WHY WRIT IS NECESSARY FOR JUSTICE?
By:
AZMAT ULLAH WARRAICH
Advocate High Court
Every day, in the Principle seat of the
Lahore High Court, Lahore, a new cases have been filed in form of civil
appeals, civil revisions, criminal appeals, bails before arrest, bails after
arrest and writ petitions, but approximately 50 percent new cases are consist
on writ petitions. Hence, more new writ petitions have been filed by the
petitioners and more rates of writ petitions are unsuccessful and unfruitful.
But one thing should be kept in mind that time of the High Court is most
valuable and precious, but due to unnecessary writ petitions or litigations,
then genuine cases do not decide for non-availability of time. Whereas, writ
petition can be filed by only any aggrieved person, when all doors of justice
will shut and can get justice from the High Court through writ petition. This
is the reason that it is necessary for justice.
Definition
of writ:
(i) A Court's written order, in the name of
a state or other competent legal authority commanding addressee to do or
refrain from doing some specified act. (1)
(ii) A
document in the Queen's name and under the seal of the Crown, a account or an
officer of the Crown, commanding the person to whom it is addressed to do or
for bear from doing some act. An original writ was anciently the mode of
commencing every action at common law. It issued out of the common law side of
Chancery under the Great Seal. A judicial writ is any writ which is issued by a
Court under its own Great Seal, as follows: (1) Writs originating actions and
other proceedings; (2) interlocutory writs, issued during the course of an actions before final judgment; (3) Writs of execution.
(2)
(iii) Formal
order under seal, issued in the name of a sovereign, government, Court, or
other competent authority, enjoying the officer or other person to whom it
issued or addressed to do or refrain from some specified act. (3)
Prerogative
writ:
(i) A writ issued by a Court exercise
unusual or discretionary power. Examples are certiorari, habeas corpus,
mandamus, and prohibition. (4)
(ii) Writs
which issued from the superior Courts for the purpose of preventing inferior Courts,
or officials from exceeding limit of their legitimate sphere of action, or of
compelling them to exercise their functions in accordance with law, to assure
the full measure of justice to the King's subjects. These writs were: (1) Habeas
corpus (2) Certiorari (3) Prohibition (4) Mandamus (5) Quo Warranto
(6) Exeat Regno (7) Procedendo.(5)
Object
and scope of writ:
In the 19th and 20th centuries the scope of
the minimal duties of the state has progressively widened. New authorities with
wide statutory powers have been created, giving a note emphasis to the problem
of reconciling powers of the state with liberties of the citizen. Many of
statutes relating to the new administrative authorities contain provisions
whereby the aggressive citizen can secure redress from administrative
tribunals. In
"no
consideration of administration convenience or executive efficiency should be
allowed to weaken the control of the Courts, and no obstacle should be placed
by Parliament in the way of subject's unimpeded access to them." Report of
the Committee oh Minister's power, p.144
Faced in earlier centuries with the problems
of control of local and subordinate authorities, English judges had evolved the
prerogative writs which are still effective in dealing with many problems
created by the welfare state. They were introduced into
The value of any method of control of
administration is measured by the extent to which it enables the administrative
authorities in the state to perform their functions without sacrificing
essential liberties of the citizen.
In constitutional theory, and to a large
extent in historical fact, after the Norman Conquest, legislative, executive,
and judicial powers in
"The Court of King's Bench hath not only
jurisdiction to correct errors in judicial proceedings but other errors and
misdemeanors extra-judicial tending to the breach of the peace or oppression of
subjects or rising of faction, controversy or debate or any other manner of
misgovernment; so that no wrong or injury either public or private can be done
but this shall be reformed or punished. If any person be committed to prison
this Court…………ought to grant an Habeas Corpus…………..it granted prohibition to the
Courts temporal and ecclesiastical to keep them within their proper jurisdiction…………if
a freeman be disfranchised unjustly, this Court may relive the party…………….the
law has appointed the place wherein he shall exercise this jurisdiction……………….the
Court of King's Bench where…………...All behavior of this kind of corporation is
enquired into and redressed." Coke inst. IV 70
The abolition of the Court of Star Chamber,
the transfer of its surviving powers to the common law Courts, and assimilation
of the powers and jurisdiction of three common law Courts, all contributed to
make the writ procedure in
In
History
of writ in Pakistan
Power of writ like habeas corpus, mandamus,
prohibition, quo warranto and certiorari had been
given to the High Court through the Government of India Act, 1935, under
Section 223-A, Constitution of Pakistan, 1956, under Article 170, and was also
under Constitution of Islamic Republic of Pakistan, 1962 under Article 98.
Hence, power of writ has been given to the High Court through the Constitution
of the Islamic Republic of Pakistan, 1973, under Article 199.
The
Constitution of the Islamic
Article
199
Jurisdiction
of High Court
(1) Subject to the Constitution, a High Court
may, if it is satisfied that no other adequate remedy is provided by law—
(a) On
the application of any aggrieved party, make an order—
(i) directing a
person performing, within the territorial jurisdiction of the Court, functions
in connection with the affairs of the Federation, a Province or a local
authority, to refrain from doing anything he is not permitted by law to do, or
to do anything he is required by law to do; or
(ii) declaring that any act done or
proceeding taken within the territorial jurisdiction of the Court by a person
performing functions in connection with the affairs of the Federation, a
Province or a local authority has been done or taken without lawful authority
and is of no legal effect; or
(b) on the application of any person, make an order—
(i) directing
that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being
held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the
territorial jurisdiction of the Court holding or purporting to hold a public
office to show under what authority of law he claims to hold that office; or
(c) on
the application of any aggrieved person, make an order giving such directions
to any person or authority, including any Government exercising any power or
performing any function in, or in relation to, any territory within the jurisdiction
of that Court as may be appropriate for the enforcement of any of the Fundamental
Rights conferred by Chapter 1 of Part II.
(2) Subject
to the Constitution, the right to move a High Court for the enforcement of any
of the Fundamental Rights conferred by Chapter 1 of Part II shall not be
abridged.
(3) An
order shall not be made under clause (1) on application made by or in relation
to a person who is a member of the Armed Forces of Pakistan, or who is for the
time being subject to any law relating to any of those Forces, in respect of his
terms and conditions of service, in respect of any matter arising out of his service,
or in respect of any action taken in relation to him as a member of the Armed
Forces of Pakistan or as a person subject to such law………….
(4) Where—
(a) an application is made to a High Court for an order under
paragraph (a) or paragraph (c) of clause (1), and
(b) the
making of an interim order would have the effect of prejudicing or interfering
with the carrying out of a public work or of otherwise being harmful to public
interest or State property or of impeding the assessment or collection of public
revenues, the Court shall not make an interim order unless the prescribed law
officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of
being heard and the Court, for reasons to be recorded in writing, is satisfied
that the interim order—
(i) would not have such effect as aforesaid; or
(ii) would have the
effect of suspending an order or proceeding which on the face of the record is
without jurisdiction.
(4A) An
interim order made by a High Court on an application made to it to question the
validity or legal effect of any order made, proceeding taken or act done by any
authority or person, which has been made, taken or done or purports to have
been made, taken or done under any law which is specified in Part I of the
First Schedule or relates to, or is connected with, State property or
assessment or collection of public revenues shall cease to have effect on the
expiration of a period of six months following the day on which it is made,
Provided that the matter shall be finally decided by the High Court within six
months from the date on which the interim order is made.
Clause (4A) of Article 199 before its
substitution by Constitution (Eighteenth Amendment) Act, X of 2010, ran as
under:
(4A) An interim order made by a High Court on
an application made to it to question the validity or legal effect of any order
made, proceeding taken or act done by any authority or person which has been
made taken or done or purports to have been made, taken or done under any law
which is specified in part 1 of First Schedule or relates to or is connected
with, [State property or] assessment or collection of public revenue shall
cease to have effect on the expiration of a period of [six months] following
the day on which it is made, [provided that the matter shall be finally decided
by High Court within six months from the date on which the interim order is
made] ………………..
(5) In
this Article, unless the context otherwise requires—
"person" includes any body politic
or corporate, any authority of or under the control of the Federal Government
or of a Provincial Government, and any Court or tribunal, other than the
Supreme Court, a High Court or a Court or tribunal established under a law
relating to the Armed Forces of Pakistan; and "prescribed law
officer" means—
(a) in relation to an application affecting the Federal
Government or an authority of or under the control of the Federal Government,
the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in
which the application is made.
Grounds
of writ
A proceeding can be quashed and an act
declared void under Article 199 of the Constitution only if it was in excess of
the lawful authority of the person taking or doing. The question what is lawful
authority of a person and whether the act questioned was beyond such authority
will depend on the terms of the statue under which he purported to act. In
ordinary cases, there will be no difficulty in determining the absence or excess
jurisdiction. A person may lack lawful authority, because:
i. He
has no jurisdiction on the subject-matter; or
ii. He
has no jurisdiction over the property; or
iii. He
has no jurisdiction over the territory; or
iv. His
own appointment under the statue is illegal; or
v. He
had no jurisdiction to make the kind of order he actually made. (7)
On
the application of aggrieved party
…….The right which is the foundation of an
application under Article 199 of the Constitution is a personal and individual
right. The legal right may be a statuary right or a right recognized by the
law. A person can be said to be aggrieved only when person is denied a legal
right by someone who has a legal duty to perform relating to the right. There
must not only be a right but a justifiable right in existence, to give
jurisdiction to the High Court in the matter………(8)
Alternative
remedy
Alternative remedy available to an aggrieved
person cannot be bypassed on the ground that the same is not adequate or
efficacious one. (9) But alternative remedy was available to the petitioner,
and when a statuary functionary acts mala
fide or in a partial, unjust and oppressive manner, then High Court to
grant relief to the aggrieved party. (10)
Adequate
remedy
Where alternative remedy is more convenient,
beneficial and likely to set the controversy at naught completely, jurisdiction
under Article 199 of the Constitutional cannot be exercised. (11)
Fundamental
rights
Article 199 (1) (c) however, is wide, it not
merely enables a Court to declare an action of the State functionary
inconsistent with fundamental rights to be unlawful but also enables a Court to
declare an action of a State functionary inconsistent with fundamental rights
to be unlawful but also enables the Courts to practically enforce such rights
by issuing appropriate directions as is evident from its language. (12)
Order
without jurisdiction
Article 199 of the Constitutional petition ……
impugned order or action without jurisdiction or lawful authority …… Constitutional
petition in such cases would be maintainable. (13)
No
substitute for appeal or revision
Constitutional petition could not be
considered as a substitute for an appeal or revision. (14)
Unclean
hands
It is settled law that Constitutional
jurisdiction is always discretionary in character. He who seeks equity must
come with clean hands. (15)
Disputed
question of fact
The learned High Court was not to resolve
disputed question of fact which necessitate taking of evidence in exercise of
Constitutional jurisdiction under Article 199 of the Constitution. (16)
Service
matter
Petitioner, a civil servant, had challenged
his transfer order.... On account of bar contained under Article 212 of the
Constitution, Constitutional petition was not maintainable which was dismissed.
(17) Appeal under Section 4 of Service Tribunals Act, 1973, was not available
to the petitioner as the matter pertained to fitness-cum-eligibility bar under
Article 212 of Constitution was not attracted, petition maintainable. (18)
Public
interest litigation
……..Object of public interest litigation is to ensure public interest and
protection of legal right or Constitutional right of disadvantages and
oppressed groups of individual and render social and economic justice to
them....there cannot be any reason why in a fit and proper case, High Court
would hesitate to entertain public interest action against any non-government
institution or any person invested with statuary or public duties or public
objections, when their omission or commission affects rights of disadvantages
group or individuals who do not find any way for vindication of their
grievances………there can be such a situation when some persons may not even aware
of their rights and about violation thereof and their exploitation, therefore,
under such circumstances, public interest litigation can be maintained for
protection and vindication of rights of such aggrieved group of people. (19)
Contractual
right
Normally a contractual petition for enforcement of contractual
obligations, is not maintainable, however, State and a functionary action under
are not involved, relief, in exercise of power under Article 199 of the
Constitution, in appropriate matter cannot be denied, merely because issues in
the matter relate to contractual obligation. (20)
Pending
civil litigation
Civil litigation was already pending between
parties....
Private
company
Constitutional petition could not be
maintained against a company, where Federal or Provincial Government did not
have therein controlling share or interest. (22)
Absentia
necessary party
It is settled principle of law that absentia
of necessary party, writ cannot be issued. (23)
Law
of limitation
Law of limitation does not apply to the
institution of Constitutional petition nor on its dismissal on the ground of
limitation.
Laches
Delay in filing Constitutional petition……laches…….Petitioner filed petition after delay of ten years
………. No plausible explanation of such delay had been explained by the
petitioner, which is not maintainable due to laches.
(24)
Res
judicata
If High Court has already recorded finding on
any issue raised which is again raised in subsequent
proceedings and finding of the High Court in earlier constitutional petition
were not set aside, the subsequent petition on the same issue would be barred
on the principle of constructive res judicata. (25)
References:
1. Black's
Law Dictionary, Eight edition
2. Johan
Burke of
3. http://dictionary.reference.com/browse/writ
4. ibid
5. ibid
6. Mr.
M. Farani, of
7. ibid
8. 2012
PLC (C.S) 142, PLD 2011 SC 997, 2011 SCMR 848, PLD 2009 SC 644, PLD 2009 SC
644, 2010 SCMR 1097, PLD 2007 SC 52, PLD 2007 SC 386.
9. 2012
PLC (C.S) 535 (DB),PLD 2011
10. PLD
2008 SC 135, PLD 2010
11. PLD
2010 SC 969, PLD 2010 SC 1066, PLD 2011
12. 2011
SCMR 1621, PLD 2009 SC 509, PLD 2007 SC 52, PLD 2004 Lahore 130, PLD 2012 Balochistan 57(DB)
13. PLD
2011
14. 2010
YLR 225.
15. 2012
CLD 298, 2010 SCMR 1811, 2010 SCMR 72, 2010 SCMR 795, 2010 SCMR 1377, 2010 SCMR
72, 2010 YLR 3248, PLD 2009 SC 28.
16. PLD
2012
17. PLJ
2012
18. 2012
PLC (C.S) 566.
19. PLD
2011 SC 997, PLD 2011
20. PLD
2009
21. 2010
YLR 2159.
22. 2010
YLR 2946.
23. PLJ
2012 AJ&K 1.
24. 2012
PLC (C.S) 319.
25. 2012
SCMR 366.