Introduction
The term “writ” has been originated from Common Law. It means a formal written order passed by the superior court to the subordinate court or governmental officials in an effort to preserve the rights of a country. The main purpose of writ is to protect and preserve the fundamental rights of an individuals.[1]
For example, a writ of habeas corpus can be used to evaluate the constitutionality of criminal convictions delivered by state courts. The writ of certiorari, which is issued by the superior court to a lower court to review that court’s judgment for legal error or when no appeal is available.
The law of Writs System of Pakistan has been enacted in Article 184 and 199 of the Constitution of Islamic Republic of Pakistan, 1973 which has encapsulated and provided the procedure of issuing writs by the Supreme Court of Pakistan and the High Courts of Pakistan.[2] When there is no other remedy available to person, he can file writ petition under Article 199 of the Constitution of Pakistan.
Definition
Black Stones defined writ as;[3]
“A mandatory letter from the king in Parliament, seal with his great seal, and directed to the sheriff of the county wherein the injury is committed or supposed so to be, requiring him to command the wrong-doer or party accused either to do justice to the complainant, or else to appear in Court and answer accusation against him.”
Historical Background
The concept of writ has been derived from the British Judicial System and were created with the development of English folk courts to the common law courts. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the king. However, with the passage of time, writs took various forms and names. The writs were issued by the crown and initially only for the interest of the crown later on it became available for ordinary citizens also.[4]
Pakistan had adopted the concept of writ in its first Constitution. The Constitution of 1956 had expressly recognized the ‘writ jurisdiction’ of the High Court in its Article 170 and had classified the ‘writ’ as writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Under that Article, the High Court was given the power to issue these writs to any person and authority including any Government.[5]
The present Constitution, 1973 had made no mention of writs. Instead of it, gives High Court the power to give direction and orders. It is therefore, obvious that it has substituted the word order or directions, for writs of various kinds mentioned above. This change is in keeping with the changes in the British Judicial system, in which the writs of various kinds have been abolished.
Jurisdiction of the High Court
The jurisdiction of the High Courts has been provided in Article 199 of the Constitution, and they can be divided into two part:[6]
· Territorial
The High Courts have the right to issue writs within the territory of the state which the High Court is concerned with. Under Article 199 the court has been granted a certain degree of extra-territorial jurisdiction as well. High Courts are authorized to issue writs to any government, authority or person outside their territorial jurisdiction if the whole or part of the cause of action arises in their concerned state.
Subject matter
High Courts have been granted a large ambit to exercise this power. A High Court can issue writs not only for the enforcement of Fundamental Rights given in the Constitution but also non-Fundamental Rights for which the Constitution of Pakistan has used the words “for any other purpose” to widen the scope of High Court’s Jurisdiction.[7]
Nature and Scope
The High Courts have jurisdiction to issue directions, orders and writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whenever appropriate for enforcement of fundamental rights or for any other purpose which expression is wide enough to include any legal rights of persons or citizen which are infringed.[8]
A writ jurisdiction is the creation of constitution defining its range wherefrom guidance could be sought as to the subject matter and writ can be issued within the framework of constitution and law.[9] It provides a speedy and effective remedy and should be exercised where no alternate remedy is left. The purpose of writ is to foster justice or to advance justice. The powers of Hight Court are far and wide, and the judges must even be vigilant to protect citizens against arbitrary executive action.[10]
The object of proceedings initiated under Article 199 of constitution is the enforcement of a right and not the establishment of legal right and therefore, the right of the person concerned which he seeks to enforce, must not only be clear and complete but should be simple and there must be an actual infringement of the right.
Following are the writs under article 199 of constitution of Pakistan.
Writ of Habeas corpus
The term, ‘habeas corpus’ is derived from the Latin which means production of the body.[11] The High Court has power to direct somebody to produce the alleged person for an action according to law before the court. The writ of habeas corpus is a very valuable right guaranteed under the constitution of Pakistan for getting an immediate release of alleged person from unlawful or improper detention under the order of any government official or private custody.[12] If the imprisonment of person have no validity and without any legal justification as well as jurisdiction then such person will be set free by court. There is no limitation placed on the exercise of this right. [13]The detention must be fair, just, reasonable and according to law. Illegal detention and wrongful confinement is not proved then the court has power to refuse the writ of habeas corpus. There is no hard and fast rule that who can file the writ. A writ petition to challenge the illegal detention can be made by the prisoner or by another person coming to his / her assistance, his father, his relation or friend.[14] The high court has discretionary power to set detenue at liberty after the satisfaction that such detention is improper and illegal.
A writ of habeas corpus may be issued on the following grounds.
There must be physically restraint on the liberty of person under detention. and the illegal confined.There must be illegal confinement.The detention must be mala fide, non-compliance to fundamental right, without jurisdiction and contrary to law.Unlawful arrest without warrant.Unlawful custody.
An order in the nature of habeas corpus is intended to preserve the liberty of the subject and is a safeguard against the unlawful or improper manager of detention. It should be so construed as to advance the remedy and suppress the mischief and should always be construed in the favour of subject.[15]
It was held in Muhammad qasim v haji saleh that the detenue Shaida khatoon was wrongly confined by her husband. She is sui juris and cannot confined against her will and wish. Therefore, she set free at liberty and go wherever she would like.[16] Writ of habeas corpus can only be issued and exercised by the high court when it comes within the court’s territorial jurisdiction.[17] The high court has been invested with power to relief people suffering illegal restraint from orders of executive and judicial tribunals with mala fide intentions.[18]
Writ of Certiorari
The writ of certiorari is so named because it derived from the Latin word and it required that king should be certified of the proceeding to be investigated.[19] The writ of certiorari has been exercised in order to decide the validity, legality and inspection of orders delivered by an authority or inferior Court in the exercise of its quasi-judicial or judicial functions. The main object behind this writ was that the jurisdiction of the inferior tribunals should be properly exercised and to be secure by authority of superior court.[20] The court issuing the writ may inspect the proceedings of inferior courts and determine any irregularities. It not only reviews the proceeding of inferior court but also proceedings of inferior officers. The court has jurisdiction to set aside such orders if it finds that such orders by any tribunal, authority as without jurisdiction or in excess or in manifest breach of some law.[21]The principle function of this writ is to keep inferior tribunals within their jurisdiction. Certiorari will be granted if the matter shown that the court has either no jurisdiction or has exceeded jurisdiction. The writ of certiorari is designed to be writ of review by superior authority acting in supervisory jurisdiction. It would be regarded as error of law if the finding fact is based on no evidence and such error could be corrected by this writ. The error should be based on clear ignorance or misunderstanding of law. Such errors are corrected by high court while issuing the writ.[22]
If there is other suitable remedy available to aggrieve person then high court will not issue the writ of certiorari.[23] It is discretion of court to issue the writ of certiorari and cannot be issued as the matter of right.[24] Certiorari will be issued to quash the decision of tribunals which exercise the jurisdiction that it does not possess, or where there is fraud and perjury which destroy the rule of natural justice.[25]
It was held that high court while issuing the writ of certiorari acts in supervisory and not in appellate or revisional jurisdiction over the obvious reason is that is cannot review finding of facts.[26]
It was further held that lack of jurisdiction, mistake of law, or such court has failed to exercise jurisdiction or has ignored the principles of natural justice, misinterpretation or mis-scrutining law could also be considered by the high court in the exercise of its writ jurisdiction under the article 199 of constitution of Pakistan.[27]
Writ of Mandamus
Mandamus means a command given by court to any person, authority or inferior to perform the specific act which they are under statutory obligation, but they have failed or refused to do so.[28] The court of competent jurisdiction has power to issue the writ of mandamus to direct the person, officer, authority, corporation or inferior court to performance of any certain act that has been specified. The essentials of writ of mandamus are that the petitioner must have legal rights and respondent should have legal duty to perform. [29]It is most valuable and essential remedy in the administration of justice. The chief function of this writ is to compel the performance of public duty. It does not lie against the party who has no statutory duty to perform.[30] The writ of mandamus command the person to perform some public or quasi public legal duty which he failed to do so and there is no other remedy available.[31] The object of this writ is to enforce a plain, positive and ministerial duty imposed by law on officer or government officials. Where government functionary failed to perform their duties and make inordinate delay in implementation of orders of higher authority as required by law to do so, then the writ of mandamus is issued by high court by exercising its jurisdiction under article 199 of constitution of Pakistan.[32]
The contractual rights between two parties cannot enforced through the writ of mandamus. It should be clear and defined legal rights conferred by law.[33] Moreover the writ of mandamus is not a writ of right. There must be legal right existed in the favour petitioner and a corresponding legal duty is imposed upon the public officer or authority.[34] The petitioner is affected by unconstitutional or illegal order, or an act of official in contravention of statutory duty then the writ of mandamus is granted by high court.[35]
It was held that writ of mandamus orders a person with respect to performance of quasi-public or any public legal duty, which he has failed or denied to execute and there is no suitable legal remedy is available for enforcing such rights.[36]
Writ of Prohibition
The writ of prohibition is a preventive writ. It lies to prevent the quasi-judicial or judicial authority from exceeding its jurisdiction or assuming a jurisdiction which does not vest in it by law. The object of writ of prohibition is to restrain inferior courts, the quasi-judicial or judicial authority from exceeding their jurisdiction.[37] The purpose of issuing the writ is to safeguard the right of person affected by exercise of jurisdiction which they do not possess at all. Prohibition will issue when inferior courts and tribunals proceed to act in violation of rules of natural justice and to compel the courts entrusted with judicial duties within the limits of their jurisdiction. A matter is to be heard by a subordinate court or any inferior tribunal, but it has no jurisdiction to entertain such matter then such usurping of jurisdiction will be prevented by the high court and will be kept within its judicial limits.[38] The writ of prohibition will not be issue against the executive orders.[39]
If the tribunal has the jurisdiction to make orders in exercise of jurisdiction but commits a mistake of facts or law, then such mistake can be corrected by appeal. It cannot be the subject matter of prohibition.[40] Prohibition may also issue against the violation of fundamental Rights and unconstitutionality of proceedings.
It was held that where total absence of jurisdiction appears on the face of the proceedings in inferior court, the court is bound to issue prohibition although the applicant has consented to or acquiesced in the exercise of jurisdiction by inferior courts.[41]
Writ of Quo warranto
Quo warranto means by what authority. If the complaint is made against the person who claims or usurps office, franchise, or liberty and upon such complaint the court will enquire by what authority the who claims or has usurped the office, supports his claim[42] The ground for issuing the writ is that the respondent is not legally qualified to hold or continue the office. The person possessed the office or franchise without valid title and to recover such office and franchise from the person or authority then the writ of Quo waranto will be issued.[43] The quo warranto will also be issue to keep check on executive authorities. The office must be public office and created by the state or constitution in order to issue the writ. It is discretion of court to refuse or grant the writ according to facts and circumstances of the case. It is not the right of writ. The court satisfies that duties of the office must be of public nature and held by usurper without the legal authority. Any person who may not be an aggrieved person move to high court for the issuance of the writ of quo warranto.[44]
It is the duty of petitioner to prove that respondents holding public office are in direct violation of law or Constitution. It was held that it is necessary for the issuance of writ the office should be created by statute or constitution, duty of such office should be of public nature and respondent should possess such office.[45]
Limitations
The limitations on the writ jurisdiction of the High Court are as under;
i. Alternative Remedy
The High Court cannot exercise writ jurisdiction when an adequate alternative remedy is already existing as well as available to the aggrieved person.[46] If there is any remedy available to the person in the law then the writ jurisdiction cannot be invoked.
If available alternate remedy is not much effective and beneficial then the writ petition can be filed.[47] Where order of an authority is void ab-initio or illegal then availability of alternate remedy might not be a hurdle in the way of High Court for exercise of writ jurisdiction.[48]
ii. Discretionary Remedy
Power conferred under article 199 confer discretion on High Court. High court will only exercise jurisdiction in accordance with judicial considerations and well-established principle of laws.[49] Exercise of jurisdiction on any irrelevant consideration will make such an order or writ invalid. Even where a court has power to issue a writ of mandamus or certiorari, the court will not do so if to grant these writs injustice in a broad sense.[50]
Writ jurisdiction under 1973 Constitution of Pakistan is discretionary and its purpose includes furthering of justice and removing injustice.[51] It is available to rectify wrong and injustice and to see that justice is done in accordance with law, equity and good conscience.[52]
iii. Locus Standi
High Court while exercising writ jurisdiction must satisfy itself that the aggrieved person who is filing writ petition has locus standi for the purpose of invoking the constitutional jurisdiction of the High Court and the person who is filing writ has the closest interest in it.
For initiation of proceeding under Article 199 of the constitution, it is sine qua non that the petitioner should have locus standi i.e. petitioner should be an aggrieved party from the impugned action.[53]
iv. Writs Issued Against Persons
The scope of writ of certiorari, prohibition and mandamus are limited to local authorities, provincial and central governments or persons who perform functions that are in connection with local or provincial authority as well as affairs of federation.
v. Supervisory Power
Power conferred under Article 199 is supervisory in nature as the High Court does not act as a court of appeal while exercising its power under Article 199.[54] The only work of the High Court is to examine whether the challenged action is lawful or not. It is to put a check and restraint on illegal assumption or exercise of jurisdiction or refusal to exercise jurisdiction by the functionaries.[55]
In respect of lawfulness also law is clearer on the point of actions affecting and exceeding the jurisdiction and clear on supervisory power of High Court under Article 199.[56] While exercising its supervisory power court can’t go into the merits of the controversy as an appellate court can.
Conclusion
The right of every person is provided and guaranteed by the constitution. It plays important role in settling political problems as well as other issues involving individuals and parties. The courts interpret the constitution while deciding the matters among the individuals and parties. If the right of the person is violated, then person can avail the statutory remedy of Appeal or Revision. Such remedy is sometimes not adequate, effective, efficacious, convenient, beneficiary and expeditious. In this situation the aggrieved party can avail the extra ordinary remedy by invoking constitutional jurisdiction of the High Court or Supreme Court, which is obviously speedy and effective remedy and foster the justice. The object of writs to enable high court to control executive actions and to bring it in conformity with law. To provide justice 1973 Constitution of Pakistan empowers all high courts to issue order, directions and writs to any person, authorities and Government officials for the enforcement of fundamental rights. The constitutional reliefs are a granted to aggrieved person by issuance of writs according to circumstances of each case. Therefore, such power is conferred by the constitution on the judiciary.
Authors
Mouood Fiaz
Ali Raza Babar
[1] Writs in Pakistan, http://www.lawsofpakistan.com/writs-in-pakistan-kinds-of-writs-in-high-courts/
[2] Law of writ System in Pakistan, https://en.calameo.com/read/00078748167b4e688b564
[3] Black Stones, Blacks Law Dictionary, 5th ed.
[4] Shrimali Mahima, Role of Writs in Administrative Law.
[5] Syed Aun Abbas, Writ Jurisdiction Article 199.
[6] Neitseizonuo Solo, Different Types of Writs and Writ Jurisdiction of High Courts.
[7] Id.
[8] PLD 1969 Dacca 868.
[9] PLD 1983 Lah. 262.
[10] PLD 1992 Lah. 92.
[11] Amir Baksh Awan, Law of Writs, 20
[12] Id.
[13] PLD 1965 Lah. 135.
[14] http://law.zafcointl.com/area_constitutional_law.html
[15] PLD 1967 Lah 103.
[16] 1997 P.Cr.L.j 194.
[17] 2019 P.Cr.L.J 358 Karachi.
[18] 1973 P.Cr.L.J 305.
[19] Amir Baksh Awan, Law of Writs, 31.
[20] M.R. Mallick, Writs Law and Practice, 344.
[21] PLD 1973 SC 94
[22]Amir Baksh Awan, Law of Writs, 38.
[23] PLD 1956 SC. 435.
[24] 1986 SCMR 352
[25] PLD1956 Lah 358.
[26] PLD 1994 Pesh. 144.
[27] PLD1957 kar. 194
[28] Amir Baksh Awan, Law of Writs,43
[29] M.R. Mallick, Writs Law and Practice, 328.
[30]Hakim Amir Baksh Awan, Law of Writs, 45
[31] Syed Shabar Raza Rizvi, Constitution of Pakistan, 1143.
[32]Syed Shabar Raza Rizvi, Constitution of Pakistan, 1147.
[33] PLD 1958 SC 267
[34]Syed Shabar Raza Rizvi, Constitution of Pakistan, 1148.
[35] Law of writs by Hakim Amir Baksh Awan Pg 48
[36] PLD 2016 Sindh 420
[37] M.R. Mallick, Writs Law and Practice, 351.
[38] 2014 PLD 367 Karachi
[39] PLD 1955 Sindh 95
[40]Syed Shabar Raza Rizvi, Constitution of Pakistan, 1139.
[41] PLD 1958 SC 201
[42]Hakim Amir Baksh Awan, Law of writs, 54.
[43] M.R. Mallick, Writs Law and Practice, 354.
[44] PLD 1955 Sindh 96.
[45] PLD 1966 LAH 270.
[46] 2019 YLR 618.
[47] 2918 CLC 54.
[48] 2019 YLR 373.
[49] Ishfaq Ali, Law of Writ.
[50] PLD 1973 SC 236.
[51] 2017 MLD 806 Kar.
[52] 1983 Pcr.LJ 19.
[53] 2019 PLD 373 Lah.
[54] Hakim Amir Baksh Awan, Law of writs.
[55] PLD 1982 Lah. 401.
[56] 1982 CLC 1201.
clarification 