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Bangladesh
Introduction
Law means any Act, Ordinance, Order, Regulation, bye law, notification or other legal
instrument and any custom or usage having the force of law. Law is enacted for the
benefit of mankind.1 Law is such a matter where individual statements or opinion carries
no value. A right is an advantage, benefit or interest conferred upon a person by law. A
legal right is one which is protected or enforced by law. A writ is a remedial right for the
enforcement of substantive law. Writ means a written document by which one is
2
summoned or required to do or refrain from doing something. 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 wherein 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”.3 Writ is a very important piece of legal remedies which aims at to provide measure
for the infringement of fundamental rights of the people of a country. As a judicial control
of the administrative action, constitution provides power upon the
_____________________________________________________________________
______
1
Siddiqur Rahman Miah, Law of Writs in Bangladesh (Dhaka: New Warsi Book Corporation, 2007), p.ix.
2
Ibid., p.ix.
3
Sharifuddin Pirzada, Fundamental Rights and Constitutional Remedies in Pakistan (Lahore: All Pakistan
Legal Decisions, 1966), p. 417.
High Court to issue any writ as required, so that the speedy measure may be taken against
the administrative power ultra vires.Historically, writ originated and developed in British
legal system. Initially
writs were Royal prerogatives. Since only the king or queen as the fountain of justice
could issue writs, they were called prerogative writs.’’ They were called prerogative writs
because they were conceived as being intimately connected with the rights of the
crown.’’.4 The king issued writs through the court of king’s Bench or the Court of
Chancery. The prerogative writs were five in number-Habeas Corpus, Certiorari,
Prohibition, Mandamus and Quo-Warranto. The king issued them against his officers to
compel them to exercise their functions properly or to prevent them from abusing their
powers. Subjects being aggrieved by the actions of the king’s officials came to the King
and appealed for redress. And the King through the above mentioned two courts issued
them against his officials to give remedies to his subjects. Gradually as the government
functions increased and the concept of rule of law emerged and the courts became
independent, these writs came to be the prerogatives of the court instead of the King and
lastly they came to be the prerogative of the people for they are now guaranteed rights in
the constitutions of many countries and citizens can invoke them as of right. 5 In
Bangladesh, there is no prerogative power belonging to any organ of government. But the
power to issue writ corresponding to English prerogative writ has been vested in the High
Court Division under Article 102 of the Constitution. 6 Article 102 of the Constitution of
the Peoples Republic of Bangladesh is the core of writ jurisdiction. To move before the
High Court Division is also a fundamental right enshrined in the Part III of the
Constitution of Bangladesh and the same has been emphasized and guaranteed by Article
44 of the said Constitution. The provision of Article 102(1) of the Constitution of
Bangladesh is applicable in every kind of writ if any of the fundamental rights guaranteed
in Part III of the Constitution of the People’s
______________________________________________________________________________
4
Amin Ahmed, Judicial Review of Administrative Action (Dhaka: University of Dhaka, 1969), p.33.
5
Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB
Foundation, 2006), 3rd ed. pp.363-64.
6
Siddiqur Rahman Miah, Ibid.,p.ix.
Republic of Bangladesh is infringed or violated.7 The writs are five in number Habeas
Corpus, Certiorari, Prohibition, Mandamus and Quo-Warranto. Habeas Corpus is a kind
of order of the Court that command the authorities hold an individual in custody to bring
that person in the Court. The authorities must then explain why he is being held. The
Court can order the release of the individual if explanation is unsatisfactory. Thus
Habeas corpus is a process for securing the personal liberty of the subjects. 8 Certiorari
is meant to control the action of the inferior Courts and to make it certain that they have
not exceeded their jurisdiction.9 Prohibition prevents a tribunal possessing judicial or
quasi-judicial powers from exercising jurisdiction over matters not within its cognizance.
The purpose of prohibition is to limit the jurisdiction of the Court. 10 Mandamus is an
order or command of the Court directing to any person, corporation or inferior tribunal
requiring him to do some particular thing as his duty when a Court, Tribunal, Authority or
person has failed to perform his statutory obligation, High Court, compels the Court or
person to do his statutory obligation.11 Quo-Warranto is a writ by which the High Court
verifies the title of a person to the office and thus the unauthorized occupants are ousted
by judicial order. When a person illegally holds a public office created by law, the High
Court on the application of any person can by issuing quo-warranto, ask the person to
show on what authority he holds the office and can make him not to hold such office
further.12
These 5 classes of writs have not been mentioned in the said Article 102.After
examining the statement of Article 102(2) we have to presume the existence of 5
________________________________________________________________________
___
7
Kamruzzaman Bhuiyan, Article 102,1st ed. (Dhaka: Kamruzzaman Bhuiyan, 2008), p.1.
8
Siddiqur Rahman Miah, Ibid., ix.
9
Ibid.
10
Ibid.
11
Ibid.
12
Ibid., p.x.
kinds of writ. Article 102(2) (a)(i) deals with the functions relating to the Writ of
Mandamus as well as Writ of Prohibition, Article 102(2) (a)(ii) is the provision relating to
the Writ of Certiorari, Article 102(2) (b) (i) is concerned with the Writ of Habeas Corpus
while the provision of 102(2) (b) (ii) is concern with the Writ of Quo-Warranto. On the
other hand, the provision of Article 102(3) deals with the saving clauses regarding writ
cases against which remedy under writ jurisdiction is not available. Article 102(4) is
concerned with the functions relating to ad-interim relief in writ jurisdiction, and lastly
the provision of Article 102(5) is related with functions of government officials as well as
their remedy under Article 117 of the Constitution. For getting remedy under writ
jurisdiction the petitioner has to keep in mind the provisions of Article 117 of the
Constitution of Bangladesh because the matters which fall with in the ambit of
Administrative Tribunal will not come under the purview of their
jurisdiction.13 Since these writs are
found on the express provision of the constitution, the High Court Division are also free
to issue appropriate orders in the nature of those writs, emboding their essential
principles. In Bangladesh those writs are available not only for the enforcement of
fundamental right created by various statutes and other laws enforced for the time
being.14
_____________________________________________________________________________
13
Kamruzzaman Bhuiyan, Ibid., p.1.
14
Siddiqur Rahman Miah, Ibid., p.x.
General Concepts of Writs
Interpretation of Statutes
Where two meanings are possible, the one that avoids absurdity or anomaly should be
adopted.Hamooddur Rahman, CJ.in Rasid Ahmed v. State (1969)35 states:
“If the words used by a legislature, in their primary sense, do not mean what the
legislature intended then it is for the legislature to amend the statute and not for the courts
to attempt the necessary amendment by speculating as to the true intent of the legislature.
It is only where the words of a statute are obscure or doubtful or the literal construction
involves the creation of un-intended anomalies that a departure from this rule is
permissible.”
35
21 DLR (SC) 297.
Case Reference-1
[1] MH Rahman, Our experience with Constitutionalism, BJL 2:2, 1998, p 118.
The moon cinema controversy
After 1971, the Holding No 11 and 12, Waisghat was declared to be abandoned property.
Though the Holding No 12 was released later, Holding No 11 housing the Moon Cinema
House was not released. The petitioner challenged the order declaring the said property as
abandoned. The High Court Division in Writ Petition No 67 of 1976 directed the
respondents to hand over the possession in favor of the petitioners. In due course the
Ministry of Industries deleted the 11, Waisghat from the list of abandoned property and
released that in favour of the petitioner with a direction to the Freedom Fighters' Welfare
Association to handover the possession. But the Association filed the petition for Special
Leave to Appeal No 291 of 1977 which was dismissed on 20.1.1978. Even then the
Association declined to release the property on a new excuse. It was the Martial Law
Regulation VII of 1977. Section 6(1) of the MLR VII declared that if any property was
taken over as an abandoned property, any judgment of any court in that regard would
stand annulled and be of no effect notwithstanding any defect in such taking over. That
MLR VII of 1977 was given constitutional protection through the Fifth
Amendment. Since in the face of MLR VII even
the orders of the High Court Division could not be executed to the prejudice of the
petitioners, they filed three writ petitions in 1994, 1997 and 2000 consecutively. The first
two were summarily dismissed for not challenging the Fifth Amendment itself and the
last one was dismissed for default. So the petitioner filed the present one and challenged
the vires of the Fifth Amendment.
The Fifth Amendment: a historical account
In the darkness of the night of August 15, 1975 Bangabandhu was brutally killed along
with almost all of his family members, perhaps with democracy also. On August 20,
Khandker Mushtaq Ahmed declared Martial Law with effect from August 15 and thereby,
in the words of the Court 'committed the offence of sedition against the Republic of
Bangladesh.2 During the turmoiling 1st week of November, Mushtaq
__________________________________________________________________________________________________________________
2
Bangladesh Italian Marble Works Ltd v. Bangladesh 2006 (Spl) BLT (HCD) 75.
nominated Justice Sayem as the President. Ziaur Rahman came to the scene as the
Deputy Martial Law Administrator on November 7, 1975. On November 29, 1976 Justice
Sayem was to declare Zia as the Chief Martial Law Administrator to sustain himself as a
figure head President.3 Zia took oath as President on April 20, 1977 due to the
'deteriorating health' condition of Sayem. While even 'a Chairman of a Union Council
had to be elected and couldn't be nominated, nomination could be made to the highest
office of the Republic.4
Zia arranged a referendum 'unknown to the constitution or any other law of the land' to
obtain 'confidence' of the people.5 He hammered a 99 percent of the total vote cast. The
Presidential Poll was scheduled in June 1978 and Zia put his candidature. That time he
got 76.73 percent to become a 'democratic' President. After forming BNP in August 1978,
he arranged the Parliamentary Election on February 18, 1979. BNP got 207 parliamentary
seats and 41 percent of the total vote cast. The newly formed rubber stamp parliament
was called in session on April 5 1979. In the very first session it passed the Fifth
Amendment Act which ratified and confirmed all the Proclamations, Martial Law
Regulations and Orders made during the period from August 15, 1975 to April 9, 1979
and judged them to be validly made. But history had its own judgment to be rendered in
due course. The truth finds its
way through the historic judgment of the High Court Division in the present case. The
Judiciary, the third umpire lights the red holding: 'Taking over of power by Khandaker
Mushtaq Ahmed, nomination of Justice Sayem as President, appointment of Ziaur
Rahman as Deputy Chief Martial Law Administrator, handing over of the office of Chief
Martial Law Administrator to Ziaur Rahman, nomination of Ziaur Rahman as the
President and Referendum Order of 1977 - were all without lawful authority and in an
unlawful manner'.6
________________________________________________________________
3
Moudud Ahmed, Democracy and Challenge of Development: A study of Politics and Military
Interventions in Bangladesh (Dhaka: UPL 1978), p 51.
4
Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.93.
5
Ibid., p.86.
6
Ibid., pp. 240-1.
'The Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) is illegal and void ab
initio.7
Should the Court venture into political questions?
While judicial review of parliamentary legislation is marked as a precursor of
constitutional supremacy, judicial review of the constitutional amendments is seen with
both reverence and suspicion.8 Some argue that constitutional amendment involves a
Political Question to be better resolved within political discourse than in the court arena. 9
Judicial adventure into this field might perturb some fait accompli settled by the political
and historical discourse and create confusion rather than
clarification.
But the High Court Division in this instance considered itself a social, if not
political institution and so couldn't keep its eyes shut to the legal needs of the
society.10The Judges felt themselves bound to declare what had to be declared, in
vindication of their oath taken in accordance with the constitution, otherwise they
themselves, they noted, 'would be violating the Constitution and the oath taken to protect
the Constitution and thereby betraying the Nation. 11
In response to the political warmth of the issue the Court seems not to care who is
pleased and who is hurt by its decision. It is better to hurt 'a few than the country’ to
distinguish between right and wrong.12
________________________________________________________________________________________________________________
7
Ibid., p.242.
8
Mustafa Kamal, Bangladesh Constitution: Trends and Issues (Dhaka: Dhaka University, 1994), p. 139.
9
Omar Imtiaz and Hossain Zakir, constitution and legal continuity, the Daily Star, Law and Our Rights,
September 17 and 24, 2005.
10
Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.164.
11
Ibid.,p.239.
12
Ibid.,p.204.
On 'Efficacy' and 'Necessity'
Kelsen's theory of Successful Revolution and its efficacy has long been a fascinating
issue in Martial Law talk. Faced with intermittent coups d'etat, the courts used his theory
of revolutionary legality, in pure or modified forms, as a rule of decision to validate the
rule of guns while Kelsen himself emphasized that it is a theory of effectiveness, not a
rule of decision to adjudicate validity.13The Court, in this instance, simply holds that
Kelsen's theory can only be used to explain the past incidents. Any judge in deciding a
case may call upon many a legal theory in establishing his own point of view but should
not regard it as precedent.14 As to the doctrine of necessity,
the Court asserts, “The Constitution is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men at all times, and
under all circumstances”15 Emergency must be faced through constitutional method not
by extra constitutional interventions16 and so, turmoil or crisis in the country is no excuse
for any violation of the Constitution.17
On 'Acquiescence'
The plea that passing of a long time since its adoption without being challenged
immunizes the Fifth Amendment from constitutional challenge was sharply rejected by
the Court. 'No one acquires a vested or protected right in violation of the Constitution by
long use even when that span of time covers our entire national
_____________________________________________________________________
13
Tayab Mahmud, Jurisprudence of Successful Treason: Coup d'etat and Common Law, 27 Cornell Int'l L.
J. 50 1994, p.136.
14
Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.174.
15
Ibid., p.68.
16
Ibid., p.56.
17
Ibid., p.242.
existence and indeed predates it.18
Is there any 'Martial Law Jurisprudence'?
Relying on earlier Supreme Court decisions, one of the pleaders appearing before the
Court tried to establish a sort of 'Martial Law Jurisprudence rising from the wake of two
Martial Law regimes.19 The Court rejected the contention in unequivocal terms, “We are
not aware of any such Martial Law Jurisprudence either under our Constitution or any
other laws of the land”.20 There is no such law in Bangladesh as Martial Law, no such
authority as Martial Law Authority21 and hence no such jurisprudence as Martial Law
Jurisprudence.
An ill-tailored amendment
While invalidating the Fifth Amendment Act the Court found six major technical flaws in
it: First, the
authority of a Marital Law Administrator to amend the Constitution is absolutely
intolerable. An amendment can be made by proper authority as enjoined in the
Constitution but not by any other person or group of persons how high or powerful or
mighty they may appear to be.22 Secondly, the
Amendment being completely alien to the spirit and structure of the Constitution is
attacked by the phrase 'any other law inconsistent with this constitution shall be void to
the extent of inconsistency' in Article 7.23
________________________________________________________________________
18
Ibid., p.162.
19
Ibid., p.15.
20
Ibid., p.228.
21
Ibid., p.240.
22
Ibid.,p.44.
23
Ibid.,p.54.
Thirdly, the provisions sought to be ratified, confirmed and validated by the Fifth
Amendment were illegal. If the provisions sought to be validated were illegal then how
24
could the instrument itself be legal? The Fourth Schedule is not meant to be the
dumping ground for all illegalities.25
Fourthly, Article 142(1)(a)(i) of the Constitution provides that no Bill for any amendment
shall be allowed to proceed unless the long title thereof expressly states that it will amend
a provision of the Constitution. The Fifth Amendment did not contain such long
title.26 Fifthly, the term
'amendment' does not mean the abrogation or destruction or a change in the fundamental
character of the Constitution.27 The words 'ratified, confirmed and declared to be validly
made' appearing in the Fifth Amendment Act are anything but amendment.28
Condonation
Taking care of the concern that a legal vacuum may ensue if all the things from August
15, 1975 to April 9, 1979 were declared void, the Court condoned some illegalities on the
greater interest of the community provided that those acts could have been legally done at
least by the proper authority.30 Condonations were made in respect of provisions which
31
did not change the basic structures of the Constitution and which deleted the various
provisions of the Fourth Amendment but not in respect
________________________________________________________________________________________________________________
25
Ibid.,p.156.
26
Ibid.,p.195.
27
1989 BLD Spl 1.
28
Bangladesh Italian Marble Works Ltd v. Bangladesh, Ibid., p.198.
29
Ibid., p.206.
30
Ibid., p.216.
31
Ibid., p.227.
of omission of any provision enshrined in the original Constitution. Nor were condoned
the amendments made in the Preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142. It means
the revival of those provisions as they were in the original
Constitution.32 But
condonation does not mean that for the sake of continuity, 'the Constitution has to be
soiled with illegalities'. Rather, the perpetrators of such illegalities should be suitably
punished and condemned so that in future no adventurist, no usurper, would have the
audacity to defy the people their Constitution, their Government, established by them
with their consent.33
Conclusion
Symbolizing an extra ordinary legal scholarship, the judgment has put a high water mark
in our constitutional history. Wherever may our political convenience or inconvenience
lie, we must bow a judiciary which holds, “The Martial Law Authorities in imposing
Martial Law behaved like an alien force conquering Bangladesh all over again, thereby
transforming themselves as usurpers, plain and simple” .34
______________________________________________________________________________________________________________________
32
Ibid., p.238.
33
Ibid., p.216.
34
Ibid., p.239.
Case Reference -2
4.2. The 8th Amendment: The Doctrine of Basic Structure of the Constitution
The case of Anwar Hossain Chowdhury v. Bangladesh1 popularly known as the 8th
Amendment case is a historic judgment in the constitutional history of independent
Bangladesh.
Background of the Case
After martial law was imposed on 24th March, 1982, on 8th May the CMLA by amending
the Schedule to the Proclamation of the 24th March, 1982 had set up six permanent
Benches of the High Court Division at Chittagong, Commila, Jessore Barishal, Sylhet
and Rampur. By a further amendment of the Proclamation by Proclamation Order no III
of 1986 these permanent Benches were designed as “Circuit Benches” and it was
provided that when Article 100 of the Constitution would be revived, the Circuit Benches
should be deemed to be sessions of the HCD at Dhaka under that Article. 2Martial law was
withdrawn on 10th November, 1986 and the Constitution was fully revived on the same
date. As the Constitution was revived the Proclamation Order no III of 1986 was no
longer operative and the Chief Justice under the revived Article 100 in consultation with
the President, proceeded to implement the provisions of six sessions benches in the same
places where Circuit Benches were functioning during the martial law period. The Chief
Justice issued six other notifications specifying the jurisdiction to be exercised by each
session and the areas covered by them.
However, when the Chief Justice issued under the revived Article 100 six other
notifications specifying the jurisdiction to be exercised by each session and the area
_______________________________________________________________________________
1
1989 BLD (SPL) 1.
2
The Constitution of People’s Republic of Bangladesh, 1972; Art.100.
covered by them, it added fuel to the fire and the lawyers became more agitated. Perhaps
with a view to stopping this agitation and movement the government passed the
Constitution (Eighth Amendment) Act, 1988 which substituted Article 100 by a new
article creating permanent Benches of the High Court Division in the six aforesaid
places.3
The Constitution (8th Amendment) Case
By two writ petitions the amended Article 100 and the notification of the Chief Justice
were challenged as ultra vires.A Division Bench of the HCD dismissed the petitions
3
Article 100 as amended by the 8th Amendment Act runs the following:-
100. Seat of the Supreme Court
(1)Subject to this Article, the permanent seat of the Supreme Court shall be in the capital.
(2)The High Court Division and the judges thereof shall sit at the permanent seat of the Supreme Court and
at the seats of its permanent Benches.
(3)The High Court Division shall have a permanent Bench each at Barishal, Chittagong, Comilla, Jessore,
Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may
determine from time to time.
(4)A permanent Bench shall consist of such number of judges of the High Court Division as the Chief
Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the
judges shall be deemed to have been transferred to that Bench.
(5)The President shall, in consultation with the Chief Justice, assign the area in relation to which each
permanent Bench shall have jurisdiction, powers and functions conferred on the High Court Division by
this constitution or any other law; and the area not so assigned shall be the area in relation to which the
HCD sitting at the permanent seat of the Supreme Court shall have such jurisdiction, powers and functions.
(6)The Chief Justice shall make rules to provide for all incidentals, supplemental or consequential matters
relating to the permanent Benches.
summarily. Leave was granted by the Appellate Division to consider the Constitutionality
of the Amendment. After a sound hearing the Appellate Division by a majority of 3 to 1
struck down the 8th Amendment as far as it related to the Creation of permanent Benches
outside Dhaka by substitution of Article 100.The ground shown by the court was that the
impugned amended Article 100 changed the character and nature of the function and
jurisdiction of the HCD as envisaged in the Constitution. Such an amendment changing
the basic structure of the Constitution was ultra vires and therefore not tenable in
law. This was a historic judgment in the sense that it was the first time since the
birth of the nation that the Supreme Court of Bangladesh was striking down on
amendment to the Constitution made by the parliament, the supreme and sovereign law
making body under the Constitution. The judgment aroused serious controversies on the
issue of parliaments authority to amend the Constitution and whether the Supreme Court
could restrict the amending power of the parliament. And whether four or five judges
sitting on a Bench could be more wise or have more authority than the 330 members of
parliament elected by the people. 4
Principle Arguments on Behalf of the Appellants
The unitary character of the Republic is a basic feature of our Constitution and the
plenary judicial power of an integrated Supreme Court completely in line with the unitary
character of the Republic is also a basic feature of our constitution which cannot be
altered or damaged. The power of amendment of the Constitution under Article 142 is a
power under the Constitution and not beyond it and it is not an unlimited power. The
concept that parliament has unlimited power of amendment is inconsistent with the
concept of the supremacy of the Constitution embodied in the preamble and Article 7of
the Constitution. The impugned Amendment being Contrary to the concept of integrated
judicial system and unitary character of the Republic has destroyed these basic features.5
________________________________________________________________
4
Moudud Ahmed, Democracy and the Challenge of Development (Dhaka: UPL, 1995), p.45.
5
Submission of Dr.Kamal Hossain, Ishtiaq Ahmed, Amir-ul-Islam, See BLD (SPI) 1, 1989, pp.23-36.
Argument by the State
Article 142 of the Constitution provides that any provision of the Constitution can be
amended by way of addition, alteration, substitution or repeal by an Act of Parliament.
This amendment proceeding is a special one since such an Act can be passed only by
two-thirds of the total number of MPs.So the parliament has unfettered power to amend
any provision of the Constitution, there cannot be any implied limitation of parliament’s
power of amendment of the Constitution. The power of amendment under Article 142 is a
constituent power; not an ordinary legislative power.
The amending power of the parliament is in no way limited or otherwise controlled by
some vague doctrine of repugnancy to the preamble and Article 7 declaring the
supremacy of the Constitution. The
independence of judiciary and separation of powers are basic features of our Constitution
but the impugned amendment has not affected either of the two. 6 The main
issues to be decided by the court were, therefore, the implied limitation of power of
amendment of the Constitution, difference between legislative power and constituent
power, the meaning of the term “amendment” and the “basic structure” doctrine.
The Principal Arguments of the Judgment
1. The Constitution stands on certain fundamental principles which are its structural
pillars which the parliament cannot amend by its amending power for, if these pillars are
demolished or damaged, then the whole constitutional edifice will fall down. Some of the
basic structures are:-
(i).Sovereignty belongs to the people.
(ii).Supremacy of the Constitution.
_______________________________________________________________________________
6
Submission of Attorney General, see, ibid., pp.37-40.
(iii).Democracy.
(iv).Republic government.
(v).Independence of judiciary.
(vi).Unitary state
(vii).Separation of powers.
(viii).Fundamental rights.
This structural pillar of the Constitution stands beyond any change by amendatory
process. If by exercising the amending power these principles are curtailed it is the
court’s duty to restrain it. The amended Article 100 has created more than one permanent
seat of the Supreme Court thus destroying the unitary character of the judiciary; the
transferability of judges has a likely effect of jeopardizing the independence of the
judiciary, a basic feature of the Constitution. And the amendment has resulted in
irreconcilable repugnancies to all other existing provisions of the Constitution rendering
the High Court Division virtually unworkable in its original form.7
2. The amended Article 100 is ultra vires because it has destroyed the essential Limb of
the judiciary namely, of the Supreme Court of Bangladesh by setting up rival courts to the
High Court Division in the name of permanent Benches conferring full jurisdictions,
powers and functions of the High Court Division. Beside this, this amended Article is
inconsistent with Article 44, 94,101 and 102 of the Constitution. The Amendment has
reduced Articles 108,109,110 and 111 nugatory. It has directly violated Article 114.The
Amendment is illegal because there is no provision of transfer of cases from one
permanent Bench to another Bench which is essential requisite for dispensation.8
________________________________________________________________________________________
7
BLD (SPI) 1, 1989, Per Sahabuddin Ahmed, J. Para 376,377,378.
8
BLD (SPI) 1, 1989, Per Badrul Haider Chowdhury, J, Para, 259.
3. If any provision can be called the ‘pole star’ of the Constitution, then it is the
preamble. The impugned Amendment is to be examined on the touchstone of the
preamble with or without resorting to the doctrine of basic structure. The preamble is not
only a part of the Constitution; it now stands as an entrenched provision that cannot be
amended by the parliament alone. When parliament cannot by itself amend the preamble,
it cannot indirectly by amending a provision of the Constitution impair or destroy the
fundamental aim of our society. One of the fundamental aims of our society is to secure
the rule of law for all citizens and in furtherance of that aim part VI and other provisions
were incorporated in the Constitution. By the impugned Amendment that structure of the
rule of law has been badly impaired and as a result the High Court Division has fallen
into sixes and sevens-six at the seats of the permanent Benches and the seven at the
permanent seat of the Supreme Court.9
The above quotations from the judgment make it clear that the centre-point on which the
majority judges relied to declare the impugned amendment illegal was the doctrine of the
basic structure of the Constitution.
The Doctrine of Basic Structure
This doctrine is not a well-settled principle of constitutional law; it is rather a recent trend
in and a growing principle of constitutional jurisprudence. As M.H.Rahman.J. says in the
8th Amendment case that the doctrine has developed in a climate where the executive,
commanding an overwhelming majority in the legislature, gets snap amendments of the
Constitution passed without a Green Paper or White Paper, without eliciting any public
opinion, without sending the Bill to any select committee and without giving sufficient
time to the members of the parliament for deliberation on the Bill for amendment. 10 The
initial trace or origin of the concept of basic structure of the Constitution can be found in
the Sub-Continent, as Dr.Kamal Hossain submitted in 8 th Amendment case,in
__________________________________________________________________
9
BLD (SPI) 1, 1989, Per M.H.Rahman, J, Paras, 388,443,456.
10
Ibid., Para 435.
a decision of the Dhaka High Court(Abdul Haque v. Fazlul Quder Chowhury PLD
1963,Dac.669).This decision was upheld by the Pakistan Supreme Court in Fazlul Quder
Chowdhury v. Abdul Haque11 where the court held---
“franchise and form of government are fundamental features of a Constitution and the
power conferred upon the Presidency by the constitution of Pakistan to remove
difficulties does not extend to making an alteration in a fundamental feature of the
Constitution”.
Problems of the Doctrine of Basic Structure
There still remains a considerable controversy and differences of opinion as to the
substance of the doctrine of ‘basic structure’. Because what actually is meant by the
doctrine? What subject-matters will come under the category of ‘basic feature’? Which
particular features of a Constitution are basic and which are not? These are the questions
which are still haunting both the judges and
researchers. In 8th Amendment case of Bangladesh the
judges could not come into unanimity as to what constitute ‘basic feature’ of the
Constitution. According to B.H.Chowdury .J.21 features are basic features of our
constitution. Justice Sahabuddin Ahmed has mentioned six features are basic features of
our constitution.
Philosophy underlying the Doctrine of Basic Structure
One might argue that this doctrine is vague and should be rejected. But Sahabuddin
Ahmed .J. in the 8th Amendment case 12 says that ‘the doctrine of basic structure cannotbe
rejected if consequences of its rejection is taken into consideration’. The consequence of
rejecting the doctrine of basic structure would be so grave and so opposed to the
objectives of the Constitution that the consequence of uncertainty would be insignificant
by comparison.13
______________________________________________________________________________________________
11
PLD 1963 SC 486.
12
1989 BLD (SPL) 1.
13
H.M.Seervai, Constitutional law of India (Bombay: N.M.Tripathy Pvt Ltd, 1993), p.1568.
Defects of Doctrine of Basic Structure
There are some defects in the Doctrine of Basic Structure which are mentioned below:-
Firstly, any provision of the Constitution may come, if judges so interprets, under the
umbrella of this doctrine giving rise to vagaries of clashing principles. 14
Secondly, this will give rise to differences of opinion among the judges which has been
seen in every case upholding ‘basic structure” doctrine.15 Thirdly, the
judge may, by applying any provision under the umbrella of “basic feature” principle,
reduce or narrow down the justifiable scope of amending power of the parliament. And
the absolute judicial dictation, in other words, the whim of judiciary may take the place
of constitutional limit in respect of amending power of the Constitution.16
Conclusion
Thus with a view to avoiding some of the defects of the doctrine of basic structure it also
grows as a sound principle of Constitutional law. Both the judges and researchers should
take the ‘basic structure’ principle in a special sense rather than in general or numerable
sense. In special sense or in real or substantive sense the doctrine of ‘basic structure’
means those fundamental principles and objectives of the Constitution which are its
structural pillars and on which the whole edifice of the Constitution is erected and if these
principles are taken away or destroyed, the Constitution will lose its original and inherent
identity and character. So if it is found that a constitutional amendment made by
parliament has affected or is likely to destroy any of the basic features of the
Constitution, then the amendment should be declared unconstitutional and void. And in
this substantive sense the doctrine necessarily indicates and means the ‘preamble’ of the
Constitution. This is because it is the preamble which, in the way of embodying
__________________________________________________________________
14
Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB
Foundation, 2006), p.411.
15
Ibid., p.411.
16
Ibid., p.411.
philosophy of the Constitution, contains the fundamental principles and objectives as
fundamental aims or goal of the notion. Taking the preamble as a guiding star, or
touchstone or centre point judges should explain and nourish the doctrine. It is pertinent
to mention here that Justice Muhammad Habibur Rahman in 8 th Amendment case
specifically and with emphasis meant ‘preamble’ of the Constitution as the pole star in
relation to the doctrine of ‘basic structure’.
Case Reference-3
4.3. The 10th Amendment: Women Members of Parliament
Introduction
Women of all continents can look back that they were once marginalized from the
mainstream of society and have come out a long way from that position on the basis of
equality, justice, peace and development. The two concepts-women's rights and peace-
have been interlinked because promotion of women's rights promotes peace. In other
words, peace prevails in society when women's rights are established and protected as
those with men. The origin of women's subordination lies in political theories,
propounded by men. The concern for individual autonomy and freedom for men has later
been extended to a concern for women's equality, freedom and autonomy. The eligible
women voters in the country are more than those of men. During the general election,
women cast their votes more than men did. This demonstrates that women are conscious
to exercise their rights, if environment is made safe and secure. Although the 1972
Constitution (Articles 10, 19, 27, 28, and 29,) provides equality of men and women,
traditional social norms and orthodox religious precepts have discriminated between men
and women in society. By the 10th Amendment of our Constitution there is a provision for
reserved seats for woman to ensure the rights of the woman. According to the existing
provisions of the Constitution of Bangladesh woman member may be of two types-
general woman members and special women members. Those who according to Article
65(2) of the Constitution are elected from single territorial constituencies by direct
election are called general women members of parliament. 1And those who according to
Article 65(3) of the Constitution as amended by 14 th Amendment Act are elected
indirectly in reserved seats for women by the directly elected members of parliament may
be called as special women members of parliament.2
1
The Constitution of People’s Republic of Bangladesh, 1972; Art.65.
2
Ibid.
5
The Constitution of People’s Republic of Bangladesh, 1972; Art.121.
6
The Constitution of People’s Republic of Bangladesh, 1972; Art.122.
7
The Constitution of People’s Republic of Bangladesh, 1972; Art.28.
all section of society are not equal and therefore, the need for special provisions for any
disadvantaged sections of the society is also recognized. In question of reserved seats for
women members in parliament it is argued that to compare with men women in our
country are in a disadvantaged situation; their status is unequal and subordinate to that of
men in the society. This is why the provisions of reserved seats for women were
incorporated in the Constitution. The purpose was to ensure a minimum representation of
women in parliament, and to ensure a wider participation by them in national politics.8
Criticism of Women Members Reserved Seats
The provision of reserved seats for women was made for a specific period of 10 years
only but method of election has made the whole pious purpose meaningless. It is for the
method of election that these 45 women members are being used as a ready tool or ‘vote
bank’ at the hand of the majority party rather than true representation. Because they are
elected or selected on the basis of proportional representation of the parties in the
parliament.9
Recommendation
Among the various ways of electing representatives, direct elections are considered the
most democtatic.So, it would be better to recommend for direct election. If we were to
follow a system of one person two ballots, women candidates could be directly elected by
the people to the women seats. Each political party would nominate candidates to the
women seats as it does for general seats. Each voter would have two ballot papers; one
for the candidates to the general seats, and other for the women seat. He or she would
cast one ballot for the general seat and one for the women seat resulting in 330 directly
elected members of parliament. Administratively or logistically this would not be a major
problem if different colored ballot papers are used.
__________________________________________________________________________________________________________________________
8
Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB
Foundation, 2006), p.304.
9
Ibid., p.304.
Conclusion
It cannot be denied that though women constitute half of our population, they continue to
be an under privileged section of our society. So reservation of seats for women members
are nothing undemocratic; rather a good sign of social and political development. There
needs to be a pledge that women are not to be discriminated in society. The state
institutions and mechanisms established to implement laws are to be strengthened. The
rights of women under the Constitution and laws are not known to women in the
countryside and there needs to be an awareness program of these rights so that they know
their position in the society.
In this dissertation, some of the Principles of Writs have been discussed, which are found
in the decisions of the Supreme Court of Bangladesh. A thorough analysis of the Law of
Writs and its interpretation in the Supreme Court of Bangladesh reveals the following
points:-
5.1. Locus Standi:-By judicial interpretations of the Supreme Court of Bangladesh, the
concept of locus standi i.e. ‘any person aggrieved’ have been gradually extended to other
persons as well. For filing an application under Article 102 of the Constitution it is not
necessary that the person must be personally aggrieved. Any person or group can issue
relief in the interest of the general public or for the well being of the society and not for
its own purpose. The idea has changed the traditional doctrine of locus standi and has
opened the door of the Supreme Court even when the person concerned has no personal
interest in moving the application. Thus in our jurisdiction gradually the door of public
interest litigation is expanding which will usher in better days for the common man of our
society.1
5.2. Local Authority:-The Supreme Court can interfere with the action of a ‘local
__________________________________________________________________
1
Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD) 1.
authority’ set up by a statute. Where the local authority is supposed to act within the
limits of the statutory boundary and fails to do so, mandamus may be issued for the
performance of that act.Similary, a local authority having a legal grievance can also file a
writ petition. Thus local authority is opposed to private authority having no sanction of
law.2
5.3. Natural Justice:-Another judicial rationale for requirement of reasons is that a
person affected by an adverse order is entitled to know why the decision has gone against
him or her. Our Supreme Court has held that the absence of reasons leads to denial of
Justice because the rule requiring reasons to be given in support of an order is, like the
principle of audi alteram partem which is the basic principle of natural justice.3
5.4. Promissory Estoppel:-There can be no estoppel against the constitution and statute.
Acting on the assurance or representation is enough for applicability of the doctrine of
promissory estoppel. On the basis of the principle of promissory estoppel the court can
direct the Government on a writ petition to carry out the promise made.4
5.5. Public interest litigation:-Public interest litigation is a proceeding in which an
individual or group seeks relief in the interest of the general public and not for its own
purpose. Public interest litigation has enlarged and enriched the traditional doctrine of
lucus standi and had opened new remedies and procedures.5
5.6. Res judicata:-In writ jurisdiction, where a decision has been delivered on merits, the
rule of constructive res judicata will be applicable to bar a second writ application
founded on the same cause of action or as regard relief, which were asked for but not
granted in the previous proceeding under Article 102, or as regards a ground which
________________________________________________________________________________________________________________
2
Holy Family Red Cross Hospital v.M.M.Yousuf, BCR (1981) SC 230.
3
M.A.Hai v. TCB, 32 DLR (AD) 46.
4
A.B. M.Quabil v. Ministry of Health, 44 DLR 385.
5
Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD) 1.
ought to have been taken in the previous application.6
5.7. Malafide:-In a writ petition, Malafide must be alleged and the same is to established
on the basis of facts. There should be some factual basis for alleging the same otherwise
the Court will not accept the contention of the petitioner.Malafide vitiates everything and
such Malafide action will not get immunity in any circumstances.7
5.8. Service Matter:-Where the fundamental rights of the petitioner are violated by
legislation or rules or by an order of the Government, the petitioner can move the High
Court by filing an application under Article 102 of the Constitution. The same principle is
application to an employee of a statutory public sector employee. A candidate who has
been illegally denied selection in service matter can approach the court for remedy.8
5.9. Passport:-A citizen’s passport cannot be impounded without any valid ground and
cause. Hence the requirement of natural justice is implicit in case of denial and
impounding of a passport of a citizen.9
5.10. Ultra Vires:-This doctrine simply means that an authority has no power to do act
complained of. An authority can only do things permitted by the statute to be done and
things which are not expressly conferred by the Statute are forbidden to be done. This
doctrine permits the court to strike down the decision made by the bodies exercising
public functions which they have no power to make.10
5.11. Latches or unreasonable delay:-This is a maxim based on equitable principle that,
‘delay defeats equity’. Inordinate and unreasonable delay in filing a writ petition
___________________________________________________________________________________
6
Abdul Jalil v.Bangladesh, 4 MLR (1999) (AD) 353.
7
Mustaque Ahmed v. Bangladesh, 34 DLR (AD) 222.
8
Bangladesh v . A.Rahman, 1982 BLD (AD) 176.
9
Rafique-Ul-Huq v. Bangladesh, 44 DLR 398.
10
Jamil Huq v Bangladesh, 34 DLR (AD) 125.
may bar the remedy under Article 102 of the Constitution. However, if the delay is
unintentional and properly explained, then at times the writ jurisdiction may be exercised
on the facts and circumstances of each case.11
5.12. Disputed question of facts:-In general, a disputed question of fact is not
investigated in a writ petition where an alternative remedy is available. Rival claims of
property and disputed question of title cannot be the subject matter of writ.12
___________________________________________________________________________________
11
Sarwarjan Bhuiyan and others v. Bangladesh, 44 DLR 144.
12
Shamsunnahar Salam v. Md.Wahidur Rahman, 51 DLR (AD) 232.
Observations and Recommendations for the implementation
of writs.
The dissertation has some recommendations regarding the issue of “Law of Writs in
Bangladesh and Its Interpretation in the Supreme Court of Bangladesh’’, as following:-
1. Delegating Writ jurisdiction: - 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. 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.1
(a)Writ Jurisdiction can be shared with District Courts in the following ways:-
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
________________________________________________________________________
___
1
The Constitution of People’s Republic of Bangladesh, 1972; Art.44 (2).
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 trialed by a Court of Sessions, then the Magistrate wish all make inquiry into
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.2
(b) 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:-
i) 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 the case of Sardar Begum v. Habib Shah
Khan3, provide 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
such situation, it will be better if a District Judge, where a person is arrested, gives the
jurisdiction of Habeas Corpus.
(ii)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
___________________________________________________________
2
The Code of Criminal Procedure, 1898; Sec. 202(2A) and 205c.
3
PLD 1976 Lahore 216.
authority of a lesser status or of any inferior tribunal. In the case of Md. Abdul Mannan
Bhuiyan v. University of Rajshahi & Others 4, respondent 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 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.
(iii) 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 v. Govt. of West Pakistan5, 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.
(c)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:-
(i) Writ of Certiorari
6
Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB
Foundation, 2006), p.374.
7
Ibid., p.374.
nor does any strong committee system exists in Bangladesh. This has resulted in
uncontrolled corruption and nepotism in every department of the government. In such a
situation, the highest court must protect fundamental rights and to control the arbitrary
actions on the part of the government, if the highest court fails to do so, then promises to
the people of equality, justice, rule of law etc as enshrined in the preamble to the
Constitution will remain as meaningless versions.8
5. The courts must be very cautious. When confronted with the issues that were mainly
political in nature, the judges should carefully separate the legal and constitutional
aspects from the political ones. But in cases with genuine social justice matters, the courts
should not hesitate to pronounce in favour of the petitioner.9
__________________________________________________________
8
Ibid., p.375.
9
Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies (Dhaka: Bangladesh Legal
Aid and Services Trust, 1999), p.156.
Conclusion
It is known to all that a system of laws without effective remedies either fails in its
mission or serves very little purpose. An effective system of remedies would also serve
no good purpose unless there is a vast awareness of the existence and availability of those
remedies. Out of all legal remedies, writ is a very important piece of legal remedies
against the infringement of the administrative action which is increasing day by day in
the context of the multifarious activities of the state. If cordial approaches are taken to the
practical modification in the existing system of Law of Writs in Bangladesh, it can be
proved truly effective as a remedy to the public. The recommended steps, once adopted,
can be further scrutinized to find out better ways to ensure the utility of this constitutional
system. It can be said that, writ is the special kind of
remedy provided by the High Court Division of the Supreme Court of Bangladesh. But
such kind of remedy is not always available except in case of protecting the violation of
fundamental rights. But in case of establishing any of the legal rights provided by any law
of the land the aggrieved party has to satisfy the court that he has no equally efficacious
remedy under that law etc.
Appendix
The Constitution of the People’s Republic of Bangladesh, 1972; Article 102.
102. Powers of High Court Division to issue certain orders and directions, etc.
(1) The High Court Division on the application of any person aggrieved may give such
directions or orders to any person or authority, including any person performing any
function in connection with the affairs of the Republic, as may be appropriate for the
enforcement of any the fundamental rights conferred by Part III of this Constitution.
(2) The High Court Division may, if satisfied that no other equally efficacious remedy is
provided by law-
(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division
shall have no power under this article to pass any interim or other order in relation to any
law to which article 47 applies.
(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an
interim order is prayed for and such interim order is likely to have the effect of-
(a) prejudicing or interfering with any measure designed to implement any development
programme, or any development work; or
(b) being otherwise harmful to the public interest, the High Court Division shall not make
an interim order unless the Attorney-General has been given reasonable notice of the
application and he (or an advocate authorized by him in that behalf) has been given an
opportunity or being heard, and the High Court Division is satisfied that the interim order
would not have the effect referred to in sub-clause (a) or sub-clause (b).
(5) In this article, unless the context otherwise requires, "person" includes a statutory
public authority and any court or tribunal, other than a court or tribunal established under
a law relating to the defense services of Bangladesh or any disciplined force or a tribunal
to which article 117 applies.
References
Books
Amin Ahmed, Judicial Review of Administrative Action, (Dhaka: University of Dhaka,
1969).
Moudud Ahmed, Democracy and Challenge of Development: A study of Politics and
Military Interventions in Bangladesh, (Dhaka: UPL 1995).
Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies, (Dhaka:
Bangladesh Legal Aid and Services Trust, 1999).
M. Shah Alam, Somokalin Antojartik Ain ,(Contemporary International Law), 2nd ed.
(Dhaka: New Warsi Book Corporation, 2008).
Bennion, Bennion on Statute Law, 3rd ed. (London: LexisNexis, 2007).
Kamruzzaman Bhuiyan, Article 102, 1st ed. (Dhaka: Kamruzzaman Bhuiyan, 2008).
Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh
Perspective, 3rd ed. (Dhaka: CCB Foundation, 2006).
M. Hidayatullah, Democracy in India and Judicial Process, (New Delhi: Asia Publishing
House, 1965).
Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers,
2003).
Mahmudul Islam, Interpretation of Statutes and Documents, 1st ed. (Dhaka: Mullick
Brothers, 2009).
Mustafa Kamal, Bangladesh Constitution: Trends and Issues, (Dhaka: Dhaka University,
1994).
Md. Ansar Ali Khan, Law of Writs in Bangladesh, (Dhaka: Kamrul Book House, 2003).
P. St. J. Langan, Maxwell on the Interpretation of Statutes, 12th ed. (Bombay: Lexis
Nexis, 2003).
Siddiqur Rahman Miah, Law of Writs in Bangladesh, (Dhaka: New Warsi Book
Corporation, 2007).
H. K. Mukherjee, A Handbook of Legal Language Legal Writing and General English,
(Kolkata: Law Point, 2004).
Holland and others, Learning Legal Rules, 5th ed. (Oxford: Oxford University Press,
2003).
Sharifuddin Pirzada, Fundamental Rights and Constitutional Remedies in Pakistan,
(Lahore: All Pakistan Legal Decisions, 1966).
Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with
Comments &Case-Laws, (Dhaka: Mullick Brothers, 2005).
H. M. Seervai, Constitutional Law of India, (Bombay: N.M.Tripathy Pvt Ltd, 1993).
H. N. Tewari, Legal Research Methodology, (Faridabad: Allahabad Law Agency, 1997).
Glanville Williams, Learning the Law, 11th ed. (London: Stevens and Sons, 1982).
Law Journals
Tayab Mahmud, Jurisprudence of Successful Treason: Coup d'etat and Common Law, 27
Cornell Int'l L. J. 50 1994.
M. H Rahman, Our experience with Constitutionalism, BJL 2:2, 1998.
Articles in a Newspaper
Syed Gouseuzzaman Haideri Ali, Delegating Writ Jurisdiction, the Daily Star, Law and
Our Rights, March 21, 2009.
M. Jashim Ali Chowdhury, 5th Amendment: A critical analysis, the Daily Star, Law and
Our Rights, February 14, 2009.
Omar Imtiaz and Hossain Zakir, Constitution and Legal Continuity, the Daily Star, Law
and Our Rights, September 17 and 24, 2005.
Internet Sources
Certiorari, at http://www.en.wikipedia.org/wiki/ Certiorari. (28 July, 2009).
Habeas corpus, at http://www.en.wikipedia.org/wiki/Habeascorpus (28 July, 09).
Mandamus, at http://www.en.wikipedia.org/wiki/ Mandamus. (28 July, 2009).
Prohibition, at http://www.en.wikipedia.org/wiki/ Prohibition. (28 July, 2009).
Quo warranto, at http: //www.en.wikipedia.org/wiki/Quowarranto.(28 July, 2009).
Writ, at http://www.en.wikipedia.org/wiki/writ.(28 July, 2009).
Writ Petition, at http://banglapedia.org/httpdocs/ht/w-0075.htm,last visited on 28 July,
2009.
Law Dictionaries
P. Ramanatha Aiyar, Concise Law Dictionary, 3rd ed. (London, LexisNexis Publication,
2005).
John Bouvier, Bouvier Law Dictionary, Sixth ed. (USA: Bouvier Publication, 1856).
Statutes
The Code of Criminal Procedure, 1898. (Act V of 1898).
The Constitutions of People’s Republic of Bangladesh, 1972. (As modified up to 31 st
February, 2005).
List of Cases
Abdul Haque v. Fazlul Quder Chowhury PLD 1963, Dac.669. 44
Abdul Jalil v.Bangladesh, 4 MLR (1999) (AD) 353. 47
Abdul Latif v. Govt. of West Pakistan, PLD 1962 (SC) 384 . 51
Abdus Sattat v.Arag Ltd (1964) 16 DLR 335. 18-9
A.B. M.Quabil v. Ministry of Health, 44 DLR 385. 46
A.B.Mohiuddin v. Bangladesh, 49 DLR 353. 20
Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (SPL) 1. 30-8
Bangladesh Italian Marble Works Ltd v. Bangladesh,
2006 (Spl) BLT (HCD) 1. 22-9
Bangladesh v. A.Rahman, 1982 BLD (AD) 176. 47
DPP v. Bull, (1994) 4 All ER 411. 17
Dr.Ahmed Hussain v.Bangladesh, 44 DLR (AD), 109. 41-2
Dr.Mohiuddin Farooque v. Bangladesh, 49 DLR (AD), 1. 12, 45-6
Duport Steels Ltd v. Sirs, (1980) 1 All ER 529. 18
Grey v. Pearson (1857) 6 HL Cas 61. 16
Heydon’s Case, (1584) 3 Co Rep 7. 16
Holy Family Red Cross Hospital v.M.M.Yousuf, BCR (1981) SC 230. 46
Jadu Nath v. Bangladesh, 25 DLR 335. 18
Jamil Huq v. Bangladesh, 34 DLR (AD) 125. 47
Jones v. Tower Boot Co Ltd,(1997) 2 All ER 406. 17
M.A.Hai v. TCB, 32 DLR (AD) 46. 46
Md. Abdul Mannan Bhuiyan v. University of Rajshahi & Others,
25BLD (2005) (HCD) 138. 50
Md. Ismail v. State, 21DLR (SC) 161. 19
Mustaque Ahmed v.Bangladesh, 34 DLR (AD) 222. 47
Notham v. London Borough of Barnet (1978) 1 WLR 220. 17
Pepper (Inspector of Taxes) v. Hart (1993) AC 593. 17
R v. Allen, (1872) LR 1 CCR 367. 16
R v. Judge of the City of London Court (1982) 1QB 273. 15
Rasid Ahmed v. State (1969), 21 DLR (SC) 297. 22
Rafique-Ul-Huq v.Bangladesh, 44 DLR 398. 47
Sardar Begum v. Habib Shah Khan, PLD (1976) Lahore 216. 50
Sarwarjan Bhuiyan and others v.Bangladesh, 44 DLR 144. 48
Shamsunnahar Salam v.Md. Wahidur Rahman, 51 DLR (AD) 232. 48
Smith v. Hughes, (1960) 2 All ER 859. 17
The Janata Dal v. Harinder Singh and others, AIR 1993 SC 892 at 906. 12
Whiteley v. Chappell, (1868) LR QB 147. 15
Zabrivsky v. General Officer 1947 All C246. 7
Index
Certiorari, 10-1
Delegating Writ Jurisdiction, 49-52
Disputed question of facts, 48
Doctrine of Basic Structure, 35-8
Golden Rule, 15-6
Habeas Corpus, 7-8
Interpretation, 13
Latches or unreasonable delay, 47
Literal Rule, 14-5
Locus Standi, 45
Malafide, 47
Mandamus, 8-9
Martial Law Jurisprudence, 27
Mischief Rule, 16-7
Natural Justice, 46
Prohibition, 9-10
Promissory Estoppel, 46
Public Interest Litigation, 12
Purposive Approach, 17-8
Quo-Warranto, 11
Res judicata, 46
Ultra Vires, 47
Writ, 5-6