The expression “writ” has not been defined in the Bangladesh Constitution. Generally, it is defined as a formal order in writing issued under seal, in the name of a sovereign, government, court or other authority commanding an officer or other person to whom it is issued to do or refrain from doing some act specified herein.1 Under Article 102(1) of the Bangladesh Constitution, a writ (formally known as judicial review) can be filed and moved before the High Court Division. Article 44(1) of the Constitution provides that the right to move the High Court Division under Article 102(1) is itself a fundamental right.
Broadly, a writ’s purpose is to prevent or nullify the State’s action if such action adversely affects fundamental rights of the citizen. Its main purpose is not for claiming monetary gain. The policy objective for this restriction is sound. The High Court Division, being the supervisory court under the Constitution, cannot sit (generally) as a trial court to determine the question of damages, which can only be determined by the court of first instance (which is normally the District Court). The question that arises here is, whether, it is at all possible to claim compensation in a writ proceedings.
The High Court Division may exercise its special jurisdiction and inherent power to award “monetary compensation considering the facts and circumstances of each case”.2 If it can be shown that due to the State’s action the petitioner has suffered irreparable damage and incurred unnecessary litigation cost to fight against any illegal order, then the High Court Division may order an award of damages against the State.3
In the sad case of Jihad,4 the High Court Division held that damages will be awarded if there is “established unconstitutional deprivation of the fundamental right to personal life or liberty of the person concern…”
The Appellate Division in Bangladesh v Nurul Amini 5 held that monetary compensation can be granted-
It has been observed that when assessing the damages, to some extent the Court will need to use their own judgment and “a rough and approximate nature based more or less on guess work” and in this regard, assistance from the plaintiff is required by providing some evidence for the ascertainment of the damages suffered.6
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The opinions and comments expressed in this Blawg are not to be regarded or construed as legal advice by and from Vertex International Consulting, Vertex Chambers or any of its members. It is highly advisable that any person should seek independent legal advice before relying on any of the contents of this Blawg.