PREROGATIVE WRITS OR CONSTITUTIONAL

Remedies

Comparat ive Const i tut iona l Law

Professor : Dr. Naveed AhmedPresented By:

Adv H ina Shahid

INTRODUCTION

Mr. Justice Rustum Kiyani Remarked: “Writ Jurisdiction brings to a benighted

morality the light that never was on sea or land. The Writ Jurisdiction is the modern manifestation of God’s pleasure and the God’s pleasure dwells in the High Court …... Mandamus and Certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain the perfume … and We (Judges) are the humble instruments of His Fulfillment”

WRIT

Osborn’s Law Dictionary

“ A Document in the king name and under the seal of the Crown, a court or an officer commanding the person to whom it is addressed to do or forbear from doing some act”

Originally Intended for Use only by the Crown

Originally writs were peculiarly a Royal machinery, intended for use only by the Crown in the interest of the Crown and it was only in course of time that they became available for use by ordinary citizens often against servants of the Crown

Development Of Writ Jurisdiction In Pakistan

Under the Regulating Act of 1773 the Supreme Court of Calcutta, Bengal and Madras were empowered to issue writs

The Code of Criminal procedure (Amended) 1923 empowered to issue writ in the nature of habeas Corpus

High Court empowered to issue writs in the nature of habeas Corpus, mandamus and Certiorari under section 223-A of Government of India Act 1935 as added by Government of India (Amendment) Act 1954.

Almost on same pattern, the Constitutional draftsmen had adopted all writs circumscribed by the condition “ for the enforcement of fundamental rights and for any other purpose under Article 170 of the Constitution of Pakistan, 1956.

In the Constitution of pakistan,1962, the framers of Constitution preferred to apply phrases and expressions which fully expressed what kind of writs and fundamental rights are involved.

Remedies under Article 184 and 199 of the Constitution of Islamic Republic of Pakistan,1973 are available in the High Court and Supreme Court are Concurrent in nature.

Condition Precedent for Invoking Writ Jurisdiction of HighCourt

And Supreme Court Under Article 199 of the Constitution of

Pakistan, 1973 any aggrieved person can invoke the constitutional jurisdiction of High Court for the enforcement of any of the fundamental rights conferred in chapter 1 of part 2 of Constitution ,1973.

To invoke the Constitutional jurisdiction of Supreme Court ,it is necessary that case should invoke a question of public importance with reference to the enforcement of any fundamental rights.

Against Whom Writs may be Issued

State including Federal or Provincial Government and legislative bodies

• Local authorities• Statutory Bodies• Person charged with performance of

Public Duties• Other Authorities under control of

Government

Prerogative Writs

Writ of Habeas Corpus Writ of Mandamus Writ of Certiorari Writ of Prohibtion Writ of Quo Warranto

Writ of Habeas Corpus

The Object of the Writ to secure the liberty of the subject by means of a summary adjudication of the legality of his detention. It is immaterial whether the person applying has been detained in private or public custody. The writ is available in all cases where any illegal and improper deprivation of personal liberty of the subject has taken place

Testing if regularity of detention under preventive detention lawsSecuring the custody of minorSecuring the custody of a person illegally detainedWhether the authority acting under the Special act is a competent authority constituted in accordance with actWhether there is an infringement of fundamental rights

You must have the body

Writ Of Habeas Corpus

In United States The Constitution of

United States in the second clause of the 9th section of Art 1 provides that the privilege of the writ of Habeas Corpus shall not be suspended unless when in case of rebellion or invasion, the public safety may require it.

In Great BritainWrit has got its statutory forms by Habeas Corpus Act 1640Habeas Corpus Act 1679 dealt with prisoners detained on criminal charges and all other illegal imprisonments were governed by writ of habeas Corpus at common law

Article 199 (1)(b)(i) and Article 184(3) of the Constitution of Islamic Republic of Pakistan,1973Section 491 of Code of criminal procedure,1898

Writ of Mandamus

The King V Archbishop to Canterbury 1812

“ A writ of mandamus is a command issued by the High Court

directing any person to do any particular act therein specified,

which appertains to his office and is in the nature of public duty

Origin seemed to be began as royal wish or

command given to subjects to fulfill the

king desire. Sir Edward Coke

sanctified the writ of mandamus in “Bagg’s Case. Later on applied for public matters and

began to use as redressal for

individual’s grievance against Gov official

Direction to do what is required by law

Writ of Prohibtion

Prohibition is a judicial order issued by the Supreme Court or a High Court to any constitutional, statutory or non statutory agencies to prevent these agencies from continuing their proceedings in excess or abuse of jurisdiction or in violation of the principles of natural justice or in contravention of the Law of the Land”

Original remedial writ in common law history.First applied to prevent ecclesiastical courts from usurping the power of civil courts.

To refrain from doing not required by law

Lack of excess of jurisdictionViolation of principles of natural justiceInfringement of fundamental rightsFraudContravention of the Law of the land

Writ Of Quo WarrantoQuo Warranto (Medieval Latin for “ By what warrant”) is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold

Quo Warranto had its origin in an attempt by King Edward I of England to investigate and recover royal lands,rights and franchises in England. From 1278 to 1294, Edward dispached Justices throughout the Kingdom of England to inquire “by what warrant” English Lords held their lands and exercised their jurisdictions

Writ of CertiorariCertiorari is a Latin word meaning

“To inform”. It was essentially a royal demand for information. The King wishing to be certified of some matter, ordered that the necessary information be provided for him. In the beginning certiorari was never used to call for the record of proceeding of an Act or ordinance for quashing these. Proper remedy was declaration and mandamus, however with the passage of time the scope of certiorari has changed

Certiorari jurisdiction is based on the principle that superior courts have to examine if jurisdiction is correctly exercised by an inferior court or tribunal and in accordance with law. In case of excess or abuse of jurisdiction, the orders passed are liable to be corrected by high court in exercise of constitutional jurisdiction.

Questions ??????