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QLC ADMINISTRATIVE LAW

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1. INTRODUCTION
“Writ is a peremptory order issued by a superior court”
PLD 2001 SC 415

“Relief in Constitutional jurisdiction being discretionary should not be granted to hold”

2. WRIT OF MANDAMUS
The name of a writ, the principal word of which when the proceedings were in Latin, was
mandamus, we command.

It is a command issuing in the name of the sovereign authority from a superior court having
jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of
such superior court, requiring them to do some particular thing therein specified, which appertains to
their office and duty, and which the superior court has previously determined, or at least supposes to be
consonant to right and justice.

3. WRIT OF MANDAMUS; NOT A WRIT OF RIGHT

Mandamus is not a writ of right, it is not consequently granted of course, but only at the
discretion of the court to whom the application for it is made; and this discretion is not exercised in
favor of the applicant, unless some just and useful purpose may be answered by the writ.

4. OBJECT OF THE WRIT

This writ was introduced is prevent disorders from a failure of justice; therefore it ought to be
used upon all occasions where the law has established no specific remedy, and where in justice and
good government there ought to be one. Mandamus will not lie where the law has given another
specific remedy.

5. AMERICAN PRACTICE AS TO WRIT OF MANDAMUS

The 13th section of the act of congress of Sept. 24, 1789, gives the Supreme Court power to
issue writs of mandamus in cases warranted by the principles and usages of law, to any courts
appointed or persons holding office, under the authority of the United States. The issuing of a
mandamus to courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in
the Supreme Court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by
the constitution, the exercise of original jurisdiction by the Supreme Court is restricted to certain
specified cases, which do not comprehend a mandamus. The latter clause of the above section,
authorizing this writ to be issued by the Supreme Court to persons holding office under the authority of
the United States, is, therefore, not warranted by the constitution and void.

The circuit courts of the United States may also issue writs of mandamus, but their power in this
particular is confined exclusively to those cases in which it may be necessary to the exercise of their
jurisdiction.

6. PAKISTANI PRACTICE
A writ of mandamus is an order that relates to the performance of legal duties and is issued to
lower courts or to persons responsible for the performance of that duty.

The High Court issues this writ of mandamus ordering a public official or body or a lower court to
perform a specific legal duty relating to public matters.

If a peoples parliament , or a state parliament, or a divisional parliament or other governmental body

fails to perform a duty that is required by law, a citizen can be make an application for the issue of such
a writ.

7. WRIT OF PROHIBITION
A writ of prohibition is intended to apply to administrative bodies over which the
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Supreme Court has no jurisdiction or any individual that makes or passes an order or decision
without the authority so to do and which adversely affects the rights of a citizen. The writ will
prohibit them from implementing such orders.

This means that by a writ of prohibition, excesses of authority exercised by inferior courts can
be prohibited. In a way this is applied for to prohibit and correct past excesses of authority.

8. MEANING OF THE WRIT

The name of a writ issued by a superior court, directed to the judge and parties of a suit in an
inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that the
cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the
cognizance of some other court.

The writ of prohibition may also be issued when, having jurisdiction, the court has attempted to
proceed by rules differing from those which ought to be observed or when, by the exercise of its
jurisdiction, the inferior court would defeat a legal right.

9. A JUDICIAL WRIT FROM A HIGHER COURT ORDERING A

LOWER COURT NOT TO EXERCISE JURISDICTION IN A
PARTICULAR CASE
A writ of prohibition, in the United States, is an official legal document drafted and issued by a
supreme court or superior court to a judge presiding over a suit in an inferior court. The writ of
prohibition mandates the inferior court to cease any action over the case because it may not fall within
that inferior court's jurisdiction. The document is also issued at times when it is deemed that an inferior
court is acting outside the normal rules and procedures in the examination of a case. In another
instance, the document is issued at times when an inferior court is deemed headed towards defeating a
legal right.

QUO WARRANTO
A Quo Warranto writ is applied for by an individual for the examination of matters related to
the appointment or the election for a position.

This is a method by which necessary correction can be made to protect any infringement of a citizen's
rights through the abuse and excesses exercised by those in authority.

A writ brought before a proper tribunal, to inquire by what warrant a person or a corporation acts, or
exercises certain powers. --Blackstone.
[1913 Webster]

quo warranto - Bouvier's Law Dictionary, Revised 6th Ed (1856) :

QUO WARRANTO, remedies. By what authority or warrant. The name of a writ issued in the name
of a government against any person or corporation that usurps any franchise or office, commanding the
sheriff of the county to summon the defendant to be and appear before the court whence the writ
issued, at a time and place therein named, to show "quo warranto" he claims the franchise or office
mentioned in the writ.
2. This writ has become obsolete, having given way to information in the nature of a quo warranto
at the common law;
3. An information in the nature of a quo warranto, although a criminal proceeding in form, in
substance, is a civil one.

 LEADING CASE LAW

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The writ of quo warranto is neither an ancillary writ nor a provisional remedy which can be
issued by a court, having jurisdiction over a main case, in the exercise of its ancillary jurisdiction to
resolve an incident in that case. The writ of quo warranto is an extraordinary and prerogative writ
specifically sought as the principal relief in an action addressed against acts of authority unlawfully
asserted, and necessarily requires the exercise of the original jurisdiction of a court.
Since the grant of the prerogative writ of quo warranto presupposes the exercise of original
jurisdiction as a sine qua non, an original petition therefor cannot be considered as an ancillary remedy
against "incidents arising from, incidental to, or related to, such cases." As definitively held in Garcia,
et al. vs. De Jesus, unlike the ancillary writs issued as provisional remedies, the power to issuer a writ
of quo warranto, just like the other extraordinary writs under Rule 65 of the Rules of Court, is never
derived by implication. Such power must be expressly conferred.
It is true that the grant of jurisdiction to try actions carries with it all necessary and incidental
powers to employ writs; processes and other means essential to make its jurisdiction effective. But,
this is on the premise that there is such original jurisdiction expressly and priorly granted from which
the necessary and incidental powers may be implied. With respect to the Sandiganbayan, it was never
expressly granted original jurisdiction over petitions for certiorari, mandamus, prohibition and quo
warranto.
The cases of Peña, (an action for damages, with writ of preliminary injunction, questioning the
revocation of the authorization as signatory previously granted to a respondent therein), Aquino, (a
petition for certiorari and prohibition filed by private respondent before the RTC assailing the
sequestration order issued by PCGG), and Soriano III, (involving the question of whether the RTC and
SEC can decide the issue of the validity of the sequestration of shares of stock), which are relied upon
by the majority in the present case, were all decided in 1988, while the other cited case of Africa vs.
PCGG,. was decided in 1992, all before the decision in Garcia, Jr. was handed down. The doctrine
enunciated in Garcia, Jr. should, therefore, be considered as the controlling rule, as those in the
aforementioned cases are not in point.
Obviously, because of their disquisition based on the aforesaid previous cases on which they
rested their conclusion, the majority found it unnecessary to discuss Republic Act No. 7975. This
recent amendment to the jurisdiction of the Sandiganbayan, especially on the specific issue involved in
the case at bar, does not offer them any solace either. Republic Act No. 7975, which took effect on
May 6, 1995 and vested the Sandiganbayan with exclusive original jurisdiction over petitions for the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunction and other
ancillary writs and processes in aid of its appellate jurisdiction is inapplicable to the present case.
Jurisdiction is conferred by substantive law and, as such, that law vesting additional jurisdiction in the
court may not be given retroactive effect.
It is noteworthy that such additional jurisdiction to issue the writs enumerated therein can be
exercised by the Sandiganbayan only in aid of its appellate jurisdiction, the same limitation imposed on
the Court of Appeals before it was given full certiorari jurisdiction. Also, while said amendatory
legislation conferred jurisdiction on the Sandiganbayan to issue the aforementioned extraordinary
writs, it refrained from including therein the prerogative writ of quo warranto.

10.CERTIORARI
The writ of certiorari is an order calling for the transcript of the proceeding of a case in a
lower court for review by a superior court.

The Supreme Court of the Union has the power to call for the proceedings of any lower court
and to examine if the ruling therein is in accordance with the provisions of law and to review
and alter any wrong decision. Some lower courts fail to exercise the jurisdiction they have or
exceeded the limits of their jurisdiction either through loss of memory or a misinterpretation
of the law. In such cases, the Supreme Court of the Union may pass any decision it sees fit so
to do.
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In addition, the courts and other quasi-judicial bodies, governmental officials and others who
are empowered to act in matters affecting the rights of citizens must be subject to the
supervisory jurisdiction of the Supreme Court and the process by which this is exercised is by
way of a writ of certiorari.
11.DERIVATION
Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to". It is also the
name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior
appeals court. The U.S. Supreme Court still uses the term certiorari in the context of appeals.

 Petition for Writ of Certiorari. (informally called "Cert Petition.") A document which a
losing party files with the Supreme Court asking the Supreme Court to review the decision of
a lower court. It includes a list of the parties, a statement of the facts of the case, the legal
questions presented for review, and arguments as to why the Court should grant the writ.
 Writ of Certiorari. A decision by the Supreme Court to hear an appeal from a lower court.

 Cert. Denied. The abbreviation used in legal citations to indicate that the Supreme Court
denied a Petition for Writ of Certiorari in the case being cited.

Someone with a legal claim files a lawsuit in a trial court, such as a U.S. District Court, which receives
evidence, and decides the facts and law. Someone who is dissatisfied with a legal decision of the trial
court can appeal. In the federal system, this appeal usually would be to the U.S. Court of Appeals,
which is required to consider and rule on all properly presented appeals. The highest federal court in
the U.S. is the Supreme Court. Someone who is dissatisfied with the ruling of the Court of Appeals can
request the U.S. Supreme Court to review the decision of the Court of Appeals. This request is named
a Petition for Writ of Certiorari. The Supreme Court can refuse to take the case. In fact, the Court
receives thousands of "Cert Petitions" per year, and denies all but about one hundred. If the Court
accepts the case, it grants a Writ of Certiorari.

12.AMERICAN PRACTICE
"Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of
certiorari will be granted only for compelling reasons." Rule 10, Rules of the U.S. Supreme Court.

The U.S. Supreme Court's certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme
Court.

The effect of denial of certiorari by the U.S. Supreme Court is often debated. The decision of the Court
of Appeals is unaffected. However, the decision does not necessarily reflect agreement with the
decision of the lower court

13.WRIT OF HABEAS CORPUS

Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A
writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the
court so it can be determined whether or not that person is imprisoned lawfully and whether or not he
should be released from custody. A habeas corpus petition is a petition filed with a court by a person
who objects to his own or another's detention or imprisonment. The petition must show that the court
ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are
usually filed by persons serving prison sentences. In family law, a parent who has been denied custody
of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus
petition if a judge declares her in contempt of court and jails or threatens to jail her.
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CASE LAW; Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991)

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the
court observed that the Supreme Court has "recognized the fact that ‘[t]he writ of habeas corpus is the
fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.'
Harris v. Nelson, 394 U.S. 286, 290-91 (1969). “Therefore, the writ must be "administered with the
initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and
corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect
to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual
freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969).
Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent
years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest
benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court
raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution,
frustration of the sovereign power of the States, and the "heavy burden" federal collateral litigation
places on "scarce federal judicial resources," a burden that "threatens the capacity of the system to
resolve primary disputes." McCleskey, 499 U.S. at 467.

The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the
writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly
administration of justice and therefore weaken the forces of authority that are essential for civilization.'
" McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of
Frankfurter, J.))

The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid
as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the
great writ is not to relitigate state trials.

Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520
(1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of
any claim in habeas petition).

Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-
examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849
F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993)
(introduction of extraneous prior bad acts evidence during deliberations constitutes error of
constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to
habeas relief only if it can be established that the constitutional error had "substantial and injurious
effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 &
n.9 (1993). Whether the constitutional error was harmless is not a factual determination entitled to the
statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v.
Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).

In a habeas corpus proceeding, a federal court generally "will not review a question of federal law
decided by a state court if the decision of that court rests on a state law ground that is independent of
the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 111
S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has
declined to address the petitioner's federal claims because he failed to meet state procedural
requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992).
Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the
context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule
as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).
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Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it
resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility
of the court, once it concludes there was error, to determine whether the error affected the judgment. If
the court is left in grave doubt, the conviction cannot stand. Id.

On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial
misconduct, like the standard of review for a claim of judicial misconduct, is “‘the narrow one of due
process, and not the broad exercise of supervisory power.' “Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)).”The relevant question is
whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting
conviction a denial of due process.' “Id. (quoting Donnelly, 416 U.S. at 643).

A federal court has no supervisory authority over criminal proceedings in state courts. The only
standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571.
Objectionable as some actions might be, when considered in the context of the trial as a whole they are
not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied." Id. at
1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic comments and offensive
conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due
process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his
reinforcement of identification evidence by government witnesses, "approached but did not cross the
line that permits [a ruling] that the Constitution has been violated").

The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a
petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court
conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state
court convictions, relief is available only for constitutional violations.

Whether a constitutional violation has occurred will depend upon the evidence in the case and the
overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality
determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of
instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155
(1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial
than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves the
failure to give a particular instruction bears an "especially heavy" burden).

Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997
F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling
"had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht
v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether the error affected the
verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995).

The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson
which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149
(finding shackling at trial harmless error because defendant only wore waist chain that could not be
seen by jury).

14. HABEAS CORPUS IN ENGLAND

Blackstone cites the first recorded usage of habeas corpus in 1305, in the reign of King Edward I.
However, other writs were issued with the same effect as early as the 12th century.
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The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act
1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had
been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a
petition of habeas corpus.

Then as now, the writ of habeas corpus was issued by a superior court in the name of the King, and
commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the
King's courts of law. Petitions could be made by the prisoner himself or by a third party on his behalf,
and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in
session, by presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by private individuals,
most famously in Somersett's Case (1771), where the negro slave Somersett was freed with Lord
Mansfield's declaration that "The air of England has long been too pure for a slave, and every man is
free who breathes it".

Although the form of the writ of habeas corpus requires that the prisoner be brought to the court in
order for the legality of the imprisonment to be examined, modern practice is to have a hearing with
both parties present on whether the writ should issue, rather than issuing the writ and waiting for the
return of the writ by the addressee before the legality of the detention is examined. The prisoner can
then be released or bailed by order of the court without having to be produced before it.

The right of habeas corpus has been suspended or restricted several times during English history, most
recently during the Second World War. In parts of the country, or for certain classes of resident, habeas
corpus has been suspended more recently, however. The British Government's 2004-2005 passage of
the Prevention of Terrorism Bill through the House of Commons brought a great deal of criticism,
much of which suggesting that the bill threatened Habeas corpus.

15. HABEAS CORPUS IN THE UNITED STATES

This procedure, part of English common law, was considered important enough to be specifically
mentioned in the U.S. Constitution, which says, "The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Article
One, section nine). Under title 28, section 2254 of the United States Code, all federal courts have
jurisdiction to issue writs of habeas corpus.

The most common American use of habeas corpus today is as part of the appeals process after
conviction. Decisions by the Rehnquist Supreme Court and the Anti-Terrorism and Effective Death
Penalty Act of 1996 have limited its use, especially in capital cases.

16.SUSPENSION OF HABEAS CORPUS DURING THE

AMERICAN CIVIL WAR
Habeas corpus was suspended on April 27, 1861 during the American Civil War by President Lincoln
in parts of midwestern states, including southern Indiana. He did so in response to demands by generals
to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who
supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit
Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F.
Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. It must also be noted that after secession
from the Union, Jefferson Davis also suspended the Habeas Corpus and imposed martial law in the
confederacy. This was in part to maintain order and spur industrial growth in the South to compensate
for what it had lost when it seceeded.
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In 1864, Lambdin Milligan and four others were accused of planning to steal Union weapons and
invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their
execution was not set until May 1865, so they were able to argue the case after the Civil War. It was
decided in the Supreme Court case Ex Parte Milligan 71 U.S. 2 1866 that the suspension was
unconstitutional because civilian courts were still operating, and the Constitution (according to the
Court) provided for suspension of habeas corpus only if these courts are actually forced closed. This
was one of the key Supreme Court Cases of the American Civil War, which dealt primarily with
wartime civil liberties and martial law.

Civil War-era habeas corpus decisions have attracted renewed scrutiny since the beginning of the War
on Terror, in light of the Bush Administration's assertion of presidential authority to designate even
U.S. citizens as enemy unlawful combatants and hold them indefinitely, without criminal charges or
access to counsel.