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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.

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.

Ibid., p.ix.

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 kings 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 kings 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 Peoples
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4

Amin Ahmed, Judicial Review of Administrative Action (Dhaka: University of Dhaka, 1969), p.33.
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.
5

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
8
9

Kamruzzaman Bhuiyan, Article 102,1st ed. (Dhaka: Kamruzzaman Bhuiyan, 2008), p.1.
Siddiqur Rahman Miah, Ibid., ix.
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

jurisdiction.13

not

come

under

the

purview

of

their

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.

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.

Concise law Dictionary, 3rd ed. (London, LexisNexis Publication, 2005), p.899.

Carter:-It was the kings 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 nonfundamental 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

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6

Ibid.

The Constitution of Peoples Republic of Bangladesh, 1972; Art.102.

The Code of Criminal Procedure, 1898; Sec 491.

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 Peoples Republic of Bangladesh, 1972; Art.102.
13
Ferries, 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 Peoples Republic of Bangladesh, 1972; Art.102.

17

Bouviers Law Dictionary, 6th 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

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

judicial

nor

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 Peoples Republic of Bangladesh, 1972; Art. 102.


Md.Abdul Halim, Ibid., pp.367-68.

21

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
ousted.24

and any unauthorized

person

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.


Md.Abdul Halim,Ibid., p.367.
24
Concise law Dictionary, Ibid., p.900.
23

25

Latifur Rahman, The Constitution of the Peoples 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.
1

H.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.

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

Book Corporation, 2008), pp.276-82.


4

Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB

Foundation, 2006), p.252.

situation before the court. Thus, the court can neither extend the statute to a case not
within its term nor curtail it by leaving out a case that the statute literally includes.5
Lord Esher said If the words of an Act are clear then you must follow them
even though they lead to a manifest absurdity. The court has nothing to do with the
question whether the legislature has committed an absurdity.6
Case Illustration:In Whiteley vs. Chappell 7, The defendant pretended to be someone who had recently
died in order to use that persons 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 Wensleydales9 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
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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.

(1868) LR QB 147.

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 Wensleydales 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 Heydons 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

_______________________________________________________________________________
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, 11th ed. (London: Stevens and Sons, 1982), p.103.

14

H.K.Mukherjee, Ibid., p.132.

Case Illustration:In Smith v. Hughes15, Six women had been charged with soliciting in a street or public
place for the purpose of prostitution. However, one woman had been on a balcony and
others behind the windows of ground floor rooms. The court held they were guilty
because the mischief aimed at was people being molested or solicited by prostitutes.
In DPP v. Bull 16, a man had been charged with loitering or soliciting in a street or public
place for the purpose of prostitution. The court held that the term prostitute was limited
to female prostitute. The mischief the Street Offences Act 1959 was intended to remedy
was a mischief created by woman.

3.5. Purposive Approach


The purposive approach is one that will promote the general legislative purpose
underlying the provisions.17There will be a comparison of readings of the provision in
question based on the literal or grammatical meaning of words with readings based on a
purposive approach.

Lord

Browne Wilkinson said the purposive approach to construction now adopted by the
courts in order to give effect to the true intentions of the legislature.18
Case Illustration:In Jones v. Tower Boot Co Ltd19, The complainant suffered racial abuse at work, which
he claimed amounted to racial discrimination for which the employers were liable under
section 32 of the Race Relations Act 1976.The CA applied the purposive approach and
held

that

the

acts

of

discrimination

were

committed

in

the

course

______________________________________________________________________________
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.

of

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
courts 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
________________________________________________________________
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
______________________________________________________________________________
25
26

Abdus Sattar,Ibid., 16 DLR 335.


P.St .J.Langan, Maxwell on the Interpretation of Statutes, 12th ed.(Bombay: LexisNexis, 2003), pp.1-2.

27

Md .Ismail v. State, 21DLR (SC) 161.

28

Mahmudul Islam, Interpretation of Statutes and documents, 1st ed.(Dhaka: Mullick Brothers, 2009), p.13.

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 wellestablished 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, 3rd 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 242page 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

Amendment.

protection

through

the

Fifth

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.

Ibid., p.86.

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.
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.
8

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 circumstances15 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
provisions

of

the

Fourth

31

Amendment

and which deleted the various


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

Constitution.32

of

those

provisions

as

they

were

in

the

original
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 8th Amendment: The Doctrine of Basic Structure of the Constitution
The case of Anwar Hossain Chowdhury v. Bangladesh1 popularly known as the 8th
Amendment case is a historic judgment in the constitutional history of independent
Bangladesh.
Background of the Case
After martial law was imposed on 24th March, 1982, on 8th May the CMLA by amending
the Schedule to the Proclamation of the 24th March, 1982 had set up six permanent
Benches of the High Court Division at Chittagong, Commila, Jessore Barishal, Sylhet
and Rampur. By a further amendment of the Proclamation by Proclamation Order no III
of 1986 these permanent Benches were designed as Circuit Benches and it was
provided that when Article 100 of the Constitution would be revived, the Circuit Benches
should be deemed to be sessions of the HCD at Dhaka under that Article. 2Martial law was
withdrawn on 10th November, 1986 and the Constitution was fully revived on the same

date. As the Constitution was revived the Proclamation Order no III of 1986 was no
longer operative and the Chief Justice under the revived Article 100 in consultation with
the President, proceeded to implement the provisions of six sessions benches in the same
places where Circuit Benches were functioning during the martial law period. The Chief
Justice issued six other notifications specifying the jurisdiction to be exercised by each
session and the areas covered by them.
However, when the Chief Justice issued under the revived Article 100 six other
notifications specifying the jurisdiction to be exercised by each session and the area
_______________________________________________________________________________
1

1989 BLD (SPL) 1.

The Constitution of Peoples 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 8th Amendment Act runs the following:-

100. Seat of the Supreme Court


(1)Subject to this Article, the permanent seat of the Supreme Court shall be in the capital.
(2)The High Court Division and the judges thereof shall sit at the permanent seat of the Supreme Court and
at the seats of its permanent Benches.
(3)The High Court Division shall have a permanent Bench each at Barishal, Chittagong, Comilla, Jessore,
Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may
determine from time to time.
(4)A permanent Bench shall consist of such number of judges of the High Court Division as the Chief
Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the
judges shall be deemed to have been transferred to that Bench.
(5)The President shall, in consultation with the Chief Justice, assign the area in relation to which each
permanent Bench shall have jurisdiction, powers and functions conferred on the High Court Division by
this constitution or any other law; and the area not so assigned shall be the area in relation to which the
HCD sitting at the permanent seat of the Supreme Court shall have such jurisdiction, powers and functions.

(6)The Chief Justice shall make rules to provide for all incidentals, supplemental or consequential matters
relating to the permanent Benches.

summarily. Leave was granted by the Appellate Division to consider the Constitutionality
of the Amendment. After a sound hearing the Appellate Division by a majority of 3 to 1
struck down the 8th Amendment as far as it related to the Creation of permanent Benches
outside Dhaka by substitution of Article 100.The ground shown by the court was that the
impugned amended Article 100 changed the character and nature of the function and
jurisdiction of the HCD as envisaged in the Constitution. Such an amendment changing
the basic structure of the Constitution was ultra vires and therefore not tenable in
law.

This was a historic judgment in the sense that it was the first time since the

birth of the nation that the Supreme Court of Bangladesh was striking down on
amendment to the Constitution made by the parliament, the supreme and sovereign law
making body under the Constitution. The judgment aroused serious controversies on the
issue of parliaments authority to amend the Constitution and whether the Supreme Court
could restrict the amending power of the parliament. And whether four or five judges
sitting on a Bench could be more wise or have more authority than the 330 members of
parliament elected by the people. 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
5

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


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
8th Amendment case that the doctrine has developed in a climate where the executive,
commanding an overwhelming majority in the legislature, gets snap amendments of the
Constitution passed without a Green Paper or White Paper, without eliciting any public
opinion, without sending the Bill to any select committee and without giving sufficient
time to the members of the parliament for deliberation on the Bill for amendment. 10 The
initial trace or origin of the concept of basic structure of the Constitution can be found in
the Sub-Continent, as Dr.Kamal Hossain submitted in 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
researchers.

are

still

haunting

both

the

judges

and

In 8th Amendment case of Bangladesh the

judges could not come into unanimity as to what constitute basic feature of the
Constitution. According to B.H.Chowdury .J.21 features are basic features of our

constitution. Justice Sahabuddin Ahmed has mentioned six features are basic features of
our constitution.
Philosophy underlying the Doctrine of Basic Structure
One might argue that this doctrine is vague and should be rejected. But Sahabuddin
Ahmed .J. in the 8th Amendment case 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
______________________________________________________________________________________________
11

PLD 1963 SC 486.


1989 BLD (SPL) 1.
13
H.M.Seervai, Constitutional law of India (Bombay: N.M.Tripathy Pvt Ltd, 1993), p.1568.
12

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 peacehave been interlinked because promotion of women's rights promotes peace. In other
words, peace prevails in society when women's rights are established and protected as
those with men. The origin of women's subordination lies in political theories,
propounded by men. The concern for individual autonomy and freedom for men has later
been extended to a concern for women's equality, freedom and autonomy. The eligible
women voters in the country are more than those of men. During the general election,
women cast their votes more than men did. This demonstrates that women are conscious
to exercise their rights, if environment is made safe and secure. Although the 1972
Constitution (Articles 10, 19, 27, 28, and 29,) provides equality of men and women,
traditional social norms and orthodox religious precepts have discriminated between men

and women in society. By the 10th Amendment of our Constitution there is a provision for
reserved seats for woman to ensure the rights of the woman. According to the existing
provisions of the Constitution of Bangladesh woman member may be of two typesgeneral 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 Peoples Republic of Bangladesh, 1972; Art.65.

Ibid.

Tenth Amendment: Background of the Women Members Reserved seats


This Amendment was passed in the 4 th parliament on 12th June, 1990.It was mainly
related to the reserved women seats in the parliament as provided for in Article 65.The
original Constitution provided for 15 reserved seats for women members and this
provision remained in force for 10 years. But in 1979 through the 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 10th
December 1987 and as such the 4 th Parliament on 10th December 1987 and as such the 4th
Parliament did not have any reserved women seats. There were, therefore, debates and
discussions within Ershads ruling party whether such a reservation was necessary or
desirable. The mode of election for womens 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
To

years.
that

end

the

Constitution (Tenth Amendment) Bill was introduced on 10th June and passed on 12th
June, 1990.This Amendment reinserted clause (3) to Article 65 providing for 30 reserved
women seats for a further period of 10 years beginning with the commencement of the
next parliament. However, on 16 May, 2004, the 8 th Parliament passed the Constitution

14th Amendment Act whereby provisions have been made for 45 women members in
reserved seats for another ten years starting from the 8th Parliament.
The Constitution (10th Amendment) Case
In Dr.Ahmed Hussain v.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.

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 sex 5.Article 122(1) provides that the elections
to Parliament shall be on the basis of adult franchise 6. 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
___________________________________________________________________________________________________
5

The Constitution of Peoples Republic of Bangladesh, 1972; Art.121.

The Constitution of Peoples Republic of Bangladesh, 1972; Art.122.

The Constitution of Peoples 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.
__________________________________________________________________________________________________________________________

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
__________________________________________________________________
1

Dr.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
________________________________________________________________________________________________________________
2

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


M.A.Hai v. TCB, 32 DLR (AD) 46.

3
4

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

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 citizens 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
___________________________________________________________________________________
6

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

Mustaque Ahmed v. Bangladesh, 34 DLR (AD) 222.

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


Rafique-Ul-Huq v. Bangladesh, 44 DLR 398.
10
Jamil Huq v Bangladesh, 34 DLR (AD) 125.
9

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 Peoples 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.

PLD 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.

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 Pakistanthese 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
________________________________________________________________________________________________________________
6

Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB

Foundation, 2006), p.374.


7

Ibid., 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

__________________________________________________________
8

Ibid., p.375.

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 Peoples Republic of Bangladesh, 1972; Article 102.
102. Powers of High Court Division to issue certain orders and directions, etc.
(1) The High Court Division on the application of any person aggrieved may give such
directions or orders to any person or authority, including any person performing any
function in connection with the affairs of the Republic, as may be appropriate for the
enforcement of any the fundamental rights conferred by Part III of this Constitution.
(2) The High Court Division may, if satisfied that no other equally efficacious remedy is
provided by law(a) on the application of any person aggrieved, make an order(i) directing a person performing any functions in connection with the affairs of the
Republic or of a local authority to refrain from doing that which he is not permitted by
law to do or to do that which he is required by law to do; or
(ii) declaring that any act done or proceeding taken by a person performing functions in
connection with the affairs of the Republic or of a local authority has been done or taken
without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order(i) directing that a person in custody be brought before it so that it may satisfy itself that
he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office to show under
what authority he claims to hold that office.
(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division
shall have no power under this article to pass any interim or other order in relation to any
law to which article 47 applies.
(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an
interim order is prayed for and such interim order is likely to have the effect of(a) prejudicing or interfering with any measure designed to implement any development
programme, or any development work; or
(b) being otherwise harmful to the public interest, the High Court Division shall not make
an interim order unless the Attorney-General has been given reasonable notice of the
application and he (or an advocate authorized by him in that behalf) has been given an
opportunity or being heard, and the High Court Division is satisfied that the interim order
would not have the effect referred to in sub-clause (a) or sub-clause (b).
(5) In this article, unless the context otherwise requires, "person" includes a statutory
public authority and any court or tribunal, other than a court or tribunal established under
a law relating to the defense services of Bangladesh or any disciplined force or a tribunal
to which article 117 applies.

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

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

51
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

Heydons 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.

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