A writ, within the context of legal terminology, pertains to a formally structured legal instrument that mandates an individual or entity to either execute or refrain from a particular action or deed. Typically authored by judges, courts, or other entities possessing administrative or judicial authority, writs constitute an integral component of the common law system. They are frequently issued subsequent to the rendering of a judgment, thereby providing the concerned parties in a legal proceeding with the authority to enforce the stipulations outlined in the judgment.
In the context of the People's Republic of Bangladesh Constitution, Article 102 delineates the exercise of this right, whereby citizens in Bangladesh can avail themselves of this remedy by submitting a written petition, known as a writ petition, to the High Court Division of the Supreme Court. This petition seeks the court's guidance or rulings on the matter at hand. Subsequently, the court issues summons to the opposing parties, or respondents, directing them to either perform or abstain from specific actions as deemed necessary by the court.
There are five types of writs in Bangladesh:
• Habeas Corpus
1.Writ of Habeas Corpus
The initial category of writ in Bangladesh is known as Habeas Corpus, derived from the Latin phrase meaning "have his body." Originating in 1640, this legal provision safeguards the liberty of British subjects against unjust imprisonment in both public and private custody. Pursuant to sub-clause I of clause (b) of sub-clause (2) of article 102 of the Bangladesh Constitution, the High Court Division, upon the application of any individual, directs the presentation of a person in custody to determine the legality of their detention. Those unlawfully detained have the option to file a writ petition for Habeas Corpus. In cases where the detainee is unable to make such an application, any interested party, such as a spouse, parent, or friend, may act on their behalf.
Each Habeas Corpus petition necessitates an accompanying affidavit detailing the facts and circumstances leading to the request. If the court identifies a prima facie case for granting the petition, it issues a rule compelling the detaining authority to show cause on a specified date why the ruling should not be made absolute. Subsequently, the court evaluates the merits of the case and issues an appropriate order on the designated date.
2.Writ of Certiorari
Certiorari, derived from Latin, meaning "to be certified" or "to be more completely aware of," originally denoted a court order. Over time, the writ's scope expanded to encompass judicial, quasi-judicial, and administrative powers. The Writ of Certiorari empowers the High Court Division of the Supreme Court to oversee the actions of inferior or subordinate courts, ensuring their adherence to jurisdictional boundaries within Bangladesh.
The aggrieved party may submit a Writ of Certiorari, or in specific circumstances, any individual may do so against a lower court, tribunal, or authority that has abused its power or violated the principles of natural justice. If the party directly impacted by the lawsuit initiates the application, the court typically provides ex debito justitiae relief. However, if the application is filed by someone not directly involved in the litigation, the court holds discretionary authority to grant the writ.
3.Writ of Mandamus
Mandamus, translating to "we command" in Latin, entails a superior court ordering an individual, corporation, lower court, or government to fulfill a defined public duty associated with their office. The High Court Division, in accordance with sub-clause I of clause (a) of subparagraph (2) of article 102 of the Constitution, may issue a Writ of Mandamus, directing a person engaged in tasks related to the affairs of the Republic or a local authority to comply with the law. This remedy is applicable when a person's legal rights, as opposed to contractual rights, are violated. The applicant must demonstrate a legal right to the fulfillment of a legal obligation by the individual or entity against whom the writ is sought.
4.Writ of Prohibition
Another prevalent writ in Bangladesh is the Writ of Prohibition. Characterized as a preventive writ, it empowers the High Court Division to restrain a court, tribunal, authority, or person from engaging in conduct prohibited by law. A Writ of Prohibition is suitable when there is a deficiency or excess of jurisdiction, an abuse of power, or a violation of the principles of natural justice. If a judicial or quasi-judicial authority issues an order that is illegal or exceeds the court's jurisdiction, the aggrieved party may file a writ petition with the High Court Division, and if deemed valid, the court may issue a Writ of Prohibition against the lower court, such as the District Judge Court.
Prohibition operates in contrast to mandamus, as mandamus compels an authority to act, whereas prohibition prevents a court or tribunal from acting beyond its authority.
5.Writ of Quo-Warranto
The concluding type of writ in Bangladesh, discussed in this article, is the Writ of Quo-Warranto. Translated from Latin, quo-warranto means "what is your authority." This writ serves as a judicial remedy against an occupant or usurper of an independent public office, franchise, or liberty. It grants jurisdiction to the judiciary to oversee executive conduct regarding appointments to public positions, ensuring compliance with relevant statutory provisions and protecting citizens from being unjustly denied a public post to which they may be entitled.
In a Writ of Quo-Warranto, the petitioner challenges the legitimacy of the incumbent's claim to a public office. Consequently, this writ may be sought by anyone, irrespective of whether they have a personal stake in the outcome. The objective of the writ is to prevent an individual who has illegitimately seized a public office from perpetuating their position. Therefore, an application for a Writ of Quo-Warranto, challenging the legitimacy and validity of an appointment to a public position, may be filed by any private individual, even in the absence of a personal stake in the matter.