LAW OF WRITS

Introduction:

A writ is an order by a court, directing lower courts to either do something or not do something.
The concept of a writ was first developed by the Anglo-Saxons in England. The Monarch would
issue letters which held orders and directions. Since then, writs have been incorporated by
various countries into their legal systems. Pakistan has also done so, empowering the Supreme
Court and the High Courts to issue such writs.

Definition and scope:

It is indeed difficult to evolve a scientific, precise and satisfactory definition of a Writ. Many
jurists have made attempts to define it, but none of the definitions has completely demarcated the
nature, scope and content of it. Either the definitions are too broad and include much more than
necessary or they are too narrow and do not include all the necessary ingredients.

A writ may be defined as regard orders drawn in cases and put into writing.

The writs are not defined in any Pakistan Law and their scope, the particular authorities against
whom they might issue and other limitations, are therefore from laws and proceedings of other
countries in particular the United Kingdom. PLD 1961 SC 237.

According to Stroud’s Judicial Dictionary of words and phrases;

A writ is a process by which civil proceedings in the High Court commenced. There are many
other kinds of writs, e.g. writ of execution, writ of error, writ of election of member of
parliament, etc, issued in the name of reigning monarch for doing or not doing, of some act or
thing.( Stroud’s Judicial Dictionary of words and phrases p. 3346)

According to Black Stone Dictionary;

A writ is a mandatory letter from King in Parliament, sealed with his great seal, and directed to
the Sheriff of the Country wherein the injury is committed or supposed so to be requiring him to
command the wrongful doer or party accused either to do justice to the complainant, or else to
appear in Court and answer the accusation against him.

According to New Oxford Dictionary;

A writ is a command in the name of Court or other legal authority to act, or abstain from acting
in some way.

A writ is a Constitutional jurisdiction and is not a proceeding stricto sensu. A writ jurisdiction
vis-a-vis supervisory, appellate and revisional jurisdiction of High Court makes all the difference
and one should not confuse these powers and functions. PLD 1984 Quetta 153.

As I already discussed above that there are various definitions of Writ by various Jurists and
different Courts from all over the world which define it according to their perspective. I can say
that “A writ is an order issued from a Court requiring performance of a specified act.
Prerogative writs are issued by exercise of extraordinary power of the crown (now Court in
modern practice) on proper cause shown; namely, procedendo, mandamus, prohibition, que
warranto, habeas corpus and certiorari.”

Origin and development of writ

The writ is a peremptory order issued by a Superior Court, i.e., one of the Court of the King as
understood in the British Jurisdiction. It is an order of the highest authority and efficacy and is so
because it is being issued in the sovereign power of the King. The practice and procedure of the
writs commenced in the first century of the Norman Rule in England. As we are aware, the rule
of England passed from the hands of the Anglo-Saxons to those of the foreign conqueror,
William who defeated the English King Harold in 1066. England had a rather weak Government
which had been unable for a period of years to avoid in-roads by the Vikings of Northern
Europe. It was the weakness of the indigenous Government investigated the Norman invasion
but that did not make the invaders necessarily welcome among the natives and it may well be
imagined that it required political and administrative devices of great intricacy for the Normans
with their small army to extend their power effectively over the rest of the country.

Under Henry I, one of the most statute kings in history of Monarchy, no device was left
untried. One which is relevant to the present subject was the establishment of Royal Courts
presided over by the King and in his absence by the Courtiers. The country was for judicial
purposes under three different kinds of Courts. There were the local Council Courts known as
Shire Courts and there were the Courts of the great nobles. There were also the ecclesiastical
Courts which dealt generally with the question falling under Canon Law and in a limited way
with ordinary litigation. It became necessary for the establishment of the King's Supreme power
that the judicial arm should be stretched over the whole country. The indigenous system could
not be replaced at once owing to the King not having the necessary number of clerks and Judges.
Yet the principle was accepted that through the agencies of law and order, the rule of the
conqueror should be effectively established in every corner of the realm. It was for this purpose
that the writ was devised by the King's Legal advisers who were mostly ecclesiastics. A writ was
invented which when issued to any Court in the realm had the effect of withdrawing the case to
be tried in the King's own Court. Any Local Court which resisted the writ incurred the
Sovereign's displeasure.

We can well imagine how effective this scheme was and how quickly it become a vested interest
among the lawyers and the Courtiers surrounding the King. To withdraw the cases from the
Local Courts and have them decided London on was to the great benefit of the lawyers and at
that time also the Judges, for they were then paid by fees. It worked also mightly to the political
advantage of the King. That is not to say that it was without benefit to the people as well.
Uniform application of laws through judgments duly recorded became the rule, and justice began
to be administered in a way previously unknown, it became possible for the Central Courts to
give guidance through their judgments to the Local Courts regarding the proper procedure to be
followed in different cases. Since the Judges were appointed and dismissed by the King, and the
times were uncertain, as Norman rule had not yet been accepted in the country, one may be sure
that a great many judgments delivered in the King's Courts were designed to produce political
advantage to the King. But the facility of both sides being represented through learned lawyers
ensured that by and large, since both parties were heard, the eventual decision would be in
accordance with reasonable the law, so far as it had been formulated in that early period. The
judicial process operated, as it always does, to produce all round benefit. (Speech delivered by
Mr. Justice AR Cornileus Chief Justice Supreme Court of Pakistan published in PLD 1964
Journal 73.