PUBLIC INTEREST LITIGATION: A TOOL TO PROTECT FUNDAMENTAL RIGHTS

By
ABDUS SATTAR ASGHAR,
Judge,
Lahore High Court, Lahore

Black's Law Dictionary defines public interest litigation as a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. The concept of public interest litigation provides opportunity to all the citizens to have inviolable access to justice for the protection and enforcement of fundamental human rights to life and liberty.

2. In a leading public interest litigation case titled Muhammad Bin Ismail Vs. Tan Sri Haji Othman Saat, (1982-2 MLJ-133) Justice Wan Yahya (Malaysia) laid the dictum as under:--

"If they (public authorities) transgress any law or constitutional directive, then any public-spirited citizen, even if he has no greater interest then a person having regard for the due observation of the Law, may move the Courts and the Courts may grant him the appropriate legal remedy in its discretion"

3. In the constitutionally governed states, judiciary is provided pivotal role of protection and enforcement of the fundamental human, constitutional and statutory rights. To frame a constitution for the new born state of Pakistan founder of the nation Quaid-e-Azam Muhammad Ali Jinnah envisaged that if we want to make this great state of Pakistan happy and prosperous we should wholly and solely concentrate on the well being of the people and especially of the poor. After striving hard for constitutional development in Pakistan the people of Pakistan were ultimately successful in securing fundamental rights under the umbrella of Objectives Resolution in a democratic arrangement through the Constitution of Islamic Republic of Pakistan, 1973.

4. In the constitutional scheme the judiciary in Pakistan is entrusted an optimistic role to protect and ensure enforcement of fundamental rights conferred by Chapter-1 of Part-II of the Constitution. However, during a long history of ups and downs in the constitutional experience of Pakistan, enforcement of fundamental rights, rule of law and supremacy of the constitution always remained a challenge before the Superior Judiciary of Pakistan. While confronting Martial Law regimes for about 26 years in its history of 64 years during proclamations of emergency and suspension of fundamental rights when the constitution was held in abeyance the Supreme Court have been struggling despite all odds, to make it possible to protect and enforce the fundamental rights.

5. The Judicial system in Pakistan at the Federal, Provincial and District level throughout has confronted numerous challenges in order to redress the grievances of the litigant public. For the judiciary in Pakistan it always remained an uphill task to make justice accessable to the people the majority of whom are illiterate and ignorant of their fundamental rights. The poor social and economic condition of the major segments of the society maintains a gap between the existence of their public and private rights and the ability to vindicate those rights to their needs. The legal services in Pakistan therefore have not been able to provide ample service to the poor segments of the society as compared to those having power to make the system respond to their advantage.

6. Since decades we are earnestly pursuing adversarial justice system in Pakistan at all tiers of the Judicial hierarchy, despite being mindful of the changes in new societal development necessitating a march towards gradual shift from mechanical Justice to human welfare social justice. In the cases of infringement of fundamental rights, even involving a question of public importance, our superior Courts have been earnestly guarding the long standing concepts of 'other adequate remedy provided by Law' and 'aggrieved person' while assuming the extra ordinary jurisdiction to issue Writs and Orders Under Article 199 and 184(3) of the Constitution.

7. When the Supreme Courts in many countries were making efforts to use public interest litigation for the purpose of securing human rights for the common people and to provide justice to the deprived sections of the society, we were apprehending that such an attempt in Pakistan may blur the distinction amongst organs of the state. At that crucial juncture, to the good-luck of people of Pakistan the principles and the provisions set out in the Objectives Resolution were made a substantive part of the Constitution through insertion of Article 2-A. Thus, for the first time in the constitutional history of Pakistan a sincere effort was made to set a goal to achieve the object of Islamic social and economic justice. While utilizing this important tool to activate the object of protection and enforcement of fundamental rights, the then Hon'ble Chief Justice of Pakistan Mr. Muhammad Haleem, took an opportunity to render a dynamic constitutional interpretation in the famous case of "Miss Benazir Bhutto Vs Federation of Pakistan" (PLD 1988 SC 416) by delivering a land mark Judgment. While interpreting the terms locus-standi, bona-fide representation, fundamental rights and public importance it laid down cardinal principles for the Supreme Court to exercise power and jurisdiction under Article 184 (3) in public interest litigation. It also clarified other various dimensions relating to the concept of public interest litigation. Pin pointing the weakness of the existing judicial system based on adversarial/traditional litigation Hon'ble Chief Justice Mr. Muhammad Haleem aimed to provide access to justice to all people of Pakistan, based on public interest litigation.
It was a remarkable contribution to open the doors of social justice system closed to the poor by the inherited/traditional Anglo-Saxon legal system.

8. In this leading judgment the Hon'ble Chief Justice Muhammad Haleem while quoting the pioneering Indian case on public interest litigation "S.P Ghupta versus V.M. Tarkunde" (AIR 1982 SC 149) also observed that through purposive and creative interpretation of the constitution the Indian Supreme Court is succeeded in reaching its objective of bringing Justice within the easy reach of the people which has made it possible in India for a bona-fide member of the public to bring a case enforcing the fundamental rights of a class or group of people. The Hon'ble Chief Justice thus dealing with the issue of locus-standi maintained that where there are violations of fundamental rights of a class or a group of persons who are unable to seek redress from the Court, then the traditional rule of locus-standi can be dispensed with, and the procedure available in public interest litigation can be made use of, if it is brought to the notice of the Court by a person acting bona-fide.

9. This judgment also laid the principle that when faced with cases of public interest procedural requirements were to be relaxed in contrast to the dictum laid down in the case of “Ch. Manzoor Elahi versus Federation of Pakistan" (PLD 1975 SC 66) that ordinarily the forum of the Court in the lower hierarchy should be invoked first. In order to combat delay in the disposal of public interest litigation it was held that procedure rules in cases seeking the enforcement of fundamental rights should be treated flexibly as the Article 184(3) did not specify any procedure to be followed rather nature of the procedure should be judged in light of the purpose i.e. enforcement of fundamental rights. To reach to the conclusion in this land mark judgment the Hon'ble Chief Justice Mr. Muhammad Haleem also took reliance upon an earlier judgment by Hon'ble Chief Justice Hamood-ur-Rehman in the case of "Miss Asma Jilani Versus Govt. of the Punjab" (PLD 1972 SC 139) where in it was laid down that the law cannot stand still. Nor can the judges become mere slaves of the precedents and that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave in justice is likely to occur by strict adherence to the rule.

10. Benazir Bhutto case has settled that in the cases of public importance involving protection and enforcement of fundamental rights the principle of relaxation of strict procedural requirements is not restricted to the matter affecting the rights of a group of people but is also extendable to the cases involving individual rights of like nature. It can therefore be safely said that Benazir Bhutto case has opened the doors of the superior Courts to the public interest litigation in order to provide access to justice to all, an internationally recognized human right.

11. In this way, the Supreme Court of Pakistan keeping its solemn Oath to protect and preserve fundamental rights manifested a new approach to the interpretation of the constitution. Instead of earlier precedents of a restrictive approach the concept of bona-fide representation seeking enforcement of fundamental rights of other groups of people was introduced to provide justice to the under privileged segments of the society. The foundation Judgment in Miss Benazir Bhutto case has therefore created a new form of litigation in public interest to protect fundamental rights and to provide justice to the weaker sections of the society. It was a first consolidated attempt to lay down the principles of public interest litigation in Pakistan furnishing a new approach to the interpretation of the constitution to achieve the goals of equality and social justice in the under developed democracy of Pakistan.

12. Following the dictum laid down in Miss Benazir Bhutto case (PLD 1988 SC 416) the Superior Courts in Pakistan have scaled a remarkable distance in the field of public interest litigation. The parameters on public interest litigation laid down in the said Judgment proved its worth and stood to the test of time in providing remedy to the wrongs done to the poor, unprivileged people and weaker segments of the society. A few examples are enumerated as under:--

(1) In the case of Dashan Masih Vs. The State (PLD 1990 SC 513) Hon'ble Chief Justice Mr. Muhammad Afzal Zullah, taking cognizance of violation of fundamental rights on a telegram by some brick-kiln bonded labourers regarding their illegal detention by Employers with a request to get them released of this practice, found it a fit case of enforcement of fundamental rights to be heard by the Supreme Court under the jurisdiction conferred under Article 184(3) of the Constitution. The case was heard on successive dates of hearing using the technique of "rolling review" and ultimately the necessary relief was granted.

(2) In the case of Ismail Qureshi Vs. M. Awais Qasim (1993 SCMR 1788) the Supreme Court opted to hold an Inquiry into the issue of student politics and taking note of disturbance caused to other students activities passed an order banning political activities in the Universities converting the proceedings from adversarial to inquisitorial as a matter of public interest litigation.

(3) In the case of Shehla Zia vs. WAPDA (PLD 1994 SC 690) the Supreme Court taking cognizance under Article 184(3) of the Constitution entertained the complaint lodged through a letter regarding violation of fundamental rights indicting her grievance regarding presence of high voltage transmission lines at the grid stations posing serious threats to the health of the residents of the locality treated it a violation of fundamental rights and granted the appropriate relief in the public interest.

(4) In the case of Syed Wasey Zafar Vs Government of Pakistan (PLD 1994 SC 621) various petitions filed by individual users and Car dealers of Public Transport Yellow Cab Scheme being aggrieved of various policies and directives of the Government violative to the fundamental rights invoked the constitutional jurisdiction of the Supreme Court under Article 184(3). The Hon'ble Supreme Court taking into consideration the object of the public transport scheme through out the Country held that the case involved a question of public importance. It manifested scope of Article 199 conferring jurisdiction to the High Courts as well as the jurisdiction conferred upon the Supreme Court under Article 184(3) of the constitution for the enforcement of fundamental rights. In this case also an adequate order was passed in the interest of public at large.

(5) In the case of Al-jahad Trust Vs Federation of Pakistan (PLD 1996 SC 324) it was held that the petitioners had locus standi to lodge petitions under Article 199 as the constitutional question raised are of great public importance as to working of the Judiciary as an independent organ of the state. Simultaneously, it was held that the Supreme Court can also take suo moto cognizance under Article 184 (3) of any matter involving a question of public importance with reference to enforcement of fundamental rights.

(6) In the case of Malik Asad Ali and others Vs. Federation of Pakistan (PLD 1998 SC 161) it was held that trappings and constraints envisaged in Article 199 of the Constitution on the exercise of powers by the High Courts are not applicable on the Supreme Court under Article 184(3) of the Constitution. Therefore while dealing with a case under Article 184(3) of the constitution the Supreme Court by virtue of Article 187(1) of the constitution would be competent to issue direction or order which may be necessary for doing complete justice in the case. It was also held that the applicant under Article 184(3) need not necessarily be an aggrieved person.

(7) In the recent two years (from March-2009 to February-2011) the Human Rights Cell established in the Supreme Court of Pakistan received 1,39,906 complaints. After due process of obtaining reports from concerned public authorities 85,489 complaints stands disposed of with redressal of their grievances. Hon'ble Chief Justice Iftikhar Muhammad Chaudhry also entertained 87 Human Rights cases on judicial side. In 58 cases out of them grievances were redressed. Relief was also given in a number of public rights litigation cases including cases of Suo moto jurisdiction. Out of those a few famous cases are as under:--

(i) General Secretary West Pakistan Salt Minors Labour Union (CBA) Khewra Vs. Director Industries and Mineral Development, Punjab, 1994 SCMR 2061

(ii) Muhammad Fareed Vs. The State (Suo Moto case against Smoke Emitting Vehicles in Karachi) 1996 SCMR 543

(iii) Wattan Party Vs. Federation of Pakistan (Steel Mill Case) PLD 2006 SC 69

(iv) Moulvi Iqbal Haider Vs. Capital Development Authority (Mini Golf in Jubilee Park Case) PLD 2006 SC 394

(v) Human Rights case No.15283-G of 2010 (Action taken on news clipping regarding Fast Food Outlet in F-9 Park, Islamabad)

13. Bare survey of the above cited Case Law on the public interest litigation in Pakistan makes it crystal clear that object of co-terminous Articles 199 and 184(3) of the Constitution remains enforcement of fundamental rights in the matters of public importance through Judicial Review of the public actions of the public authorities in the performance of their public duties. Therefore, it may be noted that in exercise of jurisdiction conferred under the above said both the Articles the paramount consideration before the High Courts and the Supreme Court should remain the redressal of the grievances of the poor, unprivileged and weaker sections of the society instead of protecting vested interests of the privileged classes having power and resources to attract the flow of justice In their favour in the garb of public interest litigation.

14. Public interest litigation is a valued form of litigation to protect the fundamental human, social and economic rights. As a sequel to the above discussion, salient features of the public interest litigation therefore can be summarized as under:--

(i) Ensures access to justice.

(ii) Makes public authorities accountable.

(iii) Enhances transparency in public actions.

(iv) Fulfills constitutional promises.

(v) Promotes confidence in use of Judicial Institutions.

(vi) Allows neglected public interests to be attended:

Basic Civic necessities and healthy environments etc.

(vii) Ensures protection to life, liberty, property of the citizens.

(viii) Ensures inexpensive and speedy justice to the poor, unprivileged, weaker people and sections of the society.

(ix) Makes the illiterate people conscious of their fundamental human rights.

(x) Enforces Rules of Law.

15. To conclude, it is suggested that in order to stream line and enhance the utility of the public interest litigation the Hon'ble Supreme Court may consider to add appropriate rules of procedure relating to public interest litigation in the Supreme Court Rules.

Lahore dated 12 April, 2011

BOOKS & REPORTS CONSULTED

► Constitution of Islamic Republic of Pakistan, 1973.

► Judicial Review of public actions by Mr. Justice (Retired) Fazal Karim.

► Public interest litigation in Pakistan by Werner Menski and co-authors.

► HRCP report-2010 on Public Interest Litigation.

► Case Law Digests

Read in National Judicial Conference Islamabad, 2011