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Judicial Review (Writ) & Waqf Ordinance

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Judicial Review (Writ) and Waqf Ordinance Legal Services in Bangladesh


Enforcement of Fundamental Rights through Writ Jurisdiction

In Bangladesh, the Constitution is the supreme law, and it empowers the High Court Division to act as the guardian of the people's rights. At The Justice Corner, we utilize the Writ Jurisdiction under Article 102 to provide immediate and powerful remedies when a citizen's fundamental rights are violated by the state or public authorities.

1. The Constitutional Framework

The power to enforce fundamental rights is firmly rooted in two key articles of the Constitution of the People's Republic of Bangladesh:

  • Article 44 (Right to Move the High Court): guarantees the right of every citizen to move the High Court Division for the enforcement of the fundamental rights conferred by Part III of the Constitution.
  • Article 102 (Power of High Court to Issue Writs): empowers the High Court Division to issue directions or orders to any person or authority (including the government) for the enforcement of fundamental rights.

2. Types of Writ Petitions & Legal Provisions

We handle all five distinct types of writs available under Article 102(2). Each serves a specific legal purpose in checking administrative excess and protecting liberty.

A. Writ of Habeas Corpus ("Have the Body")

  • Legal Provision: Article 102(2)(b)(i)
  • Purpose: This is the primary remedy against unlawful detention. The High Court can direct that a person in custody be brought before it to satisfy itself that they are not being held without lawful authority or in an unlawful manner.
  • Our Service: We file this immediately for clients facing illegal arrest, disappearance, or detention without a magistrate's order beyond 24 hours (violation of Article 33).

B. Writ of Mandamus ("We Command")

  • Legal Provision: Article 102(2)(a)(i)
  • Purpose: This writ commands a person performing functions in connection with the affairs of the Republic to do that which they are required by law to do.
  • Our Service: We use this when a public official or government body refuses to perform a mandatory legal duty (e.g., issuing a license, processing a pension, or admitting a student) despite a legal obligation to do so.

C. Writ of Certiorari ("To be Certified")

  • Legal Provision: Article 102(2)(a)(ii)
  • Purpose: This allows the High Court to declare that any act done or proceeding taken by a public authority has been done "without lawful authority and is of no legal effect".
  • Our Service: This is our primary tool for challenging illegal government orders, such as unlawful termination notices, arbitrary tax assessments, or tribunal decisions made without jurisdiction.

D. Writ of Prohibition ("To Forbid")

  • Legal Provision: Article 102(2)(a)(i)
  • Purpose: While Mandamus compels action, Prohibition orders a public authority to refrain from doing that which they are not permitted by law to do.
  • Our Service: We file this to prevent a government body or lower court from exceeding its jurisdiction before a final decision is made (e.g., stopping an illegal disciplinary proceeding).

E. Writ of Quo Warranto ("By What Authority")

  • Legal Provision: Article 102(2)(b)(ii)
  • Purpose: This requires a person holding a public office to show under what authority he claims to hold that office.
  • Our Service: We use this to challenge illegal appointments to public offices where the appointee does not meet the statutory qualifications, ensuring transparency in public governance.

3. Key Fundamental Rights We Enforce

Writ petitions are most commonly filed to protect the specific rights listed in Part III of the Constitution. We frequently represent clients in cases involving:

  • Equality Before Law (Article 27): Challenging discriminatory laws or executive actions that treat similar citizens differently without reasonable classification.
  • Protection of Law (Article 31): Ensuring that no action detrimental to life, liberty, body, reputation, or property is taken except in accordance with the law.
  • Right to Life & Personal Liberty (Article 32): Protecting citizens from extra-judicial killings, torture, or police brutality.
  • Safeguards as to Arrest & Detention (Article 33): Challenging arbitrary arrests and ensuring the right to consult a lawyer.
  • Freedom of Speech & Expression (Article 39): Defending the press and individuals against censorship or harassment for expressing opinions.
  • Right to Property (Article 42): Contesting illegal acquisition or requisition of land by the government without proper compensation.

4. Public Interest Litigation (PIL)

Under the broad interpretation of Article 102, The Justice Corner also files Public Interest Litigation (PIL). In these cases, we represent the interests of the marginalized or the public at large who cannot come to court themselves. This includes environmental protection, consumer rights, and preserving heritage, where the "person aggrieved" is the public itself.

 

 

Enforcement Mechanics: Breaches, Violations & Remedies

At The Justice Corner, we understand that a fundamental right is only as good as its enforcement. When the State—including the government, local authorities, or statutory bodies—violates the rights guaranteed under Part III of the Constitution, we invoke the Writ Jurisdiction of the High Court Division under Article 102.

Below is a breakdown of how we classify breaches and the specific remedies we secure for our clients.

1. Violation of Right to Protection of Law (Due Process)

Legal Provision: Article 31 guarantees that no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law.

  • The Breach: A common violation occurs when a government authority takes punitive action (e.g., freezing a bank account, canceling a trade license, or blacklisting a contractor) without giving the affected person a "Show Cause Notice" or an opportunity to be heard. This violates the principle of Natural Justice (Audi Alteram Partem).
  • The Remedy: We seek a Writ of Certiorari.
    • Outcome: The Court declares the government's decision "without lawful authority and of no legal effect," effectively quashing the illegal order and restoring the client's original status.

2. Violation of Personal Liberty & Unlawful Detention

Legal Provision: Article 32 (Right to Life and Personal Liberty) and Article 33 (Safeguards as to Arrest and Detention).

  • The Breach:
    • Detention without Magistrate Order: When a citizen is arrested and not produced before a Magistrate within 24 hours (excluding travel time).
    • Preventive Detention: Abuse of the Special Powers Act, 1974, where individuals are detained without specific charges based on vague "suspicion."
  • The Remedy: We seek a Writ of Habeas Corpus.
    • Outcome: The Court issues a "Rule Nisi" calling upon the authority to justify the detention. If the detention is found unlawful, the Court orders the immediate release of the detenu/prisoner.

3. Violation of Equality & Employment Rights

Legal Provision: Article 27 (Equality before Law) and Article 29 (Equality of Opportunity in Public Employment).

  • The Breach:
    • Discriminatory Hiring/Firing: When a qualified candidate is denied a government job, or an employee is denied promotion due to nepotism, political bias, or arbitrary quota systems not supported by law.
    • Arbitrary Rules: When a licensing authority applies different rules to similar businesses without reasonable classification.
  • The Remedy: We seek a Writ of Mandamus.
    • Outcome: The Court commands the public authority to perform their legal duty—for example, directing them to appoint the rightful candidate or process the stalled promotion according to the service rules.

4. Violation of Property Rights

Legal Provision: Article 42 (Rights to Property).

  • The Breach:
    • Illegal Requisition: When the government or a development authority (like RAJUK or CDA) acquires private land for a "public purpose" but fails to follow the Acquisition and Requisition of Immovable Property Act, 2017.
    • Non-Payment of Compensation: When land is taken, but the statutory compensation is indefinitely delayed or denied.
  • The Remedy: We seek a Writ of Mandamus or Certiorari.
    • Outcome: The Court may quash the acquisition notice if procedural steps were skipped, or issue a directive compelling the Deputy Commissioner to pay the assessed compensation immediately.

5. Violation of Freedom of Speech & Profession

Legal Provision: Article 39 (Freedom of Thought and Conscience) and Article 40 (Freedom of Profession).

  • The Breach:
    • Censorship: Arbitrary blocking of news portals or media outlets without a specific court order or legal provision.
    • License Denial: Refusal to renew a professional license (e.g., for doctors, engineers, or traders) without valid statutory grounds.
  • The Remedy: We seek a Declaration via Writ Petition.
    • Outcome: The Court declares the blocking or refusal illegal, allowing the media outlet to resume operations or the professional to continue their trade.

Summary of Remedies Available

When we file a Writ Petition on your behalf, we typically pray for one or more of the following reliefs:

  1. Rule Nisi: An initial order asking the government to explain why their action should not be declared illegal (usually granted immediately).
  2. Stay Order: An interim order stopping the government from taking further action (e.g., stopping a demolition or arrest) until the case is resolved.
  3. Rule Absolute: The final verdict where the Court permanently strikes down the illegal government action.
  4. Compensation: In exceptional cases of gross violation (e.g., police torture or negligence leading to death), the High Court may order the State to pay monetary compensation to the victim.