Writ.

 

 Writ

In legal terms, a writ is a formal, written order issued by a court or other legal authority with administrative or judicial powers. It commands a person or entity to perform a specific action or to cease performing a particular act. Writs are powerful tools used by superior courts to enforce laws, protect rights, and ensure justice and the rule of law.

Historically, writs originated in the English common law system as royal commands. Over time, they evolved into various forms, serving different purposes within the judicial system.

Types of Writs (as typically found in common law systems like Bangladesh and India):

In Bangladesh, the power to issue writs is primarily vested in the High Court Division of the Supreme Court under Article 102 of the Constitution. There are five main types of writs:

1. Habeas Corpus (Latin: "You shall have the body"):
• Purpose: This writ is a fundamental safeguard of personal liberty. It is issued to challenge unlawful detention or imprisonment.
• Function: It commands the detaining authority (whether public or private) to produce the detained person before the court and explain the legal basis for their detention. If the court finds the detention to be unlawful, it can order the immediate release of the person.
• Example: If someone is arrested and held for an extended period without being presented before a magistrate or without a valid legal reason, a writ of Habeas Corpus can be filed to challenge the legality of their detention.
2. Mandamus (Latin: "We command"):
• Purpose: This writ is a command issued by a superior court to compel a public official, a public body, an inferior court, or a corporation to perform a specific public duty that they are legally bound to perform but have failed or refused to do.
• Function: It is used to ensure that public authorities fulfill their statutory or public obligations.
• Example: If a government department refuses to process a legitimate application for a license or a public official fails to perform a duty mandated by law, an individual can seek a writ of Mandamus to compel them to act.
3. Prohibition (Latin: "To forbid"):
• Purpose: This is a preventive writ issued by a superior court to stop an inferior court, tribunal, or public authority from exceeding its jurisdiction or acting beyond its legal authority.
• Function: It prevents an illegal act from being carried out, ensuring that lower bodies operate within the bounds of their prescribed powers.
• Example: If a lower court attempts to hear a case that is outside its jurisdiction, a writ of Prohibition can be issued to stop those proceedings.
4. Certiorari (Latin: "To be certified" or "To be more fully informed"):
• Purpose: This is a corrective writ issued by a superior court to quash (cancel) the decision or order of a lower court, tribunal, or administrative body that has acted without jurisdiction, in excess of jurisdiction, or in violation of the principles of natural justice, or where there is an error of law apparent on the face of the record.
• Function: It allows higher courts to review and correct errors made by lower adjudicating bodies, ensuring fairness and legality in their decisions.
• Example: If a tribunal makes a decision based on a clear misinterpretation of the law, an affected party can seek a writ of Certiorari to have that decision overturned.
5. Quo Warranto (Latin: "By what warrant/authority"):
• Purpose: This writ is issued to challenge the legal authority of a person holding a public office or franchise. It questions the basis on which an individual claims to hold that office.
• Function: It is used to prevent usurpation of a public office and to ensure that only legally qualified individuals hold such positions.
• Example: If a person is appointed to a public office without meeting the eligibility criteria or through an irregular process, a writ of Quo Warranto can be filed to question their appointment and, if found unlawful, remove them from office.

Importance of Writs in Bangladesh:

In Bangladesh, writs are particularly significant because:

• Enforcement of Fundamental Rights: Article 102(1) of the Constitution specifically allows for applications to the High Court Division for the enforcement of fundamental rights guaranteed in Part III of the Constitution. This makes writ jurisdiction a primary mechanism for citizens to seek remedies against violations of their constitutional rights.
• Judicial Review of Administrative Actions: Writs provide a powerful tool for judicial review of actions by government bodies, statutory authorities, and public officials, ensuring that they act within their legal powers and in accordance with established procedures.
• Ensuring Rule of Law: By providing a mechanism to challenge arbitrary or illegal actions, writs contribute significantly to upholding the rule of law and maintaining checks and balances within the governmental system.