public interest letigation - hrcp seminar report
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IIIPublic Interest Litigation
Scope and Problems
-- Report of an HRCP seminar
March 28, 2010
Human Rights Commission of Pakistan
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Published by Human Rights Commission of Pakistan
Aiwan-i-Jamhoor, 107-Tipu Block
New Garden Town, Lahore-54600Tel: 5838341, 5883579, 5864994 Fax: 5883582
Email: [email protected]: http:\\www.hrcp-web.org
Jacket designed by Visionaries Division
Printed at Anwar Fayyaz PrintersMission Road, Lahore
ISBN: 918-969-8324-35-3
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Summary
The Human Rights Commission of Pakistan (HRCP) organised a seminaron “Public Interest Litigation” on the occasion of its Annual General Meeting
on March 28, 2010.
Eminent jurists -------- Mr. Prashant Bhushan from India and Justice (Retd.)Nasir Aslam Zahid, Ms. Hina Jillani, Justice (Retd.) Tariq Mehmood andMr. Mansoor Hassan Khan from Pakistan -------- dwelt at length on various aspectsof suo motu jurisdiction of courts in India and Pakistan and the associated
concept of judicial activism. Mr. Ghazi Salahuddin, HRCP vice-chair for Sindh,moderated the seminar.
It was noted that despite the prevailing enthusiasm for invoking suo motujurisdiction by courts, no criterion was available as to when such jurisdictioncould be exercised. This led to the courts’ picking and choosing such cases in
their discretion, while substantially similar matters were not taken up. It wasstressed that a judge’s discretion should not be the sole criterion for initiating
suo motu proceedings.The speakers and panelists agreed that misuse andmotivated use of public interest litigation and attempts to use public interestlitigation for populist pursuits have undermined the concept. However, therewas a consensus that arbitrary actions in the name of public interest litigationdo not justify calls for doing away with such jurisdiction. It was stressed that a
consistent criterion must be laid down specifying when such jurisdiction canbe invoked, instead of exercise of arbitrary discretion by the judges.
The participants said as judges struggle to cope with existing workload of
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cases, resorting excessively to public interest litigation to deal with issues whereinterest of the public at large is not at stake per se is not advisable. They saidthat the judge must not try and substitute the views of the executive with thoseof his or her own in the name of public interest litigation and undue reliance onpublic interest litigation should not lead to any weakening of other democraticinstitutions.
They stressed the importance of judges speaking through detailed writtenjudgements, instead of making verbal observations and short orders. Theysaid that as with other judicial cases public interest litigation matters shouldculminate in detailed judgements explaining the reasons for the decision anda case’s link to human rights and public interest. They said the scope of publicinterest litigation is not well charted and there is a need to understand the aim
of public interest litigation beyond the stated objective of public welfare. It wassuggested that the constitution should have a distinct chapter on public interestlitigation, detailing the scope of its exercise.
The speakers and panelists concluded that the judiciary should only invokejurisdiction under public interest litigation in instances where the interest ofthe public at large is at stake, and they should only issue orders that they canimplement.
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Speakers and panelists
Keynote Speakers
Prashant Bhushan is an advocate of the Supreme Court of India and a
noted public interest and civil liberties lawyer. He has been actively associated
with NBA, Enron and Jain Hawala cases. Mr Bhushan has been involved in the
Campaign for Judicial Accountability since 1991, has been an active member
of the Committee on Judicial Accountability and subsequently the Convenor of
the Campaign for Judicial Accountability and Reforms which was set up in
early 2007.
Justice (r) Nasir Aslam Zahid is one of the most respected names in
Pakistan’s judiciary. He served as the Chief Justice of the Sindh High Court
and a judge of the Federal Shariat Court of Pakistan and the Supreme Court
of Pakistan. In 2000, he opted to resign from the Supreme Court of Pakistan
instead of taking the oath of office according to Gen. Pervez Musharraf’s
Provisional Constitutional Order (PCO).
He is deeply involved in human rights issues and judicial education, and
has spent much of his time since retirement on dealing with human rights
issues, especially women’s legal concerns. He is currently involved in projects
for providing legal aid to prisoners confined in all the 22 prisons of Sindh.
Justice Zahid heads Pakistan’s first legal aid call centre, being run as a
public-private partnership under the banner of All Pakistan Women ’s
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Association. He is the Dean Faculty of Legal Studies and has been head ofHamdard School of Law at the Hamdard University, Karachi since October
2000.
Panelists
Justice (Retd.) Tariq Mehmood was a judge of the Balochistan HighCourt till he was squeezed out following his resignation as a member of theElection Commission of Pakistan on account of his rejection of Gen. Musharraf’sdecision to hold the controversial presidential referendum of 2002. He is arenowned leader of the lawyers’ movement and a former president of the
Supreme Court Bar Association of Pakistan. Justice Mehmood was among thelawyers’ leaders who were arrested and detained with their families after General
Musharraf imposed a state of emergency on November 03, 2007.Hina Jilani is a well known advocate of the Supreme Court of Pakistan
and a civil society activist for peace, human rights and women’s rights in Pakistanfor the last three decades. She specialises in human rights litigation and, in1980, co-founded Pakistan’s first all-female legal aid practice, AGHS Legal AidCell. In addition to providing pro bono legal aid, she also helped set up ashelter for women fleeing violence and abuse, called Dastak, in 1991.
Ms Jilani is a founding member of Women’s Action Forum, a founding
member and former Secretary-General of the Human Rights Commission ofPakistan and a former vice chairperson for HRCP in Punjab. In addition to heraffiliation with the United Nations Center for Human Rights, the Carter Center,and the UN Conference on Women, she was the Special Representative of the
UN Secretary-General on the situation of human rights defenders from 2000to 2008.
Mansoor Hassan Khan is an advocate in the High Courts of Pakistan.He received LLM degrees from University of London and Harvard Law School.Mr Khan is the author of “Public Interest Litigation: Growth of the Concept and
its Meaning in Pakistan”. Recently he challenged in a public interest litigationcase sale of government interest in a bank and the Supreme Court has issuednotices to the respondents. The present focus of the law firm headed by MrKhan is on commercial law.
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The Seminar reportAsma Jahangir, HRCP Chairperson
Opening the discussion Asma Jahangir said the Commission had arrangedthe seminar in view of the direct link between public interest litigation andhuman rights issues. She said that there was a debate in Pakistan about the
Asma Jahangir inaugurates the seminar
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parameters of justice and what was being done to deliver justice to the peopleat their doorstep. She said the focus of the discourse on public interest litigation
was on the discretion of the judges and on establishing a mechanism for
accountability of judges in terms of performance and conduct, including cases
where bias was suspected.
Ms Jahangir said that a perusal of superior court judgements demonstrated
many examples of bias among judges against women and minorities, among
other things. She cited a recent statement by the chief justice of the Lahore
High Court blaming Hindus for the ongoing wave of terrorism in Pakistan. She
said judicial activism and public interest litigation were closely interlinked. She
said people were willing to overlook mistakes by judges when their integrity
was above board but suspicions arise in exercise of public interest litigationjurisdiction when issues of integrity were in question.
She said the discussion on public interest litigation was meant to share
experiences on both sides of the India-Pakistan border and that the debate
could later on be taken up at the South Asia level because there seemed to be
a crisis of justice in the whole region.
Ms Jahangir called judiciary the backbone of democracy, which needed to
be made independent. She said the Human Rights Commission of Pakistan
did not have a position as such on the subject, except for emphasising that the
judiciary should be independent, above board, and it might be political-minded
but not politicised. She said that public interest litigation should be used to
give benefits to the deprived and not for any individual agenda. Judgements
should be based on justice and not on populist opinion, she added.
Justice (r) Nasir Aslam Zahid
Justice Nasir Aslam Zahid cited numerous examples of resort to public
interest litigation in Pakistan and analysed the follow-up action. He said public
interest litigation referred to a case where public interest, as opposed to
individual interest, was involved. Citing how basic rights, such as the right to
life, had been interpreted by courts, he said Article 9 of the Constitution of
Pakistan guaranteed the “right to life” to everyone. He said interpreting the
right to life in a verdict, Justice (r) Slaeem Akhtar had observed that the right
did not merely mean that a person could breathe but whether a citizen enjoyed
the entitlements available to human beings in a civilised society, including
socio-economic rights. Justice Akhtar had held that until all of these entitlements
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were guaranteed by the state the state could notclaim to be fulf illing its obligations under Article 9.
He said public interest litigation was said to
be a vehicle for expeditious dispensation of justice
and the object was achieving socio-economic
justice for the poor. He said public interest litigation
could bring socio-economic change in a society
and for that reason it was referred to as a means
for attaining a social welfare state.
Justice Zahid said that Justice (r) Naseem
Hassan Shah had cited some examples of public
interest litigation cases in an article, which wereimportant for the discussion on the subject. He
said it would also be useful to see what happened
to the court verdicts in those cases. Justice Shah
had said that in many cases the relief given by
the court had secured socio-economic justice to
the people. Justice Zahid said that through one
verdict, the court had ordered the elimination of
malpractices in the education system. Justice
Zahid said that a Supreme Court observation in
its verdict that there should be no malpractice
does not mean that everything would bestreamlined by itself. He said there were 200,000
public schools in Pakistan which were in shambles
and asked if one Supreme Court verdict had
improved the situation for those schools.
Another public interest litigation verdict cited
by Justice Shah, he said, was in the case of Anwar
Begum, heard by Justice (r) Afzal Zullah, where
legislation for the protection of inheritance rights
of women was ordered. A third public interest
litigation case related to preventing exploitation
of schoolchildren who were taken for reception of
visiting dignitaries. Anotherwhich Justice Zahid
called a good step by the judiciarywas staying
... the right
to life meant
that a
citizen
enjoyed all the
entitlements
allowed to
human
beings in a
civilised society,
including
socio-
economic
rights
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public hanging of convicts during General Ziaul Haq’s regime.
Justice Zahid also cited a court verdict in a public interest litigation case on
traffic jams in Karachi. He said he was not sure if the order had been
implemented or not but traffic jams continued to be the norm in Karachi. He
said the verdict was akin to a judge saying that there should be no corruption
in Pakistan in the future and expecting that corruption would somehow
disappear.
He said in another case the Supreme Court had directed the federal and
provincial governments to stop making appointments contrary to recruitment
rules but that verdict had also not been implemented. Justice Zahid referred to
a news item carried by the media a few days earlier about Pakistan ’s
ambassador to Damascus sacking the staff of the reputed Pakistan schoolthere and appointing his relatives in their places on higher salaries. He said
the case represented public interest but no action was taken by the Supreme
Court under the suo motu jurisdiction.
He also cited a public interest litigation verdict ordering measures to stop
fumes emitted by motor vehicles. He said the court had ordered that the price
Justice (R) Nasir Aslam Zahid speaks from experience
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of sugar should be fixed at Rs 40 per kilogrammebut the order had not been implemented.
He added that there had been orders
regarding covering the open sewerages, putting
an end to dumping of nuclear waste and
deforestation and many others but they had not
been implemented. He said the court should not
fix the prices of sugar and petroleum through
public interest litigation as that is not the court ’s
function. Justice Zahid said that in public interest
litigation cases the courts should only issue
orders that could be implemented. He said manyareas did not fall under the public interest litigation
jurisdiction and judges should not have the
discretion to issue orders on any issue they felt
like settling.
He said the Supreme Court of India had
issued an order that buses in New Delhi should
run on CNG and the order had been implemented,
either because the government also wanted the
same or because the court was somehow able to
get it implemented. He said it was up to thegovernment whether it wanted to implement court
orders.
The Supreme Court of Pakistan had ordered
judges to clear the massive backlog of 1.4 million
pending cases and the number of judges
desperately needed to be increased. Judges are
quickly disposing of the cases by acquitting the
accused, Justice Zahid said, adding that the
emphasis should not be on statistics alone but
on dispensation of justice. There was a need to
appoint and train more judges and policeinvestigators. He said during his visits to prisons,
he regularly heard complaints about the slow legal
... in public interest
litigation cases the
courts should
only issue orders that
could be implemented
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Public Interest Litigation - Scope and problems ----------------------------------------------------- 1 2
process, delay in bails, bribes, etc. He said courts struggling with the burdenof heavy backlog of cases should focus on doing justice with the caseload
instead of taking on more work.
He emphasised that public interest litigation should only be invoked in
cases where the interest of the public at large was at stake, and not in cases
involving individuals’ interest.
Prashant Bhushan
Prashant Bhushan shed light on the scope of public interest litigation in
India and the accountability of the judiciary. He said that Justice Zahid’s address
reminded him of the many similarities in the histories of the two countries’
(India and Pakistan) judiciaries, particularly with regard to the beginning ofpublic interest litigation and what was now going on in the name of public
interest litigation. He said, barring minor differences, almost the same things
were happening in both countries, and they should learn from each other ’s
experience.
He said the origin of public interest litigation in India went back to 1980
when two judges, Justice P. N. Bhagwati and Justice V. R. Krishna Iyer, started
admitting public interest litigation cases, saying that India was a country where
Advocate Prashant Bhushan narrates Indian experiences
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the majority was not getting justice and could notapproach courts themselves to get their rights.
The judges stated that any person could
represent individuals who did not have the means
to approach the courts to plead for their rights.
Mr Bhushan said the judges liberalised the
concept of locus standi with regard to public
interest litigation and also started expanding
fundamental rights. They interpreted the right to
life as the right to live with dignity, i.e., that a
person was entitled to get all basic needs and
facilities, such as food, shelter, protection, healthservices, etc. These were all interpreted to be
fundamental human rights under Article 21 of the
Constitution of India. Similarly, the judges held
that Article 14 of the Indian Constitution, which
outlaws discrimination, also means that the state
cannot act in an arbitrary manner and all official
actions must be in accordance with a well
considered and rational policy.
He said the judges expanded the right to
freedom of expression to include the right to
information and now the people have the right to
know what any state department is doing, why
and how. In one public interest litigation case, the
Indian Supreme Court even said that every
individual has the right to ask candidates
contesting the general elections questions, such
as their involvement in corruption, criminal cases,
the candidates’ assets and liabilities, and
academic background, etc. The court also held
that it is the right of every citizen that there should
not be any corruption in the affairs of state and if
action has not been taken against a corrupt official
or politician, any individual can move a court,seeking an order for speeding up the inquiry
process. In one case, a diary was found with the
Citizens have a right to
question candidates
who contest
elections
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names of politicians who had been paid money by a business house and thepolice was not holding any investigations. Some citizens moved the Supreme
Court of India which ordered an investigation. It was another matter that even
after the investigation all politicians were released and no action was taken
against them, Mr Bhushan added.
He called the “right to a clean environment” which is an extension of the
right to life“the most important innovation” in the area of human rights.
However, Mr Bhushan pointed out, the Indian Supreme Court crossed many
limits in expansion and enforcement of the right to life, with judges interpreting
it in a subjective manner. Under the “right to a clean environment”, one judge
in the Yamuna Pushta slum case ordered the removal of 40,000 slums in
Delhi, where around 200,000 poor led the most basic of existence. The Delhi
High Court held that the slums should be demolished as they were causing
pollution in the Yamuna river and infringing the right of every citizen to a clean
environment. He said that 200,000 people were rendered homeless overnight
in pursuance of the high court decision.
Mr Bhushan said in this case the court ignored principles of natural justice,
did not give any notice or hearing to the slum dwellers and ignored their right
to shelter. They were not given any alternative location where they could set
up their huts. Mr Bhushan added that the Delhi High Court verdict went against
the Indian Supreme Court’s order on the right to shelter and preferred the
right to a clean environment to the right to life and shelter.
He said that under public interest litigation the judges enunciated and
200,000 people were made homeless by a high court order.
The court ignored the principle of natural justice and the slum dwellers ’ right to
shelter … contrary to the SC ruling on the
right to shelter which was sacrificed in favour of the right to clean environment
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expanded many rights, but in the 1990s, whenIndia followed new economic policies in the so-
called era of liberalization a reversal of this trend
was witnessed. The World Bank’s new economic
policiesglobalization, liberalization and
privatizationwhich left everything to the market
and minimised the state’s role, also affected public
interest litigation and the expansion of basic
human rights. Following the market economy
would obviously affect the life of the poor, Mr
Bhushan said, adding that a report by a leading
Indian economist four years earlier had statedthat 78 percent people in India lived on less than
20 rupees a day and did not even have access
to clean drinking water. He said if everything was
left to market forces, 78 percent people would
not be able to afford basic needs. He said that
the economic policies being pursued in India were
further marginalising the poor.
Mr Bhushan said in the era of privatisation
the Indian courts’ attitude towards public interest
litigation had changed,, especially with regard to
socio-economic rights. He said that closeranalysis had showed that when there is a conflict
between environmental rights and socio-
economic rights of the poor, the courts hold that
environmental rights should be given preference,
even at the expense of socio-economic rights.
He said the Delhi High Court had ordered the
removal of slums from the banks of Yamuna even
though there was no evidence that the slums were
causing pollution in the river.
Mr Bhushan said that subsequently when the
same land was given to private companies forconstruction of five-star apartment complexes for
Commonwealth Games the court held that that
... when there is a conflict
between environmental
rights and corporate
interests, the latter prevail,
whereas when there is
a conflict between
environmental rights and socio-
economic rights then
environmental rights are
preferred
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Public Interest Litigation - Scope and problems ----------------------------------------------------- 1 6
was important for development. He said that when there is a conflict betweenenvironmental rights and corporate interests, the latter prevail, whereas when
there is a conflict between environmental rights and socio-economic rights
then environmental rights are preferred.
He said the judges in India were saying and doing what they felt like, without
laying down any clear principles. Mr Bhushan said that was essential to
determine the principles for the scope of public interest litigation.
Mr Bhushan said that in the Yamuna Pushta case, the court appointed an
amicus curiae , who suggested linking the streams to curb pollution. The
Supreme Court issued notices to the central and state governments regarding
orders to link all the rivers in India. The central government replied that the
project would cost Rs 5,600 billion and take around four decades. On the nextdate of hearing, when only two affidavits and reply from one state government
had been submitted, the Supreme Court ordered that the streams should be
linked, saying that the government could afford the expense. Mr Bhushan said
A view of the audience
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such verdicts could create problems andamounted to judicial dictatorship.
He said the government could be held
accountable by the public at least every five years
but how could judiciary be held to account. He
said lack of accountability of higher judiciary is a
big problem in India and the judges are not
answerable to anyone. He said there is no
disciplinary action against the judges, except for
impeachment, which he called impractical
because signatures of at least 100
parliamentarians are required to begin the
process. He said that parliamentarians do not sign
an impeachment motion unless there is some
documentary evidence of very serious charges
and even then only when the issue against a judge
has become a public scandal. No impeachment
motion can be taken up without this procedure,
he said.
He cited the example of Justice K. Veeraswami
case in 1991, where the Supreme Court of India
held that no criminal case could be filed against
a judge or chief justice of the High Court or a
judge of the Supreme Court without seeking
permission from the Chief Justice of India. Mr
Bhushan said the result is that many judges
against whom there were serious charges and
documentary evidence were not charged as the
Chief Justice of India did not grant permission.
He said the third issue is that if someone
publicly exposes a judge’s wrongdoing it can be
branded contempt of court, which includesscandalizing or lowering the dignity of the court.
Until recently, truth was not a defence in the issue
... a strong
and
independentjudiciary is
vital for the
good of the
country but
so is anaccountability
mechanism
for the
judiciary
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Public Interest Litigation - Scope and problems ----------------------------------------------------- 1 8
despite the availability of proof. However, now parliament has amended thelaw and provided that truth can be a defence in such matters. It is another
matter who would determine whether the allegation against the judge is true.
Sometime a judge accused of corruption himself issues a notice of contempt
in the matter, Mr Bhushan added.
He said the fourth area of concern is that the Supreme Court of India has
stated that the right to information is the basic right of every citizen but has not
applied the same principle to the courts. He said judicial rules have been
framed in such a manner that no administrative
or financial information about courts can be
released to anyone who does not have a direct
link to that information. He said that such arestriction was not present in the Right to
Information Act, but had been introduced by the
judiciary. “What can one do if the judiciary starts
to behave in a dictatorial manner?” Mr Bhushan
asked.
He said that a strong and independent
judiciary is vital for the good of the country but
so is an accountability mechanism for the
judiciary. He said an independent commission
should hold those judges accountable that issue
arbitrary orders and show bias. He said the issuewas the topic of an intense debate in India but
there was no clarity yet on the way forward.
Mr Bhushan said that there has been talk of
a judicial commission but the question was how
could judiciary be accountable to itself. He said
the people of India want an independent
constitutional body which can entertain
complaints against judges and can proceed
against and remove them if the complaints are proved. There should also be
a separate judicial appointment commission, he said, adding that in India, as
in Pakistan, judges have taken the powers of judicial appointments in their
own hands through a commission of judges and are acting in an arbitrary
manner without a systematic procedure. No criterion has been laid down on
...independence
of the judiciary means its
independence from the executive
and the
legislature but not
independence from
accountability
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how to determine the quality of a judge. There are no parameters for judginghonesty. Mr Bhushan proposed that if such measures are to be taken
subjectively then the opinion of at least 10 persons should be sought instead
of relying on the Chief Justice’s statement alone.
He said that it is also clear that sitting judges cannot hear complaints against
themselves and, therefore, there should be two permanent bodies, a judicial
appointment commission and a complaint commission to take action against
any judicial misconduct. He said these measures would not compromise the
independence of the judiciary, which means independence from executive and
legislature but not independence from accountability. He said public interest
litigation would also benefit if the judiciary was held accountable.
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Public Interest Litigation - Scope and problems ----------------------------------------------------- 2 0
Panelists’observationsMansoor Hassan Khan said that the movement for the independence of
the judiciary had made considerable contribution with regard to rights but
tensions were now visible. He stressed the need for a discussion on the reasons
why the situation remained unchanged “even after a mini-revolution” in the
form of a prolonged movement by lawyers that culminated in reinstatement of
superior court judges. He said the legal systems
of Pakistan and India were still stuck in the 19th
century grooves as the main laws in voguewere framed by the British in the late 19th
century. Mr Khan said efforts had not been
made to modernise those laws. He was of the
view that the delay in determination of cases
was because of outdated laws. He called public
interest litigation an aberration, a shortcut to
bypass problems and find easy solutions and
added that the Constitution provided for a
channel to grant expeditious relief.
Hina Jilani stressed the need to
understand the ultimate objective of publicinterest litigation beyond the obvious criterion
that it should be for public welfare. Public
... the main problem is
that the 19 th
century laws have
not been
replaced or
modernized
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interest litigation could be through individualcases but must benefit the people at large, be
it economic, social and cultural rights, or political
rights.
She said that when a matter is taken up in
public interest litigation, either suo motu or
through a petition, the ultimate aim in the larger
context also should be that the relief granted
or judgment rendered should have the overall
effect of strengthening democratic institutions.
It must not encroach upon the jurisdiction of
other institutions so that democracy is not
undermined.
She said respecting the jurisdiction of other
institutions would ensure that the objectives of
public interest litigation are successfully
achieved, malpractices curbed and social
attitudes changed.
She said that there must not be any scope
for using public interest litigation in such a
manner that it undermines democracy or
democratic institutions.Ms Jilani said the problem confronting
Pakistan is that the judiciary takes suo motu
notice with the understanding that it would
facilitate the people or resolve the problems in
the country but that understanding is tainted
because the judiciary is probably under the
impression that it has the solution to every
problem the country faces. She said the
judiciary should understand that it is just one
part of the democratic system and if it
undermines or weakens other parts of the
system through its judgements then even
judgments passed with the best of intentions
... respect for other
institutions ’ jurisdictions will ensure success of
public interest litigation
... credibility of public
interest litigation among people is conditional on people ’ s
confidence in
the judiciary ’ s
independence and integrity
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Public Interest Litigation - Scope and problems ----------------------------------------------------- 2 2
would not serve any purpose.Ms Jilani said credibility of public interest litigation among people is
conditional on people’s confidence in judiciary’s independence and integrity.
The problem in Pakistan is that there has been polarization in society and
confusion about the roles of various democratic institutions, where one
institution is strong and the others are either weak or are being weakened.
These were some of the issues that had to be confronted when one talked
about the positive aspects of public interest litigation, Ms Jilani said.
“Here the question of accountability arises. One institution in the country
wants to hold everyone accountable and may want to do it with the best of
intentions. But the same institution constantly obstructs all moves aimed at its
own accountability,” she added.
Ms Jilani said the proposed constitutional package has suggested the
creation of a body for appointment and accountability of judges. She said
there can be a number of formulas, and the formula offered in the package
suggests that there would be a balance of power between the judiciary and
the executive within that body.
She said that it cannot be argued that the judiciary should have monopoly
over judicial appointments and judicial accountability. She said the judiciary
had that power in the past and it had not worked.
She emphasised the need to identify the principles upon which judicial
accountability should be based so that judges’ independence was not infringedin any manner, but added that at the same time there must be real accountability
and the judiciary must not become judge and jury in its own case.
Justice (r) Tariq Mehmood said Article 193 of the Constitution of Pakistan
regarding the procedure for the appointment of judges to the high courts
contains a provision that has not been followed for a considerable period.
According to that provision, the individuals selected for civil service through
competitive examinations were asked for their priorities regarding the
department they wanted to serve in. They could also opt to serve in the judiciary
in the past. Justice Mehmood said that that practice had been discontinued for
quite some time and added that reviving it would largely put an end to questions
being raised about the credentials of individuals appointed as judges.
He said he had asked a law book house for a book on public interest
litigation, but the book sent to him was a compilation of judgments in public
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interest litigation cases. Justice Mehmood regretted that not a single judgementin the book explained the meaning, significance or principles of public interest
litigation. He said most of the cases in the book were about high-rise buildings
in Karachi, conversion of the use of property from residential to commercial,
and similar matters. He said that in all of those cases, the decisions were not
made on the basis of any principle of public interest litigation but in the same
manner as in common civil cases. He said the Supreme Court has the power
to make rules in this regard and such rules should be framed to end uncertainty
so that everyone knows what the principles are.
He said the procedure for the appointment of judges should be determined
before discussing an accountability mechanism for the judiciary. He said that
the Supreme Court has observed in a number of judgements that the executivehas no authority to act in violation of the procedure even if it wants to hire
someone for a monthly salary of 6,000 rupees and that procedure is followed,
at least in official hiring. Justice Mehmood said similar emphasis on procedure
is absent in judicial appointments. Urging the need to establish a transparent
procedure for judges’ appointment, he said a person whose name is suggested
by chief justice of a high court for appointment as a high court judge need not
have any further quality. Unless the Supreme Court chief justice removes the
name from the list, the practice is that the person in question would become a
high court judge.
Justice Mehmood said that many of the laws prevalent in Pakistan may be
old but they are not bad laws. Any system, however good, cannot work when
those implementing it are inefficient or dishonest, he added.
He said that judges’ discretion was deemed valuable in providing justice in
exceptional cases of hardship where other provisions of law were silent, but
discretion had been abused.
He emphasised that principles for the exercise of public interest litigation
should be laid down. The judiciary must first determine its jurisdiction and not
exceed limits and it must let other democratic institutions function.
Justice Mehmood said the demand that the Chief Justice of Pakistan should
be consulted for any constitutional amendment in the procedure for
appointment of judges was wrong in principle.He said if the judiciary wishes it can form a separate bench exclusively for
public interest litigation cases, as determination of other cases was suffering
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on account of the courts’
focus on public interest litigation cases. JusticeMehmood said another option could be expansion of the human rights cell in
the Supreme Court and assigning several individuals qualified to be district
and sessions judges to sort out the applications and refer only the important
ones to the court. But he added that clear principles and procedure need to
be laid down even for that.
Justice Mehmood said that judges should not pass orders that cannot be
implemented. Any decision in public interest litigation cases must not be a
decision in favour of an individual but truly in the interest of public at large. He
said that Justice Zahid used to take up cases brought to his attention as a
judge through telegrams and if he too was now disappointed then the matter
merits a closer look at the manner in which the public interest litigation regimeoperates.
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DiscussionMs Hina Jilani said that two important things that have emerged from the
discourse are that public interest litigation and judicial activism are two distinct
things but their combined objective is the same, which is the welfare of society.
She said that it could be a beneficial practice, particularly in view of
disempowerment of the people and lack of access to justice. However, misuse
or motivated use of public interest litigation can be detrimental to public interest.
She said there should be limitation and restraint on the public interest litigation
jurisdiction but even to determine that restraint guidelines need to be
established, such as the requirement of notice, etc.
Justice Zahid said a bench of judges can make a decision. He said there
is a human rights cell in the Supreme Court which peruses all applications
made to the court. He said he does not know how that cell works in deciding
what applications are taken up. He said he does not know the exact procedure,
but it should be done in a transparent manner. He said appointment of judges
should also be made in a transparent manner and people should know two or
three months prior to a judge’s nomination so that objections, if any, can be
raised.
He also said making provision for public interest litigation cases to be taken
up at the city/district court level would make the procedure accessible to thecommon citizen. He said people are not getting justice and if they can get it
through public interest litigation then that would be a very good step. He said
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the Asian Development Bank had given a US $350 million loan for improvingthe judicial system but that has not yielded any qualitative or quantitative
difference and the common man involved in litigation is still suffering. He
emphasised the need to fill the vacancies of civil judges.
He said when one talks about public interest litigation one is talking about
justice for the people. He said providing justice at the grassroots, at the city
court and at the police level can solve many cases. He said nobody wants to
go to court. They want their issues resolved.
He cited a case in which the London police apprehended a young boy
stealing a Spiderman costume from a shop. However, the police did not register
a case but talked to the child’s parents and said they would observe the child
for the next six months and if he committed any crime he would be dealt with inaccordance with the law.
Justice Zahid said that one should look at the result and ask oneself whether
the multitude of orders passed in public interest litigation have improved the
socio-economic situation of the people. He said an honest reply to that question
would determine the utility of public interest litigation. He said that if not a
single person had benefited from it then one has to question the purpose of
public interest litigation.
Justice Mehmood stressed the need to lay down the principles for resort
to public interest litigation, rather than picking and choosing cases. He said
the Supreme Court should make rules for public interest litigation cases to be
taken up under Article 184 (3) so that the criterion is ascertainable. He saidthe Supreme Court rules should have a separate chapter dealing with public
interest litigation and exercise of public interest litigation jurisdiction should
not be left to the sweat will of any judge.
Hina Jilani observed that there have been attempts to use suo motu
powers for populist pursuits. She said judicial activism is important in Pakistani
society but it is imperative to see how the judges used it, as public interest
issues would be resolved not through self-righteousness but through wisdom.
She said judges should also seek the opinion of lawyers and other experts to
understand the issue at hand and do justice after understanding people ’s
problems.
She said the biggest benefit public interest litigation offers to a human
rights lawyer is expectation of a judgement which would then serve as a tool
for lawyers, who do not have that many tools at their disposal as human rights
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defenders.She said that that expectation is seldom
fulfilled nowadays as judges often speak less
through the judgements and more through
verbal remarks. She said the judges often do
not realise that the verbal comments they make
have substantial effect politically and socially.
She said judges cannot become
independent unless they want to be
independent. She said judicial independence
does not mean independence from the
executive alone, but also from social biases andprejudices. She cited an observation by the
Lahore High Court chief justice who said that
Hindus were responsible for acts of terrorism
in Pakistan because Muslims could not do such
things.
Justice Mehmood observed that relief by courts has become discretionary
and judges extend the meaning of right to life or interpret it broadly when they
want to give relief to someone. He said the fundamental rights listed in the
constitution of Pakistan do not consider right to a healthy environment a natural
extension of the right to life. He suggested that the committee drafting the 18th
constitutional amendment should be asked to add the right to a healthyenvironment and to live with dignity to the right to life guaranteed in the
constitution of Pakistan and provide a specific criterion of what the right to life
amounts to. He said, as things stand, the question whether the meaning of the
right to life is expanded or limited depends on the judge interpreting that right.
Justice Zahid observed that every human being has biases, the quality
of a judge is that he should be aware of his biases and he should know the
baggage he is carrying, but he should also be aware that when he decides a
case he should base the decision on facts.
He said that that was why proper training for civil judges and magistrates
was crucial, adding that in Bangladesh a civil judge is trained for two years
before getting his first appointment. He studies English and laws for the first
year and in the second year he sits with experienced judges and observes
how they work. Justice Zahid said that in Pakistan a person gets a bachelor’s
In Bangladesh
a civil judge is
trained for
two years, in
Pakistan fresh
law graduates start work as
civil judges
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Public Interest Litigation - Scope and problems ----------------------------------------------------- 2 8
degree in law one day and is working as a judge the next day.Justice Zahid said he was a passionate advocate of public interest litigation,
but several very good judgements delivered by courts in the past have not
been implemented, and the judgments given by courts now are subjective. He
suggested that the seminar should demand that public interest litigation should
be a separate chapter in the Supreme Court rules, indicating the principles
according to which the suo motu jurisdiction under Article 184 (3) of the
constitution would be exercised.
Ms Asma Jahangir suggested that another demand should be that in
public interest litigation cases, the court should issue detailed judgements
rather than short orders, and the detailed judgments should explain with
reasons a matter’s nexus with fundamental rights.
Justice Zahid said that his study showed that orders in public interest
litigation cases have been short orders to an overwhelming extent, granting
stay or setting up a commission, and there have been few final orders. He said
that barring exceptions, orders in public interest litigation cases should not be
interim orders but detailed orders, explaining reasons for the judgement.
Mr Bhushan said that in India also interim orders granted in public interest
litigation cases remain in effect for years and courts do not give reasoned
orders, with the result that the principles and rationale for the decisions are
not explained.
He said that the decisions in public interest litigation cases that are not
implemented are not implemented because the courts probably lack the will toget them implemented. If the contempt jurisdiction is relied upon to seek
implementation of the orders, the orders would be implemented to a large
extent, he added.
To curb arbitrary use or misuse of public interest litigation, some basic
principles should be laid down, Mr Bhushan said and added that judges must
not substitute their views for those of the executive. If a judge wants to intervene,
that intervention must be based on principles. He can, for instance, say that in
a certain matter the executive has ignored to pay attention to a relevant
consideration. He can ask the executive to examine that issue and make a
decision after proper consideration, but the judge cannot impose his own view
by saying that the court would now order how the matter would be decided.However, the judge can and should ensure that the executive acts after
full application of mind and after proper and full consideration and does not
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trample any fundamental rights of the people, Mr Bhushan added.Justice Zahid said he is not suggesting an end to public interest litigation,
but the judiciary must put its house in order first. The judiciary clearly is lagging
in its primary work, determination of cases, and yet despite the backlog of
cases it continues to increase its workload through public interest litigation,
and even there only short orders are passed. He said the judiciary should
focus on appointing upright and competent judges including ad-hoc judges to
clear the backlog of cases.
Justice Zahid said he is an ardent advocate of public interest litigation but
added that his experience is that in Pakistan people have not received the
benefits they should have from public interest litigation. Benefits for people
from the judicial system would come about only if the judiciary at the city/ district court level is improved.
Mr Bhushan said that the Indian Supreme Court had observed in SP
Gupta case that transparency demands that all the correspondence/noting
regarding appointment of judges should be available to public and the people
should be allowed to see how public functionaries behave in appointment of
judges. He said at the time of the Supreme Court ruling the Right to Information
Act was not implemented in India. But now even under Right to Information Act,
access to information on that point is barred, he added. He said transparency
ensures accountability.
Mr Bhushan said a judicial accountability commission should be establishedas a constitutional body, whose members should neither be from the judiciary
nor the executive. He said the appointments to the commission could be made
through consultation with judges, government officials including president, prime
minister, law minister and chief justices of the high courts and the Supreme
Court. Once appointed each member of the commission should have security
of tenure for a specified period.
Mr Khan said that there is no denying the utility of public interest litigation
but it is not the answer to every problem. He said that though in theory
procedure and technicalities should not be allowed to defeat substantive justice,
the exact opposite of that often happens in courts.
Mr Bhushan said litigants have to depend on lawyers because lawyersknow the judicial procedure that regulates access to justice. He said the biggest
hurdle in the pursuit of justice in India and Pakistan is that more than half the
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people cannot afford to engage a lawyer, even to defend themselves in acriminal case. He said Pakistan and India need a judicial system where the
common man can plead his case even orally and without having to rely on
lawyers. He said the real challenge is whether such a judicial system can be
established though it is clear that failure to establish that would amount to
denying access to justice to more than half of the population in the two countries.
In conclusion, the HRCP chairperson, Asma Jahangir, said the seminar
was the first of a series of discussions on the subject. She said there is now a
realization that the issue is not confined to Pakistan but has regional dimensions
and the discussion should be taken to the South Asia level. She said that the
judiciary should be urged to keep the objective of public interest litigation in
mind and also to streamline the process for the exercise of this jurisdiction.
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Recommendations Specific provisions of the constitution should prescribe specific
principles for the exercise of public interest litigation jurisdiction by the Supreme
Court of Pakistan under Article 184 (3) of the constitution, so that uncertainty ends and litigants, lawyers and judges know the principles involved. That would
also go a long way towards putting an end to arbitrary or motivated use of discretion and misuse of suo motu jurisdiction.
The Supreme Court of Pakistan should add a separate chapter on
public interest litigation in the Supreme Court rules, indicating the procedure regulating the exercise of suo motu jurisdiction.
The judiciary must ensure that exercise of suo motu jurisdiction does
not encroach upon the jurisdiction of other institutions. The ultimate aim of
public interest litigation should be that the relief granted should not weaken
democratic institutions.
In public interest litigation cases, the court should issue detailed
judgements rather than short orders. The detailed judgments should explain
how a matter taken up suo motu is connected with fundamental rights.
Judges must only speak through their judgements and desist from
making verbal comments during hearings.
The judiciary should desist from issuing orders whose implementation
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it cannot ensure. The courts must ensure that determination of other cases does not
suffer on account of the hearing of public interest litigation cases. The judiciary
can either form a separate bench exclusively for hearing public interest litigation
cases or expand the existing human rights cell in the Supreme Court to sort
out such applications and refer only the important ones to the court.
Mechanisms to ensure strong and independent judiciary, as well as
for transparent appointment of judges and for their accountability, must be put
in place. The judiciary and all other institutions should welcome transparent
measures for accountability rather than creating obstructions in that path.
Public interest litigation jurisdiction should be devolved to city/district
courts to benefit the people at the grassroots.
The number of judges should be increased and the judges should be
given exhaustive training to clear backlog of 1.4 million pending cases and
ensure expeditious dispensation of justice.