Certiorari - Common Law and Commonwealth Jurisdictions

Common Law and Commonwealth Jurisdictions

At common law, certiorari was a supervisory writ, serving to keep "all inferior jurisdictions within the bounds of their authority ... the liberty of the subject, by speedy and summary interposition". In England & Wales and, separately in Northern Ireland, the Court of King’s Bench was tasked with the duty of supervising all lower courts, and had power to issue all writs necessary for the discharge of that duty; the justices of that Court appeared to have no discretion as to whether it was heard, as long as an application for a bill of certiorari met established criteria, as it arose from their duty of supervision. "The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion". As Associate Justice James Wilson, the person primarily responsible for the drafting of Article III of the United States Constitution, explains:

In every judicial department, well arranged and well organized, there should be a regular, progressive, gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

An arrangement in this manner is proper for two reasons:
1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system.
2. It confines and supports every inferior court within the limits of its just jurisdiction.

If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible.

Consistent with Justice Wilson's explanation, the power to issue writs of certiorari is invested in the highest court of every Commonwealth jurisdiction, in some way, shape, or manner. While some incorporate this remedy into their Constitutions, e.g., India, others treat it as an implied power of superior courts. E.g., Australia. But in all Commonwealth jurisdictions—as distinguished from its American counterpart—it has evolved into a general remedy for the correction of plain error, to bring decisions of an inferior court or tribunal or public authority before the superior court for review so that the court can determine whether to quash such decisions.