Law of writs in Pakistan
Contents:
1. Introduction
2. Definition
3. Article 199
4. Article 184(3)
5. Difference between writs under 199 and 184(3)
6. Conclusion
1. Introduction:
The law of writs in Pakistan refers to the jurisdiction of superior courts to issue writs to enforce
fundamental rights or to correct illegal or unconstitutional actions by public officials or bodies.
The writs include mandamus, certiorari, prohibition, quo warranto, and habeas corpus. The writ
jurisdiction may be invoked against private persons who are acting illegally in partnership with
the state. Any citizen of Pakistan can file a writ petition, and foreigners can also file writ
petitions for enforcing their right to life and equality before the law. The grounds for granting a
writ include the violation of fundamental or legal rights, illegal detention, or exceeding
jurisdiction. The most common types of prerogative writs are mandamus, certiorari, habeas
corpus, procedendo, prohibition, and quo warranto.
2. Definition:
“Writ” means 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
3. Article 199:
Article 199 provides for Constitutional Jurisdiction of writs of the High Courts. Its scope is
dependent on questions which are devoid of factual controversies.2 Article 199 consists of 5
clauses which have distinctly been discussed as follows:
Clause 1:
Clause 1 contains 5 types of writs which are discussed distinctly below:
Writ of Mandamus:
Writ of Mandamus is provided in Article 199(1)(a)(i) of The Constitution. [Mandamus is a Latin
word means “We Command”. Mandamus is an order from the Supreme Court or High Court to
the lower court or tribunal or public authority to perform a public or statutory duty. This writ of
command is issued by the Supreme Court or High Court when any government, court,
corporation or any public authority has to do a public duty but fails to do so.]3 An application for
1
1 W.S. Holdsworth, Sources and Literature of English Law 20 (1925). Quoted by Blacks Law Dictionary, 9th
edition, p. 1747.
2
PLD 2017 Lahore 802
3
2014 CLC 25
a writ of mandamus should comply with the requirements of section 46 of the Specific relief act
in regard to the demand of justice and denial.4
Pre-requisites of Writ of Mandamus:
[The legal right to enforce the performance of a duty must be in the applicant himself. The court
will therefore only enforce the performance of statutory duty by public bodies on the application
of a person who can show that he has himself a legal right to insist on such performance.
Therefore, where the petitioner did not have a right vested in him which he seeks to enforce the
writ cannot be issued.]5
Refusal of writ of mandamus:
[To decline grant of mandamus by the High Court the remedy provided under the statute to
petitioner must be specific, adequate, equally convenient, beneficial and effective. Inadequacy an
not the absence of of alternative remedy determine as to whether a Constitutional petition was to
entertain.]6
Writ of Prohibition:
Writ of prohibition is provided in article 199(1)(b)(i) of The Constitution. The writ of prohibition
means to forbid or to stop and it is popularly known as “stay order”.7
Pre-requisites:
The writ of prohibition lies only when it is intended to restrain a Tribunal or Court which
assumes or threatens to assume a jurisdiction which it does not possess.8 Mere errors or
irregularities in matters over which there is jurisdiction is not good ground for a prohibition.9
Refusal:
Where the defect is is latent, the writ is neither of right nor of course and the court has a
discretion to refuse it on the ground of applicants conduct e.g., laches, acquiescence, etc.
Writ of Certiorari:
Literally, Certiorari means “to be certified”. The writ of certiorari can be issued by The Supreme
Court or any High Court for quashing the order already passed by an inferior court, tribunal or
quasi judicial authority.10
4
PLD 1961 S.C. 178
PLD 1963 S.C. 203
6
PLD 2018 Isl. 150
7
2014 CLC 25
8
PLD 1958 S.C. 41
9
AIR 1953 Punjab 225
10
2014 CLC 25
5
Ground on which Certiorari can be issued:
i) where inferior court or tribunal acts without or in access of jurisdiction11
ii) where order of the inferior court or tribunal is erroneous on face of the record12
iii) where order is tainted with fraud, mala fides, corruption or collusion13
iv) where a procedure is followed which is contrary to the principles of natural justice14
Writ of Habeas Corpus:
Writ of Habeas Corpus is provided in article 199(1)(b)(i). “Habeas Corpus” is a Latin term which
means “you may have the body”. This writ is issued when a person is issued to produce a person
who has been detained, whether in prisoner in private custody, before a court and to release him
if such detention is found illegal.15
Writ of Quo warranto:
Quo warranto is enshrined in article 199(1)(b)(ii). It means “by what authority”. It is a writ
issued with a view to restrain a person from holding a public office to which he is not entitled. 16
Challenging the writ of High Court:
A writ issued by the High Court can be challenged in the Supreme Court under order XXV of the
Supreme Court rules 1980 which explains the original jurisdiction of the Supreme Court
exercisable under article 184(3) 0f the Constitution.
Clause 2:
Clause 2 gives a right to move an application to the High Court for the enforcement of
fundamental rights.
Clause 3:
Article 199(3) prohibits the High Court to make an order in relation to a person who was
member of the armed forces of Pakistan or who is or has been subject to the law related to the
armed forces. But Courts can make orders where acts, actions, or proceedings suffered from
defect of jurisdiction and where thus coram non judice.17
Clause 4 and 4A:
Under clause 4 High Court can make interim orders which would have effect to prejudice or
interfere with 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. Clause 4A, was
11
PLD 1959 Dacca 738
PLD 1962 Lahore 288
13
PLD 1961 Dacca 155
14
PLD 1961 Lahore 12
15
2014 CLC 25
16
2014 CLC 25
17
2013 SCMR 1530
12
inserted to stop indefinite abeyance of recovery of enormous sums due to State as taxes, to hold
that high court would have power to repeat order from interim relief after expiry of previous
order, held, would reduce provision of clause 4A to complete farce.18
Clause 5:
Clause 5 provides definitions of “person” and “prescribed law officer” as follows:
"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;
"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
Article 184(3):
[With regard to 184(3), there are three types of cases:
i) enforcement of fundamental rights
ii) suo motu
iii) immense constitutional importance]19
Ambiguity with Public importance “at large”:
It has been ruled that [Consideration of the connotation of the expression "public importance"
which is tagged to the enforcement of the Fundamental Rights as a precondition of the exercise
of the power under Article 184(3), should not be understood in a limited sense, but in the gamut
of the Constitutional rights of freedoms and liberties, their protection and invasion of such
freedoms in manner which raises a serious question regarding their enforcement. Such matters
can be viewed as of public importance, whether they arise from an individual's case touching his
human rights of liberty and freedom, or of a class or a group of persons as they would also be
legitimately covered by this expression.]20 But later it has been held that [“The issues arising in a
case cannot be considered as a question of public importance if the decision of the issues affects
only the rights of an individual or a group of individuals. The issue in order to assume the
18
PLD 1977 S.C. 397
s.m.c._4_2022
20
PLD 1999 S.C. 504
19
character of public importance must be such that its decision affects the rights and liberties of
people at large. The adjective ‘public’ necessarily implies a thing belonging to people at large,
the nation, the State or, a community as a whole. Therefore, if a controversy is raised in which
only a particular group of people is interested and the body of the people as a whole or the entire
community has no interest, it cannot be treated as a case of public importance.”]21
Challenging the decision given under 184(3):
An appeal shall lie within thirty days from an order of a bench of the Supreme Court who
exercised jurisdiction under Article 184(3) of the Constitution to a larger bench of the Supreme
Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days.
The right of appeal under sub-section shall also be available to an aggrieved person against
whom an order has been made under Article 184(3) of the Constitution.22
Differences between writs under 199 and 184(3):
Forum:
Writ under 199 is issued by the High Courts while writ under 184(3) is issued by the Supreme
Court.
Suo motu:
The Supreme Court can take suo motu under article 184(3) but the High Court cannot.23
Locus standi:
The question of infringement of the fundamental right of the individual is relevant in proceedings
under Article 199 of the Constitution with reference to his locus standi to maintain the
proceedings. In contradistinction to the proceedings under Article 199 of the Constitution, the
question of locus standi of the petitioner is hardly of any significance in a petition filed under
Article 184(3) of the Constitution.24
Complete Justice:
When a case is being heard by the Supreme Court, even under 184(3), the Supreme Court can
exercise the power to do complete justice under article 187(1). But the High Court cannot
exercise this power.25
Conflict between Governments:
Whenever, there is a conflict between federal government and provincial government or between
two or more provincial governments, original jurisdiction is provided to the Supreme Court
under 184(1) to hear the matter and give a declaratory judgment under article 184(2) which may
be executed under article 187. High Courts do not have this power under article 199 to hear cases
of conflict between different governments.26
21
PLD 2004 S.C. 583
Section 5 of the Supreme Court (Practice and Procedure) Act, 2023.
23
PLD 2021 S.C. 571
24
PLD 1999 S.C. 504
25
PLD 2014 S.C. 1
26
PLD 2014 Lahore 214
22