JUDICIAL ACTIVISM AND
PUBLIC INTEREST LITIGATION IN PAKISTAN
Pakistan like many other countries (especially
among SAARC Region) is part of the developing world. The socio-economic
problems of Pakistan, to some extent, are similar to the problems and difficulties
being faced by other countries of the region ? notwithstanding the difficulties
faced by the Pakistani Judiciary owing to an unstable political environment. There is no doubt that the
demanding and self-evolving needs of our society require a more rapid, speedy
and newly evolved system for dispensation of justice. As Lord Denning once
wrote: -
"Law does not stand still. It moves
continually. Once this is recognised, then the task of the Judge is put on a
higher plane. He must consciously seek to mould the law so as to serve the
needs of the time."
In our brief history which spreads over just 60
years, Pakistan has seen several Constitutions . Additionally, for a large
fraction of time, the constitutions remained suspended due to successive martial
laws . The Courts derive their powers to dispense justice from the
Constitution, which is regarded as the fountainhead of powers for a Court of
law. This is only possible when there is a Constitution in the country which is
also in force. One can very well imagine a situation in which the Constitution
remains in abeyance most of the time, and when, very briefly, it comes into
force its provisions enforcing the fundamental rights are kept suspended. This
way the role of the judiciary is curtailed and its powers to enforce the
fundamental rights are fettered . This has led to the concentration of the
powers in the executive which has resulted in, what is now often called,
"Anarchy" or "State lawlessness" with the growing tendency
amongst the puppet parliamentarian and autocrat executives to curb the
individual's fundamental rights.
Once a Chief Justice of the Supreme Court of
Pakistan, Justice Muhammad Haleem while delivering a speech on his retirement
said: "The Supreme Court had always upheld rule of law". The next
morning a newspaper published a cartoon captioned, "The Supreme Court had
always upheld rule of law? even Martial Law".
CONCEPT OF JUDICIAL ACTIVISM:
"There's an old saying in the legal community:
"Bad facts make bad law." Activist judges continue to prove that bad
judges make bad law." Zafar Ali Shah v/s Federation of Pakistan
dramatically illustrated and upheld the real danger of judicial activism when
upholding the military coup by General Pervaiz Musharaf as the need of the time,
under the doctrine of "State Necessity. " This doctrine, it should be
noted, is not a part of the law; it is a rationale for evading or defeating the
law. Resort to it is, therefore, clearly an exercise in judicial activism.
Normally judges disavow activism. John G. Roberts,
the former Chief Justice of the United States, declared a few months ago that
judges were like umpires; they did not make the rules, they only applied them.
In actual practice some of them do occasionally become activists .
Still the view that the Supreme Court Justices (and
even other lower-ranking judges as well) can - and should - creatively (re)
interpret the texts of the Constitution and the laws in order to serve the
Judges' own considered estimates, of the vital needs of contemporary society
(as Constitution so demands), when the elected "political" branches
of the Federal Government and/or the various state governments and executives
seem to them to be failing to meet these needs, holds the field. On such a
view, the concept of activism is that judges should not hesitate to go beyond
their traditional role as interpreters of the Constitution and laws given to
them by others in order to assume a role as independent policy makers or
independent "trustees" on behalf of society. Like many catchwords,
"Judicial Activism" has acquired so many different meanings as to
obscure more than it reveals. It functions as a noun and means "The
practice in the judiciary of protecting or expanding individual rights through
decisions that depart from established precedent or are independent of or in
opposition to supposed constitutional or legislative intent."
With the passage of time and without prejudice to
the judgments given on military regimes, a continuous rigorous effort made by
activist judges, has rendered a refined legal instrument for speedy
dispensation of justice for the public at large, known as Public Interest
Litigation. The sensitivity behind Public Interest Litigation is to have a
legal way to safeguard the larger interest and good of the public, who owing to
destitution and deprivation are down trodden and struggling masses that can not
approach the courts. An activist judge should always be mindful of his duty to
protect and preserve the Constitution. Pakistan like other countries is built
on the principle of trichotomy of powers, i.e. the Judiciary, Executive and
Legislature (parliament), which have to perform their own designated functions
as enunciated in the Constitution of Pakistan, 1973 and no interference can be
made by the executive or the legislature to undermine the powers of judiciary
as interpreted by the Hon?ble Supreme Court in Zia-ur-Rehman's case .
JUDICIAL ACTIVISM IN PUBLIC INTEREST LITIGATION:
Public Interest Litigation is a refinement of legal
instruments to ensure speedy dispensation of justice. In simple words, it
means, litigation filed in a court of law, for the protection of "Public
Interest", such as pollution, terrorism, road safety, constructional
hazards, unlawful detention, illegal construction of a high rise building on
amenity plots, enforcement of fundamental rights etc. Public Interest
Litigation is not defined in any statute or in any act but this instrument has
been used and interpreted by activist judges to consider the interest of public
at large. Although, the main and only focus of such litigation is only
"Public Interest" but still there are various areas where a Public
Interest Litigation can be filed before the competent forum. For e.g.:
-Violation of basic human rights of the poor
-Content or conduct of government policy
-Compel municipal authorities to perform a public
duty.
-Violation of religious rights or other basic
fundamental rights.
THEORY AND ORIGIN OF PUBLIC INTEREST LITIGATION
The concept of Public interest litigation seems to
have emerged in the American legal system in the early 1960 at a time 'when the
liberal America came to examine what it was doing for its poor' . This was a
period of social unrest and new developments in society were posing new issues.
The meaning of the term 'Public Interest' is in a state of flux and what Public
Interest is at one time may not be so at another due to the change in
circumstances. This is a loosely defined term and it is quite difficult to
harness within the folds of a definition whatever it signifies but it's very
"flexibility is a source of strength in the hands of creative and
imaginative lawyers and judges as well as politicians and social
scientists" . This allows the process by which formal recognition is
granted to new areas as areas covered by the doctrine of Public Interest. Some
of the areas which have come within the folds of this term recently are unfair
trade practices, anti-trust laws, illegal practices by banks and financial
institutions, environment and discrimination on the basis of colour, sex or
nationality. Sir Jeck Jacob defines the Public Interest in the context of civil
litigation in these words:
"It consist in the procedural machinery which
may be employed to produce the relief or remedy or social effect which would be
most advantageous or result in the greatest good of the members of the public
as a whole or a significant or selected section of the public, while at the
same time producing a just result which is being sought by the litigant parties
themselves"
LEGAL FRAMEWORK OF PUBLIC INTEREST LITIGATION IN
PAKISTAN:
The initiative of public interest litigation can
properly be undertaken under the provisions of Article 184 (3) and Article 199
of the Constitution of Pakistan 1973, which reads as follows:-
"Art. 184 (3): Without prejudice to the
provisions of Article 199, the Supreme Court shall, if it considers that a
question of public importance with reference to the enforcement of any of the
Fundamental Rights conferred by Chapter I of Part II is involved, have the power
to make an order of the nature mentioned in the said Article".
Article 184 (3) of the Constitution read with
Article 199 (Writ Jurisdiction of High Courts) empowers the Supreme Court to
pass any appropriate order either Suo Moto or on an application under Art
184(3) ibid. There is no other limit or condition imposed on the Supreme Court
except that the appropriate order which is made should be for the
"Enforcement" of the "Fundamental Rights" conferred by
Chapter I of Part II of the Constitution. Broad outlines for taking such an
initiative were laid down by the Supreme Court in the case of Benazir Bhutto
namely (1) Supreme Court can exercise its powers to issue the writ when a
question of "public importance" is involved, (2) this power under
Article 184 (3) is not dependent only at the instance of the "aggrieved
party" in the context of adversary proceedings, but can be used in any
appropriate case and the traditional rule of locus standi can thus be dispensed
with and the same principle is in the field. The scope of Article 184 (3) was
explained as follows:-
"While construing Article 184 (3), the
interpretative approach should not be ceremonious observance of the rules or
usages of interpretation, but regard should be had to the object and the
purpose for which this article is enacted i.e., this interpretative approach
must receive inspiration for the triad of provisions which saturate and
invigorate the entire Constitution, namely, the Objectives Resolution (Article
2-A), the Fundamental Rights and the Directive Principles of State policy so as
to achieve democracy, tolerance, equality and social justice according to
Islam".
Similarly, under Article 199, the High Court of any
province is empowered to issue writ of mandamus, certiorari, prohibition, habeous
corpus and quo waranto, on the application of an "aggrieved party"
who has no other "alternate remedy" available in law. The word
"alternate remedy" has been interpreted by the Hon'ble Courts,
"as remedy available in terms of money and time i.e. if remedy provided by
law is less convenient, beneficial and effective in case of a legal right to
performance of a legal duty ."
In continuation the word "aggrieved
party" under Article 199 in context of public interest litigation has also
been interpreted generously and in more liberal sense, in 1969 the Supreme
Court opines, that a right in strict juristic sense is not necessary but it is
enough if the applicant discloses that he had personal interest in the
performance of the legal duty which if not performed or performed in a manner
not provided by law would result in the loss of some personal benefit or
advantage or the curtailment of a privilege or liberty or franchise .
The Supreme Court in Benazir case also declared
that for handling the cases of Public Interest Litigation the High Courts have
a broader scope under Article 199 of the Constitution as in those cases the
element of "Public Importance" is not essential and the High Courts
can take cognizance of a matter even if it is not a matter of public importance
but is related to enforcement of fundamental rights. The said issue of locus
standi, further in cases of high rise buildings in big cities and construction
of residential or commercial building on amenity land reserved for public parks
etc have been interpreted generously and Hon?ble Supreme Court observed that
requirement of locus standi as contemplated under Article 199 of the
Constitution is to have extended scope as this case is characteristic of public
interest litigation and the writ petitioners are pro bono publico .
Public interest litigation is an instrument for a
speedy dispensation of justice with an object to achieve socio-economic justice
for poor masses (Art 37 D) and in public interest to create equilibrium in the
society. In Part II, chapter 1 of the Constitution of Pakistan the fundamental
rights for the people and citizens of Pakistan are enshrined. However, Chapter
II of the same part contains the Principles of Policy for the guidance of
State, which runs from Articles 29 to 40 of the Constitution. It set downs the
fundamental rules which the various organs of the State have to keep in view
while making rules and implementing them for the benefit of public to achieve
socio-economic justice.
One of the paramount duties of the state, amongst
others, is to provide inexpensive and expeditious justice, (Art. 37 D) which is
the motto behind public interest litigation but only in respect of public
rights; admittedly these principles of policy only provide a guideline to the
State and under Article 7, the word "State" means legislature and
executive and it does not include judiciary. Hence the judiciary has no power
to direct the enforcement and implementation of the same but Supreme Court
opines that while implementing the principles of policy the State should not
make a law which abridges the fundamental rights. The principles of policy
should conform to and operate as "subsidiary" to the fundamental
rights. It was held that, "Law in the achievement of this ideal, has to
play a major role i.e. it has to serve as a vehicle of social and economic
justice, which the Court is free to interpret".
Similarly, the Lahore High Court in Nazam Khan v/s
Additional District Judge, Lyallpur creatively opines that, "The judiciary
which is not included in the definition of the State cannot direct the organs,
authorities, and persons included in the definition of the State to act in
accordance with the principles of policy. But this does not mean that the
Superior judiciary would not be able, on account of the said bar, either; (i)
to set down a rule for itself to follow the Principles of Policy; or (ii) to
declare it for the subordinate judiciary to act in accordance
therewith..."
EVOLUTION OF PUBLIC INTEREST LITIGATION IN
PAKISTAN:
Public Interest Litigation can be filed only in a
case where "Public Interest" at large is affected by, inter alia,
functionaries of the state from performing their obligations, honestly, fairly
and in public interest. The utmost important purpose of public interest litigation
is not enforcing the right of one individual against another, as happens in
case of ordinary litigation, rather such litigation is intended to promote and
vindicate public interest involving violation of constitutional and legal
rights of a large number of people, who are poor, ignorant, or in a socially or
economically disadvantageous position. Merely because only one person is
effected by state inaction is not a ground for Public Interest Litigation, the
courts would required to strike a delicate balance between various competing
interests before pronouncing judgments because in matters of public interest
litigation the court would not pronounce judgment upon respective rights and
obligations of parties arrayed before it, but would examine the questions
raised for a broader prospective of public interest .
However, the courts on the other hand have also
observed that with the introduction of Public Interest Litigation the concept
has become broader and "Public Importance / Interest" should be viewed
with reference to freedom and liberties guaranteed under the Constitution. When
there is an invasion of rights in a manner which raises a serious question
regarding their enforcement then, irrespective of the fact whether such
infraction of right or freedom of liberty is alleged by an individual or a
group of individuals, the court will interfere for its enforcement .
The concept of Public Interest Litigation has been
evolving day to day especially since the mid '80s and by now it is used as a
strong legal weapon for the protection, preservation and enforcement of rights
and privileges of deprived, destitute, and struggling people, enshrined in the
Constitution against the self-interested legal establishments. This concept was
first supported by the full bench of Hon'ble Supreme Court in Mohtarma Benazir
Bhutto's case. A petition under Article 184 (3) of the Constitution had been
filed by Benazir Bhutto as Co-Chairperson of the Pakistan People's Party to
challenge certain amendments which violated the fundamental rights of Freedom
of Association (Art. 18) and Equality before Law and Equal Protection of Law
(Art. 4). A preliminary objection as to maintainability of the petition was
taken on the ground of locus standi. The conclusion reached by the Court was
that there was no legal bar to a person acting Bona fide to approach a court
for the enforcement of the fundamental rights of a group or a class of persons
who are unable to seek relief from the court for several reasons.
The concept was further evolved in to
"Epistolary Jurisprudence" in Darshan Masih's case where the Hon'ble
Chief Justice of Pakistan received a letter from brick kiln labourers alleging
bounded labour and illegal detention by their employers. As prima facie, this
was a case of forced labour involving infraction of fundamental rights; the
matter was treated as a case falling in the category of Public Interest
Litigation and cognizance was taken by the Hon'ble Supreme Court under Article
184 of the Constitution. This being the first case of its nature where the
Hon'ble Supreme Court thought it necessary to clarify certain procedural and
other aspects of the matter which undoubtedly are related to the concept of
Public Interest Litigation.
The observation made by Justice (Retd.) Dr. Nasim Hasan
Shah, former President, SAARC law, on Public Interest Litigation "As a
Means of Social Justice" , can be of much help in understanding the
evolution of Public Interest Litigation in his era, and further fixing the
direction for the future development of the judicial initiative in the field of
Public Interest Litigation beyond the narrow mandate of Art 184 (3) of the
Constitution. His Lordship (as he was then) had cited ten examples of human
rights cases in which the Supreme Court has passed remedial orders. It is
interesting to note that these subjects have been identified from:
1.Large number of letters written by various
individuals and groups of persons against violation of human rights.
(Epistolary Jurisprudence)
2.Newspaper reports which indicated violations of
Fundamental Rights; (Suo Moto powers)
3.Matters coming before the Supreme Court, in
various cases, which involved also the violations of Human Rights and due
directions, were issued to initiate separate proceedings under Article 184(3)
in respect of those aspects.
The court has already passed some significant
orders in these Human Rights cases. To cite some examples, orders have been
made to:
(1)Eliminate malpractices in our educational
system;
(2)Afford protection to women of any origin
(Pakistan or Foreign) subjected to any sex-related offences and to stop the
menace of obnoxious calls to them;
(3)Protect the property rights of female heirs /
owners by issuance of directions to the Attorney General to take steps to amend
the relevant existing law, or to cause fresh legislation to be initiated for
securing their rights (PLD 1990 SC 1);
(4)Prevent exploitation of the children by
restraining the authorities from taking them to public places for reception of
dignitaries. It has also ruled that children shall not be forced to undertake
any such work which under the law is only to be done by the labour force;
(5)Suspended all restrictions imposed against
Nurses working in Military Hospitals and Air Hostesses of Pakistan International
Airlines to getting married while in service;
(6)Stayed public hangings as being contrary to the
Constitutional provisions guaranteeing dignity of man;
(7)Issued guidelines for controlling the traffic
muddle in Karachi;
(8)Checked the practice of extortion of money by
railway staff from the passengers travelling in the Samjhota Express (train
running between Pakistan and India) and appointed a Commission of Advocates and
Human Rights Activists to monitor the situation;
(9)Directed the Federal and Provisional Governments
to stop making appointments against the recruitment rules, a practice which was
in violation of the fundamental right of equal opportunity for all citizens to
enter upon a profession; and
(10)Issued guidelines to be observed by the
authorities to check environmental pollution caused by fumes of motor vehicles,
deforestation, open sewerages, dumping of nuclear waste etc.
A careful study of the subjects cited above would
disclose the significant fact that the cases did not involve violations of
fundamental rights as contained in Chapter 1 of Part II of the Constitution
but, as rightly observed, were matters related to Human Rights. Thus the
jurisdiction exercised by the Supreme Court was not essentially confined to Art
184 (3) of the constitution but was a much wider exercise of judicial
discretion to provide social justice to the citizens and all this has been done
under Public Interest Litigation.
The evolution goes on in providing social justices
to the citizens in the field of environment as evident from the land mark
Judgment of Shehla Zia where Shehla Zia, a human rights activist filed a
petition against the construction of the grid station in the alleged green belt
of the locality in Islamabad by cutting trees and causing hazards to the lives
of residents in that area. Justice Saleem Akhtar, (delivering the main
judgment) in order to exercise jurisdiction under Art 184 (3) interpreted the
word "Life" (Art. 9) and opined that it covers all facets of human
existence and includes all such amenities and facilities which a person born in
a free country is entitled to enjoy with dignity, legally and constitutionally.
It will not be out of order to proudly mention that Justice Saleem Akhtar (as
he was then), thereafter, suo moto took cognizance of a number of issues of
public importance on environmental issues such as the smoke emitting case,
Balochistan mining and issued a number of directions therein.
The word ?life? was thereafter interpreted so
generously that it also included the right against environmental degradation,
impure foods and right to live in a clean, healthy and pollution free
environment .
The recent pronouncement by full bench of the
Hon'ble Supreme Court in Pakistan Steel Mills case has really expanded the
domain of Public Interest Litigation. Hon'ble Chief Justice of Pakistan
Iftikhar Mohammad Chaudhry, (writing the main Judgment) while considering the
discretion exercised by the privatization commission in the privatization of
the Pakistan Steel Mill expanded the scope of interference of the courts in
pure policy matters taken by the Executives, on the established principle of
judicial review on grounds of legality, transparency, and Reasonableness and
upheld the application of Wednesbury principle in our legal domain. It was also
held that faced with such a situation a Constitutional Court would be failing
in its constitutional duty if it does not interfere to rectify a wrong, more so
when valuable assets of the nation are at stake.
I personally believe that such decisions of the
Hon'ble Supreme Court amount to a conscious light from a rising sun towards a
socio-economic democratic state emphasizing and adopting means to implement the
rights of the under-privileged and the have-nots to bring the rule of law, with
a positive view to stabilize and bring equilibrium amongst the rights of people
and an attempt to defy the old proverb ?"law governs the poor and the rich
govern the law". It is worth mentioning here that the role of Chief
Justice Iftikhar Mohammad Chaudhry, is of an activist fighting for the
betterment of the socio-economic status of the society as evident from the
recent suo moto actions initiated.
I believe that such actions and judgments are
assumed to be a direction to educate the Judges of the inferior courts as well
i.e. High Courts of the respective provinces, to evolve the scope and
application of Public Interest Litigation within the domain of Art 199 of the
Constitution.
JUDICIAL ACTIVISM: A BANE OR A BOON?
The Pakistani Judiciary despite an over-arching
unstable political environment faces many difficulties to provide access to
justice to its citizens, due to expensive and dilatory court proceedings,
amounting backlog of cases, corruption, threats to judicial independence,
endless bureaucracy coupled with lack of qualified lawyers and judges, which
admittedly has given an advantage to the more privileged parts of society
(those with money and political influence) over the weaker lot.
Judges in Pakistan may have at times struck down a
law on the ground that it was repugnant to the Constitution. More often they
have declared as void specific actions of government agents, because these
violated the Constitution or a relevant law but on other occasions they have
validated not merely violations but abrogation and suspension of the
Constitution. One may ask that on such activism who will judge the judges,
whether judges acted in accordance with the parameters of the Constitution, and
if the Constitution was in abeyance whether they were bound to act as an
activist against the public interest.
Anwer Saeed observed that if Constitution should be
a "living" guide to action, that if it was made a long time ago, and
if the society's problems and ways of thinking have changed since then, it may
be remade through judicial re-interpretation so that it may continue to be of
use in the changed circumstances. I do not accept this argument. In a democracy
the making of a Constitution and laws is a prerogative of the people to be
exercised by their representatives in a legislature. If and when judges
re-write the Constitution or make laws in the process of interpreting them,
they usurp the legislative function.
An ill-founded judgment by activist judges can
change the view of the general people, and one might even agree with Thomas
Jefferson that the Constitution should be revised every 25 years or so to
enable the new generations that have come of age to subscribe to it, instead of
judges assuming the role of legislators and thus subverting the system of
governance that the founders had put in place.
CONCLUSION:
It is a fact that a Public Interest Litigation is
not in the nature of adversary litigation but is a challenge and an opportunity
to the Government and its officers to make basic Human Rights meaningful to the
deprived and vulnerable section of the community and to assure them social and
economic justice. Let us see whether we as a nation can achieve this goal or if
we leave it (like our ancestors did) for the upcoming generation to ponder
upon.
Falak Sher Bhati
Advocate
Kasur
Chamber
No 96-97
District Bar
Association Kasur
