CERTIORARI

Introduction
The writ of certiorari, by which an appellate court decides to review a case at its discretion.
The word certiorari comes from Law Latin and means "to be more fully informed." Certiorari is a
writ or an order which is sent by a higher - such as the Supreme Court to a lower court ordering
the latter to give transcripts and the related documents for a specific case for review by the higher
court. In most countries, the writ is usually issued from the highest court in the land following a
request applied by a petitioner. However, the decision whether to grant or to deny the writ is
usually a judicial discretion.

This paper discusses the definition and proceedings of the writ of certiorari as well as its
origin and purpose.

Definition of the Writ of Certiorari

The writ of certiorari has been variously defined. As it is laid down in Tidd’s Practice by
the Supreme Judicial Court of Massachusetts defines it as: “A certiorari is a writ issued from a
superior court to an inferior court, tribunal or officer exercising judicial powers, whose
proceedings are summary or in a course different from the common law, commanding the latter to
return the records of a cause pending before it to the superior court”1.

In Bacon’s Abridgement, it is defined as follows: “A certiorari is an original writ issued

out of chancery or the king’s bench, directed in the king’s name to the judges or officers of inferior
courts, commanding them to return the records of a cause depending before them, to the end that
the party may have the more sure and speedy justice before him, or such other justices as he shall
assign to determine the case.”2

Certiorari is a common-law writ. However, in the Official Gazette of the Republic of the
Philippines, certiorari is described as a remedy designed for the correction of errors of jurisdiction
– it is not a remedy designed for the correction of errors of judgement3. Certiorari will not be issued
to cure errors by the trial court or quasi-judicial body in its appreciation of the evidence of the
parties, and its conclusions anchored on the said findings, and its conclusions of law.4 Indeed, it is

1
Farmington River W. P. Co v. Berkshire County Comrs. 112 Mass. 206; Tidd, Practice, 397
2
Bacon, Abr. Certiorari, title (A).
3
Official Gazette. Republic of the Philippines, Volume 105, Issues 25-30, (June, 2009). National Print.
Office., 2009
4
Suyat, Jr. vs Torres, 441 SCRA 265
a remedy narrow in scope and inflexible in character but the rules are somewhat more flexible than
at common law.

Origin:
The writ of certiorari has been utilized over time for various functions. Generally, the writ
of certiorari was used to furnish a court with records from another court or tribunal. It was ‘a royal
demand for information’5. ‘Certiorari volumus’ which means ‘we wish to be informed’ are the
actual words in the writ. In 1272, the traditional phrasing of ‘certis de causis’ first appeared6. This
way, cases and records might be moved from the local courts to the King’s Bench or the Common
Pleas or in between the two courts.

From 14th to the 17th century, its purposes has expanded. However, the discretionary
nature of certiorari was and still is a significant characteristic. The writ was granted by the grace
of the king. While in 1414, the writ was granted as a matter of course upon the application of an
official.

After the subjugation, the writ of certiorari was soon utilized to move cases and records
from the various local courts, such as the shire, hundreds and manorial courts to the royal courts.
Although many of the administrative divisions of the country were adopted by Normans, the curia
regis was a new development. To move business to the royal courts, the writs of pone, recordari
facias and praecipe were used, from which the writ of certiorari evolved. “The principle of
certiorari is indeed very old in our law; for it is, in essence, little more than a development of the
ancient Pone.”7

The writ was used to attain records from courts and ‘escheators, coroners, chief justices, treasurers,
Barons of the Exchequer, mayors of boroughs and the clerk of the Common Bench’8. Hence, the
writ of certiorari, unlike most other writs was rarely addressed to the sheriff. Originally of course
it was used to execute the direct orders of the Crown.

From about 1280, the writ was in use9.

A case in 1326 indicates a connection between certiorari and habeas corpus. A writ of
certiorari had been issued to ascertain the cause of arrest of a man called Henry. As follows:

At 1292:

5
De Smith, The Prerogative Writs, 11 Cambridge L. J. 40 1951, p. 45
6
See a letter written in 1252 from Henry III, in S.A. Smith, The Prerogative Writs, 11 Cambridge L. Rev.
43 (1951) p45
7
Jenks, Prerogative Writs in English Law, 32 Yale L.J. 529 (1923)
8
De Smith, The Prerogative Writs, 11 Cambridge L. J. 40 1951, p. 46
9
Goodnow, The Writ of Certiorari, Poli. Sci. Q. 6 1891 p. 500
 “We therefore, wishing to be certified upon your afore-said deed and for justice to be
done in this matter to the afore-said Martin, if he has been wronged in any way, command
you, the bishops aforesaid, to send us plainly and openly under your seal the record and
process of the aforesaid assize, taken before the aforesaid John and his aforesaid fellows,
which we caused to come before you for the aforesaid reason, and this writ, so that we may
have them a fortnight after Michaelmas ... in order that, having examined the aforesaid
records and processes, we may cause to be done in the afore-going matters what by right
and according to the law and custom of our realm ought to be done.”10

Connection to Habeas Corpus 1326:

And because the king sent word to his justices here that, after examination of the
cause of Henry's arrest and detention, further etc. what they think should be done etc., the
sheriffs of London are ordered to have the body of Henry before the king at Westminster this
instant Tuesday at the Octave of St. John the Baptist to do and receive what the court etc.
[sic] At that day the sheriffs sent here before the king the body of Henry...… And after
examination of the cause of the arrest and detention, it seems to the court here that the cause
is insufficient etc. Therefore Henry of Wellingborough is released by the mainprise of Henry
Basset, Peter of Newport... who undertook to have Henry of Wellingborough before the
king…11

Until this time, certiorari was used as a means to solidify the central government, and also
to establish the King as the fount of justice to rectify wrongs done to his subjects by the common
law. In the same vein however certiorari was used as a vehicle to allow suit against the government.

By the 13th century, certiorari was used specifically for reviewing errors; proceedings in
error developed in parallel with certiorari. Certiorari was wider than a writ of error as it could be
addressed to judicial tribunals but also could quash convictions.

Before 1500 through certiorari the King’s Bench could use the writ to quash criminal
judgments as the writ was used to review indictments. Towards the end of the 16th century, this
procedure of procuring records and reviewing them was extended to administrative bodies. In a
sense, this can be seen as a seed for administrative or judicial review. This review was well
established by the end of the 17th century in issues such as licensing.

The review power was limited however. Purely ministerial decisions which did not have a
judicial aspect could not be reviewed and an issue could be examined only for ultra vires. There
was no new trial. For example in Gardener’s Case (1600) Cro. Eliz. 82112 it was decided that a
summary conviction tainted with irregularity could be removed into the King’s Bench and
quashed.

After 1660, the use of certiorari diminished somewhat after the abolition of the Star
Chamber. Before 1660, it had served the purpose of bringing proceedings of the justices, and of
subordinate tribunals generally, before the King’s Bench for review (9). It was most frequently

10
Sayles, Select Cases in the Court of King’s Bench under Edward I 3-4, p 87
11
Sayles at p. 165
12
ibid
used to remove a case when for some reason it was believed that an impartial trial could not be
had. However, the parliamentary establishment of new offices and duties for judges refreshed the
use of certiorari quickly.

In the 19th century the power of certiorari declined as decisions were taken by local elected
bodies whose actions were not seen as judicial. In the 20th century, the growth of the welfare state
spurred the development of administrative bodies which were brought under judicial supervision
of certiorari through relaxing the concept of ‘record’.

Purpose:
The purpose of certiorari has been developed over time. From the 14th to the 17th century,
the purposes of certiorari have been: (1) to supervise proceedings of specialized inferior courts like
admiralty, forests, etc., (2) to obtain administrative information, (3) to bring before chancery or
the courts various documents and to remove coroner’s indictments to the King’s Bench. These
purposes later expanded into reviewing actions taken by statutory bodies which acted in a judicial
function.

The discretionary nature of certiorari was and still is a significant characteristic. The writ
was granted by the grace of the king. However, it appears that by 1414 the writ was granted very
much as a matter of course13 upon the application of an official.

Process:
Conclusion:

13
Jerome J. Hanus, Certiorary and Policy-Making in English History, American Journal of Legal History, 12
1968 63