; or
(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 of the application and he (or an advocate authorized by him in that
behalf) has been given an opportunity or 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 defense services of
Bangladesh or any disciplined force or a tribunal to which article 117
applies.
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44
Abdul Jalil v.Bangladesh, 4 MLR (1999) (AD)
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47
Abdul Latif v. Govt. of West
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18-9
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20
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30-8
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47
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411.
17
Dr.Ahmed Hussain v.Bangladesh, 44 DLR (AD),
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41-2
Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD), 1.
12, 45-6
Duport Steels Ltd v. Sirs, (1980) 1 All ER
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18
Grey v. Pearson (1857) 6 HL Cas
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16
Heydon’s Case, (1584) 3 Co Rep
7.
16
Holy Family Red Cross Hospital
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Jadu Nath v. Bangladesh, 25 DLR
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18
Jamil Huq v. Bangladesh, 34 DLR (AD)
125.
47
Jones v. Tower Boot Co Ltd,(1997) 2 All ER
406.
17
M.A.Hai v. TCB, 32 DLR (AD)
46.
46
Md. Abdul Mannan Bhuiyan v.
University of Rajshahi & Others,
25BLD
(2005) (HCD)
138.
50
Md. Ismail v. State, 21DLR (SC)
161.
19
Mustaque Ahmed v.Bangladesh, 34 DLR (AD)
222.
47
Notham v. London Borough of Barnet (1978) 1 WLR
220.
17
Pepper (Inspector of Taxes) v. Hart (1993) AC
593.
17
R v. Allen, (1872) LR 1 CCR
367.
16
R v. Judge of the City of London
Court (1982)
1QB
273.
15
Rasid Ahmed v. State (1969), 21 DLR (SC)
297.
22
Rafique-Ul-Huq v.Bangladesh, 44 DLR
398.
47
Sardar Begum v. Habib Shah Khan, PLD (1976) Lahore
216.
50
Sarwarjan Bhuiyan and others
v.Bangladesh,
44 DLR
144.
48
Shamsunnahar Salam v.Md. Wahidur
Rahman, 51 DLR
(AD)
232.
48
Smith v. Hughes, (1960) 2 All ER
859.
17
The Janata Dal v. Harinder Singh and
others, AIR 1993
SC 892 at
906.
12
Whiteley v. Chappell, (1868) LR QB
147.
15
Zabrivsky v. General Officer 1947 All
C246.
7
Index
Certiorari, 10-1
Delegating
Writ Jurisdiction, 49-52
Disputed
question of facts, 48
Doctrine
of Basic Structure, 35-8
Golden
Rule, 15-6
Habeas Corpus, 7-8
Interpretation,
13
Latches
or unreasonable delay, 47
Literal
Rule, 14-5
Locus Standi, 45
Malafide, 47
Mandamus, 8-9
Martial
Law Jurisprudence, 27
Mischief
Rule, 16-7
Natural
Justice, 46
Prohibition, 9-10
Promissory
Estoppel, 46
Public
Interest Litigation, 12
Purposive
Approach, 17-8
Quo-Warranto, 11
Res judicata, 46
Ultra Vires, 47
Writ,
5-6
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