Articles 2009

STANDING TO SEEK JUDICIAL REVIEW

By
MISS ATIKA LOHANI*

All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest. The desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigants and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.[1] How serious this conflict actually is, is open to question. As Professor K.E.Scott has written in his Article “Standing in the Supreme Court-A functional analysis”,[2] that “The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which haunts the legal literature, not the courtroom.” The conflict has been resolved by developing principles which determine who is entitled to bring proceedings; who has locus standi.[3]

Locus is a term used in geometry with the meanings suggested by the Latine “Locus” “Place”. The term is readily extended to higher dimensions,[4] and also refers to “the place where thing is done or exists”.[5] “Locus standi” is “a place of standing; standing in court,”[6] right to bring an action or to be heard in a given forum; standing[7] or standing to bring proceedings.

The expression “standing” is defined as “A Party’s right to make a legal claim or seek judicial enforcement of a duty or right.”[8] Brennan,J. in Baker v. Carr[9] is quoted here while he gave the basic concept of “standing” in that “Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional question.? This is the gist of the question of standing.” It is appurtenant to quote Joseph Vinning here, while he says: “the word standing is rather recent in the Basic Judicial vocabulary and does not appear to have been commonly used until the middle of our own century. No authority that I have found introduces the term with proper explanations and apologises and announces that hence forth “standing” should be used to describe who may be heard by a Judge.”[10]

In the absence of standing, or locus standi, the court has no jurisdiction to exercise its supervisory power over the impugned action of a public body. How issues of standing are decided determines who has access to justice and it, therefore, has a constitutional significance. At its heart is the question that “are there some decisions of public bodies, the legality of which is otherwise justiciable, but in respect of which no person has been sufficiently affected to enable a legal challenge to be made”? to answer yes to this question presupposes that the primary function of the court’s supervisory jurisdiction is to redress individual grievances, rather than that judicial review, which is concerned with rule of law.[11]

The English common law has dealt harshly with those who maintain others to institute civil proceedings in which they themselves have no direct interest: Culpa est se immiscere rei ad se non pertinent.[12] when an administrative body commits a breach of the law which is, neither a tort nor a crime, a difficult problem of public policy arises. If a public authority makes regulations or issues orders or spends money for unauthorized purposes, or if an administrative tribunal usurps a jurisdiction that does not belong to it, or if either refuses to discharge its statutory duties, the matter is obviously one of public importance; but it is not obvious that every member of the public should be entitled to vindicate the law by instituting legal proceedings. It would be unwise to assume that the effort of the doctrine of binding precedent or the power for the courts to award penal costs against vexatious litigants would suffice to dam a flood of unmeritorious challenges to administrative action.[13] According to a survey carried out by L. Brideges, M. Sunkin and G. Me-sza-ros, in the book “Judicial Review in perspective”[14] recorded an interesting analysis of applicants for judicial review. According to analysis applications were made in 84-88 percent of cases by individuals; of the remainder 50-60 percent are by companies, 6 percent by central Government, 14-35 percent by local authorities and only 1-2 percent by non governmental organizations.

Nearly all foreign systems have required that, save in exceptional cases; a plaintiff must have a special personal interest in the proceedings which he institutes. In Roman law it was open to any citizen to bring an actio popularis in respect of a public delict or to sue for a prohibitory or restitutory interdict for the protection of res sacrae and res Publicae, but title to sue otherwise depended upon the infringement of a private right. In French and Italian administrative law administrative action can be impugned only by those who have a direct personal interest; the range of interests that provide locus standi is considerably wider in France than in Italy. In United States, too, petitioner must establish a “personal interest” ; the case-law is voluminous, and the courts have exercised wide discretion in determining whether the petitioner’s interest is one deserving of legal protection. As it was decided by the Court that “Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a ‘personal stake in the outcome of the controversy’, as to ensure that ‘the dispute sought to be adjudicated will be presented in an adverse context and in a form historically viewed as capable of judicial resolution”.[15]In English Law, parliament has provided a statutory procedure for challenging the validity of administrative actions, it has usually restricted locus standi to “persons aggrieved.”[16]

English law, included for the first time a statutory test of standing of general application, and the jurisdictional requirement of a “sufficient interest” for an applicant to apply for a judicial review is stipulated by section 31(3) of the Supreme Court Act, 1981, and in almost identical terms by R.S.C., Ord.53, and rule 3. These provisions refer expressly to the court refusing permission or leave unless it considers that the applicant has standing.[17] One of the objects of the new test was to save the courts from having to reconcile the multiplicity of often conflicting authorities which governed the principles of Locus Standi under the previous procedure for obtaining the prerogative orders.

In America ”injury in fact test” and “zone of interest test” are introduced to streamline the question of standing faced by the courts in a number of cases. The ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.[18] In Data Processing Service case[19] the Supreme Court of America held more broadly that persons had standing to obtain judicial review of federal agency action under section 10 of the Administrative Procedure Act 1946 [20] where they had alleged that the challenged action had caused them ‘injury in fact ‘and where the alleged injury was to an interest arguably within the ‘zone of interests’ to be protected or regulated by the statutes that the agencies were claimed to have violated.

The question of standing in Pakistan has been raised before the courts where ever the dimensions of “aggrieved person” were sought to be prescribed by the courts before excercising the Constitutional writ jurisdiction under Article 199 of the Constitution of 1973. In Shahnwaz Begum v. the Honourable Judges of the High Court of Sindh[21]. It was laid down that “High Court has no power to issue suo motu an order under this Article, its jurisdiction to do so being dependant on application of an aggrieved party.” “Aggrieved” in general is defined as having suffered loss or injury.”[22]. It may be stated generally, that an aggrieved party is one; in prohibition whose rights are threatened, in mandamus whose rights are being denied and in certiorari whose rights have been affected by decision. The word “right” is not used in its strict juristic sense. It is sufficient if the person alleging to be aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage[23]. A party who stands to loose or gain an advantage by observance or non observance of law is an aggrieved party[24]. In Managing Committee v. Settlement Commissioner[25] it was decided that it is a basic principle that a petitioner does not have a standing to sue unless he is interested in it and adversely affected by the decision of which he seeks review and his interest must be of a personal and not of an official nature.” Therefore a commission agent is not competent to apply on behalf of his principle[26]; nor can a person who himself does not pay a toll tax ask for a prohibition against the levy of any such tax[27], nor a person who asserts a right to which he is not entitled[28].

During the 19^th century the words ‘person aggrieved’ were construed very restrictively. The extension of the concept of standing in England can be traced back to 1880, in Side Botham case[29] where Nathan Side Botham and James Marsh, who carried on business in partnership at Ashton-under-Lyne as the Barnfeild Ironworks Company, were adjudicated bankrupts in Ashton country court on 21^st November of 1973. In Chancery Division, a distinguished Judge, Lord Justice James, refused to act on report by comptroller in Bankruptcy of misfeasance of trustee. It was laid down at page 465 that a man was not a ‘person aggrieved’ unless he himself had suffered particular loss in that he had been injuriously affected in his money or property rights. He was not ‘aggrieved’ simply because he had a grievance.

But in 1957, Lord Justice Parker and Lord Denning M.R., departed from this old test. Lord Denning in his book “The Discipline of Law’ mentioned that “ a case which is only reported in the local Government Reports i.e. R. v. Thames Magistrates’s Court (1957)5 LGR 129. It was about a pitch in a street market in Bermondsey. The magistrate had awarded the pitch to a seller of jellied eels. But a newspaper seller thought that he ought to have had the pitch. He had no legal right to the pitch. But we held that he had a locus standi and quashed the order of magistrates.[30] This was followed a few years latter in R. v. Paddington Valuation Officer, ex parte Peachy Property Corporation Ltd.[31] where a ratepayer who said that the valuation list of the whole area had not been properly prepared. He was not able to show that his own property was rated wrongly. His only complaint was that the whole list was wrong. Lord Denning M.R. said on page 400-1 that “The question is whether the peachy Property Corporation are “persons aggrieved” so as to be entitled to ask for certiorari or mandamus. It was contended that the matter would not make a pennyworth of difference to them. But I do not think grievances are to be measured in pounds, shillings and pence court would not listen of course; to a mere busy body. But it will listen to anyone whose interests are affected by what has been done. So here it will listen to any ratepayer who complains that the list is invalid”.

Again in R. v. Commissioner of Police of the Metropolis, ex parte Blackburn,[32] Mr. Blackburn came just as a private citizen. He had no greater interest than any other member of the public and approached the court for the law be enforced. It was submitted that he had no locus standi. Lord Denning observed the question whether Mr.Blackburn has a sufficient interest to be protected, and said that “No doubt any person who was adversely affected by the action of commissioner in making a mistaken policy decision would have such an interest.”

This principle was accepted as correct in another important case brought by Mr.Backburn R. v. Police Commissioner, ex parte Blackburn[33] is an important illustration of the principle, where it was sought that the laws against pornography were not being enforced. Mr.Blackburn had no interest except that his children might see the publications –just as anyone else’s children.

The matter of sufficiency of interest came up for debate again in 1976, in case, R. v. GLC, ex parte Blackburn,[34] where it was brought to the knowledge of the court that pornographic films were being exhibited in London, and the Greater London Council were doing nothing to stop them. The application for writ of prohibition was succeeded. Lord Denning observed “On this point, I would ask: who then can bring proceedings when a public authority is guilty of a misuse of power? Mr.Blackburn is a citizen of London, his wife is a ratepayer. He has children who may be harmed by the exhibition of pornographic films. If he has no sufficient interest, no other citizen has”.

Lord Denning quoted his findings in McWhilter’s case (1973) QB 629, 649 which reads as under “I regard it as a matter of High Constitutional principle that if there is a good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty’s subjects, then anyone of those offended or injured, can draw it to the attention of the courts of law and seek to have the law enforced.” The Blackburn cases extended locus standi for the prerogative writs, but not for the remedies by declaration or injunction. This principle laid down by Lord Denning did not find favour with the House of Lords. They disapproved it in the Gouriet v. Union of Post Office Workers[35] on a very narrow ground it was because of remedy which was sought other wise, Mr.McWhirter should have sufficient interest to bring certiorari, mandamus, or prohibition, because undoubtedly, independent television authority was a statutory authority against whom any of the prerogative writs could lie. This anomaly has, however, been removed by the new rules of Court and high Constitutional principle restored in its entirety.As stated earlier, English law, included for the first time a statutory test of standing of general application and the jurisdictional requirement of a “sufficient interest” for an applicant to apply for a judicial review is stipulated by section 31(3) of the Supreme Court Act, 1981, and almost identical terms by R.S.C. ordinance. 53 rule 3.[36] Lord Denning wrote in “The Discipline of Law” regarding introduction of order 53 in January 1978 that “it lays down one simple test of locus standi in order 53, Rule 3(5). It is this the applicant must have a sufficient interest in the matter to which the application relates, what is the test of “sufficient interest”? The Rules committee has not attempted a definition but I would suggest that it is legitimate to adopt the test laid down in the Blackburn and McWhirter cases. The court will not listen to a busybody who is interfering in things which do not concern him, but it will listen to an ordinary citizen who comes asking that the law should be declared and enforced, even though he is only one of hundred, or thousands who are affected by it.[37]

The application of the sufficiency of interest test must be seen in the light of the first important decision by the House of Lords on this topic, namely R. v. Inland Revenue Commissioners, exp. National Federation of Self-employed and Small Businesses Ltd.,[38] where casual labour was common on Fleet Street newspapers, the workers often adopting fictitious names and paying no taxes. The IRC made a deal with the relevant unions, workers and employers whereby if the casuals would fill in tax returns for the previous two years then the period prior to that would be forgotten. The National Federation argued that this bargain was ultra vires the IRC and sought a Declaration to that effect plus mandamus to compel the IRC to collect the back taxes. The IRC defended by arguing that the National Federation had not standing. Their Lordships found for the IRC but it would be misleading to say that they upheld the entirety of the IRC’s claim.The effect of the decision is happily described by Sir William Wade Q.C. and C.F. Forsyth in “Administrative Law”[39] as helping “to crystallize the elements of generous and public oriented doctrine of standing which previously been sporadic and uncoordinated.” Lord Wilberforce at page 631 of IRC case observed that Gouriet and the IRC case, in fact, reflect different philosophies. The IRC case eschewed the historical distinction between the remedies, and took as its touchstone the more liberal rules for prerogative relief, to which standing for Declaration and injunction were then assimilated.

The general thrust of the IRC case was that the standing and the merits often could not be separated in complex cases where it would be necessary to consider the whole legal and factual context to determine whether an applicant possessed a sufficient interest. The term merits have meant that the court would look to the substance of the allegation in order to determine whether the applicant had standing. This would include:

1. the nature of the power or duties involved;

2. the alleged breach; and the subject matter of the claim.

According to P.P. Craig, the term fusion will be sued to refer to the process whereby courts consider the above list of factors in order to determine whether the applicant has standing in this particular case.[40]

To visualize the extended application of standing to public policy it is pertinent to mention that in Pakistan the concept of aggrieved person was, for the first time, introduced as a rule of law, in the Article 98 of Constitution of Pakistan 1962, although courts have applied it as rule of prudence while they exercised the Constitutional jurisdiction under Articles 223-A and 170 of 1935, Act and 1956 Constitution respectively. So the writ jurisdiction u/A 98, of 1962 Constitution could only be exercised by an aggrieved person. The High Court could not issue any writ suo motu. The exercise of writ jurisdiction was dependent on the application of aggrieved person. He could establish his locus standi by showing that he had a direct personal interest in the act in respect of which he was approaching the court for relief in exercise of its extra ordinary Constitutional jurisdiction, under this Article.

Article 199 of 1973 Constitution also like its predecessor Article 98, stipulated that the High Court may pass such an order on the application of a person who approaches the High Court if he is an aggrieved person in terms of Article 199. It was interpreted in Fazal Din v Lahore Improvement Trust[41] by Supreme Court that “it is enough for the applicant to disclose that he had a personal interest in the performance of the legal duty which if not performed or performed in manner not permitted by law would result in the loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise. “ In a latter case, Begum Nair Abdul Hamid v. Pakistan (Federal Government) Through the Secretary, Interior, Division Islamabad,[42] Lahore High Court held that if a right of husband was infringed, the mater could be agitated by his wife before the High court. Relying on Fazal Din’s Case, it was decided that”if the movements of husband are restricted in house it is, of course not possible for him to perform his obligation if wife’s state of health calls for an immediate removal to hospital. This no doubt, will affect the right and interest of the wife and she be an aggrieved person within the meaning of sub clause (a) of clause (I) of Article 199, it is not necessary that she must establish right in strict juristic sense.”

The court in Pakistan has for the firs time introduced the concept of Fusion ( i.e. to decide upon the sufficient interest the legal and factual context of the case should be appreciated) in Aslam Saleemi, Advocate v the Pakistan Television Corporation[43] where the petitioner was an advocate and also an office bearer of a political party, this was one of the parties of a Political Alliance. The grievance of the petitioner was that Pakistan Television Corporation was being used by the government party for election campaign. The party of political alliance to whom the petitioner belonged was not being allowed to avail the same facility. The Lahore High Court observed that the meaning of the expression “aggrieved party” in Article 199 has to be construed in the context of and on the facts of each case”, which observation is in line with view of Lord Wilberforce expressed in IRC case in 1982.

Extended meanings assigned to the expression aggrieved person are also laid down in Miss Benazir Bhutto v Federation of Pakistan[44]. Where objection was taken that the rights which could be enforced by the court must ordinarily be the rights of the petitioner himself who claims infractions of those rights, and approaches the court for relief, the objection was, however, overruled, and at page 483, Honorable Mohammad Haleem C.J., while relying on Fazal Din’s Case observed that “It is clear that the vires of Act can be challenged if its provisions are ex facie discriminatory, in which case actual proof of discriminatory treatment is not required to be shown.This being so, it can not be doubted that the petitioner is an aggrieved party as contended by the learned counsel to the petitioner.” However the preponderant view, appears to be that person in order to qualify as an aggrieved person may not have a right in strict juristic sense, but he can nevertheless maintain a writ if his interest are prejudicially affected.”[45]

In the case of Dr. Mahboob v Mrs. Nawab Begum (1992) it was observed that “Construction of high rise building can cause nuisance to the neighbors or persons living in the same locality can object on the ground supporting infrastructure; and the residents of the locality can object on the ground that the proposed building would interfere with their amenities. So in the present case, deprivation of any amenity would confer a right on the residents of the locality to maintain a writ petition.”

The effect of reading Article 199 (1) (c) and Article 199 (2) together is that the meaning of a aggrieved person has been enlarged and relaxed. The restrictions of pre-conditions which may be found in Article 199 (1) do not find any mention in sub Article (2) of Article 199 where the enforcement of Fundamental Rights is concerned, therefore, it deserved specific meaning and construction by the High Court. Sindh High Court held in Sindh Graduates Association v the State Bank of Pakistan[46]that“The second clause of Article 199 of the Constitution enables a High Court to give effect to the guarantee assured by Article 8 (1) of the Constitution. Right to move the High Court for infringement of any of the Fundamental Rights can not be abridged or curtailed in any manner. Locus standi in such cases still cover wider range. In view of above we are inclined to hold that petition filed by the petitioners is maintainable.” In Ghulam Mustafa v Muniapal Corporation (1998) Lahore High Court observed that “Liberal interpretation of term “aggrieved person” must be adopted if it was found that issues involved in particular case were of paramount public importance or the same related to management of fiscal affairs of statutory body or of government department dealing with public exchequer. Narrower or technical approach in such matters to non-suit any citizen would be infringement of spirit as well as fundamental rights enshrined in the Constitution, which could not be allowed to be abridged, or curtailed.”

With the attitude to extend the concept of standing to public policy in a proper case to help redress the grievance the courts have considered the dimensions as well, to limit the extension where ever it is in greater benefit of justice to deny the standing than to adhere to the flexible approach thereof. In order to discover who may be legitimately responsible for the institution of an action for certiorari, mandamus or prohibition, as the case may be, and to see what persons have right to apply, the primary aspect to be dealt with is, whether writ is issuing as a matter of right or according to the discretion of court. Regardless the question of who the person aggrieved is, English courts have refused to grant writ of certiorari, even where grounds were made out for its issuance, if no benefit could arise from granting it, thus in R. v. Newborough[47] where allowances were paid under informal and probably void order and applicant would be unable to recover the money even if order made so, Lush J. observed that “It is in the discretion of the court to grant or to refuse a certiorari, and it is not a matter of right. As the order had acted on, the money paid, and the account allowed, we think we ought not to do anything to re-open these proceedings”.

Again in Supreme Court ruling in case of Rahmatullah v. Mst. Hameeda Begum[48] we can see the inclination of the courts in the same fashion as it read that “Even when an order impugned before High Court is found to be lacking in some legal, or jurisdictional requirement the Constitutional provision does not compel the High Court to issue a writ much less that of certiorari or mandamus. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal, then before setting aside first mentioned order the court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise discretion, provided that the setting aside of such an order would result, inter alia into an injustice or revive another illegal order.” In Dr. Zahida Mir v. the Punjab Public Service Commission, Lahore[49] it was laid down that substantial justice has been done to both the parties, it is not a fit case for the exercise of discretionary Constitutional Jurisdiction to disturb entire selection process and remit the case to the commission, this Discretionary relief is also denied to a person where it amounts to help him in retention of ill-gotten gains.[50] The discussion may be further streamlined by adding D.C.M. YardLey, who opined in his article “Certiorari and the problems of locus standi”[51] and “Prohibition and Mandamus, the Problem of Locus Standi”[52]that “The judicial talk of “persons aggrieved” is only a loose covering by the courts for this general policy of allowing an applicant to obtain a rule if it is desirable. The court is in fact simply exercising its discretion whenever it decides who is or who is not a person aggrieved.”

So where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. Take for example, the case of a minor. So in this context surrogate standing covers the case where a pressure group represents the interests of others who are often not well-placed to bring the action themselves. Associational standing is typified by an organization which is suing on behalf of its members. Standing has been accorded in such circumstances where the group consists of persons who are directly affected by the disputed decision. There can equally be cases where one member of a group brings the action on behalf of the group as whole, as in Mohammad Aslam Saleemi v. Pakistan Television Corporation[53]. Public interest standing is asserted by those claiming to represent the wider public interest, rather than merely that of a group with an identifiable member-ship. In this type of case, the decision may affect the public generally, or a section thereof, but no one particular individual has any more immediate interest than any other, and a group seeks to contest the matter before the courts. Some claims of this nature have failed, but a number have succeeded. A well-known claim which failed was R. v. Secretary of State for the Environment, ex.p. Rose Theatre Trust Co.[54] Developers, who had planning permission for an office block, came upon the remains of an important Elizabethan theatre. A number of people formed a company seeking to preserve the remains. They sought to persuade the Secretary of State to include the site in the list of the monuments under the Ancient Monuments and Archeological Areas Act 1979. The Secretary of State could do so if the site appeared to him to be of national importance. If the site was thus designated, that it was of national importance, no work could be done without his consent. Although the Secretary of State agreed that the site was of national importance. He declined to include it within the relevant legislation. Schiemann J. found that there had in fact been no illegality, but he also held that the applicants had no locus standi. He accepted that a direct financial or legal interest was not necessary in order for an applicant to have standing; the assertion of an interest by many people did not mean that they actually possessed one; and that there might be certain types of governmental action which no one could challenge. In other cases, public interest challenges have been successful. In R. v. Secretary of State for Employment, ex P. Equal Opportunities Commission[55] the EOC sought locus standi and argued that certain rules concerning entitlement to redundancy pay and protection from unfair dismissal were discriminatory and in breach of E.C. law. The House of Lords held that the EOC did have standing. In R. v. Her Majesty’s Inspector of Population ex P. Green Peace Ltd[56]. applicant group brought a challenge to the regulation of the Sellafied nuclear site. Otton J. reached his conclusion by taking a number of factors into account, including the fact that Greenpeace was a respected international organization with a large membership; that a number of its members lived in the Cumbria region; that the issues were serious and complex; that Greenpeace was well-placed to argue them; and that if it did not have standing there might not be any effective way to bring the matter before the court. A liberal attitude towards public interest challenges is also apparent in the Word Development Movement case.[57] The WDM sought to challenge the minister’s decision to grant aid to fund the construction of the Pergau dam in Malaysia on the ground that it was outside the relevant statutory powers. The court accorded the group standing, taking into account the fact that no other challenger was likely to come forward, and the importance of vindicating the rule of law by ensuring that the minister remained within his statutory powers. The fusion approach has been used to varying degrees in the context of group challenges.

A close scrutiny of authorities shows that Superior Courts in Pakistan have been inclined to give liberalized and more uniform meanings to “Aggrieved Person” under Article 199 of Constitution of 1973. A person who has a genuine grievance on account of an action which affects him prejudicially is ordinarily considered to be eligible to move the court. So in administration of Justice, High Court came to rescue aggrieved citizen and ordered in nature of mandamus to SHO’s of various police stations to lodge an FIR and proceed with investigation,[58] where refusal on their part was alleged. While in 1999, a leading case on this point Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) Karachi[59] gave the more uniform and extensive meanings to the concept of Aggrieved person and streamlined the law in Pakistan on the subject, with the approach adopted in English Law recently. In this case where order of Constitution of High rise building was challenged. Honourable Cheif Justice Ajmal Mian recorded the judgment and quoted a treatise (judicial review of Administrative Actions by de Smith, Woolf and Jowell 5^th ed.) where the general approach to concept of Locus Standi in the context of “Sufficient Interest” is summarized and held that “the concept of Locus Standi has been whittled down inasmuch as the expression “sufficient interest” inter alia includes civic (or community) environmental and cultural interest.” However Lahore High Court in a later case of Mohammad Suleman v. Additional Deputy Commissioner (General) Lahore, Cantt.[60] Insisted on fundamental and legal rights of an individual, petitions were maintained and held that “a person could be said to be aggrieved when a person was denied a legal right by some one who has legal duty to person relating to that right.” The following year, Lahore High Court considered a blacklisted firm as an aggrieved person who failed to comply with contractual obligations in stipulated period, which was due to non availability of the material in market, and recognized grievance in respect of reputation. So in Zulfiqar Ali v. Divisional Superintendent (workshop) Pakistan Railways, Mughalpura, Lahore[61] Honourable Syed Zahid Hussain J., observed that” where an act or order inflicted civil consequence on a person in respect of his reputation or property which was harmful to interest of that person, he was, before authority takes such decision of blacklisting him, the person likely to be affected adversely, and was entitled to a notice and hearing in matter” and set aside the alleged decision. In recent case, Pakistan Lawyers Forum v. Federation of Pakistan[62] the Lahore High Court was keeping in view the progressive and liberal meanings of expression “aggrieved person” whereby the court accepted a Registered body of Lawyers as competent to file writ petition. In this case, Implementation of the Judgment of Supreme Court in Zafar Ali Shah case (PLD2000 S.C.869) was sought; court recognized the petitioner as aggrieved person but declined to dwell upon such points lest it trespassed on jurisdiction of Supreme Court. The learned Council for petitioner, Mr. A.K. Dogar, relied upon Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 S.C. 416) and Al Jehad Trust v. Federation of Pakistan (PLD 1999 S.C. 324) to support his argument that petitioner has locus standi, the court observed that “the petitioner is a registered body of lawyers, who are the Honorable citizens of this country, groomed in law and Constitution have every right to assail Legal Framework Ordinance. In order that a person be considered an “aggrieved person’ within the meaning of Art. 199, he may not have a right in strict juristic sense but he must show that he had a personal interest in the Constitution, would affect entire nation and petitioner is body of lawyers who are citizens of this country and likely to be affected by amendment.” In Lahore High Court in Mist. Rukhsana v. D.S. P. Circle Sadikabal[63] where the petition is one of the many petitions filed almost daily in this Court by women, who leave their homes and contract marriages against the wishes of their families and then seek protection against an unreal danger of threat which might not exist at all, the petition has been submitted to prevent any legal action to be taken against her by her family. The purpose of filling such petitions is two-fold: firstly it is intended to bring on record a particular version of the abductees and second, of course, is to prevent a likely or impending legal action to be taken against the abductees or others. The objectives stands achieved by the petitioner, while there is no proof of any harassment being caused to petitioner by the police Honourable Intikhar Hussain Held that “in case the local police initiated any action against the petitioner, the police shall ensure that every thing is done strictly in accordance with law and petitioner is not subjected to harassment at the wishes of any individuals.” But the scope of Article 199 of the Constitution 1973, particularly in the cases of writs of habeas corpus has been narrowed down by the recent decisions of the Superior Court, and it is reflected in one of the case of Javed Ibrahim Paracha[64]. The said petitioner was a former member of National Assembly from Kohat District, NWFP who filed a Constitution Petition under Article 199 of the Constitution challenging illegal arrest and detention of some 57 foreigners mainly from Arab countries and 145 Pakistani citizens mainly from tribal areas. This writ petition was dismissed by Peshawar High Court mainly on the grounds, inter alia, that the petitioner was not an aggrieved party. Strangely, the Supreme Court of Pakistan also adopted the same view and dismissed the appeal against the decision of the Peshawar High Court, inter alia, on the grounds that the petitioner was not an aggrieved party and that such petition does not amount to a public interest litigation. This decision was given contrary to the settled law in respect of “aggrieved person” in the matters of writ of habeas corpus and ignoring the rule laid down by the Supreme Court of Pakistan in the case of Begum Nusrat Bhutto.[65] Reliance was placed on the case of Manzoor Illahi[66].

To sum up this discussion, observations of Lord Diplock at page 644 in IRC case would be more valuable and discernible fact where he said “it would in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful action stopped.” A practical objection against the new approach towards standing is that an applicant who has no personal interest will not be more effective presenter of the issue. This is not acceptable because, the public spirited citizen who challenges governmental action even though there is no personal stake in the outcome may be a more effective litigant simply because that person will normally feel particularly strongly about the matter before bothering to bring a claim. Another objection is that the greater number of suits against government which would be possible this way would distract public officials from their primary tasks by taking up their time in defending legal actions. It , no doubt, is true as to their primary task but it is equally true that the public officials should govern or administer according to law, and Court can interfere to hear a person having genuine grievance and bridle the powers of public functionaries in order to help retain the rule of law upheld.

*Miss Atika Lohani ( LL.B. Hons. Sharia & Law, LL.M. P.U) is presently Lecturer in Law, at University of Sargodha, Sargodha

[1] S.A. De Smith, “The Judicial Review of Administrative action” 4th edition, page 305

[3] De Smith, Woolf and Jowell’s “Principles of Judicial Rcview” page-30, para-1

[4] Encyclopaedia of Brittannica Vol.14, page-282, para-3

[5] Black’s Law Dictionary. 7th edition page-951

[7] Black’s Law Dictionary- 7th edition, page-952

[8] Black’s Law Dictionary 7th edition page-1413

[11] de Smith, Woolf and Jowell’s “Principles of Judicial Review” page-29

[12] S.A. De Smith, “The Judicial Review of Administrative action” 4th edition page-305

[13] S.A. De Smith, “The Judicial Review of Administrative action” 4th edition page-306

[14] L.Bridges, M. Sunkin, and G. Meszaros, “Judicial Review in Perspective” revised edition. (1995) page-34-35

[15] Seirra Club’s case 405 U.S 727 (1972): Baker v. Carr. 369 U.S 186,204; Flast v. Cohen,392 U.S 83,101

[16] S.A. De Smith, “The Judicial Review of Administrative action” 4th edition page-306

[17] de Smith, Woolf and Jowell’s “Principles of Judicial Review” page-34

[19] 397 U.S 150 and Barlow v. Collins 397 U.S. 159

[20] Section 10 of APA 1946 provides: ‘a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute ( hence the zone of interest, emphasis added), is entitled to judicial review thereof’.

[25] PLD 1972 Lah. 245; PLD 1958 S.C (Pak) 437, PLD 1969 S.C 223

[39] Administrative Law “by Sir William Wade Q.C. and C.F. Forsyth, 7th edition, 1994- page-709

[45] Ardeshir Cowasje v. Messers Multiline Associates, Karachi, PLD 1993 Kar. 237

[50] PLD 1975 S.C. 331, Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazi Khan

[56] R.v. Her Majestry’s Inspector of Pollution. ex P. Greenpeace Ltd. (No.2) [1994] 4 All E.R.. 329

[57] R. v. Secretary of State for Foreign Affairs, ex P. World Development Movement [1995]1 W.L.R. 386