A prerogative writ is a historic term for a
writ
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
(official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
under
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, and reflected the discretionary prerogative and extraordinary power of the monarch. The term may be considered antiquated, and the traditional six comprising writs are often called the extraordinary writs and described as extraordinary remedies.
Six writs are traditionally classified as prerogative writs:
*''
certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'', an order by a higher court directing a lower court to send the record in a given case for review;
*''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', a demand that a prisoner be taken before the court to determine whether there is lawful authority to detain the person;
*''
mandamus
(; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from ...
'', an order issued by a higher court to compel or to direct a lower court or a government officer to perform mandatory duties correctly;
*
prohibition
Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcoholic ...
, directing a subordinate to stop doing something the law prohibits;
*''
procedendo
In common-law jurisprudence, ''procedendo'' is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment.
{{quote, The writ of procedendo is merely an order from a ...
'', to send a case from an appellate court to a lower court with an order to proceed to judgment;
*''
quo warranto
In law, especially English and American common law, ''quo warranto'' (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right, power, or ...
'', requiring a person to show ''by what authority'' they exercise a power.
Additionally, ''
scire facias
In English law, a writ of ''scire facias'' (Latin, meaning literally "make known") was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why th ...
'', one of the extraordinary writs, was once known as a prerogative writ.
C.J. Antieau
CJ or similar may refer to:
Businesses
* BA CityFlyer (IATA airline designator)
*China Northern Airlines (IATA airline designator)
*CJ Group (also known as Cheil Jedang), a South Korean conglomerate
*CJ CheilJedang, South Korean food and beverage ...
, The Practice of Extraordinary Remedies: Habeas Corpus and the Other Common Law Writs, Vol. II, at 802, 1987
England and Wales
The prerogative writs are a means by which the Crown, acting through its courts, effects control over inferior courts or public authorities throughout the kingdom. The writs are issued in the name of the Crown, who is the nominal
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
, on behalf of the applicant.
The prerogative writs other than ''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'' are discretionary remedies, and have been known as prerogative orders in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
since 1938. The writs of ''quo warranto'' and ''procedendo'' are now obsolete, and the orders of ''certiorari'', ''mandamus'' and ''prohibition'' are under the new
Civil Procedure Rules 1998
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil c ...
known as "quashing orders", "mandatory orders" and "prohibiting orders" respectively.
The writ of ''habeas corpus'' is still known by that name.
India
The declaration of fundamental rights would be meaningless unless these rights can be enforced at the instance of the persons on whom they are conferred. The Constitution itself has laid down the following provisions for the enforcement of the fundamental rights.
# Any act of the executive or of the Legislature which takes away or abridges the fundamental rights shall be void and the courts are empowered to declare such act as void. (Article 13)
# The Supreme Court and the High Courts are empowered to issue writs for the enforcement of fundamental rights against any authority of the State.
Article 12 has defined "State" to include the Government and Parliament of India, and the Government and Legislature of the States, and all local or other authorities within the territory of India or under the control of the Government of India. The expression "other authorities" has been interpreted to cover even business organisations like LIC and therefore such organisations also are amenable to the writ jurisdiction of the courts.
# A proceeding under Article 32 is described as a constitutional remedy and the right to bring such proceedings before the Supreme Court is itself a fundamental right.
Pakistan
Article 199 of the Constitution confers wide powers of judicial review on Provincial High Courts in Pakistan. As compared to powers conferred upon the
Supreme Court of Pakistan
The Supreme Court of Pakistan ( ur, ; ''Adālat-e-Uzma Pākistān'') is the apex court in the judicial hierarchy of the Islamic Republic of Pakistan.
Established in accordance to thePart VIIof the Constitution of Pakistan, it has ultimate a ...
under Article 184(3) of the Constitution, the powers under Article 199 of the Constitution to the High Court are wider and varied.
The orders which a High Court may issue under Article 199 are also known as writs. They are the writs of prohibition, ''mandamus'', ''certiorari'', ''habeas corpus'' and ''quo warranto''.
Mr. Justice Rustam Kayani, the former Chief Justice of West Pakistan High Court was a great admirer of the writ jurisdiction. At the time of his installation as Chief Justice in 1958, he emphasised: "Mandamus and Certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain their perfume".
United States
In the United States federal court system, the issuance of writs is authorized by U.S. Code, Title 28, Section 1651. The language of the statute was left deliberately vague in order to allow the courts flexibility in determining what writs are necessary "in aid of their jurisdiction". Use of writs at the trial court level has been greatly curtailed by the adoption of the
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
and its
state court counterparts, which specify that there is "one form of action".
Nevertheless, the prudent litigator should familiarize himself or herself with the availability of writs in the jurisdiction in which he or she is admitted to practice.
The
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
grants ''certiorari'', while most
state supreme court
In the United States, a state supreme court (known by #Terminology, other names in some states) is the supreme court, highest court in the State court (United States), state judiciary of a U.S. state. On matters of State law (United States), st ...
s grant ''review''.
''Mandamus'' has been replaced in the
United States district court
The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
s and many state trial courts by
injunction
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
. In the federal system, it is generally available only to the federal courts of appeals, which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs of ''mandamus'' or ''mandate'' directly to government officials.
''Prohibition'' is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.
References
{{Reflist
Writs
Prerogative writs