Public Interest Litigation: role and concerns

Public Interest Litigation (PIL) appears to have to have come to stay as an instrument of social transformation. This is so especially in reluctant systems. This institute of judicial activism is indeed helpful in bringing justice within the reach of poor, disadvantaged and vulnerable people. Moreover PIL has been developing as an instrument of human rights protection. In fact its intention is to uphold the public interest by providing socio-economic and political justice to a large number of people who are poor, lacking in knowledge of the law, socially and economically deprived and who would not normally approach the court. It is based on the notion that all individuals are equal and should enjoy their fundamental rights equally irrespective of their poverty, illiteracy, and lack of knowledge. It is a tool to promote a newly created rights based jurisprudence.
PIL has emerged out of dissatisfaction with a traditional adversarial litigation system where the Court plays the role of umpire without considering broader perspectives and impact of its judgments. In PIL the subject matter of litigation is typically a grievance regarding the violation of basic human rights of the poor or about the concern or conduct of government policy which affects a large part of the society and not just for the individual petitioner. PIL demands continuing judicial involvement with a view to monitoring and supervising court orders in order to provide effective relief.

In south Asia the Indian judiciary utilized PIL extensively to develop new jurisprudence for protection of various human rights connected with social justice. Contextually, PIL has been renamed as the Social Action Litigation (SAL) in India as it focused on social justice and time and again came to the help of the discriminated or marginalized sections of the society. PIL was not created by the traditional norms of constitutional or legislative process but created by judicial activism on the basis of practical expediency in those countries and an important aspect of this process was the relaxation of the traditional rule of locus standi.

The constitution of Pakistan is unique so far it expressly removes from legal sight the dogmas of procedures and provides for substantive justice through PIL. Article 184 (3) of the Constitution of the Constitution provides original jurisdiction to the Supreme Court to take up and determine any matter concerning the enforcement of fundamental rights which is of public importance.

The Constitution of Pakistan through the Principles of Policy ensures that social, economic and political justice shall remain the foundation of the state. The Constitution establishes an independent judiciary equipped with the power of judicial review in order to realize social, political and economic justice. The rule of law is the foundation of the Constitution and it guarantees fundamental freedoms and rights of citizens and individuals under Part II Chapter I. Chapter II deals with the directive principles of state. Article 184 (3) in Part VII Chapter II of the Constitution confers power to the Supreme Court to resolve public interest litigations in which questions of public importance involving fundamental rights guaranteed by the Constitution are at stake. Under the Article, any citizen may file a case of PIL to the court for decision and directions. The Supreme Court has powers to issue orders or decrees if the fundamental rights and freedoms enshrined in the Constitution are found to have been violated or remain unenforced.

When incorporating Article 184 (3) into the Constitution, it seems that the framers of the constitution were conscious of the socio economic situation in Pakistan. They designed it to be a tool of socio- economic justice and it can therefore be used effectively to root out exploitation and injustice. It can the called the signature tune of the Constitution. Public Interest Litigation was invoked in 1988 in the case of Benazir Bhutto vs. The Federation of Pakistan and others.(PLD 1988 SC 416) .Since then, the Supreme Court has entertained various PIL cases and issued different kinds of orders in various areas, most notably in environmental, gender, juvenile and social justice. The case of Shehla Zia vs. WAPDA (PLD 1994 SC 693) wherein for the first time an apt definition given to “life”, in keeping with the universal acceptance of the term “life” remains a hall mark of public interest litigation in Pakistan. For some time even the High Courts embarked upon this exercise, but due to the constraints of Article 199, and the formalistic approach did not allow public interest litigation to develop well at that level.

However, it is the execution of court orders in PIL which are quite discouraging.In private litigation, the parties of the case take initiatives to enforce the judgment. Conversely it may be argued that in PIL, judgments are not executed properly because there is no one to follow up the proper execution. Unless the government itself decides to implement a judgment, most remain unexecuted. The case of Shehla Zia itself present an un-encouraging result. The vast expanse of “life” remains in tatters, when we see expendibility of life itself becoming cheaper by the day. The public functionaries and governmental departments remain as unconcerned confining themselves to the procedural cobweb of law. Matters relating to the fast eroding environment and the judgments of the Supreme Court especially in recent years must not considered in isolation, but given due weightage by the Government which is not seen.

The Supreme Court has been delivering important judgments concerning public interest protection. It still has a long way to go however before redressing the grievances of poor and vulnerable people. PIL in Pakistan seems to be in the process of development. It will take years to mature. 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.

If the disturbing trend of non-enforcement of court orders in PIL continues, the whole endeavour of PIL will 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. 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.

Working with the judiciary, public interest litigation raises government accountability to its own laws in two ways. First, it demands government compliance with the rules in particular instances. Second, it helps in creating a climate of compliance; if public interest advocates be particularly vigilant, officials are more likely to follow the law. This vigilance occurs only if public interest practice is institutionalized and sustains.

The strategy of the PIL is to carefully research issues appropriate to its mission, notify government agencies of legal transgressions, negotiate resolution of disputes when possible, and litigate when necessary.

Some representative topics of PIL in Pakistan include: availability of potable drinking water, fast eroding health conditions, protection of open space and forests, setting pollution standards, dumping of industrial and commercial waste, installation of sewerage treatment plants, control of municipal and hospital wastes, the vagaries of stone crushing industry on the environment, misuse of government vehicles, beneficial bail provisions for those accused of corruption, consumer rights, protection of and compensation of rape victims, domestic violence, maternity leave discrimination, formal and informal infringements of the right of woman and child, and identity of women as independent citizens.

The Supreme Court is taking increasing responsibility to use its judicial power in the public interest. The Court since 1988 continues to described its public interest role in striking terms:

Public interest litigation serves three critical purposes:

· 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 defence of public interests that too often lack adequate representation – clean air and water, biodiversity, forests and open space, cultural heritage.
· It helps establish the rule of law by holding government officials accountable to abide by the Constitution and laws of Pakistan.

By ruling in favour of these interests that are usually neglected in Pakistan’s political climate, the courts enhance their judicial independence and authority. A strong, independent judiciary is essential to a healthy democracy.

The Supreme Court has ruled on dozens of public interest cases. In virtually every case, the question remains, who will monitor compliance with the Court’s order? Who will take action to enforce the order? This is the weakest link in the public interest litigation chain.

In private litigation, parties usually have economic or other private incentives to monitor and enforce judicial orders. By contrast, lawyers and activists or bringing public interest cases often do not have the resources or incentives to do the challenging job. Therefore effective follow-up is needed to ensure the fruits of their efforts. Almost invariably, competing demands divert their attention once the battle is won. Of course, the battle is not really won unless the order is followed. That often requires time consuming monitoring and sometimes determined enforcement action.

If judicial orders are ignored, the courts loose prestige, authority and independence. The court’s ability to intervene on behalf of the politically disenfranchised and to protect public interests that lack private advocates is impaired. If the judiciary is seriously muted, the rule of law has little chance to survive. Therefore, the Supreme Court may ought to examine the launching of a project regarding monitoring and evaluating the implementation of the orders of the judiciary regarding PIL. Perhaps Pakistan may become the first country launching such an important project at the apex level with the help of the estate machinery, of course.

The judiciary neither uses power like government nor imposes its will like parliament. It settles disputes within its jurisdiction in accordance with the constitution, law and recognised principles of justice. Even decisions of the courts are implemented by the help of the executive. Therefore courts are entrusted with the power to interpret the constitution. Courts are an essential check against any usurpation of power by the government. The superior judiciary in Pakistan, particularly the Supreme Court, has both ordinary and extra-ordinary jurisdiction. Generally, ordinary jurisdiction is used to hear civil and criminal cases between individual and individual, or between individual and the state. Extra-ordinary jurisdiction is used where public bodies or authorities are alleged to be the main wrongdoers. How the judicial power can be used actively and dynamically is a matter of great importance. These may be summarized as follows:

(a) Giving constructive meaning to the constitution and law
Every legislation has some weaknesses and loopholes in the form of faulty language, ambiguities, inconsistencies and even contradictions, expressions which may have more than one meaning even if it is skilfully drafted. It is the function of courts, to give a harmonious interpretation to the legislation, consistent with its intention, and to save it from being reduced to an unworkable law. For this the court may require to supply words and expression, modify the language, impose inarticulate presumption, and which at time amounts to redrafting of the legislation, to bring it in conformity with the original intention of the legislature. This is an essential part of the judicial function. It is implicit in the judicial function of interpreting and applying the law to the facts of the individual case, that the court treats the law as an ever active dynamic and applies it to all situations which it is intended to cover.

In addition to this, in disputably no legislation can take into account all present and future situations. The law is and has to be based on certain common presumptions which may not hold well on all situations. No state can make law to meet every situation. The judiciary, entrusted with the task of applying the law, is expected to extend the law to all situations, ordinary or extra-ordinary, contemplated or not contemplated at the time of making the law. It has to enforce the intention behind the law and uphold its mandate. The judiciary has a duty to uphold the rule of law. Such extension and application of the law is a functional obligation of the judiciary. It fills the gap that existed in the prevailing law.

Besides the “gap-filling” and the “extension” operations, the supreme court has to undertake a different kind of exercise, when it is confronted by disputes where the issues involved are not wholly or even partly covered by the statutory law. The judiciary in such cases resort either to existing recognised principles of justice, or evolve new principles, or use their inherent powers to do justice between the parties. The judiciary does not and cannot remain silent in the absence of statuary law. It has to resolve the disputes, coming before it and ordinarily cannot refuse to entertain them or throw their hands up on the specious plea of the absence of the law. The judges are called upon, in such circumstances, to bring to bear upon the issues, their learning, their wisdom and perspicacity and to evolve just, proper and durable guidelines to resolve such and similar issues. In this process they are undoubtedly guided by the existing norms and values and practical considerations. The jurisprudence of every legal system is the product of such evolutionary process, which in turn aids and assists the developments of law, including the statute law. The just, equitable and normative principles are as much necessary for administering the law as for making it.

(b) Upholding a constitutional mandate
The Constitution is the fundamental law. The provisions of the Constitution are binding on all individuals and institutions. It is the duty of all to further its provisions. All laws and orders, notifications and rules, policies and programs, decisions and adjudications, norms, values and principle must conform to the Constitution and promote its goals. Moreover, it is the duty of the three organs of the state to enforce it. It is the duty of every citizen to abide by the constitutions and to respect its ideal and institutions. The judiciary is required to keep in mind all the provisions of the Constitution and to give effect to them so far as it lies within the purview of its judicial functions of resolving disputes. Its decisions have therefore to be in conformity with the provisions of the Constitution and it has to strike down acts which go beyond the Constitution. The judiciary should keep in mind that the separation of powers is as much an inseparable part of the Constitution while discharging the function of judicial review.It must discharge its mandatory constitutional obligation of keeping the individuals and institutions within their constitutional bounds and directing them to perform their affirmative constitutional obligations.

(c) Organic innovation and extensions
Doing justice is not a mechanical procedure; it is rather a dynamic process. Each case differs from the other. The creation of justice implies and involves every time a fresh application of mind, interaction with the parties and their lawyers, appreciation of the oral and documentary evidence against the particular background of each dispute, of the arguments advanced and the relief sought. The judges are required to be live partners in the process of justice and to respond creatively in each case.

Creativity and innovation amongst the judiciary are as necessary as impartiality and independence. The judges are not expected to be mere mechanics and masons. They are required to be designers and architects. So long as their innovations are within the bounds of their jurisdiction and are designed to advanced the cause of justice, and do not do violence to the legal norms, however unorthodox and unprecedented they may be the innovations have to be welcome as accreditations to the legal armoury to preserve and promote justice which should be the object of the any legal and judicial system. It is true that the certainty of law is a hallmark of the rule of law and the majority of the judges stick to the trodden path. But that is no reasons to frown upon innovations which are designed to promote and strengthen the rule of law. The growth and development of law over the years owes itself to the bold initiative and innovations of the few who thought positively and constructively and refused to submit helplessly to the impasse or to the dead-end situations created not necessarily by the law but by its development till that stage. Judicial activism which evolves new principles, concepts, maxims, formulae and relief in order to provide justice, and to expand the meaning and interpretation of locus standi .

PIL has become a part of the Pakistan’s legal system and has been so assimilated as a judicial procedure. What is of further importance is the awareness it created among all concerned that those incarcerated in such places are as much under the protection of law as others and that persons in charge of them are equally accountable to society. It can hardly be contended that the courts should wait to remedy the situation till the legislature had made suitable changes in the law.

(d) Judicial activism and public interest litigation
Judicial activism, in fact, has been age old. The proponents of judicial activism take it as a normal assertion of their judicial powers, a part of judicial review authority, result of judicial creativity and the necessary inbuilt mechanism to uphold the rule of law and canons of natural justice. In India, PIL remains is constantly utilised and embellished by the court. PIL in India has been used to provide various types of relief to under trial prisoners, to improve the conditions in protective homes for women, to check custodial violence, for the release of bonded labour, for the enforcement of labour laws, for environment protection and so on. The Indian judiciary through PIL has conveyed the message to all government agencies that it cannot stand idly by, principally when there is abuse of power and mal-governance.

Judicial activism is that legal process by which relief is provided to the disadvantaged and aggrieved party. Thus where there is a gap in the legislation or the law is silent on a specific point and prompt redress is needed, the judiciary exercises its inherent powers by virtue of being a custodian and watchdog of the constitution. Broadly speaking, judicial activism falls into two categories. The first consists of evolving new principles, new concepts, new maxims, new formulate, new relief going beyond and sometimes even alien to the hitherto known and evolved jurisprudence and substantive and procedural law. The seconds extends to laying down priorities, policies and programmes and giving directions to execute them when they are not obligatory, and are entirely in the direction of the executive and the legislature or other authorities, and thereby usurping their function, power and wisdom; to taking over detailed administration of a policy, scheme or programme even if they are obligatory instead of monitoring their performance; giving directions to execute a plan or a policy in a particular manner when equally good or better alternatives are available; preventing implementation of schemes and projects on grounds unsupported by and unverified with the expert knowledge; interfering with the working of the independent autonomous bodies by meddling with their decisions for no reasons other than their alleged impropriety; foisting the court’s choices, directing enactment of laws when they are at best directory; interpreting the Constitution and statutes contrary to their language and original intention, or by going beyond their accepted and well established and understood meaning, so on and so forth.

The Supreme Court discharges its social responsibility through public interest litigation. Judicial pronouncements in public interest cases pave the way for the institutionalization of individual accountability in democratic governance. By way of PIL, problems like child labour, bonded labour, custodial deaths, environmental pollution, protection to and preservation of historical monuments and violation of human rights have been greatly mitigated.

Public interest litigation should not be converted into populist interest litigation having detrimental effect to the very purpose of this mechanism. To make PIL effective the Supreme Court has to develop guidelines to entertain PIL cases. In India, the Supreme Court has developed internal guideline to this purpose. However, the guidelines developed by the Indian Supreme Court are not available publicly. It is a weak practice of the Supreme Court. It must be available to all concerned persons.

During the past decades, a vision of the judiciary as the moral tutor appointed for a recalcitrant society has become dominant in the legal academy and increasingly within the courts themselves. Most legal scholars, in one form or another, have embraced constitutional litigation as the ideal forum for moral evaluation of public policy. Rather than merely being the occasion for enforcement of a legal text by interpretation according to standards of law, the Supreme Court’s exercise of judicial power to review the constitutionality of government decisions has become an opportunity for exploration of public virtue and national aspirations.

Protection of human rights through PIL has many dimensions. What sort of rights can be protected under PIL jurisdiction is a matter of deep concern. Generally PIL jurisdiction is used to protect public interest and not to protect private interest. Therefore PIL has been used to protect community interest or the interest of the general public. However, while exercising its jurisdiction, the Court does not count the number of people affected. It takes into account the nature of the case and its impact on general public. The Court can use PIL jurisdiction to protect human rights if they are not remedied under ordinary jurisdiction of the Court.

The problem areas in judicial activism remains the suspicions which have come to be embedded in the common citizens mind vis-à-vis the state actions.

In a recent paper, Justice Nasir Zahid, critically addressed the gray shades where the state has particularly failed to fulfil its obligations, he points out these in the following terms:

Article 37 (d) of Pakistan Constitution requires the State to ensure inexpensive and expeditious justice. The primary responsibility, therefore, for providing justice, inexpensive as well as expeditious, is on the State and “the State” has been defined in Article 7 to mean the Federal and Provincial Governments, the Provincial Assemblies, and such local and other authorities that are empowered by law to impose taxes. It follows that these bodies and authorities are constitutionally required to establish and maintain such institutions that ensure civic and social justice to the people and also a judicial system that can be accessed speedily and with affordable expense by people for redress in case of violation of this mandate. The common perception is that the primary responsibility for providing justice to the people rests on the Judiciary through the judicial system and also as the protector and defender of the Constitution. However, without the full support of the legislature and specially of the executive, judiciary alone cannot discharge its responsibilities of providing inexpensive and expeditious justice to the people.

Let us first examine the role required to be played by the legislature in providing justice. The courts are required to decide cases in accordance with the Constitution and the law. Various questions should arise for consideration when the law makers decide to make a law. Are the law makers aware of the nature of law itself, its functions and purposes! Do they ever consider the interests of the common persons (common men and women) for whom the laws are going to be enacted! Are the proposed laws that are being debated in the legislative bodies represent the understandings of the law! Is it at all considered by our law makers whose values are being promoted and whose interests protected in the enactment of the law! The common person is always critical of our legal system. Questions are always asked whether our legal system is fair. A common person does not perceive our legal system to be fair and as a protector of his or her rights. He considers the law as an enemy rather than a protector of his rights. These and other questions that should be considered during the debates in the legislative assemblies are usually ignored. Taking a concrete example, can it be said with any certainty when a law is being made, that our legislators ever consider what would be its likely effect on Pakistani women who form about half the population of the country. Hundreds of amendments have been made in our Constitution yet, except for one or two amendments, no amendment has been made for advancing the cause or rights of the common person. As stated earlier, the courts have to impart justice in accordance with law and, if the law itself is not fair at least as regards the common person, it is not an easy task for the courts to protect the rights of the people. It can, therefore, be said that legislature is a very important component of “the State” in safeguarding the rights of and for providing justice to people.

Protection of human rights through PIL has many dimensions. What rights can be protected under PIL jurisdiction is a matter of deep concern. Generally PIL jurisdiction is used to protect public interest and not to protect private interest. Therefore PIL in Pakistan is that mode of providing substantive justice, which must remain confined to protecting community interest or the interest of the general public; while keeping aloof from populist litigation through PIL, which not only removed it from public domain, but invariable effects its character.