The High Court Division (HCD) under Article 102(1) of the Constitution of Bangladesh has the power to pass orders necessary to enforce fundamental rights enshrined in Part II of the Constitution. It is important to note that the right to move the HCD under Article 102(1) seeking the enforcement of the fundamental right is itself a fundamental right as enunciated in Article 44(1) of the Constitution.
Only on the ground of violation of a fundamental right can someone move to the HCD under Article 102(1). However, the aforementioned observation is not in line with Part III of the Constitution and is open to exceptions.
2. Judicial Review:
Judicial review is fundamentally the procedure to check the validity of laws, i.e. whether they conform to constitutional provisions. The US Supreme Court in Marbury v. Madison established the principle of judicial review, also declared the supremacy of the constitution. Article 7 of Constitution of Bangladesh declares its supremacy, i.e. the supremacy of the constitution. Furthermore, in Bangladesh, the Supreme Court has the constitutional responsibility to adjudicate the validity of laws.
2.1. Questions of Fact – As per Article 44, the HCD cannot refuse to entertain an application under Article 102(1) on the ground that the petition involves the resolution of disputed questions of fact.
2.2. Nature and Form of Relief – It is the HCD’s discretion to fashion the relief according to the circumstances of a particular case. HCD is competent to award compensation when it is found that fundamental rights have been infringed by the illegitimate exercise of power by police under Sec. 54 and 167 of the Code of Criminal Procedure. The HCD has awarded compensation when it found the detention of citizens to be completely without any basis on record or the result of utter negligence.
2.3. The doctrine of Political Question – The AD in the exercise of its judicial self-restraint declined to enter into the political question of virtues and vices of hartal and strike in absence of any constitutional imperative.
2.4 Exhaustion of Efficacious remedies – There is no requirement for the exhaustion of efficacious remedies in case of a petition under Article 102(1) for the enforcement of fundamental rights.
3. The Different Types of Writs:
3.1. Writ of Certiorari [Article 102(2)(a)(ii)]:
The HCD can entertain a certiorari petition in case of lack of jurisdiction, an excess of jurisdiction or violation of principles of natural justice. Any action not authorised by law is invalid and ultra vires.
A Writ of Certiorari may be applicable in situations of inter alia excess of jurisdiction, lack of jurisdiction, misinterpretation of the law, failure to exercise jurisdiction, use of power for the improper purpose, procedural ultra vires, failure to give any or adequate reasons, and mala fide use of authority.
3.2. Writ of Prohibition [Art. 102(2)(a)(i)]:
A Writ of Prohibition may be filed for the same grounds as a Writ of Certiorari, but it must be filed before the alleged impugning act has taken place.
3.3. Writ of Mandamus [Art. 102(2)(a)(i)]:
4. Jurisprudence on the aforementioned Three types of Writs:
4.1. Errors of fact:
The HCD in certiorari cannot interfere with findings of fact unless it is a case of no evidence or a case of non-consideration of material evidence, misreading of the evidence, or misconstruction of the documents.
N.B. A finding of fact based on no evidence is treated as an error of law.
The test of reasonableness is adopted in case of questions of fact.
4.2. Duty to act fairly:
4.3. Legitimate Expectation:
Legitimate expectation cannot be negated by executive action unless on grounds of public interest, however, the court will uphold legitimate expectation only when the facts of the case clearly and unambiguously give rise to the same.
4.4. Principles of Natural Justice:
(i) A man cannot be condemned unheard (audi alteram partem)
(ii) A man cannot be the judge in his own cause (nemo debet esse judex in propria causa)
These principles extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have a legitimate expectation that the decision-making process would be subject to some rules of fair procedure.
These rules apply even though there may be no positive words in the statute requiring the application of these rules.
In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other rights of the parties concerned.
Consideration of legitimate expectation also involves the principles.
The basic principle of fair procedure: fair opportunity to answer the case against him or her and to put forward his or her own case.
The service of a person working in a post cannot be terminated without affording him or her an opportunity of being heard.
The person sought to be affected must know the allegations and the materials used against him or her, and he or she must be given a fair opportunity to correct or contradict them.
The right of fair hearing is of universal application whenever a decision or action affects the rights or interest of a person is made or taken.
For a hearing to be fair it must fulfil some conditions: the authority should: (i) receive all relevant material which the person concerned produces, (ii) disclose all information, evidence or materials which the authority wants to use against the person in arriving at the decision, and (iii) afford opportunity to the person to controvert the information or material sought to be used against that person.
When an employee is sought to be punished on a charge of misconduct, examination of witnesses in support of the charge should be in presence of the employee and the employee should be given the opportunity of cross-examining the witnesses.
Non-disclosure of materials may be permitted if such full disclosure may injure the individual affected or is against the public interest.
Generally, the inquiry report has to be supplied to the party proceeded against.
5. Writ of Habeas Corpus [Art. 102(2)(b)(i)]:
A Habeas Corpus can be issued against any wrongful detention be it by public functionary or a private citizen.
Situations where a Writ of Habeas Corpus may be issued:
– Detention of seven children of the same age by persons falsely claiming to be parents of the children.
– The father illegally took away the child from the mother and detained the child.
– Mother’s right to custody of her son till he attains the age of seven.
– A mother can seek Habeas Corpus when her lawful custody to minor children is denied.
– The grounds for arrest must not be irrelevant, vague or non-existent, and they must be reasonable.
– A detention order that is not authorized by law will be held unlawful. The detention order was issued to prevent the detainee from indulging in prejudicial activities, however, it later came to light that it was actually for collateral purposes (to stop the detainee from escaping).
N.B. The same writ petition can be maintained even if the detention is continued under a new order. Basically, the writ is maintainable as long as the detention continues.
6. Writ of Quo Warranto [Art. 102(2)(b)(ii)]:
The Writ of Quo Warranto is used to ensure that no one can hold any public office without having a valid claim to that office. A writ of Quo Warranto will lie against the office of the attorney-general, the chief justice, judge of the HCD, ministers, members of parliament, chairman of municipality, members of municipal boards, administrator of municipal corporation appointed by the government, chief engineer of municipal board, member of bar council, chairman or member of Union Parishad, member of Senate or syndicate of a university, dean of a faculty in a university, chief metropolitan magistrate, government pleader, members of the civil service.
A Writ of Quo Warranto questioning the election of the president of the republic is not maintainable before the president-elect has taken the oath of office. However, a writ of certiorari is maintainable in such case. The same principle is applicable in case of election of a chairman of the local council (after the declaration of the result but before taking the oath of office).
N.B. Art. 102 (2) does not require the applicant for a Writ of Quo Warranto to be an aggrieved party.
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