Law opinion
Delegating Writ jurisdiction
Syed Gouseuzzaman Haideri Ali
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.
Writ Jurisdiction is the instrument for enforcement of fundamental rights. In Bangladesh fundamental rights are provided in Article-26 to Article-47 that is, the Part-(iii)III of the Constitution. The High Court Division is empowered with writ jurisdiction by Article- 44 and Article-102 of the Bangladesh Constitution. Article-44(1) of the Constitution, declares that right to move to the Supreme Court, in accordance with clause (1) of Article-102, for the enforcement of fundamental rights conferred by part-(iii)III is guaranteed.
According to Article-102(1) the High Court Division for the enforcement of fundamental rights may give directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic for the enforcement of fundamental rights. Article-102(2) of the Constitution defines various kinds of writ jurisdictions but it does not mention the names of the writs. However, but by analysing this Article, all the writ jurisdictions can be found. According to Article-102(2) the High Court Division may, if satisfied that no other equally efficacious remedy is available-
(a) on the application of any aggrieved person, may make an order -
(i) directing any person performing any functions in connection of the Republic or of a local authority to refrain from doing that which he is not permitted by Law to do - this is clearly the Writ of Prohibition. or to do that which he is required by law to do - this is the Writ of Mandamus.
(ii) declaring that any act done or any proceedings 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 - this is the Writ of Certiorari.
(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 - this is the Writ of Habeas Corpus.
(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office - This is the Writ of Quo- Warranto.
It is also found that the Appellate Division is empowered with Writ Jurisdiction too. Article-104 of the Constitution provides that Appellate Division shall have power to issue directions, orders or writs whenever necessary.
Since the High Court Division is overburdened with cases, it may delegate some of its writ jurisdictions to District Judges. 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.
Writ Jurisdiction can be shared with District Courts in the following ways as mentioned below.
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 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 triable by a Court of Sessions, then the Magistrate wish all make inquiry intoon 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.
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.
(1) 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 tThe case of Sardar Begum vs. Habib Shah Khan, PLD 1976 Lah. 216 provides 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 that such situations, it will be better, if a District Judge, where a person is arrested is given the jurisdiction of Habeas Corpus.
(2) 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 authority of a lesser status or of any inferior tribunal. In the case of Md. Abdul Mannan Bhuiyan vs. University of Rajshahi & Others. 25 BLD (2005) (HCD) 138, respondantrespondent 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 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.
(3) 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 vs. Govt. of West Pakistan, PLD 1962 (SC) 384, 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.
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.
(1) 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.
(2) 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 imparting ton them continuing legal and judicial training. Moreover, rank and status of District Judges should be raised.
The writer is Advocate of the Supreme Court of Bangladesh.
