PUBLIC INTEREST LITIGATION

By:
KHADIM HUSSAIN QAISER
Additional Advocate General Punjab.

"Public Interest Litigation", in simple words, means, and litigation initiated for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc. Public Interest Litigation is not defined in any statute or in any Act. However, it has been interpreted by judges to consider and ascertain the intent of public-at-large.

It is an established fact that Public Interest Litigation strengthens the rule of law, furthers the causes of justice, helps in securing civil liberties and accelerates the pace of realization of the constitutional objectives.

The term "PIL" originated in the United States in the mid - 1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, which encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health, and exploitation of consumers and the weaker sections of the society.

The seeds of the concept of "public interest litigation" were initially sown in India by Krishna Iyer-J, in 1976 in Mumbai Kamagar Sabha vs Abdul Thai (AIR 1976 SC 1455) and was initiated in Akhil 13/taratiya Sos/ail Karnuu: hari Sangh (Raihvaiy vs. Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common grievances. Krishna Iyer-J, enunciated the reasons for liberalization of the rule of locus Standi in Fertilizer Corporation Kamgar vs Union of India (AIR 1981 SC 149) and the ideal of public Interest Litigation’ was blossomed in S. F. Gupta and others vs. Union of India, (AIR 1982 SC-149).

In Pakistan the judiciary has, in response to the demands of the society, especially the weaker and under-privileged sections of the society, begun to play a positive role to undo injustice done to the people of the country. This has been done through the techniques of public Interest Litigation. This type of litigation is an effort to eradicate social evils through the agency of "law".

This effort, I may explain, is being undertaken strictly within the parameters of the Constitution of Pakistan and quite consistently with its provisions.

Article 184(3) empowers the Supreme Court to pass any appropriate order to remedy a legal wrong. To play its role effectively in the dispensation of justice, particularly distributive justice, the Supreme Court enjoys necessary powers and authority under Article 187 (1) of the Constitution, which empowers the Supreme Court to issue such directions as may be necessary for doing complete justice in any case or matters before it.

Moreover, Article 189 states that the decisions of Supreme Court shall be binding on the subordinate judiciary. In addition, all executive and judicial authorities are required to act in the aid of the Supreme Court, under Article, 190 of the Constitution of Islamic Republic of Pakistan, 1973.

While adjudicating such matters, the Supreme Court has relaxed the rules of procedure. In several cases, the rules regarding Court fee, filing of affidavits, engaging lawyers etc, were dispensed with.

The first ever case of Public Interest Litigation in Pakistan, tried to tackle the problem of bonded labour, which is deep-rooted and dates back to ancient history. In this case ("Darshan mashi Vs. the State" (PLD 1990 SC 513), the Honorable Chief Justice of Pakistan, Mr. Nasim Hassan Shah, as then he was, received a telegram, alleging, bonded Labour in the brick kiln Industry. The Supreme Court, whilst considering the matter to be a case, falling under the category of public interest litigation, took cognizance for the enforcement of fundamental rights, regarding bonded labour practices.

In the case of Shehla Zia versus Wapda etc. (PLD 1994 SC 693) the Chief Justice of Pakistan received a letter from citizens regarding apprehension against construction of Grid Station by Wapda. The Supreme Court took the cognizance of the case as Public Interest Litigation, and made appropriate directions to the authority.

Recently, the higher Judiciary in Pakistan has honed the art of "Public Interest Litigation" for the enforcement of fundamental rights of the citizens, in such a way that addresses the choronic problem of lack of access of general people to the judicial forums. It is also being used very effectively to curb the high handedness of various organs of the State and especially the police. Under this procedure, wrong comes to the notice of the judge, through some source, which may be the judges' own knowledge, or from news items in the press, on the basis of which information the judges take Suo-Moto cognizance of the matter.

In Pakistan, PIL has a long way to go, it is in the process of development. The credibility of other institutions having been lost since long, it is the judiciary which continues to restore faith of the ordinary citizen, in the state; and in this the role of PIL is crucial.

However, it is worthwhile to mention here that if the disturbing trend of non-enforcement of Court orders in PIL continues, the whole Endeavour of PIL would be rendered meaningless. It would inevitably mean the demise of the rule of law and social justice. Unless the state recognizes and accepts the vehicle of PIL, not as an intrusion of Judiciary in the state's domain, but more as an aid, the latter it will never be able to serve its purpose -- that of an effective tool of unspoken non-revolutionary struggle against exploitation, domination and abuse of power.

In Pakistan, governmental failure to comply with the law is widespread and infectious. It results in injustice in particular instances and disillusionment with government on a broader scale. A healthy democracy requires a government that rules by law, not by arbitrary authority. In this regard, public interest litigation is an effective tool to compel officials of the government to follow the law. The Supreme Court has not hesitated to rely on Article 184(3) in asserting its public interest jurisdiction. Article 184(3), sets the stage for public interest litigation, to play a vital role in nurturing the rule of law, and democracy.

It gives voice in the governmental process to those with little political power-women, children, the poor and those by tradition, excluded from meaningful participation in society. It provides a forum for the defense of public interests that too often lack adequate representation- clean air and water, biodiversity, forests and open space, cultural heritage. It helps to establish the rule of law by holding government officials, accountable to, abide by the Constitution and laws of Pakistan.

In Pakistan lately, the phenomenon of public interest litigation is gaining currency, as is evident by number of important cases, where Supreme Court of Pakistan, headed by Mr. Justice Iftikhar Muhammad Chaudhary Chief Justice of Pakistan has decided important cases by taking Suo-Moto action. Following are the few examples.

PLD 2011 Supreme Court, 854, Marvi Memon VS. Federation of Pakistan and others

Unprecedented flood devastation in the country. Supreme Court to ensure enforcement of the fundamental rights of victims and providing relief to those who suffered the calamity.

PLD, 2011, Supreme Court, 997, Watan Party And another VS. Federation of Pakistan and Others—

Incidents of violence, commission of crimes, bloodshed and looting, occurring in the society— without claiming any immunity, in the public interest proceedings, the Prime Minister as well as the Chief Minister (of the Province), both are bound to follow the Constitution under Art.5 (2) of the Constitution by ensuring security and safety of persons and property of the citizens—

PLD, 2011, Supreme Court, 163 (Application by Azeem Ullah Khan and others resident of Venus Housing Scheme 17 Kilo Meter Froze Pur Road, Lahore.)

The Director General of Lahore Development Authority shall send monthly progress reports to the Registrar of this Court in the matter of Venus Housing Scheme and also a report about the facilities and amenities made available to the residents of other housing Scheme within his jurisdiction.

(PLD 2011 Supreme Court 17 Human Rights Case No.l356-P2010

(Application of Bibi Fatima for recovery of her daughter Mariam)

Violation of fundamental rights of citizens—Administration of justice—Courts and all institutions have to work under the provision of law and the Constitution, no sooner a case is registered, law enforcing agencies are required to take full interest and involve all the concerned authorities for the purpose of concluding the investigation of the case in just and proper manner—Supreme Court desired that law enforcing agencies with full zeal and commitment shall make efforts to extend relief to the aggrieved persons at the preliminary stage of the happening of an incident instead of waiting for direction of the Court of law to put the machinery into motion.

2011 SC MR 73 Suo Motu Case No.10 OF 2010

(Contamination of Water of Mancher Lake due to Disposal Effluent from MNV Drain now converted into RBOD).

Report was filed in Supreme Court alleging that contamination in Manchar lake had affected lives of fishermen and most of them moved to other places and government had failed to protect the lake, lives of fishermen, beauty of the lake and lands to the Abad gars, concerned authorities were directed to take appropriate action for protection of the fundamental rights of the citizens.

2011 SCMR 255

Poultry feeds containing pig meat: in re,

Suo Motu Case No.15 of 2007

An undertaking has to be taken from the importers against whom penalty has been imposed that they shall be careful in future and if there is any violation, strict action shall be taken against them according to law, which entails punishment.

The parameters within which PILs can be entertained have been laid down. The credentials, the motive and the objective of the petitioners have to be apparently and patently above board. Otherwise the petition is liable to be dismissed.

Judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and publicity seeking is not lurking.

In a famous PIL case of Ashok Kumar Pandey Vs. State of West Bengal, the bench of Justice Doraiswamy Raju and Justice Arijit pasayat opined " when there is material to show that a petition styled as public interest litigation is nothing, but a camouflage to faster personal disputes, said petition is to be the thrown out. Public interest litigation, which has now come to occupy an important filed in the administration of Justice of law, shall not be 'publicity interest litigation' or 'private interest litigation' or 'politics interest litigation' or the latest trend, "paise income litigation'. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance."

In judgment of Kalyanesh Wari Vs Union of India, the Court deprecated misuse of public interest litigation to wage business battles. A writ petition was filed in Gujarat High Court seeking the closure of as-besots units, alleging that material was harmful to humans. The High Court dismissed it, stating that petition was filed at the behest of rival industrial group. The writ petition was not only dismissed, but the person who mooted it, was asked to pay of Rs. one Lac and sit in the Court for a whole day.

I may end with The Hope, once expressed by Justice Krishna Iyer. "The Judicial activism gets its highest bonus when its orders wipe some tears, from some eyes."

Note: This paper was read on the occasion of international judicial conference held by Pakistan Law Commission at Supreme Court building, Islamabad.