The constitutional remedies refer to remedies that support the protection of fundamental rights as embodied in the constitution, and ensure that people whose fundamental rights have been violated can seek relief directly. Any person who is aggrieved for violation of his/her fundamental rights can seek and avail constitutional remedies by filing a writ petition. There are two kinds of writ jurisdictions. They are:
Writ Jurisdiction for Enforcement of Fundamental Rights:
The Constitution of Bangladesh has conferred on the High Court Division of Supreme Court, special original jurisdiction for enforcement of fundamental rights. The High Court Division can enforce fundamental rights guaranteed in Part III of the Constitution and can also exercise its power of judicial review.
Jurisdiction:
Articles 102 (1) of the Constitution of the People’s Republic of Bangladesh provides that the High Court Division of the Supreme Court of Bangladesh has the jurisdiction to pass necessary orders to enforce the fundamental rights.
Moving the High Court Division is Itself a Fundamental Right:
Article 44(1) of the Constitution provides for the provision of enforcement of fundamental rights. Accordingly, the right to move the High Court Division in accordance with article 102(1), for the enforcement of the rights by Part III of the Constitution is guaranteed. Therefore, the right to move the High Court Division for the enforcement of fundamental rights is itself a fundamental right. As such, here the relief granted by the High Court Division is not discretionary.
Not the Court of Complete Justice:
However, the High Court Division is not the court of complete justice. Because, the order of the High Court Division can be appealed to the Appellate Division under article 103 of the Constitution.
Court of Complete Justice:
The Appellate Division is the Court of complete justice.
Availability of Fundamental Rights:
All fundamental rights are not applicable for all persons. For example, the right to equal opportunity in employment (article 29), freedom of assembly (article 37), freedom of association (article 38), speech and expression (article 38), freedom of speech [article 39 (2)(a)], etc. are available to citizens only. On the other hand, right to life and personal liberty (article 32), the right to protection of law (article 31) are available to all persons who may not be citizens of the country.
Writ Jurisdiction for Enforcement of Rights Other Than Fundamental Rights:
The rights other than fundamental rights can be enforced by way of judicial review. Article 102(2) of our Constitution confers power of judicial review on the High Court Division. The High Court Division exercises this power by way of issuing writs in the nature of mandamus, certiorari, prohibition, habeas corpus, and quo warranto.
Writ of Prohibition:
A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do. It prevents a court or tribunal possessing the judicial and quasi-judicial powers from acting or threatening to act beyond jurisdiction. This writ lies for excess of jurisdiction as well as for absence of jurisdiction. Article 102(2)(a)(i) of our constitution empowers the High Court Division to issue orders in the nature of prohibition.
Writ of Mandamus:
Mandamus is issued to compel a public functionary to do what it is under a legal duty to do when that public functionary is refusing to do it. Article 102(2)(a)(i) also empowers the High Court Division to issue orders in the nature of mandamus.
Writ of Certiorari:
A writ of certiorari commands the court or tribunal or authorities to transmit to it the record of proceedings pending with them for scrutiny and, if necessary, for quashing the same. This writ is issued for the purpose of exercising superintending control over inferior courts and all authorities performing judicial and quasi-judicial functions. This writ is issued against administrative authority as well. Article 102(1)(a)(ii) empowers the High Court Division to issue this writ.
Writ of Habeas Corpus:
This writ is issued to ensure that no person is detained or confined illegally or in an unlawful manner. Article 102(b)(i) empowers the High Court to issue this writ.
Writ of Quo Warranto:
This writ is issued to ensure that no one occupies a public office without any lawful authority. Article 102(b)(ii) empowers the High Court Division to issue this writ.
Difference Between Writ of Prohibition and Certiorari:
Writs of prohibition have much in common with writ of certiorari. Both these writs lie against a judicial and quasi-judicial body but not against an executive body. There is one fundamental distinction between the two writs. Prohibition is issued…