Constitution is not an ordinary statute made in ordinary legal procedure. It is the creation of a Constitutional Act and therefore the sanctity of a Constitution is much higher than any statute made by the legislature.
Constitutional interpretations by Courts have played an important role in settling political problems as well as other issues involving individuals and parties. These interpretations have also restricted or expanded the scope of action of different functionarie. The Superior Courts in Pakistan also support this viewpoint. In all matters, aggrieved person can avail the statutory remedy of Appeal or Revision, which is not some times adequate, effective, efficacious, convenient, beneficiary and expeditious. In such situations the aggrieved party can avail the extra ordinary remedy by invoking constitutional jurisdiction of the High Court or Supreme Court, which is obviously speedy and effective remedy and foster the justice. These conditions occasionally overlap or conflict with each other.
Law of Writs in Pakistan
A writ is an official written directive issued by an organisation with administrative or judicial jurisdiction; in modern sense, this organisation is known as a court. There are many types of writs exist including prerogative writs, summons and warrants but there are many others.
The writ, in common parlance, is an order issued by a court in the name of an authority requiring the performance of a specific act.
The “prerogative” writs or writs based on privileges are a subclass of the group of writs, those that are to be heard before regular cases on a court’s docket except other such writs. The most common types of prerogative writs are mandamus, certiorari, habeas corpus, procedendo, prohibito, and quo warranto, although these technical names have not been prescribed in the constitution.
Writ of Mandamus
Mandamus is a judicial remedy which is in the form of an order from a superior court to any subordinate court, organisational or public authority to do or refrain from doing some specific act which that body is obliged under the law to do or abstain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to force an authority to do something against any statutory law.
Writ of Certiorari
Certiorari is a writ intending for seeking judicial review, currently means an order by a superior court directing a lower court, tribunal, or public authority to submit the record in a certain case for review.
Writ of Habeas Corpus
Habeas corpus is a legal action through which a prisoner can be released from an unlawful custody or detention. The remedy can be pursued by the prisoner or by another person coming to his / her assistance. Habeas corpus originated in the English legal system, has historically been an important legal mechanism, protecting rights of individual against arbitrary governmental action.
Writ of Procedendo
A writ of procedendo is a remedy where there is a delay in rendering a judgment that amount to a abandonment or denial of justice. It is an order of a higher court to lower court, directing that court to extract a delayed judgment. The writ does not specify as to what judgment the lower court must extract, it merely orders the lower court to proceed to judgment. Rebuttal to comply with the writ may subject the lower court to an excerpt for contempt.
Writ of Prohibito
The Court may issue a writ of prohibition to prohibit the authority from acting in excess of its jurisdiction. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction.
Writ of Quo Warranto
The writ of quo warranto is issued against a person who claims or usurps a public office. Through this process, the court inquires ‘by what authority’ the person supports his or her claim.
Other writs include audita querela, capias, coram nobis, fieri facias, mittimus, ne exeat republica, praemuire, scire facias, frrts and venire facias etc.