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    Sunday, 13 July 2014

    Powers of High Court Under A-199

    1. INTRODUCTION: 

    According to the constitution of 1973 of Islamic republic of Pakistan a high court is the highest court in a province. Normally the jurisdiction of a High court is limited to its respective province. There are five high courts in Pakistan. Out of these high courts one is based in capital city of country and other four are based in capital cities of Punjab, sindh, balochistan and Khybar Phukton Kha. 

    2. FORMATION AND APPOINTMENT OF HIGH COURT:

    High court shall consist of a chief justice and so many other judges as may be fixed by law. President of Pakistan makes appointment of chief justices and other judges of high courts from those names, which are recommended by judicial commission of Pakistan. 

    3. CONSTITUTIONAL JURISDICTION OF HIGH COURT:

    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.  

    4. MEANING OF WRIT: 

    A written judicial order to perform a indicated act, or offering power to have it done. 

    5. 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. 

    6. ANALYSIS OF ARTICLE 199 OF THE CONSTITUTION OF PAKISTAN 1973: 

    Under article 199 of the constitution the high court may make the following writs or order:- 
    6.1 WRIT OF MANDAMUS:
     Following are the important point regarding writ of prohibition:- 
    6.1.1 MEANING OF MANDAMUS: 
    A writ of mandamus is a command issuing from the high court of justice, directing any person to do any particular act therein specified which appertains to his office and is in nature of a public duty. 
    6.1.2 HISTORICAL BACKGROUND:
    Mandamus is a common law writ of extra ordinary character, sometimes referred to as the highest judicial writ known to the law. It is also called one of the flowers of the crown. It seems originally to have been one of that large class of writ or mandate by which the sovereign of England guided, the execution of any wanted demonstration by his subjects
    6.1.3 PURPOSE:
    It is issued for the purposed that justice may be done in all cases where there is a specific legal right and no specific legal remedy is available for enforcing such rights. It may also issue in cases where although there is an alternative lawful cure, yet such mode of review is less advantageous, gainful and powerful. 
    6.1.4 CONDITIONS FOR THE WRIT OF MANDAMUS: 
    There are 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. 
    6.1.5 WHO MAY APPLY?
    An aggrieved person may apply for the writ or order of mandamus.
    6.1.6 AGAINST WHOM IT MAY BE ISSUED:
    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 any thin which he is required by law to do. 
    6.2 WRIT OF PROHIBITION: 
    Following are the important point regarding writ of prohibition:- 
    6.2.1 MEANING 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.
    6.2.2 OBJECT OF WRIT OF PROHIBITION:
    Following are the object of the writ of prohibition:- i. To prohibit any public functionary from doing an act which is beyond its jurisdiction. ii. To restrain authorities from exercising extra jurisdictional powers. 
    6.2.3 WHO MAY APPLY FOR WRIT OF PROHIBITION:
    Only an aggrieved person may apply for the writ of prohibition. Traditional view of Locus Standi is applicable on the writ of prohibition.
    6.2.4 GROUNDS ON WHICH A PROHIBITION MAY BE ISSUED: 
    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. 
    iii. Limits of Prohibition: There are some limits of prohibition:- unlawful jurisdiction Pending proceedings. Proceeding party without jurisdiction. 
    6.2.5 EXCEPTIONS: 
    This writ cannot be issued against legislative body, political leaders and parties and private organization etc. 
    6.3 WRIT OF CERTIORARI: 
    Following are the important point regarding writ of prohibition:- 
    6.3.1 MEANING 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.
    6.3.2 NATURE AND SCOPE:
    It is an order issued by the Supreme Court or by a 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. 
    6.3.3 OBJECT: 
    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.
    6.3.4 WHO MAY APPLY FOR WRIT OF CERTIORARI:
    An aggrieved person can apply for the writ of certiorari. It means that Traditional view of Locus Standi is applicable on the writ of prohibition.
    6.3.5 AGAINST WHOM CERTIORARI IS ISSUED:
    The writ of certiorari is issued against:- Court. Judicial body. Quasi judicial body. Purely executive or administrative tribunal. 
    6.3.6 GROUNDS FOR THE ISSUES OF WRIT OF CERTIORARI:
    The grounds on which a writ of certiorari may be issued usually are as under:- i. Where the inferior court or tribunal acts without or in excess of the jurisdiction granted. ii. Where the order of the inferior court or a tribunal is erroneous on the face of the record. iii. Where the order of the inferior court is tainted with fraud, mala fide, corruption or collusion. iv. Where the inferior court or tribunal has erroneously decided a collateral question or assuming jurisdiction which is does not possess. v. Where a procedure is followed which is contrary to the principles of natural justice.
    6.4 HABEAS CORPUS: 
    Following are the important point regarding writ of prohibition:-
    6.4.1 MEANING:
    The writ of habeas corpus is the most ancient writ in the common law of England. Habeas corpus means have the body before the court.
    6.4.2 NATURE AND SCOPE:
    This is the writ in the nature of an order calling upon the person who has 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. 
    6.4.3 OBJECTS:
    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. 
    6.4.4 WHO MAY APPLY: 
    Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may apply for writ of habeas corpus against the detention of another provided he is bona fide interested in the detenue.
    6.4.5 AGAINST WHOM IT MAY BE ISSUED: 
    This writ of habeas corpus may be issued against any person whether private or natural person. 
    6.4.6 CONDITIONS:
    There are some conditions on the writ of habeas corpus:- There must be detention. Detention must be actual and illegal. Confinement should be in improper and unauthorized place.
    6.4.7 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. For even former application has been dismissed on other ground fresh application may be filed on any fresh ground. 
    6.5 QUO WARRANTO: 
    Following are the important point regarding writ of prohibition:-
    6.5.1 MEANING: 
    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.
    6.5.2 NATURE AND SCOPE:
    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. 
    6.5.3 WHO MAY APPLY: 
    Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may apply for writ of quo warranto. 
    6.5.4 OFFICE IN RESPECT OF WHICH WRIT IS ISSUED: 
    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. The office of advocate general of a province. 
    6.5.5 CONDITIONS: 
    There are some conditions on the writ of quo warranto:- That office must be created by statute, by charter, or by constitution. The office must be public nature. The office must be some substantive character. The holder must have been in actual occupation and under of the office in question.
    6.5.6 RELIEF IN WRIT OF QUO WARRANTO:
    Relief must be given by issuance of injunction to a person not to act therein. To declare the office vacant.

    7. CONCLUSION: 

    Writ jurisdiction of high court under article 199 is available only when no other adequate remedy is available. The high court can issue writs on mandamus, prohibition and certiorari on the application of the aggrieved person and it can also issue writ of habeas corpus and writ on the application of interested party. In case of public interest the Supreme Court also has the some power under article 199.



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    Item Reviewed: Powers of High Court Under A-199 Rating: 5 Reviewed By: Usman Ali
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