Introduction: The Writ of Prohibition as a Constitutional Safeguard
In the constitutional architecture of the People’s Republic of Bangladesh, the writ jurisdiction of the Supreme Court stands as a formidable bulwark against the arbitrary exercise of state power. Among the remedies available, the writ of prohibition serves a unique and critical function: it is a powerful, preventive legal instrument designed to restrain judicial, quasi-judicial, and administrative bodies from acting in excess of their lawful authority. This report provides a definitive and exhaustive analysis of the writ of prohibition in Bangladesh, examining its constitutional underpinnings, scope of application, procedural intricacies, and strategic use in legal practice. It aims to serve as an essential guide for legal practitioners, academics, and the judiciary in understanding and wielding this vital tool for upholding the rule of law.
The lineage of the writ of prohibition can be traced back to the English common law system, where it emerged as a “prerogative writ”. Historically, these writs were issued by the Court of King’s Bench, representing the King’s authority to ensure that inferior courts and tribunals confined themselves within the bounds of their designated jurisdiction. They were, in essence, instruments of royal power, used to maintain order and control over the judicial machinery of the state. However, the transplantation of this remedy into the constitutional framework of post-colonial nations like Bangladesh marked a profound jurisprudential transformation. The power to issue the writ was no longer a prerogative of the executive but a constitutionally mandated duty of the judiciary, exercised not in the name of a sovereign but in the service of the supreme law of the land—the Constitution.
This evolution signifies a fundamental shift in legal philosophy. In the context of Bangladesh, the writ of prohibition is not merely a procedural tool inherited from a colonial past; it is a direct manifestation of the principle of constitutional supremacy, enshrined in Article 7 of the Constitution. When the High Court Division of the Supreme Court issues a writ of prohibition, it acts as the guardian of the Constitution, enforcing the limitations that the Constitution itself imposes on all organs of the state. This reframes the writ from a simple legal remedy into a primary mechanism for maintaining the delicate balance of power and ensuring that no authority, however high, can act beyond the confines of the law. Its primary characteristic is its preventive nature; it is invoked not to cure an illegality that has already been committed, but to pre-emptively halt an unlawful action before it can inflict irreparable harm upon a citizen’s rights or interests. This report will explore the multifaceted dimensions of this essential constitutional safeguard, from its foundational principles to its practical application in the contemporary legal landscape of Bangladesh.
Constitutional and Legal Foundations
The authority of the High Court Division of the Supreme Court of Bangladesh to issue the writ of prohibition is derived directly from the Constitution, which is the supreme law of the Republic. The specific power is located within the broader framework of the Court’s writ jurisdiction, as delineated in Article 102. This article is the bedrock of judicial review in Bangladesh, empowering the High Court Division to act as a sentinel of both fundamental rights and the general principles of legality that govern state action.
Deconstruction of Article 102(2)(a)(i)
While the Constitution of Bangladesh does not explicitly use the term “writ of prohibition,” the power to issue such an order is unambiguously embedded in the language of Article 102(2)(a)(i). This sub-clause empowers the High Court Division, if satisfied that no other equally efficacious remedy is provided by law, to make an order:
“directing a person performing any functions 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…”.
A meticulous examination of this text reveals the writ’s nature and scope:
- “A person performing any functions…”: This phrase is intentionally broad. As clarified by Article 102(5), “person” includes statutory public authorities, courts, and tribunals (with specific exceptions for military courts and administrative tribunals under Article 117). This expansive definition ensures that the writ is not limited to traditional judicial bodies but extends to a wide array of entities exercising public power.
- “…in connection with the affairs of the Republic or of a local authority…”: This qualifier establishes the public character of the function being scrutinized. The writ is concerned with the exercise of state or public power, not with disputes between private individuals acting in their private capacities.
- “…to refrain from doing…”: This is the core command of the writ of prohibition. It is an order of restraint, a negative injunction that commands inactivity. It is this preventive character that distinguishes it from other writs, such as mandamus, which compels an authority to perform a duty.
- “…that which he is not permitted by law to do”: This phrase sets the standard for judicial intervention. The writ is triggered by illegality, specifically when an authority is acting, or is about to act, ultra vires—beyond its legal powers. This encompasses actions taken without jurisdiction, in excess of jurisdiction, or in contravention of any law in force.
The framers of the Bangladesh Constitution made a deliberate and strategic choice to use this functional language rather than adopting the traditional English nomenclature for the writs. This was not a mere stylistic preference but a substantive legal strategy. By avoiding terms like “prohibition” or “certiorari,” which were laden with centuries of English common law technicalities and procedural rigidities, the Constitution unshackled the High Court Division. This design choice grants the judiciary the flexibility to “fashion the relief according to the circumstances of a particular case”. It empowers the courts to look beyond the form of the petition to the substance of the injustice, ensuring that the remedy can adapt to new and unforeseen manifestations of state power. This constitutional foresight allows the writ of prohibition to remain a dynamic and relevant tool, applicable to the complex array of administrative and regulatory bodies that characterize the modern state.
The Nexus with Fundamental Rights: Article 44
The power vested in the High Court Division by Article 102 is further reinforced by Article 44(1) of the Constitution. This article guarantees the right of every citizen “to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of the rights conferred by Part III” of the Constitution. This creates a powerful synergy. When a judicial or administrative body is about to take an action that would violate a citizen’s fundamental rights—such as the right to equality before the law (Article 27) or the protection of right to life and personal liberty (Article 32)—the citizen has a guaranteed fundamental right to seek a writ of prohibition to prevent that violation. In such cases, the exhaustion of alternative remedies is not a pre-requisite, as the enforcement of fundamental rights is a primary and non-discretionary duty of the High Court Division. This elevates the writ from a mere public law remedy to a direct instrument for the enforcement of the highest constitutional guarantees.
The Core Principles: Purpose, Nature, and Scope
Understanding the writ of prohibition requires a firm grasp of its three defining characteristics: its preventive nature, its expanding scope of application, and its discretionary issuance. These principles collectively shape its role as a key instrument of judicial review in the Bangladeshi legal system.
A Preventive, Not Curative, Remedy
The most fundamental principle of the writ of prohibition is that it is a preventive measure. Its purpose is to intercept and halt an illegality before it is completed. It is often referred to as a “Stay Order” because it commands a lower court, tribunal, or authority to cease its proceedings. This proactive function is what distinguishes it most sharply from its close cousin, the writ of certiorari. While certiorari is
curative—issued after a decision has been made to quash an illegal order—prohibition is preventive, issued to stop an illegal order from being made in the first place. The writ operates on the premise that it is better to prevent a jurisdictional error than to correct it after the fact, thereby saving the litigant time, expense, and the potential harm of an unlawful decision.
The Expanding Scope: From Judicial to Administrative Bodies
Historically, under English common law, the writ of prohibition was primarily available against judicial and quasi-judicial bodies. Its function was to ensure that inferior courts did not usurp a jurisdiction they did not legally possess. However, the legal landscape in Bangladesh has evolved significantly, largely due to the broad and purposive language of Article 102.
The judiciary has interpreted the phrase “any person performing functions in connection with the affairs of the Republic” to extend the reach of the writ of prohibition to purely administrative authorities. This judicial expansion is a necessary and pragmatic response to the realities of the modern administrative state. Today, a vast range of administrative bodies—from government ministries and regulatory commissions to local government authorities and public corporations—wield significant power that directly impacts the rights and interests of citizens. These bodies make decisions regarding licenses, permits, taxation, land acquisition, and public services. To confine the writ of prohibition to its historical, narrow scope would be to leave a significant domain of potential state overreach unchecked by this powerful preventive remedy.
By extending the writ’s application to administrative actions, the courts have affirmed that the principle of ultra vires is a universal standard that applies to all exercises of public power, not just judicial ones. This transformation has turned the writ of prohibition from a specialized tool for supervising the judiciary into a cornerstone of general administrative law in Bangladesh, ensuring that the executive and its various agencies are held accountable and operate strictly within the four corners of the law.
A Discretionary Remedy
Unlike the enforcement of fundamental rights under Article 102(1), the issuance of a writ of prohibition under Article 102(2) is a discretionary remedy. This means the High Court Division is not bound to issue the writ in every case where a ground is technically met. The court will consider the overall circumstances, including the conduct of the petitioner, the potential for injustice, and the availability of other remedies.
This discretion, however, is not arbitrary; it must be exercised judicially, based on established legal principles. The court may decline to issue the writ if, for instance, the petitioner has approached the court with “unclean hands,” has been guilty of unreasonable delay (laches), or has suppressed material facts. As the court noted in the case of
M. Wali Ahmed Chowdhury Vs. Mahfuzul Huq Chowdhury, care must be taken by the petitioner to state the case properly and ask for the precise writ, as its issuance is a matter of judicial discretion. This discretionary nature underscores the writ’s status as an extraordinary remedy, reserved for cases where the court’s intervention is essential to prevent a clear and impending legal wrong.
Grounds for Invoking the Writ of Prohibition
A writ of prohibition is not granted lightly. The petitioner must establish clear and specific legal grounds demonstrating that a public authority is acting, or is about to act, in a manner that is not permitted by law. The jurisprudence of the Supreme Court of Bangladesh has crystallized several well-defined grounds upon which the High Court Division may be moved to issue this powerful preventive order.
Absence and Excess of Jurisdiction
This is the classic and most foundational ground for issuing a writ of prohibition. It is rooted in the doctrine of
ultra vires, which dictates that a public body can only exercise the powers conferred upon it by law. This ground can be invoked in two distinct scenarios:
- Absence of Jurisdiction: This occurs when a court, tribunal, or authority attempts to adjudicate on a matter over which it has no legal authority whatsoever. For example, if a tribunal established to hear service matters attempts to decide a criminal case, it would be acting in complete absence of jurisdiction.
- Excess of Jurisdiction: This arises when a body has initial jurisdiction over a matter but exceeds the limits of that authority during the proceedings. This could involve dealing with subject matters beyond its scope, applying laws it is not authorized to apply, or imposing penalties that are not prescribed by its parent statute.
An argument based on jurisdictional error is often the most potent strategy for a petitioner. It presents a threshold question of law that challenges the very authority of the body to act. If a lack of jurisdiction is established, the merits of the case become entirely irrelevant, as any action taken without jurisdiction is a nullity from the outset. This allows the High Court Division to intervene decisively without getting entangled in complex factual disputes, which are generally considered unsuitable for the writ jurisdiction.
Violation of the Principles of Natural Justice
Even when an authority is acting within its jurisdiction, it is bound to follow the principles of natural justice, which are considered fundamental to fair procedure. A writ of prohibition can be issued to stop proceedings that are being conducted in violation of these principles. The two core tenets of natural justice are:
- Audi Alteram Partem (The Right to be Heard): This principle requires that no person shall be condemned unheard. An authority must give the affected party adequate notice of the case against them and a reasonable opportunity to present their defense. Proceedings conducted without proper notice or a fair hearing can be halted by a writ of prohibition.
- Nemo Judex in Causa Sua (The Rule Against Bias): This principle dictates that no one should be a judge in their own cause. The decision-maker must be impartial and free from any pecuniary, personal, or official bias that could influence their judgment. If there is a real likelihood of bias on the part of the adjudicating authority, a writ of prohibition can be sought to prevent it from proceeding further.
Error of Law Apparent on the Face of the Record
A writ of prohibition may also lie where a subordinate court or tribunal is proceeding based on a manifest and clear error of law. This error must not be a minor or debatable point of law but must be an obvious misinterpretation or misapplication of a statute or legal principle that is central to the proceedings. The error must be “apparent on the face of the record,” meaning it can be identified without the need for a lengthy examination of evidence. If such a patent error is guiding the proceedings, the High Court Division can intervene to prohibit the authority from continuing on a legally flawed basis that would inevitably lead to an unlawful outcome.
Contravention of Fundamental Rights or Statutory Provisions
The writ of prohibition is a crucial tool for the direct enforcement of constitutional and statutory rights. It can be invoked to stop any impending action by a public authority that would infringe upon the fundamental rights guaranteed in Part III of the Constitution. For example, if an administrative body is about to issue an order that is discriminatory and violates the right to equality under Article 27, a petitioner can seek a writ of prohibition to prevent the issuance of that order.
Similarly, the writ can be used to prevent a body from acting in contravention of a specific provision of a statute. If a law prescribes a mandatory procedure that an authority must follow before taking a certain action, and that authority attempts to bypass that procedure, a writ of prohibition can be issued to compel it to adhere to the law. In this capacity, the writ serves as a direct enforcement mechanism, ensuring that all public functionaries act in strict conformity with both the Constitution and the statutes that govern their powers.
Procedural Roadmap: From Filing to Final Order
Successfully obtaining a writ of prohibition requires not only strong legal grounds but also meticulous adherence to procedural requirements. The process, governed by the Constitution and the Supreme Court of Bangladesh (High Court Division) Rules, 1973, involves several distinct stages. This section provides a practical, step-by-step guide for legal practitioners navigating the writ petition process.
Step 1: Establishing Pre-requisites
Before drafting the petition, counsel must ensure two fundamental pre-conditions are met, as these are often the first points of scrutiny by the court.
Locus Standi: The “Person Aggrieved”
Article 102(2)(a) specifies that an application for a writ of prohibition must be made by a “person aggrieved”. The Constitution does not define this term, but judicial interpretation has established that it refers to a person who has a direct, personal, and substantial interest in the matter and has suffered a legal injury or is under the imminent threat of one. The petitioner must demonstrate that the impugned action adversely affects their rights or interests in a way that is distinct from the general public. However, this traditional, restrictive interpretation of
locus standi has been significantly relaxed in the context of Public Interest Litigation (PIL). In PIL cases, courts may entertain petitions from individuals or organizations acting on behalf of a marginalized group or in the public interest, even if they are not personally aggrieved in the traditional sense.
Absence of “Equally Efficacious Remedy”
The High Court Division may only issue a writ of prohibition if it is “satisfied that no other equally efficacious remedy is provided by law”. This is a critical hurdle. If the law provides an alternative and adequate remedy, such as a statutory appeal or revision, the court will generally decline to exercise its extraordinary writ jurisdiction.
However, this rule is not an absolute bar but a principle of judicial self-restraint. The key for a practitioner is to demonstrate why the available alternative remedy is not “equally efficacious.” An alternative remedy may be deemed inefficacious if:
- The challenged action is wholly without jurisdiction, as an appeal cannot validate an order that is a nullity from its inception.
- The alternative remedy would be futile, for instance, appealing to a higher authority that has already pre-judged the issue.
- The process is excessively burdensome or subject to inordinate delay.
- The case involves the enforcement of a fundamental right, where the writ jurisdiction is the primary remedy.
The petition must proactively address this issue, building a compelling case for the inefficacy of any other available legal recourse. This transforms a potential procedural weakness into a substantive argument for the court’s intervention.
Step 2: Drafting and Filing the Petition
The writ petition is the foundational document and must be drafted with precision and clarity. It should be structured to include :
- A clear title indicating the nature of the writ being sought.
- A concise statement of facts, presented chronologically, that gives rise to the cause of action.
- A distinct section outlining the legal grounds for the petition, systematically arguing why the respondent’s impending action is without jurisdiction, violates natural justice, or is otherwise unlawful.
- A specific prayer for relief, explicitly requesting the court to issue a Rule Nisi and, upon hearing, to make the Rule absolute by issuing a writ in the nature of prohibition restraining the respondent from taking the specific impugned action.
- The petition must be supported by an affidavit from the petitioner, affirming the truthfulness of the facts stated therein. All relevant documents must be annexed.
The petition is then filed with the writ section of the High Court Division.
Step 3: The Motion Hearing and Rule Nisi
After filing, the petitioner’s counsel will move the petition before the appropriate High Court bench. This initial stage is known as the motion hearing. Here, the counsel must present a prima facie case, convincing the court that the petition is maintainable and has merit.
If the court is satisfied, it will issue a Rule Nisi. This is a formal order directed at the respondents, commanding them to appear before the court and “show cause” as to why the relief prayed for by the petitioner (i.e., the writ of prohibition) should not be granted. The issuance of a Rule Nisi signifies that the court has found a preliminary case that warrants a full hearing. The court may also issue an interim stay order at this stage, immediately halting the impugned proceedings pending the final disposal of the writ petition.
Step 4: Affidavit-in-Opposition and Final Hearing
Upon receiving the Rule Nisi, the respondents are required to file a formal reply in the form of an “affidavit-in-opposition.” This document contains their legal and factual arguments countering the petitioner’s claims and justifying their actions. The petitioner may then file an “affidavit-in-reply” to rebut the points raised by the respondents.
Once the pleadings are complete, the matter is set for a final hearing. During this hearing, counsel for both sides present their detailed arguments on the law and facts, citing relevant case law and statutes. The court will then adjudicate on the merits of the case.
Step 5: The Final Judgment
After the final hearing, the court delivers its judgment. There are two possible outcomes:
- The Rule is made absolute: If the court finds in favor of the petitioner, it will make the Rule absolute. This means the court will issue a final order in the nature of a writ of prohibition, permanently restraining the respondent authority from proceeding with the unlawful action.
- The Rule is discharged: If the court finds that the petitioner has failed to make their case or that the respondent’s actions are lawful, it will discharge the Rule. This effectively dismisses the writ petition.
The decision of the High Court Division can be appealed to the Appellate Division of the Supreme Court, which is the highest court in Bangladesh.
The Writ of Prohibition in Action: Landmark and Recent Case Studies
To fully appreciate the practical import and constitutional significance of the writ of prohibition, it is essential to examine its application in concrete legal disputes. The jurisprudence of the Supreme Court of Bangladesh offers a rich tapestry of cases where this writ has been invoked to address issues ranging from fundamental questions of constitutional structure to specific instances of administrative overreach.
Landmark Case Analysis: The 16th Amendment Case (Writ Petition No. 9989 of 2014)
Perhaps no case better illustrates the profound power of the writ jurisdiction to safeguard the core principles of the Constitution than the challenge to the Constitution (Sixteenth Amendment) Act, 2014. In this seminal public interest litigation, petitioners sought to prohibit the government from giving effect to a constitutional amendment that altered the mechanism for the removal of Supreme Court judges, replacing the Supreme Judicial Council with a process of parliamentary impeachment.
The petitioners’ core argument was that this amendment constituted a “death blow” to the independence of the judiciary, a basic feature of the Constitution. They contended that giving the legislature, dominated by the executive, the power to remove judges would create a chilling effect, making judges susceptible to political pressure and unable to adjudicate impartially, especially in cases involving the government. The state countered that the petition was premature and that the amendment merely restored the original provision of the 1972 Constitution, thus reflecting the will of the people through their elected representatives.
The High Court Division, in a landmark decision, entertained the writ petition and ultimately declared the Sixteenth Amendment ultra vires the Constitution. The court affirmed that judicial independence is an inviolable part of the Constitution’s basic structure and cannot be amended away. This case demonstrates that the writ jurisdiction is not merely a tool for correcting minor procedural errors. It is the primary vehicle through which the judiciary engages in a high-stakes “constitutional dialogue” with the other branches of government. The writ petition initiated a formal, public, and adjudicated debate on the fundamental principle of the separation of powers. By issuing its judgment, the court used its constitutional authority to prohibit an action by the legislature that it deemed a fundamental threat to the constitutional order itself, showcasing the writ’s role as the ultimate safeguard of constitutionalism.
Illustrative Case Law
Beyond such high-profile constitutional challenges, the writ of prohibition is frequently employed in a variety of judicial and administrative contexts:
- M. Wali Ahmed Chowdhury Vs. Mahfuzul Huq Chowdhury: This case is often cited to underscore two critical aspects for practitioners. First, the issuance of the writ is discretionary, not a matter of right. The court weighs the equities of the case before granting this extraordinary remedy. Second, it highlights the necessity for precision in drafting the petition. The petitioner must clearly and accurately state the grounds and the specific relief sought, as ambiguity can be fatal to the application.
- Anisul Islam Mahmud v. Bangladesh: This case provides a clear example of the writ being issued against a quasi-judicial body. The High Court Division issued a writ of prohibition after finding that a detention order passed by a special tribunal was without lawful authority. This reinforces the principle that specialized tribunals, despite their unique mandates, are subject to the supervisory jurisdiction of the High Court and must act within the confines of the law.
Recent Trends in Application
An analysis of the cause lists of the High Court Division reveals the contemporary use of the writ of prohibition across various sectors of governance. Petitions are frequently filed to challenge the actions of:
- Land Authorities: Prohibiting actions related to land acquisition, mutation, and demarcation where procedural illegalities are alleged.
- Regulatory Bodies: Seeking to restrain regulatory authorities (e.g., in banking, energy, or telecommunications) from enforcing regulations or making decisions allegedly beyond their statutory powers.
- Local Government: Challenging decisions of City Corporations or Union Parishads regarding licensing, taxation, or development projects on grounds of illegality or procedural impropriety.
- Election Commission: Seeking to prohibit actions related to the conduct of elections that are alleged to be in violation of electoral laws.
These recent applications demonstrate the writ’s enduring relevance as a versatile and essential tool for ensuring accountability and legality across the entire spectrum of public administration in Bangladesh.
Navigating the Labyrinth: Common Pitfalls and How to Avoid Them
While the writ of prohibition is a powerful remedy, the path to obtaining it is fraught with procedural and substantive hurdles. Many petitions are dismissed at the preliminary stage due to avoidable errors. Legal practitioners must be acutely aware of these common pitfalls to effectively represent their clients and ensure their petitions are not summarily rejected.
Arguing Disputed Questions of Fact
The single most common mistake leading to the dismissal of a writ petition is framing it around disputed questions of fact. The writ jurisdiction is an extraordinary, summary jurisdiction designed to address errors of law and jurisdiction, not to conduct a trial. The High Court Division will not, in a writ petition, weigh conflicting evidence, examine witnesses, or adjudicate on complex factual controversies.
- Avoidance Strategy: The petition must be meticulously framed to present the issue as a pure question of law. Instead of arguing that a decision was based on incorrect facts, the argument should be that the authority had no jurisdiction to make the decision in the first place, or that it was made in violation of a mandatory statutory procedure or a principle of natural justice.
Failure to Exhaust “Equally Efficacious” Remedies
As previously discussed, the court requires that the petitioner exhaust any other adequate legal remedies before invoking the writ jurisdiction. A petition that fails to address this requirement, or does so inadequately, is likely to be dismissed.
- Avoidance Strategy: The practitioner must not simply ignore the existence of an alternative remedy. Instead, the petition should contain a specific averment explaining precisely why the alternative remedy is not “equally efficacious” in the context of the case. This could be because the remedy is too slow, too costly, unable to provide the required relief, or because the challenge is on a fundamental ground of jurisdiction which the alternative forum is not competent to decide.
Lack of Locus Standi
A petition will fail if the petitioner cannot establish that they are a “person aggrieved”. A mere academic or emotional interest is insufficient. The petitioner must demonstrate a direct and tangible legal injury or a clear threat thereof.
- Avoidance Strategy: The opening paragraphs of the writ petition should be dedicated to clearly establishing the petitioner’s standing. This section should detail the petitioner’s relationship to the subject matter and articulate the specific legal right or interest that has been violated or is under threat.
Delay and Laches
The writ of prohibition is an equitable and discretionary remedy. Unexplained and inordinate delay in approaching the court after the cause of action has arisen can be a ground for refusal of relief. This principle, known as laches, holds that the court will not aid those who sleep on their rights.
- Avoidance Strategy: A writ petition should be filed with utmost promptness. If there has been any delay, the petition must include a clear and convincing explanation for it, such as time spent pursuing other remedies in good faith or a lack of knowledge of the impugned action.
Imprecise Drafting and Prayer
A vaguely drafted petition that fails to clearly articulate the facts, the legal grounds, and the specific relief sought can confuse the court and lead to dismissal. The prayer clause is particularly important; if it does not specifically ask for a writ in the nature of prohibition, the court may be reluctant to grant it.
- Avoidance Strategy: The petition must be a model of clarity and precision. The prayer should be specific, asking the court to issue a Rule Nisi and to ultimately make the Rule absolute by issuing a writ of prohibition to restrain the respondent from the specific unlawful act.
These pitfalls are often interconnected. A single strategic error can trigger a cascade of fatal objections. For instance, a petition that focuses on disputed facts (Pitfall 1) will almost certainly have an alternative, fact-finding forum available, such as a civil court (Pitfall 2). The High Court, recognizing that the core issue is factual, will rightly conclude that the writ jurisdiction is not the proper forum and that an efficacious alternative remedy exists. Thus, a holistic approach to drafting is essential, where the choice of legal ground inherently avoids factual disputes, which in turn strengthens the argument that no other forum is as efficacious for deciding that specific legal question.
Strategic Considerations for Legal Practitioners
Beyond avoiding common pitfalls, effective advocacy in the writ jurisdiction requires a proactive and strategic approach. The choice of remedy, the timing of the application, and the framing of the legal narrative can significantly influence the outcome. This section offers advanced strategic considerations for leveraging the writ of prohibition to its full potential.
Prohibition vs. Certiorari: A Critical Choice
For a legal practitioner, one of the most critical strategic decisions is whether to file for a writ of prohibition or to wait for a final order and then challenge it with a writ of certiorari. This is a question of timing and tactics. Prohibition is a pre-emptive strike, aimed at preventing an adverse outcome. Certiorari is a post-mortem, aimed at quashing an adverse outcome that has already occurred. Filing for prohibition is often strategically advantageous because it can halt a costly and time-consuming proceeding in its tracks, especially when the jurisdictional defect is clear from the outset. It prevents the client from having to endure a full, albeit illegal, process before seeking redress.
The following table provides a comparative analysis to guide this strategic decision:
| Basis of Comparison | Writ of Prohibition | Writ of Certiorari |
| Nature | Preventive; often called a “Stay Order” | Corrective; often called a “Quashing Order” |
| Timing of Filing | Before or during the pendency of proceedings, prior to a final decision. | After a final order or decision has been made. |
| Objective | To stop an ongoing or imminent illegality. | To quash an illegality that has already occurred. |
| Relief Granted | An order to “refrain from doing” an act. | An order declaring an act “done without lawful authority and is of no legal effect.” |
| Constitutional Clause (Art. 102) | Primarily Art. 102(2)(a)(i) | Primarily Art. 102(2)(a)(ii) |
Export to Sheets
The Strategic Use of Interim Orders
When filing a writ of prohibition, it is almost always strategically essential to pray for an interim order of stay during the initial motion hearing. An interim stay provides immediate relief to the client by freezing the impugned proceedings until the writ petition is finally decided. This is crucial for several reasons:
- It preserves the status quo and prevents the respondent authority from rendering the writ petition infructuous by quickly passing a final order.
- It provides immediate protection to the petitioner from the ongoing illegal action.
- The grant of an interim stay by the court at the motion stage is also a strong preliminary indication that the court sees merit in the petitioner’s case, which can be a psychological advantage.
Framing the Narrative for Public Interest Litigation (PIL)
When a case involves issues of broader public importance, such as environmental protection, public health, or good governance, framing the petition as a Public Interest Litigation (PIL) can be a powerful strategy. This approach shifts the focus from an individual grievance to a systemic failure or a violation of public rights. By doing so, it can persuade the court to take a more expansive view of
locus standi and to intervene more readily to correct a public wrong. A successful PIL narrative frames the court’s intervention not just as a remedy for one person, but as a necessary action to uphold the constitutional promises for all citizens.
Pre-emptive Action and Legitimate Expectation
The writ of prohibition can be used as a truly pre-emptive tool. If a public authority makes a public statement or issues a notice indicating it is about to embark on a course of action that is clearly ultra vires, a petitioner need not wait for formal proceedings to be initiated. A writ can be filed to prohibit the authority from taking the first step. Furthermore, the doctrine of “legitimate expectation” can be a powerful ground. If an authority has, by its past practice or express promise, created a legitimate expectation that it will follow a certain procedure, and it then attempts to deviate from that procedure to the detriment of an individual, a writ of prohibition can be sought to prevent this unfair and arbitrary action. This strategy allows the practitioner to proactively enforce principles of fairness and consistency in administrative action.
Conclusion: The Enduring Relevance of the Writ in Upholding the Rule of Law
The writ of prohibition, as enshrined in Article 102 of the Constitution of Bangladesh, is far more than a technical legal procedure. It is a dynamic and indispensable pillar of the nation’s constitutional democracy. Its evolution from a royal prerogative to a fundamental right of the citizen reflects the ascendancy of constitutional supremacy over arbitrary power. As this report has demonstrated, the writ serves as a vital, preventive shield, empowering the High Court Division to intercept and neutralize illegal actions by judicial, quasi-judicial, and administrative authorities before they can crystallize into irreversible injustices.
Through a purposive and flexible interpretation of the Constitution, the judiciary in Bangladesh has expanded the scope of the writ beyond its historical confines, adapting it to the complexities of the modern administrative state. This has transformed the writ of prohibition into a primary instrument for enforcing the doctrine of ultra vires across all spheres of public governance. It ensures that every exercise of state power is tethered to the authority of law, thereby safeguarding the rights, liberties, and legitimate expectations of the citizenry.
For the legal practitioner, the writ of prohibition is a tool that demands precision, strategic foresight, and a deep understanding of constitutional principles. Navigating its procedural requirements and avoiding its common pitfalls is essential for its successful invocation. Yet, when wielded effectively, it offers a swift and powerful remedy against jurisdictional overreach and procedural unfairness.
Ultimately, the enduring relevance of the writ of prohibition lies in its fundamental role in upholding the rule of law. It is a constant reminder that in a constitutional democracy, no authority is absolute. It provides the mechanism through which the judiciary can perform its most sacred duty: to enforce the boundaries of power and to ensure that the governance of the Republic is, and always remains, a government under the law.
References
- The Constitution of the People’s Republic of Bangladesh. (1972).
- Anisul Islam Mahmud v. Bangladesh. As cited in Al Amin Rahman. (n.d.). Writ Law and Procedure in Bangladesh.
- Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (SPL) 1.
- Begum Shorish Kashmiri v. The Government of West Pakistan, PLD 1969 SC 14.
- Eastern Beverage Ind. Ltd. v. Bangladesh. As cited in Al Amin Rahman. (n.d.). Writ Law and Procedure in Bangladesh.
- Habiba Mahmud v. Bangladesh, 45 DLR (AD) 89.
- M. Wali Ahmed Chowdhury v. Mahfuzul Huq Chowdhury. As cited in Counsels Law. (2023, February 20). Writ petition in Bangladesh: Types, Jurisdiction, Execution.
- Muhammad Tofail v. Abdul Gafoor. As cited in Counsels Law. (2023, February 20). Writ petition in Bangladesh: Types, Jurisdiction, Execution.
- Sajda Parvin v. Bangladesh, 40 DLR (AD) 178.
- Sk. Ali Ahmed v. Secretary, Ministry of Home Affairs. As cited in Al Amin Rahman. (n.d.). Writ Law and Procedure in Bangladesh.
- Zamiruddin Ahmed v. Govt. of Bangladesh, 1 BLD (HCD) 304.
- Writ Petition No. 9989 of 2014 (The 16th Amendment Case). Supreme Court of Bangladesh, High Court Division.
- Advocacylegalbd. (2023, October 23). What is a Writ Petition?.
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