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----------------------------------------------------------------------------- Report of an HRCP seminar 1

IIIPublic Interest Litigation

Scope and Problems

-- Report of an HRCP seminar

March 28, 2010

Human Rights Commission of Pakistan

Public Interest Litigation - Scope and problems -----------------------------------------------------2

Published byHuman Rights Commission of Pakistan

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SummaryThe Human Rights Commission of Pakistan (HRCP) organised a seminar

on �Public Interest Litigation� on the occasion of its Annual General Meetingon 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 associatedconcept 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 intheir discretion, while substantially similar matters were not taken up. It wasstressed that a judge�s discretion should not be the sole criterion for initiatingsuo 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 aconsistent 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


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 aimof 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.


Speakers and panelists

Keynote SpeakersPrashant Bhushan is an advocate of the Supreme Court of India and a

noted public interest and civil liberties lawyer. He has been actively associatedwith NBA, Enron and Jain Hawala cases. Mr Bhushan has been involved in theCampaign for Judicial Accountability since 1991, has been an active memberof the Committee on Judicial Accountability and subsequently the Convenor ofthe Campaign for Judicial Accountability and Reforms which was set up inearly 2007.

Justice (r) Nasir Aslam Zahid is one of the most respected names inPakistan�s judiciary. He served as the Chief Justice of the Sindh High Courtand a judge of the Federal Shariat Court of Pakistan and the Supreme Courtof Pakistan. In 2000, he opted to resign from the Supreme Court of Pakistaninstead of taking the oath of office according to Gen. Pervez Musharraf�sProvisional Constitutional Order (PCO).

He is deeply involved in human rights issues and judicial education, andhas spent much of his time since retirement on dealing with human rightsissues, especially women�s legal concerns. He is currently involved in projectsfor 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 apublic-private partnership under the banner of All Pakistan Women�s


Association. He is the Dean Faculty of Legal Studies and has been head ofHamdard School of Law at the Hamdard University, Karachi since October2000.

PanelistsJustice (Retd.) Tariq Mehmood was a judge of the Balochistan High

Court 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 theSupreme Court Bar Association of Pakistan. Justice Mehmood was among thelawyers� leaders who were arrested and detained with their families after GeneralMusharraf imposed a state of emergency on November 03, 2007.

Hina Jilani is a well known advocate of the Supreme Court of Pakistanand 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 foundingmember 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 theUN 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 andits 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.


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


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 litigationwas on the discretion of the judges and on establishing a mechanism foraccountability of judges in terms of performance and conduct, including caseswhere bias was suspected.

Ms Jahangir said that a perusal of superior court judgements demonstratedmany examples of bias among judges against women and minorities, amongother things. She cited a recent statement by the chief justice of the LahoreHigh Court blaming Hindus for the ongoing wave of terrorism in Pakistan. Shesaid judicial activism and public interest litigation were closely interlinked. Shesaid people were willing to overlook mistakes by judges when their integritywas 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 shareexperiences on both sides of the India-Pakistan border and that the debatecould later on be taken up at the South Asia level because there seemed to bea crisis of justice in the whole region.

Ms Jahangir called judiciary the backbone of democracy, which needed tobe made independent. She said the Human Rights Commission of Pakistandid not have a position as such on the subject, except for emphasising that thejudiciary should be independent, above board, and it might be political-mindedbut not politicised. She said that public interest litigation should be used togive benefits to the deprived and not for any individual agenda. Judgementsshould be based on justice and not on populist opinion, she added.

Justice (r) Nasir Aslam ZahidJustice Nasir Aslam Zahid cited numerous examples of resort to public

interest litigation in Pakistan and analysed the follow-up action. He said publicinterest litigation referred to a case where public interest, as opposed toindividual interest, was involved. Citing how basic rights, such as the right tolife, had been interpreted by courts, he said Article 9 of the Constitution ofPakistan guaranteed the �right to life� to everyone. He said interpreting theright to life in a verdict, Justice (r) Slaeem Akhtar had observed that the rightdid not merely mean that a person could breathe but whether a citizen enjoyedthe entitlements available to human beings in a civilised society, includingsocio-economic rights. Justice Akhtar had held that until all of these entitlements


were guaranteed by the state the state could notclaim to be fulfilling its obligations under Article 9.

He said public interest litigation was said tobe a vehicle for expeditious dispensation of justiceand the object was achieving socio-economicjustice for the poor. He said public interest litigationcould bring socio-economic change in a societyand for that reason it was referred to as a meansfor attaining a social welfare state.

Justice Zahid said that Justice (r) NaseemHassan Shah had cited some examples of publicinterest litigation cases in an article, which wereimportant for the discussion on the subject. Hesaid it would also be useful to see what happenedto the court verdicts in those cases. Justice Shahhad said that in many cases the relief given bythe court had secured socio-economic justice tothe people. Justice Zahid said that through oneverdict, the court had ordered the elimination ofmalpractices in the education system. JusticeZahid said that a Supreme Court observation inits verdict that there should be no malpracticedoes not mean that everything would bestreamlined by itself. He said there were 200,000public schools in Pakistan which were in shamblesand asked if one Supreme Court verdict hadimproved the situation for those schools.

Another public interest litigation verdict citedby Justice Shah, he said, was in the case of AnwarBegum, heard by Justice (r) Afzal Zullah, wherelegislation for the protection of inheritance rightsof women was ordered. A third public interestlitigation case related to preventing exploitationof schoolchildren who were taken for reception ofvisiting dignitaries. Another�which Justice Zahidcalled a good step by the judiciary�was staying

... the rightto life meant

that acitizen

enjoyed allthe

entitlementsallowed to

humanbeings in a

civilisedsociety,

includingsocio-

economicrights

Public Interest Litigation - Scope and problems -----------------------------------------------------1 0

public hanging of convicts during General Ziaul Haq�s regime.

Justice Zahid also cited a court verdict in a public interest litigation case ontraffic jams in Karachi. He said he was not sure if the order had beenimplemented or not but traffic jams continued to be the norm in Karachi. Hesaid the verdict was akin to a judge saying that there should be no corruptionin Pakistan in the future and expecting that corruption would somehowdisappear.

He said in another case the Supreme Court had directed the federal andprovincial governments to stop making appointments contrary to recruitmentrules but that verdict had also not been implemented. Justice Zahid referred toa news item carried by the media a few days earlier about Pakistan�sambassador to Damascus sacking the staff of the reputed Pakistan schoolthere and appointing his relatives in their places on higher salaries. He saidthe case represented public interest but no action was taken by the SupremeCourt under the suo motu jurisdiction.

He also cited a public interest litigation verdict ordering measures to stopfumes emitted by motor vehicles. He said the court had ordered that the price

Justice (R) Nasir Aslam Zahid speaks from experience

----------------------------------------------------------------------------- Report of an HRCP seminar 1 1

of sugar should be fixed at Rs 40 per kilogrammebut the order had not been implemented.

He added that there had been ordersregarding covering the open sewerages, puttingan end to dumping of nuclear waste anddeforestation and many others but they had notbeen implemented. He said the court should notfix the prices of sugar and petroleum throughpublic interest litigation as that is not the court�sfunction. Justice Zahid said that in public interestlitigation cases the courts should only issueorders that could be implemented. He said manyareas did not fall under the public interest litigationjurisdiction and judges should not have thediscretion to issue orders on any issue they feltlike settling.

He said the Supreme Court of India hadissued an order that buses in New Delhi shouldrun on CNG and the order had been implemented,either because the government also wanted thesame or because the court was somehow able toget it implemented. He said it was up to thegovernment whether it wanted to implement courtorders.

The Supreme Court of Pakistan had orderedjudges to clear the massive backlog of 1.4 millionpending cases and the number of judgesdesperately needed to be increased. Judges arequickly disposing of the cases by acquitting theaccused, Justice Zahid said, adding that theemphasis should not be on statistics alone buton dispensation of justice. There was a need toappoint and train more judges and policeinvestigators. He said during his visits to prisons,he regularly heard complaints about the slow legal

... in publicinterest

litigationcases the

courtsshould

only issueorders thatcould be

implemented


process, delay in bails, bribes, etc. He said courts struggling with the burdenof heavy backlog of cases should focus on doing justice with the caseloadinstead of taking on more work.

He emphasised that public interest litigation should only be invoked incases where the interest of the public at large was at stake, and not in casesinvolving individuals� interest.

Prashant BhushanPrashant Bhushan shed light on the scope of public interest litigation in

India and the accountability of the judiciary. He said that Justice Zahid�s addressreminded 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 publicinterest litigation. He said, barring minor differences, almost the same thingswere happening in both countries, and they should learn from each other�sexperience.

He said the origin of public interest litigation in India went back to 1980when two judges, Justice P. N. Bhagwati and Justice V. R. Krishna Iyer, startedadmitting public interest litigation cases, saying that India was a country where

Advocate Prashant Bhushan narrates Indian experiences


the majority was not getting justice and could notapproach courts themselves to get their rights.The judges stated that any person couldrepresent individuals who did not have the meansto approach the courts to plead for their rights.

Mr Bhushan said the judges liberalised theconcept of locus standi with regard to publicinterest litigation and also started expandingfundamental rights. They interpreted the right tolife as the right to live with dignity, i.e., that aperson was entitled to get all basic needs andfacilities, such as food, shelter, protection, healthservices, etc. These were all interpreted to befundamental human rights under Article 21 of theConstitution of India. Similarly, the judges heldthat Article 14 of the Indian Constitution, whichoutlaws discrimination, also means that the statecannot act in an arbitrary manner and all officialactions must be in accordance with a wellconsidered and rational policy.

He said the judges expanded the right tofreedom of expression to include the right toinformation and now the people have the right toknow what any state department is doing, whyand how. In one public interest litigation case, theIndian Supreme Court even said that everyindividual has the right to ask candidatescontesting the general elections questions, suchas their involvement in corruption, criminal cases,the candidates � assets and liabilities, andacademic background, etc. The court also heldthat it is the right of every citizen that there shouldnot be any corruption in the affairs of state and ifaction has not been taken against a corrupt officialor politician, any individual can move a court,seeking an order for speeding up the inquiryprocess. In one case, a diary was found with the

Citizenshave aright to

questioncandidates

whocontest

elections


names of politicians who had been paid money by a business house and thepolice was not holding any investigations. Some citizens moved the SupremeCourt of India which ordered an investigation. It was another matter that evenafter the investigation all politicians were released and no action was takenagainst them, Mr Bhushan added.

He called the �right to a clean environment�� which is an extension of theright to life��the most important innovation� in the area of human rights.However, Mr Bhushan pointed out, the Indian Supreme Court crossed manylimits in expansion and enforcement of the right to life, with judges interpretingit in a subjective manner. Under the �right to a clean environment�, one judgein the Yamuna Pushta slum case ordered the removal of 40,000 slums inDelhi, where around 200,000 poor led the most basic of existence. The DelhiHigh Court held that the slums should be demolished as they were causingpollution in the Yamuna river and infringing the right of every citizen to a cleanenvironment. He said that 200,000 people were rendered homeless overnightin 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 rightto shelter. They were not given any alternative location where they could setup their huts. Mr Bhushan added that the Delhi High Court verdict went againstthe Indian Supreme Court�s order on the right to shelter and preferred theright 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 ahigh court order.

The court ignored the principle of naturaljustice and the slum dwellers� right to

shelter� contrary to the SC ruling on theright to shelter which was sacrificed infavour of the right to clean environment


expanded many rights, but in the 1990s, whenIndia followed new economic policies in the so-called era of liberalization a reversal of this trendwas witnessed. The World Bank�s new economicpolicies�globalization, liberalization andprivatization�which left everything to the marketand minimised the state�s role, also affected publicinterest litigation and the expansion of basichuman rights. Following the market economywould obviously affect the life of the poor, MrBhushan said, adding that a report by a leadingIndian economist four years earlier had statedthat 78 percent people in India lived on less than20 rupees a day and did not even have accessto clean drinking water. He said if everything wasleft to market forces, 78 percent people wouldnot be able to afford basic needs. He said thatthe economic policies being pursued in India werefurther marginalising the poor.

Mr Bhushan said in the era of privatisationthe Indian courts� attitude towards public interestlitigation had changed,, especially with regard tosocio-economic rights. He said that closeranalysis had showed that when there is a conflictbetween environmental rights and socio-economic rights of the poor, the courts hold thatenvironmental rights should be given preference,even at the expense of socio-economic rights.He said the Delhi High Court had ordered theremoval of slums from the banks of Yamuna eventhough there was no evidence that the slums werecausing pollution in the river.

Mr Bhushan said that subsequently when thesame land was given to private companies forconstruction of five-star apartment complexes forCommonwealth Games the court held that that

... when thereis a conflict

betweenenvironmental

rights andcorporate

interests, thelatter prevail,

whereaswhen there is

a conflictbetween

environmentalrights and

socio-economicrights then

environmentalrights arepreferred


was important for development. He said that when there is a conflict betweenenvironmental rights and corporate interests, the latter prevail, whereas whenthere is a conflict between environmental rights and socio-economic rightsthen environmental rights are preferred.

He said the judges in India were saying and doing what they felt like, withoutlaying down any clear principles. Mr Bhushan said that was essential todetermine the principles for the scope of public interest litigation.

Mr Bhushan said that in the Yamuna Pushta case, the court appointed anamicus curiae, who suggested linking the streams to curb pollution. TheSupreme Court issued notices to the central and state governments regardingorders to link all the rivers in India. The central government replied that theproject 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 governmenthad been submitted, the Supreme Court ordered that the streams should belinked, saying that the government could afford the expense. Mr Bhushan said

A view of the audience


such verdicts could create problems andamounted to judicial dictatorship.

He said the government could be heldaccountable by the public at least every five yearsbut how could judiciary be held to account. Hesaid lack of accountability of higher judiciary is abig problem in India and the judges are notanswerable to anyone. He said there is nodisciplinary action against the judges, except forimpeachment, which he called impracticalbecause signatures of at least 100parliamentarians are required to begin theprocess. He said that parliamentarians do not signan impeachment motion unless there is somedocumentary evidence of very serious chargesand even then only when the issue against a judgehas become a public scandal. No impeachmentmotion can be taken up without this procedure,he said.

He cited the example of Justice K. Veeraswamicase in 1991, where the Supreme Court of Indiaheld that no criminal case could be filed againsta judge or chief justice of the High Court or ajudge of the Supreme Court without seekingpermission from the Chief Justice of India. MrBhushan said the result is that many judgesagainst whom there were serious charges anddocumentary evidence were not charged as theChief Justice of India did not grant permission.

He said the third issue is that if someonepublicly exposes a judge�s wrongdoing it can bebranded 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

independent

judiciary is

vital for the

good of the

country but

so is an

accountability

mechanism

for the

judiciary


despite the availability of proof. However, now parliament has amended thelaw and provided that truth can be a defence in such matters. It is anothermatter who would determine whether the allegation against the judge is true.Sometime a judge accused of corruption himself issues a notice of contemptin the matter, Mr Bhushan added.

He said the fourth area of concern is that the Supreme Court of India hasstated that the right to information is the basic right of every citizen but has notapplied the same principle to the courts. He said judicial rules have been

framed in such a manner that no administrativeor financial information about courts can bereleased to anyone who does not have a directlink to that information. He said that such arestriction was not present in the Right toInformation Act, but had been introduced by thejudiciary. �What can one do if the judiciary startsto behave in a dictatorial manner?� Mr Bhushanasked.

He said that a strong and independentjudiciary is vital for the good of the country butso is an accountability mechanism for thejudiciary. He said an independent commissionshould hold those judges accountable that issuearbitrary orders and show bias. He said the issuewas the topic of an intense debate in India butthere was no clarity yet on the way forward.

Mr Bhushan said that there has been talk ofa judicial commission but the question was howcould judiciary be accountable to itself. He saidthe people of India want an independentconstitutional body which can entertaincomplaints against judges and can proceed

against and remove them if the complaints are proved. There should also bea separate judicial appointment commission, he said, adding that in India, asin Pakistan, judges have taken the powers of judicial appointments in theirown hands through a commission of judges and are acting in an arbitrarymanner without a systematic procedure. No criterion has been laid down on

...independenceof the

judiciarymeans its

independencefrom theexecutiveand the

legislaturebut not

independencefrom

accountability


how to determine the quality of a judge. There are no parameters for judginghonesty. Mr Bhushan proposed that if such measures are to be takensubjectively then the opinion of at least 10 persons should be sought insteadof relying on the Chief Justice�s statement alone.

He said that it is also clear that sitting judges cannot hear complaints againstthemselves and, therefore, there should be two permanent bodies, a judicialappointment commission and a complaint commission to take action againstany judicial misconduct. He said these measures would not compromise theindependence of the judiciary, which means independence from executive andlegislature but not independence from accountability. He said public interestlitigation would also benefit if the judiciary was held accountable.


Panelists� observationsMansoor Hassan Khan said that the movement for the independence of

the judiciary had made considerable contribution with regard to rights buttensions were now visible. He stressed the need for a discussion on the reasonswhy the situation remained unchanged �even after a mini-revolution� in theform of a prolonged movement by lawyers that culminated in reinstatement of

superior court judges. He said the legal systemsof Pakistan and India were still stuck in the 19thcentury grooves as the main laws in voguewere framed by the British in the late 19thcentury. Mr Khan said efforts had not beenmade to modernise those laws. He was of theview that the delay in determination of caseswas because of outdated laws. He called publicinterest litigation an aberration, a shortcut tobypass problems and find easy solutions andadded that the Constitution provided for achannel to grant expeditious relief.

Hina Jilani stressed the need tounderstand the ultimate objective of publicinterest litigation beyond the obvious criterionthat it should be for public welfare. Public

... the mainproblem isthat the 19th

centurylaws havenot been

replaced ormodernized


interest litigation could be through individualcases but must benefit the people at large, beit economic, social and cultural rights, or politicalrights.

She said that when a matter is taken up inpublic interest litigation, either suo motu orthrough a petition, the ultimate aim in the largercontext also should be that the relief grantedor judgment rendered should have the overalleffect of strengthening democratic institutions.It must not encroach upon the jurisdiction ofother institutions so that democracy is notundermined.

She said respecting the jurisdiction of otherinstitutions would ensure that the objectives ofpublic interest litigation are successfullyachieved, malpractices curbed and socialattitudes changed.

She said that there must not be any scopefor using public interest litigation in such amanner that it undermines democracy ordemocratic institutions.

Ms Jilani said the problem confrontingPakistan is that the judiciary takes suo motunotice with the understanding that it wouldfacilitate the people or resolve the problems inthe country but that understanding is taintedbecause the judiciary is probably under theimpression that it has the solution to everyproblem the country faces. She said thejudiciary should understand that it is just onepart of the democratic system and if itundermines or weakens other parts of thesystem through its judgements then evenjudgments passed with the best of intentions

... respect forother

institutions�jurisdictionswill ensuresuccess of

publicinterestlitigation

... credibilityof publicinterest

litigationamong peopleis conditionalon people�s

confidence inthe judiciary�sindependenceand integrity


would not serve any purpose.

Ms Jilani said credibility of public interest litigation among people isconditional on people�s confidence in judiciary�s independence and integrity.

The problem in Pakistan is that there has been polarization in society andconfusion about the roles of various democratic institutions, where oneinstitution 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 talkedabout the positive aspects of public interest litigation, Ms Jilani said.

�Here the question of accountability arises. One institution in the countrywants to hold everyone accountable and may want to do it with the best ofintentions. But the same institution constantly obstructs all moves aimed at itsown accountability,� she added.

Ms Jilani said the proposed constitutional package has suggested thecreation of a body for appointment and accountability of judges. She saidthere can be a number of formulas, and the formula offered in the packagesuggests that there would be a balance of power between the judiciary andthe executive within that body.

She said that it cannot be argued that the judiciary should have monopolyover judicial appointments and judicial accountability. She said the judiciaryhad that power in the past and it had not worked.

She emphasised the need to identify the principles upon which judicialaccountability should be based so that judges� independence was not infringedin any manner, but added that at the same time there must be real accountabilityand the judiciary must not become judge and jury in its own case.

Justice (r) Tariq Mehmood said Article 193 of the Constitution of Pakistanregarding the procedure for the appointment of judges to the high courtscontains a provision that has not been followed for a considerable period.According to that provision, the individuals selected for civil service throughcompetitive examinations were asked for their priorities regarding thedepartment they wanted to serve in. They could also opt to serve in the judiciaryin the past. Justice Mehmood said that that practice had been discontinued forquite some time and added that reviving it would largely put an end to questionsbeing raised about the credentials of individuals appointed as judges.

He said he had asked a law book house for a book on public interestlitigation, but the book sent to him was a compilation of judgments in public


interest litigation cases. Justice Mehmood regretted that not a single judgementin the book explained the meaning, significance or principles of public interestlitigation. He said most of the cases in the book were about high-rise buildingsin 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 notmade on the basis of any principle of public interest litigation but in the samemanner as in common civil cases. He said the Supreme Court has the powerto make rules in this regard and such rules should be framed to end uncertaintyso that everyone knows what the principles are.

He said the procedure for the appointment of judges should be determinedbefore discussing an accountability mechanism for the judiciary. He said thatthe 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 hiresomeone for a monthly salary of 6,000 rupees and that procedure is followed,at least in official hiring. Justice Mehmood said similar emphasis on procedureis absent in judicial appointments. Urging the need to establish a transparentprocedure for judges� appointment, he said a person whose name is suggestedby chief justice of a high court for appointment as a high court judge need nothave any further quality. Unless the Supreme Court chief justice removes thename from the list, the practice is that the person in question would become ahigh court judge.

Justice Mehmood said that many of the laws prevalent in Pakistan may beold but they are not bad laws. Any system, however good, cannot work whenthose implementing it are inefficient or dishonest, he added.

He said that judges� discretion was deemed valuable in providing justice inexceptional cases of hardship where other provisions of law were silent, butdiscretion had been abused.

He emphasised that principles for the exercise of public interest litigationshould be laid down. The judiciary must first determine its jurisdiction and notexceed limits and it must let other democratic institutions function.

Justice Mehmood said the demand that the Chief Justice of Pakistan shouldbe consulted for any constitutional amendment in the procedure forappointment of judges was wrong in principle.

He said if the judiciary wishes it can form a separate bench exclusively forpublic interest litigation cases, as determination of other cases was suffering


on account of the courts� focus on public interest litigation cases. JusticeMehmood said another option could be expansion of the human rights cell inthe Supreme Court and assigning several individuals qualified to be districtand sessions judges to sort out the applications and refer only the importantones to the court. But he added that clear principles and procedure need tobe laid down even for that.

Justice Mehmood said that judges should not pass orders that cannot beimplemented. Any decision in public interest litigation cases must not be adecision in favour of an individual but truly in the interest of public at large. Hesaid that Justice Zahid used to take up cases brought to his attention as ajudge through telegrams and if he too was now disappointed then the mattermerits a closer look at the manner in which the public interest litigation regimeoperates.


DiscussionMs Hina Jilani said that two important things that have emerged from the

discourse are that public interest litigation and judicial activism are two distinctthings 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 ofdisempowerment of the people and lack of access to justice. However, misuseor motivated use of public interest litigation can be detrimental to public interest.She said there should be limitation and restraint on the public interest litigationjurisdiction but even to determine that restraint guidelines need to beestablished, such as the requirement of notice, etc.

Justice Zahid said a bench of judges can make a decision. He said thereis a human rights cell in the Supreme Court which peruses all applicationsmade to the court. He said he does not know how that cell works in decidingwhat 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 judgesshould also be made in a transparent manner and people should know two orthree months prior to a judge�s nomination so that objections, if any, can beraised.

He also said making provision for public interest litigation cases to be takenup 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 itthrough public interest litigation then that would be a very good step. He said


the Asian Development Bank had given a US $350 million loan for improvingthe judicial system but that has not yielded any qualitative or quantitativedifference and the common man involved in litigation is still suffering. Heemphasised the need to fill the vacancies of civil judges.

He said when one talks about public interest litigation one is talking aboutjustice for the people. He said providing justice at the grassroots, at the citycourt and at the police level can solve many cases. He said nobody wants togo to court. They want their issues resolved.

He cited a case in which the London police apprehended a young boystealing a Spiderman costume from a shop. However, the police did not registera case but talked to the child�s parents and said they would observe the childfor 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 whetherthe multitude of orders passed in public interest litigation have improved thesocio-economic situation of the people. He said an honest reply to that questionwould determine the utility of public interest litigation. He said that if not asingle person had benefited from it then one has to question the purpose ofpublic interest litigation.

Justice Mehmood stressed the need to lay down the principles for resortto public interest litigation, rather than picking and choosing cases. He saidthe Supreme Court should make rules for public interest litigation cases to betaken up under Article 184 (3) so that the criterion is ascertainable. He saidthe Supreme Court rules should have a separate chapter dealing with publicinterest litigation and exercise of public interest litigation jurisdiction shouldnot be left to the sweat will of any judge.

Hina Jilani observed that there have been attempts to use suo motupowers for populist pursuits. She said judicial activism is important in Pakistanisociety but it is imperative to see how the judges used it, as public interestissues would be resolved not through self-righteousness but through wisdom.She said judges should also seek the opinion of lawyers and other experts tounderstand the issue at hand and do justice after understanding people�sproblems.

She said the biggest benefit public interest litigation offers to a humanrights lawyer is expectation of a judgement which would then serve as a toolfor lawyers, who do not have that many tools at their disposal as human rights


defenders.

She said that that expectation is seldomfulfilled nowadays as judges often speak lessthrough the judgements and more throughverbal remarks. She said the judges often donot realise that the verbal comments they makehave substantial effect politically and socially.

She said judges cannot becomeindependent unless they want to beindependent. She said judicial independencedoes not mean independence from theexecutive alone, but also from social biases andprejudices. She cited an observation by theLahore High Court chief justice who said thatHindus were responsible for acts of terrorismin Pakistan because Muslims could not do suchthings.

Justice Mehmood observed that relief by courts has become discretionaryand judges extend the meaning of right to life or interpret it broadly when theywant to give relief to someone. He said the fundamental rights listed in theconstitution of Pakistan do not consider right to a healthy environment a naturalextension of the right to life. He suggested that the committee drafting the 18thconstitutional amendment should be asked to add the right to a healthyenvironment and to live with dignity to the right to life guaranteed in theconstitution of Pakistan and provide a specific criterion of what the right to lifeamounts to. He said, as things stand, the question whether the meaning of theright to life is expanded or limited depends on the judge interpreting that right.

Justice Zahid observed that every human being has biases, the qualityof a judge is that he should be aware of his biases and he should know thebaggage he is carrying, but he should also be aware that when he decides acase he should base the decision on facts.

He said that that was why proper training for civil judges and magistrateswas crucial, adding that in Bangladesh a civil judge is trained for two yearsbefore getting his first appointment. He studies English and laws for the firstyear and in the second year he sits with experienced judges and observeshow they work. Justice Zahid said that in Pakistan a person gets a bachelor�s

In Bangladesha civil judge is

trained fortwo years, in

Pakistan freshlaw graduatesstart work ascivil judges


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 notbeen implemented, and the judgments given by courts now are subjective. Hesuggested that the seminar should demand that public interest litigation shouldbe a separate chapter in the Supreme Court rules, indicating the principlesaccording to which the suo motu jurisdiction under Article 184 (3) of theconstitution would be exercised.

Ms Asma Jahangir suggested that another demand should be that inpublic interest litigation cases, the court should issue detailed judgementsrather than short orders, and the detailed judgments should explain withreasons a matter�s nexus with fundamental rights.

Justice Zahid said that his study showed that orders in public interestlitigation cases have been short orders to an overwhelming extent, grantingstay or setting up a commission, and there have been few final orders. He saidthat barring exceptions, orders in public interest litigation cases should not beinterim orders but detailed orders, explaining reasons for the judgement.

Mr Bhushan said that in India also interim orders granted in public interestlitigation cases remain in effect for years and courts do not give reasonedorders, with the result that the principles and rationale for the decisions arenot explained.

He said that the decisions in public interest litigation cases that are notimplemented are not implemented because the courts probably lack the will toget them implemented. If the contempt jurisdiction is relied upon to seekimplementation of the orders, the orders would be implemented to a largeextent, he added.

To curb arbitrary use or misuse of public interest litigation, some basicprinciples should be laid down, Mr Bhushan said and added that judges mustnot 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 ina certain matter the executive has ignored to pay attention to a relevantconsideration. He can ask the executive to examine that issue and make adecision after proper consideration, but the judge cannot impose his own viewby saying that the court would now order how the matter would be decided.

However, the judge can and should ensure that the executive acts afterfull application of mind and after proper and full consideration and does not


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 laggingin its primary work, determination of cases, and yet despite the backlog ofcases it continues to increase its workload through public interest litigation,and even there only short orders are passed. He said the judiciary shouldfocus on appointing upright and competent judges including ad-hoc judges toclear the backlog of cases.

Justice Zahid said he is an ardent advocate of public interest litigation butadded that his experience is that in Pakistan people have not received thebenefits they should have from public interest litigation. Benefits for peoplefrom 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 SPGupta case that transparency demands that all the correspondence/notingregarding appointment of judges should be available to public and the peopleshould be allowed to see how public functionaries behave in appointment ofjudges. He said at the time of the Supreme Court ruling the Right to InformationAct 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 transparencyensures accountability.

Mr Bhushan said a judicial accountability commission should be establishedas a constitutional body, whose members should neither be from the judiciarynor the executive. He said the appointments to the commission could be madethrough consultation with judges, government officials including president, primeminister, law minister and chief justices of the high courts and the SupremeCourt. Once appointed each member of the commission should have securityof tenure for a specified period.

Mr Khan said that there is no denying the utility of public interest litigationbut it is not the answer to every problem. He said that though in theoryprocedure 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 biggesthurdle in the pursuit of justice in India and Pakistan is that more than half the


people cannot afford to engage a lawyer, even to defend themselves in acriminal case. He said Pakistan and India need a judicial system where thecommon man can plead his case even orally and without having to rely onlawyers. He said the real challenge is whether such a judicial system can beestablished though it is clear that failure to establish that would amount todenying access to justice to more than half of the population in the two countries.

In conclusion, the HRCP chairperson, Asma Jahangir, said the seminarwas the first of a series of discussions on the subject. She said there is now arealization that the issue is not confined to Pakistan but has regional dimensionsand the discussion should be taken to the South Asia level. She said that thejudiciary should be urged to keep the objective of public interest litigation inmind and also to streamline the process for the exercise of this jurisdiction.


Recommendations Specific provisions of the constitution should prescribe specific

principles for the exercise of public interest litigation jurisdiction by the SupremeCourt of Pakistan under Article 184 (3) of the constitution, so that uncertaintyends and litigants, lawyers and judges know the principles involved. That wouldalso go a long way towards putting an end to arbitrary or motivated use ofdiscretion and misuse of suo motu jurisdiction.

The Supreme Court of Pakistan should add a separate chapter onpublic interest litigation in the Supreme Court rules, indicating the procedureregulating the exercise of suo motu jurisdiction.

The judiciary must ensure that exercise of suo motu jurisdiction doesnot encroach upon the jurisdiction of other institutions. The ultimate aim ofpublic interest litigation should be that the relief granted should not weakendemocratic institutions.

In public interest litigation cases, the court should issue detailedjudgements rather than short orders. The detailed judgments should explainhow a matter taken up suo motu is connected with fundamental rights.

Judges must only speak through their judgements and desist frommaking verbal comments during hearings.

The judiciary should desist from issuing orders whose implementation


it cannot ensure.

The courts must ensure that determination of other cases does notsuffer on account of the hearing of public interest litigation cases. The judiciarycan either form a separate bench exclusively for hearing public interest litigationcases or expand the existing human rights cell in the Supreme Court to sortout such applications and refer only the important ones to the court.

Mechanisms to ensure strong and independent judiciary, as well asfor transparent appointment of judges and for their accountability, must be putin place. The judiciary and all other institutions should welcome transparentmeasures for accountability rather than creating obstructions in that path.

Public interest litigation jurisdiction should be devolved to city/districtcourts to benefit the people at the grassroots.

The number of judges should be increased and the judges should begiven exhaustive training to clear backlog of 1.4 million pending cases andensure expeditious dispensation of justice.

public interest litigation iii - hrcphrcp-web.org/hrcpweb/wp-content/pdf/ff/26.pdfhina jilani is a...

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