The High Court has such jurisdiction as is conferred on them by the Constitution or by law (Art. 175(2) of the 1973 Constitution). Article 199 of the Constitution of 1973 deals with the extra-ordinary jurisdiction of the High Courts. It provides for the issuing of directions and orders by the High Courts to any person or authority in the country, prohibiting, commanding, calling in question acts done or intended to be done by such person or authority, in specified circumstances.
The system of writs derives its origin from Common Law, but since 1938, in England the word “writ” has been replaced by “order” and the same precedent has been followed in the Constitution of 1973. The effect of omission of the traditional names of the writs has been calculated to give to the court a wider scope to issue a particular direction, because the court would not be bound in the issuance of such direction to restrict itself to the rigid rules applicable to prerogative writs.
The original and appellate jurisdiction of the High Courts provided by such pre-Constitution laws as the Criminal Procedure Code, 1898, and the Code of Civil Procedure, 1908 as available to the High Courts before coming into force of Constitution was continued by the Constitution.
The High Courts make rules for the guidance of the lower civil and criminal courts (Art. 202); a High Court can transfer cases from one court to another or when it thinks fit, may transfer a case for trial even to itself.
Under the Code of Criminal Procedure, 1898 the High Courts hear appeals against the orders passed by the Sessions or Additional Sessions Judges. Under the Code of Civil Procedure, the High Courts hear appeals from the decisions of the subordinate civil courts and the District Judges’ courts. A second appeal under the Code lies to the High Court on a question of law or on the ground of a substantial error or defect in procedure in the first appellate court. As an appellate court, the High Court has the power to determine the case finally, to remand to frame issues and refer them for trial, to take additional evidence or to require such evidence to be taken as it may deem fit.
Under the 1956 Constitution, the Supreme Court and the High Courts had the power to issue the prerogative writs of mandamus, habeas corpus, certiorari, prohibition and quo warranto; the Supreme Court could issue these writs only to protect a fundamental right, whereas the High Courts could also issue them “for any other purpose”. The position under the 1962 Constitution was however changed. The basic content of each form of writ has been set out at length in the Constitution itself, probably in order to define with certainty the limits within which the courts could act.
The Constitution of 1973 followed the scheme of the Constitution of 1962 which gave Extraordinary Jurisdiction to the High Courts as follows:-
Article 199 Jurisdiction of High Court:-
Subject to this Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law-
on the application of an aggrieved party, make an order-
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
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
on the application of any person, make an order-
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
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
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.
It is clear from above, that without using their technical names, the writs of prohibition and mandamus were provided by Clause (2) (a) (i), the writ of certiorari by Clause (2)(a)(ii),. the writ of habeas corpus by Clause (2)(b)(i) and the writ of quo warranto by Clause (2)(b)(ii) of Article 199. The fact that the writs had not been mentioned by their technical names, has been interpreted by the courts as giving wider jurisdiction to the courts and not restricting them to the limited circumstances in which a particular writ could issue. The wide interpretation and liberal attitude of the courts in this respect was indicated in a case where the petition had been drawn up inartistically and ending abruptly without even a formal prayer; the relief was spelled out by the courts itself by reading the petition in free and liberal manner. Despite the view of courts that the new jurisdiction under Art. 199 was significantly different from the traditional writ jurisdiction, practice has proved that the courts, whenever called upon to exercise this power, have been dealing with cases as if they were exercising the well-known writ jurisdiction, partly to maintain the distinction between different classes of cases and partly to enable them to apply the general guiding principles for the issuance of writs, which are fairly settled in relation to each writ.
Order of Mandamus
An order of mandamus is a direction issued to any natural person, corporation or inferior court within the jurisdiction of the High Court requiring them to do some specific thing therein particularised, and which appertains to their office of duty. Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law. The person claiming a mandamus, in order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and in the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office. A right found purely on private contract, however clear it might be, is not enforceable by mandamus.
Order of prohibition
The Article gives to the High Court jurisdiction to issue an order of prohibition where a Court or Tribunal other than the Supreme Court of Pakistan, the High Court or a Tribunal established under the law relating to Defence Services acts in excess of or without jurisdiction. In case of quasi-judicial proceedings generally an order of prohibition does not issue. It is issued only against a Court or a judicial body which though may not be called a Court but has been created specifically under a statute. The office of an order of prohibition is primarily supervisory having for its object the confinement of courts and tribunals of peculiar, limited or inferior jurisdiction within their bounds. Usurpation of power will be restrained by it. Therefore order of prohibition can issue to an inferior tribunal when it is proceeding with a matter which is beyond the jurisdiction of that Tribunal.
Order of certiorari
Order of certiorari is of two kinds
- for removal and adjudication; and
- for quashing the proceedings.
Order will be issued
for correcting errors of jurisdiction as when an inferior Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it; or
When the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties, to be heard, or violates the principles of natural justice.
An order under this article may be issued only to a body acting judicially or quasi judicially because Certiorari lies in all cases where there is a duty to act judicially or where there is a judicial act or order or when the proceedings are judicial or quasi-judicial.
Quo warranto is the remedy or proceeding whereby the Court inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded to have the same forfeited, and to recover it if having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser. Provided it is a substantive corporate office of a public nature, and the person proceeded against is in actual possession and use of the office in question.
Non-availability to other adequate remedy
The Court must be satisfied that no other equally efficacious, equally expeditious and equally inexpensive adequate remedy is provided by law before it issues order. Any indulgence to the contrary by the High Court would be calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the intention of the legislature. Where a petitioner claims protection of a right, which is entirely the creation of a statute, it is all the more imperative on him to exhaust the remedies provided by the statute before he comes to the High Court. The question whether a remedy is adequate or not depends on the facts of each case. The adequacy of the remedy must be judged in relation to
the nature and extent of the relief to be obtained by the alternative remedy;
the point of time when the relief will be available, particularly the conditions relating to the expense and inconvenience involved in obtaining it.
Ordinarily, the words ‘alternative remedy’ or ‘other adequate remedy’ were taken to mean an equally efficacious remedy provided by law. In cases of absence or excess of jurisdiction an alternative remedy was not considered an adequate remedy for the reasons that it was necessary to give a quick relief in such cases against orders which were nullity in the eye of law. Similarly, the question of other adequate remedy being available is of no consequence for the issue of a writ of Habeas Corpus where liberty of person is involved. The plea of want of adequate remedy is not available where the difficulty in pursuing that remedy was created by the petitioner himself, as for instance, when the petitioner has been negligent or has made a representation to any authority which had no jurisdiction to hear it.
Under the terms of the Constitution the directions and orders of the High Courts could only be made on the application of an aggrieved party. The aggrieved party entitled to apply for the issue of an order is a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully affected his title to something; the expression “aggrieved party” does not include a person who is disappointed of a benefit which he might have received if some other order had been made. A person cannot be said to be an aggrieved party within the meaning of Art. 199 of the Constitution, if his rights and interests are not adversely affected or if he suffers no loss or injury by a particular order. The “aggrieved party” would include any person who has been hit by an unlawful act. He is not required to establish that he has been “injured” by violation of pecuniary or proprietary right vested in him or by contravention of any franchise that he claims. However, for the issue of an order of quo warranto, the petitioner need not necessarily be an aggrieved party. The same is the rule for an order of habeas corpus; it may be filed by any person other than the person detained.
Different pleas cannot be taken at different times, so as to support more than one petition on the same facts. The general principles of res judicata are based on the need of giving a finality to judicial decisions. Where, therefore, a Judge of the High Court has finally decided on the merits the contentions raised in a previous writ petition, the High Court will not allow the same contentions to be re-agitated in subsequent litigation. However, in case of a petition for habeas corpus, the principle of res judicata is not applicable.
Conduct of the petitioner
A petitioner must come to the Court with clean hands, that is, he must not attempt to mislead the court by misrepresentation or suppression of facts in his petition or supporting affidavit. As the issue of an “Order” is discretionary, in the exercise of this power the High Court is entitled to take into consideration the conduct of the petitioner, if it is found that the petitioner has not come with clean hands, it would disentitle him to a relief by way of writ, even if he is found on merits to have a good case.
Laches and Acquiescence
Delay in the filing of a petition or Laches has been regarded as a relevant factor in the exercise of the extraordinary jurisdiction of the court.
When a petition was filed more than three years after the passing of the impugned order, the delay was held amounting to acquiescence.
Where a plea of continuous wrong can legitimately be urged by the petitioner, the objection to a petition on the basis of laches cannot be sustained.
Questions of fact
The courts are normally reluctant, when hearing petitions, to enquire into questions of fact, especially when such enquiry was likely to be protracted. The courts were also normally reluctant to listen to points not mentioned in the petition or affidavit and raised for the first time at the hearing.
Writs to superior courts
One superior court cannot issue a “Order” to another superior court of co-ordinate jurisdiction, nor can such a court issue an order to itself. The basis of this rule is that orders made under this Article are issued for the purpose or correction of errors in the exercise of extraordinary jurisdiction and since superior courts are entitled to credit from other courts for acting within their own jurisdiction, the question of issue of a writ to them would not arise. Although a judge of a High Court acting as a member of Election Commission for the decision of certain election disputes does not act as a High Court Judge but as persona designate, yet it was observed by the Supreme Court that issuing an order to such a member would give rise to an “aspect of ludicrousness” and would be against the “weighty” consideration of the “necessity of maintaining a high degree of comity among Judges of superior courts”.
Source: Constitution of Pakistan, 1973 and High Court of Baluchistan
Categories: Law of Pakistan