Introduction
Article 94 (1) of the constitution provides that there shall be Supreme Court for Bangladesh (to be known as the Supreme Court for Bangladesh (to be known as the Supreme Court of Bangladesh) Comprising the Appellate Division and the high Court Division.
According to Article 101 There are two sources of powers and Jurisdiction of the High Court Division – the Constitution and ordinary law. Hence the jurisdiction of the High Court Division may be divided in two categories – ordinary or general jurisdiction and Constitutional jurisdiction.
Ordinary Jurisdiction: Ordinary Jurisdiction conferred on the High Court Division by any ordinary law is its ordinary jurisdiction which may be of following types:
(i) Original Jurisdiction.
(ii) Appellate Jurisdiction.
(iii) Revisional Jurisdiction. And
(iv) Reference Jurisdiction.
Constitutional Jurisdiction of the High Court Division: The Constitution itself has conferred on the High Court Division the following three types of Jurisdictions:
(i) Writ Jurisdiction,
(ii) Jurisdiction as to Superintendence and Control over courts; and
(iii) Jurisdiction as to Transfer of Cases.
Writ Jurisdiction: The constitution of Bangladesh has conferred on the High Court Division original jurisdiction only in case and this is the field of writ matters. The basis of writ Jurisdiction is Article 102 of the Constitution. Writ Jurisdiction means the power and Jurisdiction of the High Court Division Under the provisions of the Constitution where by it can enforce fundamental rights as guaranteed in part III of the Constitution and also exercise its power of Judicial review.
Writ: Writ means a written document by which one is summoned or required to do or refrain from doing something. Historically writ Originated and developed in British legal system. 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 where in 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.”
Various types of writ: There are five types of writ which are namely:
(i) Writ of Habes Corpus,
(ii) Writ of Mandamus,
(iii) Writ of Prohibition,
(iv) Writ of Certiorari, and
(v) Writ of Quo Warranto.
The description of these writs are following:
Writ of Habeas Corpus: The word ‘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. So it is a kind of order of the court that commands the authorities holding an individual in custody to bring that person into court. The authorities must then explain in the court why the person is being held. The court can order the release of the individual if the explanation is Unsatisfactory. Thus 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. While granting a writ of Habeas Corpus the high court has to consider the following four fundamental issues:
(i) Whether the subject – matter of the petition comes within the scope of writ of Habeas corpus?
(ii) Whether the petitioner has sufficient interest in the petition?. In other words the petitioner must have Locus Standi.
(iii) Whether the petition has been filed without unnecessary delay?
(iv) The High Court Division must satisfied that no other equally efficacious remedy is provided by law.
Writ of Mandamus: Literally the term ‘Mandamus’ means ‘we command’ and reminds one of the times when the king of England as the automatic head of a vast administrative system had occasion to mandamus his subjects many times in the course of the day.
Under Article 102 (2) (a) (i) the High Court Division may make an order directing a person performing any functions in connection with the affairs of the republic or of a local authority to do that which he is required by law to do.
The following may be regarded, in general as the condition precedent to the issue of Mandamus:
(i) The applicants must show that he has a legal right to the performance, of a legal duty by the party against whom the mandamus in sought;
(ii) Such right must be subsisting on the date of the petition;
(iii) The applicants must show that his legal right has been refused by public authority;
(iv) The applicant must satisfy the court that he has no alternative remedy;
(v) Such writ can only be issued where it will fail to produce any positive result;
(vi) Mandamus would not issue to direct a Government to refrain from enforcing the provision of a valid law.
Writ of Prohibition: Prohibition is an original remedial writ, as old as the common law itself. Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts. The first part of Article 102 (2) (a) (i) of the constitution confer jurisdiction to the High court to issue this writ. Under this Article the High court may make an order directing a person performing any function 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 prohibition in judicial writ, issuing out of a Superior Court, to an Inferior Court preventing the Inferior Court from usurping jurisdiction with which it is not legally vested, or in other words, to compel courts with judicial duties to keep within the limits to their jurisdiction or to prevent them from violating the rules of Natural Justice.
Writ of Certiorari: The term Certiorari means ‘to be certifed’ or ‘to be more fully informed of’. The writ of ‘certiorari’ is so named because in its original from it required the king’ should be certified of the proceedings to be investigated. Articled 102 (2) (a) (ii) empowers the High Court Division to issue orders in the nature of certiorari. Under this Article, The High Court Division may make an order 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.
Writ of Quo Warranto: The term’ Quo – Warranto “means” by what warrant or authority” Quo – Warranta is a writ by which any person who occupies or usurps an independent substantive public office or franchise or liberty, is asked to show by what authority he claims it, so that the title to the office, franchise or liberty may be settled and unauthorized occupants be ousted by judicial order. By Article 102 (b) (ii) of the constitution the High Court Division is confirmed to exercise the Jurisdiction to issue Writ of Quo – Warrato.
A writ of Quo Warranto will issue in respect of an office only if the following conditions are satisfied:
(i) The office must be public.;
(ii) The office must be substantive in character, i.e; an office independent is title;
(iii) The office must have been created by statute or by the constitution itself;
(iv) The respondent must have arrested his claim to the office.
(v) The respondent is not legally qualified to hold the office or to remain in the office.
Conclusion
The High Court Division of the Supreme Court of Bangladesh shall have such original, appellate and other jurisdictions and powers as are conferred on it by this constitution or any other Law. The appellate and revisional Jurisdiction of this Division is conferred by the Code of Civil Procedure, the Code of Criminal Procedure and Some other special laws. This Division shall have superintendence and control over all courts subordinate to it, and the law declared by that division shall be binding on a courts subordinate to it. The High Court Division has limited Original jurisdiction only in the matter of company, admiralty and writ or Constitutional Matters.
If the fundamental rights of any person are violated then he is entitled to get legal remedy under the writ jurisdiction of the High Court Division of The Supreme Court by issuing writ.
According to Article 101 There are two sources of powers and Jurisdiction of the High Court Division – the Constitution and ordinary law. Hence the jurisdiction of the High Court Division may be divided in two categories – ordinary or general jurisdiction and Constitutional jurisdiction.
Ordinary Jurisdiction: Ordinary Jurisdiction conferred on the High Court Division by any ordinary law is its ordinary jurisdiction which may be of following types:
(i) Original Jurisdiction.
(ii) Appellate Jurisdiction.
(iii) Revisional Jurisdiction. And
(iv) Reference Jurisdiction.
Constitutional Jurisdiction of the High Court Division: The Constitution itself has conferred on the High Court Division the following three types of Jurisdictions:
(i) Writ Jurisdiction,
(ii) Jurisdiction as to Superintendence and Control over courts; and
(iii) Jurisdiction as to Transfer of Cases.
Writ Jurisdiction: The constitution of Bangladesh has conferred on the High Court Division original jurisdiction only in case and this is the field of writ matters. The basis of writ Jurisdiction is Article 102 of the Constitution. Writ Jurisdiction means the power and Jurisdiction of the High Court Division Under the provisions of the Constitution where by it can enforce fundamental rights as guaranteed in part III of the Constitution and also exercise its power of Judicial review.
Writ: Writ means a written document by which one is summoned or required to do or refrain from doing something. Historically writ Originated and developed in British legal system. 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 where in 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.”
Various types of writ: There are five types of writ which are namely:
(i) Writ of Habes Corpus,
(ii) Writ of Mandamus,
(iii) Writ of Prohibition,
(iv) Writ of Certiorari, and
(v) Writ of Quo Warranto.
The description of these writs are following:
Writ of Habeas Corpus: The word ‘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. So it is a kind of order of the court that commands the authorities holding an individual in custody to bring that person into court. The authorities must then explain in the court why the person is being held. The court can order the release of the individual if the explanation is Unsatisfactory. Thus 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. While granting a writ of Habeas Corpus the high court has to consider the following four fundamental issues:
(i) Whether the subject – matter of the petition comes within the scope of writ of Habeas corpus?
(ii) Whether the petitioner has sufficient interest in the petition?. In other words the petitioner must have Locus Standi.
(iii) Whether the petition has been filed without unnecessary delay?
(iv) The High Court Division must satisfied that no other equally efficacious remedy is provided by law.
Writ of Mandamus: Literally the term ‘Mandamus’ means ‘we command’ and reminds one of the times when the king of England as the automatic head of a vast administrative system had occasion to mandamus his subjects many times in the course of the day.
Under Article 102 (2) (a) (i) the High Court Division may make an order directing a person performing any functions in connection with the affairs of the republic or of a local authority to do that which he is required by law to do.
The following may be regarded, in general as the condition precedent to the issue of Mandamus:
(i) The applicants must show that he has a legal right to the performance, of a legal duty by the party against whom the mandamus in sought;
(ii) Such right must be subsisting on the date of the petition;
(iii) The applicants must show that his legal right has been refused by public authority;
(iv) The applicant must satisfy the court that he has no alternative remedy;
(v) Such writ can only be issued where it will fail to produce any positive result;
(vi) Mandamus would not issue to direct a Government to refrain from enforcing the provision of a valid law.
Writ of Prohibition: Prohibition is an original remedial writ, as old as the common law itself. Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts. The first part of Article 102 (2) (a) (i) of the constitution confer jurisdiction to the High court to issue this writ. Under this Article the High court may make an order directing a person performing any function 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 prohibition in judicial writ, issuing out of a Superior Court, to an Inferior Court preventing the Inferior Court from usurping jurisdiction with which it is not legally vested, or in other words, to compel courts with judicial duties to keep within the limits to their jurisdiction or to prevent them from violating the rules of Natural Justice.
Writ of Certiorari: The term Certiorari means ‘to be certifed’ or ‘to be more fully informed of’. The writ of ‘certiorari’ is so named because in its original from it required the king’ should be certified of the proceedings to be investigated. Articled 102 (2) (a) (ii) empowers the High Court Division to issue orders in the nature of certiorari. Under this Article, The High Court Division may make an order 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.
Writ of Quo Warranto: The term’ Quo – Warranto “means” by what warrant or authority” Quo – Warranta is a writ by which any person who occupies or usurps an independent substantive public office or franchise or liberty, is asked to show by what authority he claims it, so that the title to the office, franchise or liberty may be settled and unauthorized occupants be ousted by judicial order. By Article 102 (b) (ii) of the constitution the High Court Division is confirmed to exercise the Jurisdiction to issue Writ of Quo – Warrato.
A writ of Quo Warranto will issue in respect of an office only if the following conditions are satisfied:
(i) The office must be public.;
(ii) The office must be substantive in character, i.e; an office independent is title;
(iii) The office must have been created by statute or by the constitution itself;
(iv) The respondent must have arrested his claim to the office.
(v) The respondent is not legally qualified to hold the office or to remain in the office.
Conclusion
The High Court Division of the Supreme Court of Bangladesh shall have such original, appellate and other jurisdictions and powers as are conferred on it by this constitution or any other Law. The appellate and revisional Jurisdiction of this Division is conferred by the Code of Civil Procedure, the Code of Criminal Procedure and Some other special laws. This Division shall have superintendence and control over all courts subordinate to it, and the law declared by that division shall be binding on a courts subordinate to it. The High Court Division has limited Original jurisdiction only in the matter of company, admiralty and writ or Constitutional Matters.
If the fundamental rights of any person are violated then he is entitled to get legal remedy under the writ jurisdiction of the High Court Division of The Supreme Court by issuing writ.
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