Law of Writs in Bangladesh and its Interpretation in the Supreme Court of Bangladesh

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. As a judicial control of the administrative action, constitution provides power upon the

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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.

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. 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

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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.

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 command 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

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

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⁷ Kamruzzaman Bhuiyan, Article 102,1^st ed. (Dhaka: Kamruzzaman Bhuiyan, 2008), p.1.

⁸ Siddiqur Rahman Miah, Ibid., ix.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Ibid., p.x.

kinds of writ. Article 102(2) (a)(i) deals with the functions relating to the Writ of Mandamus as well as Writ of Prohibition, Article 102(2) (a)(ii) is the provision relating to the Writ of Certiorari, Article 102(2) (b) (i) is concerned with the Writ of Habeas Corpus 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 with in 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 are also free to issue appropriate orders in the nature of those writs, emboding 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

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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.

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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, 3^rd ed. (London, LexisNexis Publication, 2005), p.899.

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                                                 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

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⁴ Siddiqur Rahman Miah, Ibid., p.2.

⁵ Ibid.

 (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. 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.⁹This writ is ______________________________________________________________________________

⁶ Ibid.

⁷ The Constitution of People’s Republic of Bangladesh, 1972; Art.102.

⁸ The Code of Criminal Procedure, 1898; Sec 491.

⁹ Zabrivsky v. General Officer (1947) All C 246.

 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.                                                                                                                         

              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

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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.

¹³Ferries, The Law of Extra-ordinary Legal Remedies (London: Sweet and Maxwell, 1999), p.187.

¹⁴  vol.11, 3rd, Para 159, p.84.

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                                                                                                                                 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

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¹⁵ Kamruzzaman Bhuiyan, Article 102 (Dhaka: Kamruzzaman Bhuiyan, 2008), p.36.

¹⁶ The Constitution of People’s Republic of Bangladesh, 1972; Art.102.

¹⁷ Bouvier’s Law Dictionary, 6^th ed.(USA: Bouvier Publication, 1856), p.78.

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                                                        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

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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.

 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

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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.

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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), 2^nd 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.⁸                        This 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 ______________________________________________________________________________

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.

ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.” ¹⁰

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

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¹⁰ Grey v. Pearson (1857) 6 HL Cas 61.

¹¹ (1872) LR 1 CCR 367.

¹² (1584) 3 Co Rep 7.

¹³ Glanville Williams, Learning the Law, 11^th 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 ______________________________________________________________________________

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.

employment”. Any other interpretation can counter to the whole legislative scheme and underlying policy of s.32.

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

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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.

court cannot in the name of interpretation of a law create a new law.²⁵                       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

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²⁵ Abdus Sattar,Ibid., 16 DLR 335.

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, 1^st ed.(Dhaka: Mullick Brothers, 2009), p.13.

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 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

²⁹ Ibid., p.16.

³⁰ A.B.Mohiuddin v. Bangladesh, 49 DLR 353.

³¹ Bennion, Bennion on Statute Law, 3^rd ed. (London: LexisNexis, 2007), p.204.

³² 40 DLR (AD) 116.

³³ Bennion,Ibid.,p.204.

³⁴ 48 DLR 170.

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.”

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.¹   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.

_____________________________________________________________________

[1] MH Rahman, Our experience with Constitutionalism, BJL 2:2, 1998, p 118.

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.² During the turmoiling 1st week of November, Mushtaq

^{__________________________________________________________________________________________________________________}

² Bangladesh Italian Marble Works Ltd v. Bangladesh 2006 (Spl) BLT (HCD) 75.

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 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.⁴                                                                                                                                                                                Zia arranged a referendum 'unknown to the constitution or any other law of the land' to obtain 'confidence' of the people.⁵ 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'.⁶                                     

________________________________________________________________

³ Moudud Ahmed, Democracy and Challenge of Development: A study of Politics and Military Interventions in Bangladesh (Dhaka: UPL 1978), p 51.

⁴ Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.93.

⁵ Ibid., p.86.

⁶ Ibid., pp. 240-1.

'The Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) is illegal and void ab initio.⁷

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.⁸ Some argue that constitutional amendment involves a Political Question to be better resolved within political discourse than in the court arena.⁹ 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.¹⁰The 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.¹¹                                                            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.¹²

^{________________________________________________________________________________________________________________}

⁷ Ibid., p.242.

⁸ Mustafa Kamal, Bangladesh Constitution: Trends and Issues (Dhaka: Dhaka University, 1994), p. 139.

⁹ Omar Imtiaz and Hossain Zakir, constitution and legal continuity, the Daily Star, Law and Our Rights, September 17 and 24, 2005.

¹⁰ Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.164.

¹¹  Ibid.,p.239.

¹²  Ibid.,p.204.

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.¹⁴                                                  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”¹⁵ Emergency must be faced through constitutional method not by extra constitutional interventions¹⁶ and so, turmoil or crisis in the country is no excuse for any violation of the Constitution.¹⁷

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 _____________________________________________________________________

¹³ Tayab Mahmud, Jurisprudence of Successful Treason: Coup d'etat and Common Law, 27 Cornell Int'l L. J. 50 1994, p.136.

¹⁴ Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.174.

¹⁵ Ibid., p.68.

¹⁶ Ibid., p.56.

¹⁷ Ibid., p.242.

existence and indeed predates it.¹⁸

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:                                                                                                                       First, 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.²²                                                              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 7.²³

________________________________________________________________________

¹⁸ Ibid., p.162.

¹⁹ Ibid., p.15.

²⁰ Ibid., p.228.

²¹ Ibid., p.240.

²² Ibid.,p.44.

²³ Ibid.,p.54.

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? ²⁴ The Fourth Schedule is not meant to be the dumping ground for all illegalities.²⁵                                                                                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.²⁶                                                                                              Fifthly, the term 'amendment' does not mean the abrogation or destruction or a change in the fundamental character of the Constitution.²⁷ 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.³⁰ Condonations were made in respect of provisions which did not change the basic structures of the Constitution ³¹ and which deleted the various provisions of the Fourth Amendment but not in respect ^{________________________________________________________________________________________________________________}

²⁵ Ibid.,p.156.

²⁶ Ibid.,p.195.

²⁷ 1989 BLD Spl 1.

²⁸ Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.198.

²⁹ Ibid., p.206.

³⁰ Ibid., p.216.

³¹ Ibid., p.227.

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.³²                                                                                                                                                                  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.³³

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” .³⁴

^{______________________________________________________________________________________________________________________}

³² Ibid., p.238.

³³ Ibid., p.216.

³⁴ Ibid., p.239.

Case Reference -2

4.2. The 8^th Amendment: The Doctrine of Basic Structure of the Constitution

The case of Anwar Hossain Chowdhury v. Bangladesh¹ popularly known as the 8^th Amendment case is a historic judgment in the constitutional history of independent Bangladesh.

Background of the Case

After martial law was imposed on 24^th March, 1982, on 8^th May the CMLA by amending the Schedule to the Proclamation of the 24^th 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 10^th 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 and the area

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¹1989 BLD (SPL) 1.

² The Constitution of People’s Republic of Bangladesh, 1972; Art.100.

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.³

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

³ Article 100 as amended by the 8^th 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.

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 8^th 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. ⁴

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.⁵

________________________________________________________________

⁴ Moudud Ahmed, Democracy and the Challenge of Development (Dhaka: UPL, 1995), p.45.

⁵ Submission of Dr.Kamal Hossain, Ishtiaq Ahmed, Amir-ul-Islam, See BLD (SPI) 1, 1989, pp.23-36.

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.⁶                   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.

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⁶ Submission of Attorney General, see, ibid., pp.37-40.

(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.⁷

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.⁸

________________________________________________________________________________________  

⁷ BLD (SPI) 1, 1989, Per Sahabuddin Ahmed, J. Para 376,377,378.

⁸ BLD (SPI) 1, 1989, Per Badrul Haider Chowdhury, J, Para, 259.

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.⁹                                                                                   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 8^th 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 8^th Amendment case,in __________________________________________________________________

⁹ BLD (SPI) 1, 1989, Per M.H.Rahman, J, Paras, 388,443,456.

¹⁰ Ibid., Para 435.

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 8^th Amendment case ¹² 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.¹³

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¹¹ PLD 1963 SC 486.

¹² 1989 BLD (SPL) 1.

¹³ H.M.Seervai, Constitutional law of India (Bombay: N.M.Tripathy Pvt Ltd, 1993), p.1568.

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.¹⁴                       Secondly, this will give rise to differences of opinion among the judges which has been seen in every case upholding ‘basic structure” doctrine.¹⁵                              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.¹⁶

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 __________________________________________________________________

¹⁴ Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB Foundation, 2006), p.411.

¹⁵ Ibid., p.411.

¹⁶ Ibid., p.411.

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 8^th 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 10^th 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.¹And those who according to Article 65(3) of the Constitution as amended by 14^th 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.²

¹ The Constitution of People’s Republic of Bangladesh, 1972; Art.65.

² Ibid.

Tenth Amendment: Background of the Women Members Reserved seats

This Amendment was passed in the 4^th parliament on 12^th 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 5^th 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 10^th December 1987 and as such the 4^th Parliament on 10^th December 1987 and as such the 4^th 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 10^th June and passed on 12^th 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 8^th Parliament passed the Constitution 14^th Amendment Act whereby provisions have been made for 45 women members in reserved seats for another ten years starting from the 8^th Parliament.

The Constitution (10^th Amendment) Case

In Dr.Ahmed Hussain v.Bangladesh⁴, 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 __________________________________________________________________

³ Jai Jai Din (29July1986), p.1.

⁴ 44DLR(AD),109.

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 sex⁵.Article 122(1) provides that the elections to Parliament shall be on the basis of adult franchise⁶. 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

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⁵  The Constitution of People’s Republic of Bangladesh, 1972; Art.121.

⁶ The Constitution of People’s Republic of Bangladesh, 1972; Art.122.

⁷ The Constitution of People’s Republic of Bangladesh, 1972; Art.28.

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.⁸

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.⁹

Recommendation

Among the various ways of electing representatives, direct elections are considered the most democtatic.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.

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⁸ Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB Foundation, 2006), p.304.

⁹ Ibid., p.304.

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.¹

5.2. Local Authority:-The Supreme Court can interfere with the action of a ‘local __________________________________________________________________

¹Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD) 1.

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.²

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.³

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.⁴

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 lucus standi and had opened new remedies and procedures.⁵

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

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² Holy Family Red Cross Hospital v.M.M.Yousuf, BCR (1981) SC 230.

³M.A.Hai v. TCB, 32 DLR (AD) 46.

⁴A.B. M.Quabil v. Ministry of Health, 44 DLR 385.

⁵ Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD) 1.

ought to have been taken in the previous application.⁶

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.⁷

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.⁸

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.⁹

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.¹⁰

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

___________________________________________________________________________________

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.

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.¹¹

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.¹

(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 ___________________________________________________________________________

¹ The Constitution of People’s Republic of Bangladesh, 1972; Art.44 (2).

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 ___________________________________________________________

² The Code of Criminal Procedure, 1898; Sec. 202(2A) and 205c.

³PLD 1976 Lahore 216.

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 Pakistan⁵, 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.

____________________________________________________________________

⁴ 25 BLD (2005) (HCD) 138.

⁵ PLD 1962 (SC) 384.

(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 Courts.                                                             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.⁶

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

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⁶ Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB Foundation, 2006), p.374.

⁷Ibid., p.374.

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.⁸

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 
__________________________________________________________

⁸Ibid., p.375.

⁹ Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies (Dhaka: Bangladesh Legal Aid and Services Trust, 1999), p.156.

 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. 

References

Books

Amin Ahmed, Judicial Review of Administrative Action, (Dhaka: University of Dhaka, 1969).

Moudud Ahmed, Democracy and Challenge of Development: A study of Politics and Military Interventions in Bangladesh, (Dhaka: UPL 1995).

Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies, (Dhaka: Bangladesh Legal Aid and Services Trust, 1999).

M. Shah Alam, Somokalin Antojartik Ain ,(Contemporary International Law), 2^nd ed. (Dhaka: New Warsi Book Corporation, 2008).

Bennion, Bennion on Statute Law, 3rd ed. (London: LexisNexis, 2007).

Kamruzzaman Bhuiyan, Article 102, 1^st ed. (Dhaka: Kamruzzaman Bhuiyan, 2008).

Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 3rd ed. (Dhaka: CCB Foundation, 2006).

M. Hidayatullah, Democracy in India and Judicial Process, (New Delhi: Asia Publishing House, 1965).

Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2003).

Mahmudul Islam, Interpretation of Statutes and Documents, 1^st ed. (Dhaka: Mullick Brothers, 2009).

Mustafa Kamal, Bangladesh Constitution: Trends and Issues, (Dhaka: Dhaka University, 1994).

Md. Ansar Ali Khan, Law of Writs in Bangladesh, (Dhaka: Kamrul Book House, 2003).

P. St. J. Langan, Maxwell on the Interpretation of Statutes, 12^th ed. (Bombay: Lexis Nexis, 2003). 

Siddiqur Rahman Miah, Law of Writs in Bangladesh, (Dhaka: New Warsi Book Corporation, 2007).

H.  K. Mukherjee, A Handbook of Legal Language Legal Writing and General English, (Kolkata: Law Point, 2004).

Holland and others, Learning Legal Rules, 5th ed. (Oxford: Oxford University Press, 2003).

Sharifuddin Pirzada, Fundamental Rights and Constitutional Remedies in Pakistan, (Lahore: All Pakistan Legal Decisions, 1966).

Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments &Case-Laws, (Dhaka: Mullick Brothers, 2005).

H. M. Seervai, Constitutional Law of India, (Bombay: N.M.Tripathy Pvt Ltd, 1993).

H.  N. Tewari, Legal Research Methodology, (Faridabad: Allahabad Law Agency, 1997).

Glanville Williams, Learning the Law, 11^th ed. (London: Stevens and Sons, 1982).

Law Journals

Tayab Mahmud, Jurisprudence of Successful Treason: Coup d'etat and Common Law, 27 Cornell Int'l L. J. 50 1994.

M. H Rahman, Our experience with Constitutionalism, BJL 2:2, 1998.

Articles in a Newspaper

Syed Gouseuzzaman Haideri Ali, Delegating Writ Jurisdiction, the Daily Star, Law and Our Rights, March 21, 2009.

M.  Jashim Ali Chowdhury, 5th Amendment: A critical analysis, the Daily Star, Law and Our Rights, February 14, 2009.

Omar Imtiaz and Hossain Zakir, Constitution and Legal Continuity, the Daily Star, Law and Our Rights, September 17 and 24, 2005.

Internet Sources

Certiorari, at http://www.en.wikipedia.org/wiki/ Certiorari. (28 July, 2009).

Habeas corpus, at http://www.en.wikipedia.org/wiki/Habeascorpus (28 July, 09).

Mandamus, at http://www.en.wikipedia.org/wiki/ Mandamus. (28 July, 2009).

Prohibition, at http://www.en.wikipedia.org/wiki/ Prohibition. (28 July, 2009).

Quo warranto, at http: //www.en.wikipedia.org/wiki/Quowarranto.(28 July, 2009).

Writ, at http://www.en.wikipedia.org/wiki/writ.(28 July, 2009).

Writ Petition, at http://banglapedia.org/httpdocs/ht/w-0075.htm,last visited on 28 July, 2009.

Law Dictionaries

P. Ramanatha Aiyar, Concise Law Dictionary, 3rd ed. (London, LexisNexis Publication, 2005).

John Bouvier, Bouvier Law Dictionary, Sixth ed. (USA: Bouvier Publication, 1856).

Statutes

The Code of Criminal Procedure, 1898. (Act V of 1898).

The Constitutions of People’s Republic of Bangladesh, 1972. (As modified up to 31^st February, 2005).

List of Cases

Abdul Haque v. Fazlul Quder Chowhury PLD 1963, Dac.669.                                 44

Abdul Jalil v.Bangladesh, 4 MLR (1999) (AD) 353.                                                  47

Abdul Latif v. Govt. of West Pakistan, PLD 1962 (SC) 384    .                                   51

Abdus Sattat v.Arag Ltd (1964) 16 DLR 335.                                                 18-9

A.B. M.Quabil v. Ministry of Health, 44 DLR 385.                                                    46

A.B.Mohiuddin v. Bangladesh, 49 DLR 353.                                                             20

Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (SPL) 1.                               30-8

Bangladesh Italian Marble Works Ltd v. Bangladesh,

 2006 (Spl) BLT (HCD) 1.                                                                                          22-9

Bangladesh v. A.Rahman, 1982 BLD (AD) 176.                                                       47

DPP v. Bull, (1994) 4 All ER 411.                                                                             17

Dr.Ahmed Hussain v.Bangladesh, 44 DLR (AD), 109.                                             41-2

Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD), 1.                                  12, 45-6

Duport Steels Ltd v. Sirs, (1980) 1 All ER 529.                                                          18

Grey v. Pearson (1857) 6 HL Cas 61.                                                                        16

Heydon’s Case, (1584) 3 Co Rep 7.                                                                           16

Holy Family Red Cross Hospital v.M.M.Yousuf, BCR (1981) SC 230.                      46

Jadu Nath v. Bangladesh, 25 DLR 335.                                                                     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