Judiciary ensuring justice through public interest litigation

In the words of Justice Wan Yahya “If they (public authorities) transgress any law or constitutional directive, then any public-spirited citizen, even if he has no greater interest then a person having regard for the due observation of the law, may move the courts and the courts may grant him the appropriate legal remedy in its discretion,” (Muhammad Bin Ismail Versus Tan Sri Haji Othman Saat [1982] (2) MLJ 133).

In today’s modernized world, where citizens already enjoy quite a few rights, there is a further increase in awareness among those citizens. The citizens, now in the contemporary phase, are also well aware of their qualified rights.

This awareness has increased public approach towards courts against the violations of their rights along with a significant increase in the public interest litigation. Public interest litigation involves the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan. This writing involves a discussion of the impact of Article 199 of the Constitution on public interest litigation in Pakistan.

Understanding public interest litigation

Public interest litigation as defined by Black’s Law Dictionary is something in which the public or community at large has some pecuniary interest or some interest by which their legal rights or liabilities are affected, while the jurisdiction of the High Courts in this regard is defined in Article 199 of the Constitution which provides that any aggrieved person left with no other remedy can file an application.

There are stringent requirements imposed by Article 199 on this basis, such as the arguments of maintainability under the said article against locus standi and the requirement of being an aggrieved person to initiate public interest litigation.

Pakistan has seen an active exercise of powers invoked under Article 184(3) of the Constitution on the pretext of Public Interest Litigation (PIL). PIL is litigation initiated to advance a good cause or issue of public importance, for instance, to improve the human rights situation and to protect them through a process of law seeking intervention of courts.

The majority of human rights have been described in the shape of fundamental rights in Chapter 1 Part II of the Constitution of Pakistan (the Constitution). Supreme Court of Pakistan (Supreme Court) has been given powers under Article 184(3) of the Constitution to pass an order if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights is involved.

Accessing justice through PIL

The opportunities, for a common citizen, to access justice before the Independence of Pakistan were limited. However, it was relatively easy for the people of Pakistan to frame their constitution without any inordinate delay and to fulfil the purposes of Independence of which one of them was less expensive and expedient access to justice. The British traditional courts, on the contrary, did not open their doors directly for justice to the common man of Pakistan.

In the Constitution of Pakistan 1973, Article 184(3) was inserted to bestow jurisdiction on the Supreme Court in a case of breach of the fundamental right of public importance. Initially, the Supreme Court remained oblivious of its power not realising that it could play a pivotal role to provide direct justice to the poor people of Pakistan.

Particularly, in the case of violation of fundamental rights, the Supreme Court, along with High Courts, started to entertain the suppressed people directly, removing all shackles of a writ or requirements of an adversarial system to access justice. The increasing legal status of the Objectives Resolution also played an important role to empower the lower strata of the society to find the constitutional Courts accessible for justice, through public interest litigation.

Public interest litigation is a valued form of litigation to protect fundamental human, social, and economic rights. As a sequel to the above discussion, salient features of the public interest litigation therefore can be summarised as: it ensures access to justice; makes public authorities accountable; enhances transparency in public actions; fulfills constitutional promises; promotes confidence in the use of Judicial Institutions.

It also allows neglected public interests to be attended; basic civic necessities and healthy environments etc; ensures protection to life, liberty, property of the citizens; ensures inexpensive and speedy justice to the poor, unprivileged, weaker people and sections of the society; makes the illiterate people conscious of their fundamental human rights and enforces Rules of Law.

Public interest litigation in the words of Pakistan’s Supreme Court

In the ceremonial judgment titled “Miss Benazir Bhutto Versus Federation of Pakistan” (PLD 1988 SC 416) the then Chief Justice of Pakistan Mr. Justice Muhammad Haleem took an opportunity to render a dynamic constitutional interpretation by delivering a landmark judgment.

While interpreting the terms locus-standi, bona-fide representation, fundamental rights, and public importance, it laid down cardinal principles for the Supreme Court to exercise power and jurisdiction under Article 184 (3) in public interest litigation. It also clarified other various dimensions relating to the concept of public interest litigation.

Pinpointing the weakness of the existing judicial system based on adversarial/traditional litigation Hon’ble Chief Justice Mr. Muhammad Haleem aimed to provide access to justice to all people of Pakistan, based on public interest litigation. It was a remarkable contribution to open the doors of the social justice system closed to the poor by the inherited/traditional Anglo-Saxon legal system.

In this leading judgment the Hon’ble Chief Justice Muhammad Haleem while quoting the pioneering Indian case on public interest litigation “S.P Ghupta versus V.M. Tarkunde (AIR [1982] SC 149)” also observed that through purposive and creative interpretation of the constitution, the Indian Supreme Court has succeeded in reaching its objective of bringing Justice within the easy reach of the people which has made it possible in India for a bona-fide member of the public to bring a case enforcing the fundamental rights of a class or group of people.

The Hon’ble Chief Justice thus dealing with the issue of locus-standi maintained that where there are violations of fundamental rights of a class or a group of persons who are unable to seek redress from the Court, then the traditional rule of locus-standi can be dispensed with, and the procedure available in public interest litigation can be made use of if it is brought to the notice of the Court by a person acting bona-fide.

Following the dictum laid down in the Miss Benazir Bhutto case, the Superior Courts in Pakistan have scaled a remarkable distance in the field of public interest litigation. The parameters on public interest litigation laid down in the said judgment proved its worth and stood to the test of time in providing a remedy to the wrongs done to the poor, unprivileged people and weaker segments of the society (PLD 1990 SC 513; 1993 SCMR 1788; PLD 1994 SC 694; PLD 1994 SC 621; PLD 1996 SC 324; PLD 1998 SC 161).

The Supreme Court of Pakistan has granted relief in the context of public interest litigation while exercising Suo Moto Jurisdiction in a number of cases (PLD 2010 SC 759; PLD 2006 SC 394; PLD 2006 SC 69; 1996 SCMR 543; 1994 SCMR 2061).

Public interest litigation: An Indian perspective

The seed of the concept of “public interest litigation” was initially sown in India by Krishna Lyer J in the year 1976 in “Mumbai Kamagar Sabha Versus Abdul Thai” (AIR 1976 SC 1455) and was initiated in “Akhil 13/taratiya Sos/ail Karnuu: hari Sangh (Raihvaiy vs. Union of India” (AIR 1981 SC 298).

In the words of Justice J.S. Verma in his book “The Constitutional Obligations of the Judiciary” public interest litigation has been called a very useful tool, having great exhaustive value and improving future decision-making.

In the words of Justice P.N. Bhagwati, the judiciary has to play a vital and important role not only in preventing and remedying abuse the misuse of power but also in eliminating exploitation and injustice. For this purpose, it is necessary to make procedural innovations in order to meet the challenges posed by this new role of an active and committed judiciary.

The summit judiciary in India, keenly alive to its social responsibility and accountably to the people of the country, has liberated itself from the shackles of Western thought, made innovative use of the power of judicial review, forged new tools, devised new methods, and fashioned new strategies for the purpose of bringing justice for socially and economically disadvantaged groups.

A word from the high courts in Pakistan

Like the Supreme Court of Pakistan, the High Courts have also played a pivotal role in dilating upon the concept of ‘Public Interest Litigation’. The role of the Lahore High Court in highlighting the concept of Public Interest Litigation has been commendable.

A country like Pakistan is blessed to have judges with the likes of Mr. Justice Jawaad Hassan, Mr. Justice Syed Mansoor Ali Shah, Mr. Justice Shahid Karim, Mrs. Justice Ayesha A. Malik, who have laid a great emphasis on the parameters of Public Interest Litigation.

Whenever and where ever the Government has failed to perform its functions and duties as enshrined in the Constitution of the Islamic Republic of Pakistan 1973 these brave, intellectual, intelligent, and courageous Judges have always stepped in and have tried to protect and safeguard the fundamental rights of the citizens through their erudite judgments.

While dilating upon the concept of ‘Public Interest Litigation’ in the context of preventing wastage of food, Mr. Justice Jawaad Hassan in the case titled “Muhammad Ahmed Pansota reported as PLD 2020 (Lahore High Court) 229” was pleased to hold that Public Interest Litigation was a powerful tool for individuals and groups to combat illegalities, injustice, and social ills; it promoted and protected the larger public interest in case of violation of any fundamental rights.

Such litigation was an innovative strategy that had been evolved over the years to provide easy access to justice to the weaker/marginalized sections of humanity; it was a powerful tool in the hands of public, spirited individuals and social action groups used for combating exploitation and injustice and for securing for the underprivileged segments of society their social and economic entitlements especially in matters of public importance.

It was further held by the learned Judge that Public Interest Litigation was in the interest of the public at large; it was a legal action or proceeding initiated for the protection or enforcement of the rights of the public at large. Such litigation was totally different from traditional litigation which was essential of an adversary character, where there was a dispute between two litigating parties, one making a claim or seeking relief against the other and the other opposing such claim or resisting such relief.

Public Interest Litigation was brought before the court, not for the purpose of enforcing the rights of one individual against another, as in the case of ordinary litigation, but it was intended to promote and vindicate the public interest. Public Interest Litigation demanded that violation of constitutional or legal rights of a large number of people who were poor, ignorant, or in a socially or economically disadvantaged position should not go unnoticed and un-redressed.

It was an effort to provide legal representation to groups and interests that had been unrepresented or under-represented in the legal process. Such groups included not only the poor and the disadvantaged but ordinary citizens as well.

Addressing serious concerns

Similarly, in the case titled “Sheikh Asim Farooq Versus Federation of Pakistan and others reported as PLD 2019 (Lahore High Court) 664″ while dilating upon the concept of ‘Public Interest Litigation’ Mr. Justice Jawaad Hassan was pleased to hold that,” Public Interest Litigation was a powerful tool for individuals and groups to combat illegalities, injustice, and social ills; it promoted and protected the larger public interest in case of violation of any Fundamental Rights.

“As long as the public interest prayed for was bona fide and not based on any vested interests, the principles of locus standi/aggrieved person were to be interpreted liberally by the Courts-Superior Courts were bound to protect the Fundamental Rights of citizens in exercise of jurisdiction conferred via Art. 199 or Art. 184 (3) of the Constitution.”

Likewise, in the case titled as Subay Khan Secretary Labour, Government of the Punjab reported as PLD 2019 (Lahore High Court) 253 while throwing light upon the concept of ‘Public Interest Litigation’ in the context of minimum wages of domestic workers Mr. Justice Jawaad Hassan was pleased to hold that “In Darshan Masih Alias Rehmatay’s case reported as PLD 1990 SC 513 the Honorable Supreme Court of Pakistan termed the matter of bonded labour and illegal detention by employers in brick kiln industry falling within the ambit of public interest litigation. In this case the Supreme Court of Pakistan had taken cognizance for the enforcement of Fundamental Rights of bonded labour.”

Apart from Mr. Justice Jawaad Hassan, Mr. Justice Syed Mansoor Ali Shah (now an Honorable Judge of the Apex Court) while being a Judge of the Lahore High Court had also thrown light upon the concept of Public Interest Litigation through his erudite judgments.

For instance, in the case titled as “Walid Iqbal Versus Federation of Pakistan and others reported as PLD 2018 (Lahore High Court) 1” in the context of hazardous smog, Mr. Justice Syed Mansoor Ali Shah was pleased to hold that, “Petitioners had filed public interest petition impugning inaction of the Provincial Government in addressing the issue of pollution and hazardous smog in the city.

“Dense smog was physically visible in the city and air monitoring showed that same had gone above the highest level and doctors had confirmed that such levels of smog were hazardous to health of residents.

“High Court observed that in spite of such conditions, no preventive measures had been taken to protect life and health of people and that High Court was bound to protect fundamental rights of people and could enforce Art. 9 of the Constitution read with internationally recognized “precautionary principle” and accordingly till such time, Government proposed a detailed action plan and keeping view emergent nature of current crises, High Court directed that its laid-out plan be put in place and a revised smog policy and declaration of public health emergency be submitted before High Court within 3 months—Constitutional petition was disposed of, accordingly.”

An effort to provide legal and fair representation

In the case titled “Mian Shabir Asmail Versus Chief Minister of Punjab and others reported as PLD 2017 (Lahore High Court) 597” while dilating upon the concept of “Public Interest Litigation” in the context of Public Procurement Rules 2014, Mr. Justice Syed Mansoor Ali Shah was pleased to hold that “Public interest litigation” is an effort to provide legal representation to groups and interests that have been unrepresented or under-represented in the legal process. These include not only the poor and the disadvantaged but ordinary citizens.

“Public interest litigation” is an innovative strategy that has been evolved over the years for providing easy access to justice to the weaker sections of humanity and is a powerful tool in the hands of public, spirited individuals and social action groups for combating exploitation and injustice and securing for the underprivileged segments of society their social and economic entitlements.

“Public interest litigation” is, therefore, in the interest of the public at large. It is a legal action or proceeding initiated for the protection or enforcement of the rights of the public at large. It is totally different from the traditional litigation which is essential of adversary character, where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.

Public interest litigation is brought before the court not for the purpose of enforcing the rights of one individual against another, as happens in ordinary litigation, but it is intended to promote and vindicate the public interest, it demands that violation of constitutional or legal rights of a large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed.

No personal vendetta under public interest litigation

“Public interest litigation” is essentially a cooperative or collaborative effort on the part of the petitioner, the State or public authority, and the Court to secure observance of the constitutional or legal rights, benefits, and privileges conferred upon the vulnerable sections of the community and to provide social justice to them.

When a court entertains public interest litigation, it does not do so in a caviling spirit or in a confrontational mood or with a view of tilting an executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programs, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The court thus merely assists in the realization of the constitutional obligations. Such sacrosanct public-spiritedness forms the foundation of public interest litigation.

It is, therefore, a precondition that any public interest litigation is grounded in bona fide public interest. The courts do not allow that the corridors of justice are polluted by vested interest or unscrupulous litigants. The court must, therefore, be satisfied regarding the credentials of the petitioner, the prima facie correctness of the information placed before the court, the specific and definite nature of the information, and the seriousness of the pleadings. The court must distinguish between public interest litigation, private interest litigation, or political interest litigation.

Public interest litigation should not be allowed to become a deal to settle personal vendetta or to wreak vengeance or to malign any party or to bring anybody into disrepute with baseless allegations. There must be at all times, real and genuine public interest involved in the litigation and credible information for maintaining a cause before the court. Public interest litigation should not be a mere adventure or an attempt to carry out a fishing expedition to settle personal scores.

Court as a guardian of public interest

In the case titled “Judicial Activism Panel Versus Government of the Pakistan and others reported as PLD 2017 (Lahore High Court) 588” while dilating upon the concept of “Public Interest Litigation” in the context of withdrawal of a Constitutional Petition pertaining to Public Interest Litigation Mr. Justice Syed Mansoor Ali Shah was pleased to hold that, “A Constitutional Petition pertaining to public interest litigation could only be withdrawn with the permission of the court as it was not a dominus litis, and the petitioner in such a petition, had no right to withdraw the Constitutional petition on his/her sweet will.”

In the case titled as Mohammad Shafiq-ur-Rehman Versus Federation of Pakistan through Secretary and another reported as PLD 2017 (Lahore High Court) 558 while being seized of with a matter pertaining to “Public Interest Litigation” in the context of inclusion of persons with disabilities in the national census, Mr. Justice Syed Mansoor Ali Shah was pleased to allow the Constitutional Petition.

He went on to hold that “Depriving persons with disabilities from being included and counted in the National Census would offend their welfare and future prospects as the State had no credible information regarding their population, hence, exclusion of persons with disabilities from Census (head count) was in violation of right to life and dignity under Arts. 9 & 14 of the Constitution besides being discriminatory under Art. 25 of the Constitution.”

In the case titled “Attaullah Khan Malik Versus Federation of Government of Pakistan through President of Pakistan and 3 others reported as PLD 2010 (Lahore High Court) 605” Mr. Justice Syed Mansoor Ali Shah while heading a Division Bench of the Lahore High Court while dilating upon the concept of “Public Interest Litigation” was pleased to hold that, “In matters pertaining to public interest litigation the rule of “standing” or “locus-standi” or “aggrieved person” has received a liberal interpretation and any person/citizen having “sufficient interest” (in the context of large public interest) can maintain a petition as an “aggrieved person” under Art. 199 of the Constitution subject to satisfying other requirements of the said Article.

“The real test in public interest litigation is the subject matter of the petition or the abuse of public trust complained of. Once the court assesses that breach of trust and violation of law by a public institution has taken place, the court must immediately proceed further to rectify the breach, the identity or antecedents of the petitioner pale into significance.

If, on the other hand, the court finds the petition to be without merit, camouflaged to foster personal disputes, such petition is to be thrown out. Public Interest Litigation should not be allowed to be “Publicity Interest Litigation” or “Private Interest Litigation” or “Politics Interest Litigation”.

However, if the court is convinced that that violation of law has taken place pertaining to public property or the public interest it should matter less who brought the complaint before the court. This is also because public interest litigation converts the adversarial nature of the proceedings into inquisitorial proceedings. The court, as guardian of public interest, investigates to decipher the truth. This unique remedy is the hallmark of a welfare democratic state, which rests on the principle of social and economic justice enshrined in the Constitution”.

Need for a new judicial strategy

The judiciary is constitutionally obligated to protect the fundamental rights as provided in the constitution of a country, and the same is the constitutional jurisprudence in Pakistan. These rights, however, could not have been materialized under the present Constitution, 1973, and even before the independence of the country.

The reasons, for which fundamental rights could not have been protected, are factors including socio-economic conditions, ignorance, constitutional and political crisis, and adversarial justice system. These factors have confronted the right to access justice for citizens throughout history.

Resultantly, the rights have happened as a teasing illusion, particularly for the underprivileged people. So, making the rights meaningful for all of the citizens, new judicial strategies were needed to be developed to substantiate the legitimacy of the government in Pakistan.

May Allah help and guide us all and may our judiciary be able to serve the people of this Nation with great zeal for all times to come!

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV, and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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Judiciary ensuring justice through public interest litigation

Citizens of India and Pakistan are usually deprived of their fundamental rights. However, through public interest litigation, the judiciary can ensure that justice is served and people's rights are protected. Barrister Pansota offers a panoramic view. Must Read for students of law and policy.