Administrative law Understanding and meaning

Understanding  Administrative law 

Writ and PIL : a case study of Bangladesh

History

Originally, a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. The writ would act as a command that the case be brought before the court issuing the writ, or it might command some other act on the part of the recipient.

Where a plaintiff wished to have a case heard by a local court, or by an Eyre if one happened to be visiting the County, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint, which did not necessarily need to be written down. However, if a plaintiff wished to avail himself of Royal — and by implication superior — justice in one of the King's courts, then he would need a writ, a command of the King, to enable him to do this. Initially for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. For most Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the Exchequer, being in essence another government department, was able to issue its own writs.

While originally writs were exceptional, or at least non-routine devices, Maitland suggests that by the time of Henry II, the use of writs had become a regular part of the system of royal justice in England.

At first, new writs could be drafted to fit new situations, although in practice the clerks of the Chancery would re-use old forms, and there were many books that were collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a legal document each time they wish to create one. The problem with this approach was that the ability to create new writs amounted to the ability to create new forms of action. Plaintiffs' rights would be defined, and in most cases limited, by the writs available to them. Thus, the ability to create new writs was close to the ability to create new rights, a form of legislation. Moreover, a writ, if one could be found fitting the plaintiff's case, provided the legal means to remove the dispute from the jurisdiction of the local court, often controlled by a lesser noble, and instead have it heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of their influence.

Over time, opposition to the creation of new writs by the Chancery increased. For example, in 1256, a court was asked to quash a writ as "novel, unheard of, and against reason" (Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44). Ultimately, in 1258, the King was forced to accept the Provisions of Oxford, which prohibited, among other things, the creation of new forms of writ without the sanction of the King's council. New writs were created after that time, but only by the express sanction of Parliament, and the forms of writ remained essentially static, each writ defining a particular form of action.

With the abolition of the Forms of Action in 1832 and 1833, a profusion of writs was no longer needed, and one uniform writ came to be used. After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered so that it conformed more to the subpoena that had been in use in the Chancery. A writ was a summons from the Crown, to the parties to the action, with on its back the substance of the action set out, together with a 'prayer' requesting a remedy from the court (for example damages). In 1980, the need for writs to be written in the name of the Crown was ended. From that time, a writ simply required the parties to appear.

Writs applied to claims that were to be issued in one of the courts that eventually formed a part of the High Court of Justice. The procedure in a County Court, which was established by statute, was to issue a 'summons'.

In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court and the County Court in civil matters. These reforms ushered in the Civil Procedure Rules. Under these almost all civil actions, other than those connected with insolvency, are now begun by the completion of a 'Claim Form' as opposed to a 'Writ', 'Originating Application', or 'Summons': see Rules 7 and 8 of the Civil Procedure Rules.

Writ in the perspective o Bangladesh:

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

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 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.

Some Important Case Analysis on Writs in the Supreme Court of Bangladesh

Dhaka University Admission Test, Madrasa Students Are Being Deprived

Madrasa students are deprived of the good subjects: Hijacked three sections postulation, madrasa student dissatisfaction 26 into 13, then the barrier, Bengali and English, and 200 number of welfare preventive. The first year of undergraduate admission test, The madrasa students are being deprived.

In 2012-2013 of the first year admission test session madrasa students are being deprived of most of the good subjects. It has been nearly 13 conditions they can not be admitted. Archived like trap them in terms of being deprived of the good subjects.

Guidelines from the University admission, first year graduate students in Bengali and English, both of which are 13 and 200 have been killed postulation. The madrasa students tested in Bengali and English of 100 marks. In terms of the trap, so they can not be admitted to 13 of the Bangladesh context of what is considered a good subjects.

Intermediate and Higher Secondary examinations of both the postulation has been killed and 200 are for admission Bengali, English, linguistics, Press and Media, Development Studies, Law, Management, and Disaster Studies. Only 200 of the Higher Secondary examination has been the postulation number of issues health economics, economics, international relations, sociology, Women and Gender Studies, Population Sciences. Additional terms and conditions as in the case of the economy, the Islamic economy and the domestic economy is not the economy.

Few years, the madrasa students in their first year admission test merrit list the location in terms of the net would be deprived of the issues being admitted. They have a common admission test examination of high school and get a good result with them being the time out.

Madrasa students to be admitted to a few years of legal matter that they may not be able to get admission. As a result of the faculty of arts had become centered. Almost all of them can be admitted to the Faculty. On the other hand Faculty of Law, Faculty of Social Science hategona some subjects from the rest of the subjects they are being denied.

The protection of their rights in court adaye madrasa students in previous years. The legal rights of but they have failed to fall. Dhaka University admission test madrasa students to be admitted to all of the terms and conditions of the cancellation of the writ demands the judgment of the court of first installments. But the university administration after his appeal against the court again in a few months’ suspension of his country. University administration to take this opportunity to take the test. Do you want to fill in the madrasa students are deprived of. Over the past few years we have been deprived of madrasa students coming from the admissions issues.

Madrasah education in Bengali and English 200 for the number of tests initiated by the government. It has been a policy. The madrasa students of Secondary and Higher Secondary Examination of the equivalent test alim submitted and will check Bengali and English of 200 marks. But it will take until the start of the next 2014 Madrasah Education Board sources said. If at the start of the madrasa students in the next two years can not be admitted.

Dean of the Faculty of Arts at the university professor. Sadrul Amin said nearly 15 years, was at the time. Admission Committee has repeatedly said it. The teachers have been repeated reports of its legal remedies was not accepted, but it is not the madrasa

2013-04-28

HC moved for Tazreen owner's arrest

A writ petition was filed at the High Court on Sunday seeking arrest of the owner of Tazreen Fashions Limited for the devastating fire in the factory that killed 112 people in November last year.

Supreme Court lawyer Barrister Jyotirmoy Barua filed the petition on behalf of Nazneen Akhter Banu, Sayeda Gulrukh, and Mahmudul Hassan Suman.

The petition sought immediate indictment and an interim ruling. The petition further appealed the court to issue directives to authorities concerned to file a lawsuit against the owner of the factory under article 304A/34 of the penal code. The authorities referred in the petition are - Police Inspector General, Dhaka Metropolitan Police Commissioner, Savar and Ashulia Police Station Officer in-Charges. Arguing that life of workers was lost due to ‘intentional negligence’, the petitioners sought to know as to why defendants’ inactiveness in arresting the owner of the ill-fated factory not be declared illegal. The petition pleaded that the Home Secretary, Police Inspector General, Dhaka Metropolitan Police Commissioner, Savar and Ashulia Police Station Officer in-Charges be given directive to arrest the erring owner.

It also urged that the probe report (on the incident), filed at December 17 last year be placed at the High Court.

The Home Secretary, Labour Secretary, BGMEA President, Police Inspector General, Dhaka Metropolitan Police Commissioner, Savar and Ashulia Police Station Officer in-Charges, Tazreen owner Delwar Hossain, Fire Service and Civil Defence Director General and Assistant Director were made defendants in the petition. On Nov 14 last year, 112 ready-made workers at the concerned factory died in the factory fire. Many of them were charred beyond recognition. Workers had alleged that casualties were so high as the collapsible gate on the exit route was closed.

Plea against Hall-Mark

Staff Correspondent,  bdnews24.com

Published: 2013-02-10 10:42:34.0 Updated: 2013-02-10 15:06:02.0

A writ petition was filed at High Court on Sunday seeking directives to the Hallmark Group Chairperson Jasmin Islam for repayment of the Tk 260 billion loan taken from the Sonali Bank.

Supreme Court lawyer Dr Younus Ali Akand filed the petition for one Nazim Ahmed.

The writ also sought to summon Dhaka Senior Special Judge Mohammad Zahirul Hoque, Sonali Bank Limited Managing Director and Hallmark Group Chairman Jasmin Islam at the court.
The petition sought to cancel the bail order of Jasmin Islam in 11 cases.
The petition was filed against the Dhaka Deputy Commissioner, Dhaka Senior Special Judge Mohammad Zahirul Hoque, Sonali Bank Limited Managing Director, Hallmark Group Chairman Jasmin Islam and the Anti-Corruption Commission. The affidavit has been filed and the petition awaits hearing , Younus Ali Akand told bdnews24.com. Jasmin Islam was granted 45 days bail in 11 cases after furnishing a Tk 50,000 bond considering her willingness to pay back the loan. The latest petition says it has been filed because the previous order did not specify how and when Jasmin Islam would pay back the loan amount. ACC filed 11 cases of money laundering amounting to over Tk 15 billion against Jasmin Islam, her husband Hallmark Managing Director Tanvir Ahmed and 25 others on Oct 4 last year.
Rapid Action Battalion (RAB) arrested Jasmin on Nov 7 last year. Earlier, Tanvir and his brother-in-law Tushar Ahmed, the company’s General Manager, had been nabbed. ACC officials grilled Jasmin in custody twice.
The irregularities involved in the way Hallmark secured the loan became public after a Bangladesh Bank report. Later ACC decided to probe into the matter. Tanvir and Jasmin were questioned before the cases were filed.
Sonali Bank had suspended 20 officials including two General Managers over the Hallmark loan scam.

 Writ on Savar Rana Plaza Collapse

(Writ Petition No. 4390 of 2013)

Name of the Parties

1. Ain o Salish Kendra (ASK), represented by its Executive Director, 7/17, Block-B, Lalmatia, Dhaka

2. Bangladesh Legal Aid and Services Trust (BLAST) represented by its Legal Advisor, YMCA Bhaban, 1/1, Pioneer Road, Shegunbagicha, Dhaka.

..............Petitioners

-Versus-

1. Bangladesh, represented by the Secretary, Ministry of Housing and Public Works, Bangladesh Secretarial, Dhaka.

2. RAJUK, represented by its Chairman, JAJUK Bhaban, Motijheel, Dhaka.

3. Inspector General of Police, Police Headquarter, Dhaka.

4. The Superintendent of Police, Dhaka Division.

5. Officer in Charge, Savar Thana, Savar, Dhaka

6. Chief Inspector of Factories, Srama Bhaban, 4 DIT Avenue, Dhaka.

7. Md. Shohel Rana, owner of Rana Plaza, Savar Bazar, Savar, Dhaka.

8. Managing Director, New Wave Bottoms Limited, Rana Plaza, Savar Bazar, Savar, Dhaka.

9. Managing Director, Phantom Apparels Ltd., Rana Plaza, Savar Bazar, Savar, Dhaka.

10. Managing Director, Phantom Tack Ltd., Rana Plaza, Savar Bazar, Savar, Dhaka.

11. Managing Director, Ethar Textile Ltd., Rana Plaza, Savar Bazar, Savar, Dhaka.

..........Respondents

Cause Title

Failure of the respondents to ensure effective enforcement of applicable laws on building construction and workplace safety, in particular, failure to prevent deaths of and injuries of garment workers and other people from collapse of the nine-storey building namely Rana Plaza, in Savar, Dhaka amounting to breach of statutory duties and gross negligence of the respondents.

Prayer

Wherefore it is most numbly prayed that your Lordships may graciously be pleased to:

(A) Issue a Rule Nisi calling upon the respondents to show cause as to why they should not be directed to take necessary action as required by the law and the Constitution to effectively investigate, prosecute and punish those responsible for the deaths and injuries to the victims of the building collapse on 24.04.2013 at Savar, Dhaka and to take all necessary measures for such purpose and for prevention of any future such occurrence, including:

(i) To secure payment by the respondents of adequate compensation to the victim workers and their families, who have died or have suffered injury in the said building collapse.

(ii) To ensure appropriate protective measures in particular safety precautions in the event building collapse and to implement and enforce legal provisions for the rehabilitation of the victims of such incidents as well as making available appropriate medical treatment for victims of building collapse.

(iii) To direct the respondent Nos. 4 to 6 to produce the respondent Nos. 6 to 9 before this Hon’ble Court on a particular day to clarify their responsibilities.

(B) Pending hearing of the rule, pass interim orders

i) To directly the respondent Nos. 3-5 to produce the respondent Nos. 7 to 11 before this Hon’ble Court on a particular day to clarify their responsibilities;

ii) To direct the respondents to ensure immediate rescue of the victims and also ensure proper treatment at their responsibility, costs and expenses;

iii) To direct the respondent No. 7 owner of the building to produce before the court necessary approvals in respect of the aforesaid collapse building within a stipulated period of time;

iv) To direct the respondent Nos. 1-6 to intimate the Hon’ble Court about the steps they have taken meanwhile in respect of the victims.

(C) After perusing the causes, if any show and haring the parties make the rule absolute.

(D) Cost of and incidental to this applicant be directed to be born by respondents. (E) any other or further order orders as may be deemed fit and proper be also granted.

 April 25, 2013

SAVAR BUILDING COLLAPSE  Writ seeks culprit’s arrest Star Online Report   

  A writ petition was filed with High Court on Thursday seeking its directive on the government to immediately arrest the culprit responsible for the Savar building collapse that killed at least 191 people and injured several hundred till Thursday.

Advocate Eunus Ali Akond, a Supreme Court lawyer, filed the petition that also prayed for the court direction to constitute a judicial enquiry commission to investigate the incident.

The petitioner also urged the court to order the authorities concerned to pay adequate compensation to the victims’ families and also to the people who were injured in the disaster.

Akond told The Daily Star that the High Court may hear the petition later in the day.

Hearing on Jamaat reg writ deferred

The newly-constituted 3-judge larger bench of the High Court on Monday deferred until April 9 the hearing on a public interest litigation writ petition challenging the legality of Jamaat-e-Islami's registration as a political party, reports UNB. The bench, headed by Justice M Moazzam Husain, passed the order following a time petition submitted by barrister Abdur Razzaq, the counsel for Jamaat-e-Islami.
The two other members of the larger bench are Justice M Enayetur Rahim and Justice Dr Quazi
Reza-ul Hoque.
The Chief Justice constituted the larger bench on Sunday, hours after an HC division bench expressed its desire to resolve the pending writ by a larger bench as it involves legal and constitutional interpretations.
On January 27, 2009, the HC responding to a PIL writ petition issued rule upon the Election Commission to explain why the registration of Bangladesh Jamaat-e-Islami (BJI) as a political party should not be declared to have been done unlawfully and ultra vires to the Constitution.
Secretary general of Bangladesh Tariqat Federation Maulana Syed Rezaul Haque Chandpuri and 24 others, including Islamic scholars, children of freedom fighters, Tariquat Federation, Zaker Party and Sammilita Islamic Jote filed the PIL writ petition.
Barrister Tania ameer appeared for the writ petitioners.

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