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Constitutional Law of
Pakistan.
Constitutional Law.

What are Writs in relation to Article 199 of the Constitution Also write the

concept history along with cases.

A Writ is a formal written order issued by a government entity and this government entity is mostly the

Court in the name of the sovereign power. The Part II Chapter 1 of the Constitution of The Islamic

Republic of Pakistan deals with the fundamental rights of a person. This part provides the right to life and

liberty, equality before law, freedom of speech and expression, liberty of thought belief and worship,

cultural & educational right, fair trial and right against discrimination, etc. A writ can be filed before High

Court(Article 199 ) or Supreme Court (Article 185) in the case of infringement of the fundamental rights

& of the constitution of Pakistan. Under Article 199 a writ petition can be filed in High Court even in case

of infringement of legal rights whereas the Supreme Court entertains writ only in those cases where there

is violation of fundamental rights.

A brief Constitutional History:

The 1956 constitution by virtue of the Article 22 was given the right to move the supreme court by

proceeding for the enforcement of the fundamental rights and it had also been given the power to issue

directions, orders, writs for the enforcements of rights. The Article 170 also had given powers to the High

court to issue any person or authority and in appropriate cases to Government such directions, orders or

writs including that of habeas corpus, mandamus, probation, quo warranto and centioriari for the

enforcement of the fundamental rights and for any other purposes. There was a difference between the

jurisdiction of the Supreme Court and High Court that the right to invoke the jurisdiction of the supreme

court was itself a fundamental right and it was under an obligation to grant appropriate relief by writ

method whereas the High court had a discretion in granting or refusing such a relief. It is pertinent to

mention that in the 1962 constitution of Pakistan and 1973 constitution which is still operating in Pakistan

that the jurisdiction of Supreme Court to enforce fundamental rights has been transferred to that of High

Court and the application for the enforcement of any such right is no longer a fundamental right which

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can be exercised and is discretionary and this court can issue the writs of habeas corpus, mandamus,

probation, quo warranto and centioriari without using their technical names but the limits within which

the jurisdiction of the high court is to be exercised and in some respects narrower and in others wider than

before (PLD 1963 Lah, 575 1964 Lah. 401)

JURISDICTION OF HIGH COURT CONFERRED BY THE

CONSTITUTION ARTICLE 199:

The constitutional jurisdiction of the high court is defined in the constitution but unlike the Supreme

Court, it jurisdiction extends to both judicial and authoritative matters. It is most important part because a

high court is the highest court in the province and supervises the work of the subordinate courts in it. The

constitutional powers of the High court cannot be curtailed or restricted by the subordinate legislation.

(PLD 1965 Lahr. 135)

ESSENTIALS ELEMENTS OF WRITS:

It is necessary to issue the writ that: -

i. The court has complete satisfaction that a legal right has violated,

ii. No other adequate and speedy remedy is available,

iii. The petitioner has locus Standi to invoke the jurisdiction of the court,

iv. Petitioners came to the court with clean hand,

v. Court has the territorial jurisdiction.

Who can file a writ?

Any citizen of Pakistan can file a writ petition, however, a foreigner can also file writ petition for

enforcing his right to life and equality before law (PLD 1964 Dacca 48). The High Court can also issue

writ in the interest of justice and public interest. A writ petition is an order given by a higher court to a

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lower government official or lower court in an effort to preserve the rights of a country. It is also

important to understand basic difference between a regular Writ Petition and Public Interest Litigation

Writ Petition. Whenever a person affected by any illegal act or omission of Public Officials or of any

Public office, he may approach the High Court for issue of appropriate Writ (authoritative direction)

whereas a person may approach the High Court for issue of appropriate Writ in the larger public interest

even when he is directly not affected by illegal acts or omissions of Public Officials.

PRINCIPLE OF RES-JUDICATA:

The principle of res-judicata is applicable to petition for writs, (PLD 1965 S.C 254)

Aggrieved Party:

In a petition for writ the court has to consider that whether the petitioner has the locus Standi to invoke

such jurisdiction of the High court. It was held that a person who himself does not pay a toll tax cannot

ask for prohibition against levy of such tax. (PLD 1958 Karachi 211). An aggrieved party includes a

person who is deprived of the benefit, privilege, etc. by an illegal act or omission of a public authority

though there is no violation of a legal right vested in him. (PLD 1974 539).

Types of Writ Petitions under Article 199:

Following are the types of writ petitions:

1. Habeas Corpus

2. Mandamus

3. Prohibition

4. Certiorari

5. Quo Warranto

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1. Writ of Mandamus:

A writ of mandamus is a command issued from the high court of justice which directs any person to do

any particular act therein specified which appertains to his office and is in nature of a public duty. Writ of

mandamus is a very popular writ, which can be issued against the arbitrary or illegal acts of government

officials including police officers, municipal bodies etc. This writ is given to a lower-level court or a

government officer to mandate that proper laws are followed. Mandamus might be given if an official is

not using his position appropriately or if a court is not following the laws of the state or country. This writ

is also known as the “writ of mandate”). An aggrieved person may apply for the writ or order of

mandamus. Writ of mandamus may be issued against a person performing functions in connection with

the affairs of federation or province or a province or a local authority to do anything which he is required

by law to do. There must be some conditions for the writ of mandamus: -

i. There must be a public duty.

ii. There must be a specific demand and refusal.

iii. There must be clear right to enforce the duty.

A mandamus will not be issued where there is no duty of a public nature involved and the right claimed

by the person is merely a private right as far instance where there is a dispute between two rival groups of

a share holder of a company (PLD 1980 Lahr. 609), moreover where there is a discretion in a public

servant himself, but he acts under the discretion of another person and he does not exercise his own

discretion and the court may compel him to act in his independent discretion (PLD 1963 SC 185).

2. Writ of Habeas Corpus:

The writ of habeas corpus has its history back in the common law of England. Habeas corpus means to

have the body before the court. This is the writ in the nature of an order calling upon the person who has

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detained another to produce the latter before the court, in order to let the court, know on what judicial

grounds he has been confined and to set him free if there is no legal justification for the imprisonment.

The object of this writ is to provide a prompt remedy against illegal confinement. The object of the writ of

habeas corpus is to release a person from illegal detention. Any person may apply for writ of habeas

corpus against the detention of another provided he is bona fide interested in the detenue. It may be issued

against any person whether private or natural person. The provision is similar to Section 49(1) of the

Code of Criminal Procedure but being a constitutional provision is of higher authority. It safeguards the

liberty of the subject. Following are the conditions on the writ of habeas corpus:-

i. There must be detention.

ii. Detention must be actual and illegal.

iii. Confinement should be in improper and unauthorized place.

EXCEPTIONS:

Preventive detention law and article 10 of constitution are the exception to this writ. Another thing is Res-

Judicata. This principle is not applicable in writ of habeas corpus since the liberty of person is very much

important than anything else.

3. WRIT OF PROHIBITION:

A writ of prohibition is an order which is issued to inferior court to discontinue a processing pending

before it on the ground that it has no jurisdiction to hold the said proceeding .This writ cannot be issued

against legislative body, political leaders and parties and private organization etc. The writ of prohibition

may be issued:

i. To prohibit any public functionary from doing an act which is beyond its jurisdiction.(PLD

1964 Dacca 48)

ii. To restrain authorities from exercising extra jurisdictional powers.

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Only an aggrieved person may apply for the writ of prohibition. The view of Locus Standi is applicable

on the writ of prohibition. Following are the grounds on which a prohibition may be issued: -

i. Want of jurisdiction: The writ of prohibition lies only when it is intended to restrain a

tribunal or a court which assumes or threatens to assume a jurisdiction which it does not

possess.

ii. Violation of principles of natural justice: A prohibition may issue when it is found that the

action was in violation of principles of natural justice.

4. WRIT OF CERTIORARI:

Certiorari means to certify. A writ of certiorari is a writ which is issued from superior court to call up the

record of a proceeding in an inferior court for review. It is an order issued by the high court under the

constitution to an inferior court or any authority exercising judicial or quasi-judicial functions to transmit

to the court the record of proceeding pending therein for scrutiny and decided the legality and validity of

the orders passed by them. The object of this writ is to keep all subordinate court/tribunal, quasi-judicial

authorities within the limit of jurisdiction if they excess then their decision would be quashed by superior

court by issuing this writ. An aggrieved person can apply for the writ of certiorari. The writ of certiorari

allows a higher court to review the materials from the decision of a lower court with the option of

reversing the decision. This can also be used in a workplace to make sure that a punishment levied by an

employer against an employee is appropriate. The high court could issue a writ of certiorari to inspect the

proceedings of a lower court to determine whether there had been any irregularities. (1999 CLC 1568).

The view of Locus Standi is applicable on the writ of prohibition. The writ of certiorari is issued against: -

i. Court.

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ii. Judicial body.

iii. Quasi-judicial body.

iv. Purely executive or administrative tribunal.

The grounds on which a writ of certiorari may be issued usually are as under:-

i. Where the inferior court without or in excess of the jurisdiction granted.

ii. Where the tribunal acts without or in excess of the jurisdiction granted.

iii. Where the order of the inferior court or a tribunal is erroneous on the face of the record.

iv. Where the order of the inferior court is tainted with fraud, mala fide, corruption or collusion.

v. Where the inferior court or tribunal has erroneously decided a collateral question or assuming

jurisdiction which is does not possess.

vi. Where a procedure is followed which is contrary to the principles of natural justice.

5. WRIT OF QUO WARRANTO:

A writ of Quo warranto is a writ issued by a superior court against a person who claims or who usurp any

office, franchise or liberty to enquire by what authority he supports his claim. Quo warranto is a judicial

remedy against an occupier or usurper of an independent substantive public office or establishment or

freedom, the usurper is asked by what power quo warranto he is in such office, franchise or liberty. If the

answer is not satisfactory to the court, the usurper can be ousted by an order of quo warranto. Any person

may apply for writ of quo warranto. (PLD 1965 Dacca 330) It is a public office, in respect of which order

or writ of quo warranto is issued, for example, The office of speaker of national or provincial assembly

(PLD 1956 Lahore 807). The office of advocate general of a province. There are some conditions on the

writ of quo warranto:-

i. That office must be created by statute, by charter, or by constitution.

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ii. The office must be public nature.

iii. The office must be some substantive character.

iv. The holder must have been in actual occupation and under of the office in question.

v. Or a local body (PLD 1965 Dacca 330)

Relief must be given by issuance of injunction to a person not to act therein or to declare the office

vacant.

ABRAR HASSAN V. GOVERNMENT OF PAKISTAN & JUSTICE ABDUL

KADIR SHAIKH

On the death of the Chief Justice of the Sind and Baluchistan High Court, Mr. Justice Tufail Ali Abdur

Rehman on 16 January, 1975 Mr. Justice Abdul Kadir Shaikh, a permanent judge of the Supreme Court

of Pakistan was appointed as Chief Justice of that Court with the added term and condition that he would

“continue to retain his lien on the office of, and seniority as, judge of the Supreme Court:. The appellant,

a member of the High Court Bar, challenged this appointment by filing a quo warranto writ petition

requiring Mr. Justice Abdul Kadir Sheikh to show under what authority of law he claimed to hold the

office of Chief Justice. All the pleas raised by the petitioner were repelled by the High Court. The plea

that as a permanent Chief Justice of the High Court of Sindh and Baluchistan, he could not have retained

lien and seniority as a Judge of the Supreme Court, was disposed of with the remark that it was the

concern of their Lordships, and the petitioner as a member of the Bar, had no locus standi to challenge the

seniority of the Judges of the Supreme Court. The petition was also found not maintainable as High Court

would not issue writ against one of it judges. The appeal preferred by the appellant was also dismissed by

the Supreme Court holding that the appointment as Chief Justice was unexceptional though he could not

hold simultaneously the judgeship of the Supreme Court. On the maintainability of a writ of quo

warranto, they ruled as follows :-

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(i) (per Muhammad Yaqub Ali, C.J.) the writ petition filed by the appellant to challenge the validity of

appointment of Mr. Justice Abdul Kadir Shaikh as Chief Justice did not lie on the ground of high degree

of comity among the judges of the Superior Courts and for the reason that under Article 199 of the

Constitution, the Chief Justice was a part of the High Court and the not a separate entity from the High

Court and the High Court was not a “person” within the meaning of Article 199 (5) of the Constitution,

1973. However, a writ, for example of hebeas corpus, can competently lie against a judge of the Court in

his private capacity.

(ii) (per Salahuddin Ahmad, J.) A writ of quo warranto is competent against a judge of the high Court in

his individual capacity as distinct from his acts in the capacity of a Court for, a “judge of a High Court”

and “a High Court” are not always synonymous, interchangeable or convertible. Further, comity amongst

the members of Superior judiciary is not a rule of law and certainly cannot outweigh the imperative

necessity of correctly interpreting the constitution.

(iii) (per Anwarul Haq J.) A writ of quo warranto is barred in view of the fact that “High Court” is not a

“person” within the meaning of Article 199(5) of the Constitution, 1973. The bar, however, does not

apply to matters concerning the judges of the Supreme Court in their private or individual capacities,

which continue to be governed by the laws of the land as in the case of other citizens.

(iv) (per Muhammad Gul, J.) On the proper construction of Article 199 of the Constitution and on

general principles which are well-settled, an information in the nature of quo warranto does lie and in fact

is the only proper remedy against a judge of a superior court who is not qualified to be appointed as a

judge.

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References:

The constitution of the Islamic Republic of Pakistan, 1973 M. Rafiq Butt.

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