public interest letigation - hrcp seminar report

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

IIIPublic Interest Litigation

Scope and Problems

-- Report of an HRCP seminar

March 28, 2010

Human Rights Commission of Pakistan



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

Published by Human Rights Commission of Pakistan

Aiwan-i-Jamhoor, 107-Tipu Block

New Garden Town, Lahore-54600Tel: 5838341, 5883579, 5864994 Fax: 5883582

Email: [email protected]: http:\\www.hrcp-web.org

Jacket designed by Visionaries Division

Printed at Anwar Fayyaz PrintersMission Road, Lahore

ISBN: 918-969-8324-35-3

mailto:[email protected]




Summary

The Human Rights Commission of Pakistan (HRCP) organised a seminaron “Public Interest Litigation” on the occasion of its Annual General Meeting

on March 28, 2010.

Eminent jurists -------- Mr. Prashant Bhushan from India and Justice (Retd.)Nasir Aslam Zahid, Ms. Hina Jillani, Justice (Retd.) Tariq Mehmood andMr. Mansoor Hassan Khan from Pakistan -------- dwelt at length on various aspectsof suo motu jurisdiction of courts in India and Pakistan and the associated

concept of judicial activism. Mr. Ghazi Salahuddin, HRCP vice-chair for Sindh,moderated the seminar.

It was noted that despite the prevailing enthusiasm for invoking suo motujurisdiction by courts, no criterion was available as to when such jurisdictioncould be exercised. This led to the courts’ picking and choosing such cases in

their discretion, while substantially similar matters were not taken up. It wasstressed that a judge’s discretion should not be the sole criterion for initiating

suo motu proceedings.The speakers and panelists agreed that misuse andmotivated use of public interest litigation and attempts to use public interestlitigation for populist pursuits have undermined the concept. However, therewas a consensus that arbitrary actions in the name of public interest litigationdo not justify calls for doing away with such jurisdiction. It was stressed that a

consistent criterion must be laid down specifying when such jurisdiction canbe invoked, instead of exercise of arbitrary discretion by the judges.

The participants said as judges struggle to cope with existing workload of




cases, resorting excessively to public interest litigation to deal with issues whereinterest of the public at large is not at stake per se is not advisable. They saidthat the judge must not try and substitute the views of the executive with thoseof his or her own in the name of public interest litigation and undue reliance onpublic interest litigation should not lead to any weakening of other democraticinstitutions.

They stressed the importance of judges speaking through detailed writtenjudgements, instead of making verbal observations and short orders. Theysaid that as with other judicial cases public interest litigation matters shouldculminate in detailed judgements explaining the reasons for the decision anda case’s link to human rights and public interest. They said the scope of publicinterest litigation is not well charted and there is a need to understand the aim

of public interest litigation beyond the stated objective of public welfare. It wassuggested that the constitution should have a distinct chapter on public interestlitigation, detailing the scope of its exercise.

The speakers and panelists concluded that the judiciary should only invokejurisdiction under public interest litigation in instances where the interest ofthe public at large is at stake, and they should only issue orders that they canimplement.




Speakers and panelists

Keynote Speakers

Prashant Bhushan is an advocate of the Supreme Court of India and a

noted public interest and civil liberties lawyer. He has been actively associated

with NBA, Enron and Jain Hawala cases. Mr Bhushan has been involved in the

Campaign for Judicial Accountability since 1991, has been an active member

of the Committee on Judicial Accountability and subsequently the Convenor of

the Campaign for Judicial Accountability and Reforms which was set up in

early 2007.

Justice (r) Nasir Aslam Zahid is one of the most respected names in

Pakistan’s judiciary. He served as the Chief Justice of the Sindh High Court

and a judge of the Federal Shariat Court of Pakistan and the Supreme Court

of Pakistan. In 2000, he opted to resign from the Supreme Court of Pakistan

instead of taking the oath of office according to Gen. Pervez Musharraf’s

Provisional Constitutional Order (PCO).

He is deeply involved in human rights issues and judicial education, and

has spent much of his time since retirement on dealing with human rights

issues, especially women’s legal concerns. He is currently involved in projects

for providing legal aid to prisoners confined in all the 22 prisons of Sindh.

Justice Zahid heads Pakistan’s first legal aid call centre, being run as a

public-private partnership under the banner of All Pakistan Women ’s




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

2000.

Panelists

Justice (Retd.) Tariq Mehmood was a judge of the Balochistan HighCourt till he was squeezed out following his resignation as a member of theElection Commission of Pakistan on account of his rejection of Gen. Musharraf’sdecision to hold the controversial presidential referendum of 2002. He is arenowned leader of the lawyers’ movement and a former president of the

Supreme Court Bar Association of Pakistan. Justice Mehmood was among thelawyers’ leaders who were arrested and detained with their families after General

Musharraf imposed a state of emergency on November 03, 2007.Hina Jilani is a well known advocate of the Supreme Court of Pakistan

and a civil society activist for peace, human rights and women’s rights in Pakistanfor the last three decades. She specialises in human rights litigation and, in1980, co-founded Pakistan’s first all-female legal aid practice, AGHS Legal AidCell. In addition to providing pro bono legal aid, she also helped set up ashelter for women fleeing violence and abuse, called Dastak, in 1991.

Ms Jilani is a founding member of Women’s Action Forum, a founding

member and former Secretary-General of the Human Rights Commission ofPakistan and a former vice chairperson for HRCP in Punjab. In addition to heraffiliation with the United Nations Center for Human Rights, the Carter Center,and the UN Conference on Women, she was the Special Representative of the

UN Secretary-General on the situation of human rights defenders from 2000to 2008.

Mansoor Hassan Khan is an advocate in the High Courts of Pakistan.He received LLM degrees from University of London and Harvard Law School.Mr Khan is the author of “Public Interest Litigation: Growth of the Concept and

its Meaning in Pakistan”. Recently he challenged in a public interest litigationcase sale of government interest in a bank and the Supreme Court has issuednotices to the respondents. The present focus of the law firm headed by MrKhan is on commercial law.




The Seminar reportAsma Jahangir, HRCP Chairperson

Opening the discussion Asma Jahangir said the Commission had arrangedthe seminar in view of the direct link between public interest litigation andhuman rights issues. She said that there was a debate in Pakistan about the

Asma Jahangir inaugurates the seminar




parameters of justice and what was being done to deliver justice to the peopleat their doorstep. She said the focus of the discourse on public interest litigation

was on the discretion of the judges and on establishing a mechanism for

accountability of judges in terms of performance and conduct, including cases

where bias was suspected.

Ms Jahangir said that a perusal of superior court judgements demonstrated

many examples of bias among judges against women and minorities, among

other things. She cited a recent statement by the chief justice of the Lahore

High Court blaming Hindus for the ongoing wave of terrorism in Pakistan. She

said judicial activism and public interest litigation were closely interlinked. She

said people were willing to overlook mistakes by judges when their integrity

was above board but suspicions arise in exercise of public interest litigationjurisdiction when issues of integrity were in question.

She said the discussion on public interest litigation was meant to share

experiences on both sides of the India-Pakistan border and that the debate

could later on be taken up at the South Asia level because there seemed to be

a crisis of justice in the whole region.

Ms Jahangir called judiciary the backbone of democracy, which needed to

be made independent. She said the Human Rights Commission of Pakistan

did not have a position as such on the subject, except for emphasising that the

judiciary should be independent, above board, and it might be political-minded

but not politicised. She said that public interest litigation should be used to

give benefits to the deprived and not for any individual agenda. Judgements

should be based on justice and not on populist opinion, she added.

Justice (r) Nasir Aslam Zahid

Justice Nasir Aslam Zahid cited numerous examples of resort to public

interest litigation in Pakistan and analysed the follow-up action. He said public

interest litigation referred to a case where public interest, as opposed to

individual interest, was involved. Citing how basic rights, such as the right to

life, had been interpreted by courts, he said Article 9 of the Constitution of

Pakistan guaranteed the “right to life” to everyone. He said interpreting the

right to life in a verdict, Justice (r) Slaeem Akhtar had observed that the right

did not merely mean that a person could breathe but whether a citizen enjoyed

the entitlements available to human beings in a civilised society, including

socio-economic rights. Justice Akhtar had held that until all of these entitlements




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

He said public interest litigation was said to

be a vehicle for expeditious dispensation of justice

and the object was achieving socio-economic

justice for the poor. He said public interest litigation

could bring socio-economic change in a society

and for that reason it was referred to as a means

for attaining a social welfare state.

Justice Zahid said that Justice (r) Naseem

Hassan Shah had cited some examples of public

interest litigation cases in an article, which wereimportant for the discussion on the subject. He

said it would also be useful to see what happened

to the court verdicts in those cases. Justice Shah

had said that in many cases the relief given by

the court had secured socio-economic justice to

the people. Justice Zahid said that through one

verdict, the court had ordered the elimination of

malpractices in the education system. Justice

Zahid said that a Supreme Court observation in

its verdict that there should be no malpractice

does not mean that everything would bestreamlined by itself. He said there were 200,000

public schools in Pakistan which were in shambles

and asked if one Supreme Court verdict had

improved the situation for those schools.

Another public interest litigation verdict cited

by Justice Shah, he said, was in the case of Anwar

Begum, heard by Justice (r) Afzal Zullah, where

legislation for the protection of inheritance rights

of women was ordered. A third public interest

litigation case related to preventing exploitation

of schoolchildren who were taken for reception of

visiting dignitaries. Anotherwhich Justice Zahid

called a good step by the judiciarywas staying

... the right

to life meant

that a

citizen

enjoyed all the

entitlements

allowed to

human

beings in a

civilised society,

including

socio-

economic

rights



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

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

Justice Zahid also cited a court verdict in a public interest litigation case on

traffic jams in Karachi. He said he was not sure if the order had been

implemented or not but traffic jams continued to be the norm in Karachi. He

said the verdict was akin to a judge saying that there should be no corruption

in Pakistan in the future and expecting that corruption would somehow

disappear.

He said in another case the Supreme Court had directed the federal and

provincial governments to stop making appointments contrary to recruitment

rules but that verdict had also not been implemented. Justice Zahid referred to

a news item carried by the media a few days earlier about Pakistan ’s

ambassador to Damascus sacking the staff of the reputed Pakistan schoolthere and appointing his relatives in their places on higher salaries. He said

the case represented public interest but no action was taken by the Supreme

Court under the suo motu jurisdiction.

He also cited a public interest litigation verdict ordering measures to stop

fumes emitted by motor vehicles. He said the court had ordered that the price

Justice (R) Nasir Aslam Zahid speaks from experience



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

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

He added that there had been orders

regarding covering the open sewerages, putting

an end to dumping of nuclear waste and

deforestation and many others but they had not

been implemented. He said the court should not

fix the prices of sugar and petroleum through

public interest litigation as that is not the court ’s

function. Justice Zahid said that in public interest

litigation cases the courts should only issue

orders that could be implemented. He said manyareas did not fall under the public interest litigation

jurisdiction and judges should not have the

discretion to issue orders on any issue they felt

like settling.

He said the Supreme Court of India had

issued an order that buses in New Delhi should

run on CNG and the order had been implemented,

either because the government also wanted the

same or because the court was somehow able to

get it implemented. He said it was up to thegovernment whether it wanted to implement court

orders.

The Supreme Court of Pakistan had ordered

judges to clear the massive backlog of 1.4 million

pending cases and the number of judges

desperately needed to be increased. Judges are

quickly disposing of the cases by acquitting the

accused, Justice Zahid said, adding that the

emphasis should not be on statistics alone but

on dispensation of justice. There was a need to

appoint and train more judges and policeinvestigators. He said during his visits to prisons,

he regularly heard complaints about the slow legal

... in public interest

litigation cases the

courts should

only issue orders that

could be implemented




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

instead of taking on more work.

He emphasised that public interest litigation should only be invoked in

cases where the interest of the public at large was at stake, and not in cases

involving individuals’ interest.

Prashant Bhushan

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

India and the accountability of the judiciary. He said that Justice Zahid’s address

reminded him of the many similarities in the histories of the two countries’

(India and Pakistan) judiciaries, particularly with regard to the beginning ofpublic interest litigation and what was now going on in the name of public

interest litigation. He said, barring minor differences, almost the same things

were happening in both countries, and they should learn from each other ’s

experience.

He said the origin of public interest litigation in India went back to 1980

when two judges, Justice P. N. Bhagwati and Justice V. R. Krishna Iyer, started

admitting public interest litigation cases, saying that India was a country where

Advocate Prashant Bhushan narrates Indian experiences




the majority was not getting justice and could notapproach courts themselves to get their rights.

The judges stated that any person could

represent individuals who did not have the means

to approach the courts to plead for their rights.

Mr Bhushan said the judges liberalised the

concept of locus standi with regard to public

interest litigation and also started expanding

fundamental rights. They interpreted the right to

life as the right to live with dignity, i.e., that a

person was entitled to get all basic needs and

facilities, such as food, shelter, protection, healthservices, etc. These were all interpreted to be

fundamental human rights under Article 21 of the

Constitution of India. Similarly, the judges held

that Article 14 of the Indian Constitution, which

outlaws discrimination, also means that the state

cannot act in an arbitrary manner and all official

actions must be in accordance with a well

considered and rational policy.

He said the judges expanded the right to

freedom of expression to include the right to

information and now the people have the right to

know what any state department is doing, why

and how. In one public interest litigation case, the

Indian Supreme Court even said that every

individual has the right to ask candidates

contesting the general elections questions, such

as their involvement in corruption, criminal cases,

the candidates’ assets and liabilities, and

academic background, etc. The court also held

that it is the right of every citizen that there should

not be any corruption in the affairs of state and if

action has not been taken against a corrupt official

or politician, any individual can move a court,seeking an order for speeding up the inquiry

process. In one case, a diary was found with the

Citizens have a right to

question candidates

who contest

elections




names of politicians who had been paid money by a business house and thepolice was not holding any investigations. Some citizens moved the Supreme

Court of India which ordered an investigation. It was another matter that even

after the investigation all politicians were released and no action was taken

against them, Mr Bhushan added.

He called the “right to a clean environment” which is an extension of the

right to life“the most important innovation” in the area of human rights.

However, Mr Bhushan pointed out, the Indian Supreme Court crossed many

limits in expansion and enforcement of the right to life, with judges interpreting

it in a subjective manner. Under the “right to a clean environment”, one judge

in the Yamuna Pushta slum case ordered the removal of 40,000 slums in

Delhi, where around 200,000 poor led the most basic of existence. The Delhi

High Court held that the slums should be demolished as they were causing

pollution in the Yamuna river and infringing the right of every citizen to a clean

environment. He said that 200,000 people were rendered homeless overnight

in pursuance of the high court decision.

Mr Bhushan said in this case the court ignored principles of natural justice,

did not give any notice or hearing to the slum dwellers and ignored their right

to shelter. They were not given any alternative location where they could set

up their huts. Mr Bhushan added that the Delhi High Court verdict went against

the Indian Supreme Court’s order on the right to shelter and preferred the

right to a clean environment to the right to life and shelter.

He said that under public interest litigation the judges enunciated and

200,000 people were made homeless by a high court order.

The court ignored the principle of natural justice and the slum dwellers ’ right to

shelter … contrary to the SC ruling on the

right to shelter which was sacrificed in favour of the right to clean environment




expanded many rights, but in the 1990s, whenIndia followed new economic policies in the so-

called era of liberalization a reversal of this trend

was witnessed. The World Bank’s new economic

policiesglobalization, liberalization and

privatizationwhich left everything to the market

and minimised the state’s role, also affected public

interest litigation and the expansion of basic

human rights. Following the market economy

would obviously affect the life of the poor, Mr

Bhushan said, adding that a report by a leading

Indian economist four years earlier had statedthat 78 percent people in India lived on less than

20 rupees a day and did not even have access

to clean drinking water. He said if everything was

left to market forces, 78 percent people would

not be able to afford basic needs. He said that

the economic policies being pursued in India were

further marginalising the poor.

Mr Bhushan said in the era of privatisation

the Indian courts’ attitude towards public interest

litigation had changed,, especially with regard to

socio-economic rights. He said that closeranalysis had showed that when there is a conflict

between environmental rights and socio-

economic rights of the poor, the courts hold that

environmental rights should be given preference,

even at the expense of socio-economic rights.

He said the Delhi High Court had ordered the

removal of slums from the banks of Yamuna even

though there was no evidence that the slums were

causing pollution in the river.

Mr Bhushan said that subsequently when the

same land was given to private companies forconstruction of five-star apartment complexes for

Commonwealth Games the court held that that

... when there is a conflict

between environmental

rights and corporate

interests, the latter prevail,

whereas when there is

a conflict between

environmental rights and socio-

economic rights then

environmental rights are

preferred




was important for development. He said that when there is a conflict betweenenvironmental rights and corporate interests, the latter prevail, whereas when

there is a conflict between environmental rights and socio-economic rights

then environmental rights are preferred.

He said the judges in India were saying and doing what they felt like, without

laying down any clear principles. Mr Bhushan said that was essential to

determine the principles for the scope of public interest litigation.

Mr Bhushan said that in the Yamuna Pushta case, the court appointed an

amicus curiae , who suggested linking the streams to curb pollution. The

Supreme Court issued notices to the central and state governments regarding

orders to link all the rivers in India. The central government replied that the

project would cost Rs 5,600 billion and take around four decades. On the nextdate of hearing, when only two affidavits and reply from one state government

had been submitted, the Supreme Court ordered that the streams should be

linked, saying that the government could afford the expense. Mr Bhushan said

A view of the audience




such verdicts could create problems andamounted to judicial dictatorship.

He said the government could be held

accountable by the public at least every five years

but how could judiciary be held to account. He

said lack of accountability of higher judiciary is a

big problem in India and the judges are not

answerable to anyone. He said there is no

disciplinary action against the judges, except for

impeachment, which he called impractical

because signatures of at least 100

parliamentarians are required to begin the

process. He said that parliamentarians do not sign

an impeachment motion unless there is some

documentary evidence of very serious charges

and even then only when the issue against a judge

has become a public scandal. No impeachment

motion can be taken up without this procedure,

he said.

He cited the example of Justice K. Veeraswami

case in 1991, where the Supreme Court of India

held that no criminal case could be filed against

a judge or chief justice of the High Court or a

judge of the Supreme Court without seeking

permission from the Chief Justice of India. Mr

Bhushan said the result is that many judges

against whom there were serious charges and

documentary evidence were not charged as the

Chief Justice of India did not grant permission.

He said the third issue is that if someone

publicly exposes a judge’s wrongdoing it can be

branded contempt of court, which includesscandalizing or lowering the dignity of the court.

Until recently, truth was not a defence in the issue

... a strong

and

independentjudiciary is

vital for the

good of the

country but

so is anaccountability

mechanism

for the

judiciary




despite the availability of proof. However, now parliament has amended thelaw and provided that truth can be a defence in such matters. It is another

matter who would determine whether the allegation against the judge is true.

Sometime a judge accused of corruption himself issues a notice of contempt

in the matter, Mr Bhushan added.

He said the fourth area of concern is that the Supreme Court of India has

stated that the right to information is the basic right of every citizen but has not

applied the same principle to the courts. He said judicial rules have been

framed in such a manner that no administrative

or financial information about courts can be

released to anyone who does not have a direct

link to that information. He said that such arestriction was not present in the Right to

Information Act, but had been introduced by the

judiciary. “What can one do if the judiciary starts

to behave in a dictatorial manner?” Mr Bhushan

asked.

He said that a strong and independent

judiciary is vital for the good of the country but

so is an accountability mechanism for the

judiciary. He said an independent commission

should hold those judges accountable that issue

arbitrary orders and show bias. He said the issuewas the topic of an intense debate in India but

there was no clarity yet on the way forward.

Mr Bhushan said that there has been talk of

a judicial commission but the question was how

could judiciary be accountable to itself. He said

the people of India want an independent

constitutional body which can entertain

complaints against judges and can proceed

against and remove them if the complaints are proved. There should also be

a separate judicial appointment commission, he said, adding that in India, as

in Pakistan, judges have taken the powers of judicial appointments in their

own hands through a commission of judges and are acting in an arbitrary

manner without a systematic procedure. No criterion has been laid down on

...independence

of the judiciary means its

independence from the executive

and the

legislature but not

independence from

accountability




how to determine the quality of a judge. There are no parameters for judginghonesty. Mr Bhushan proposed that if such measures are to be taken

subjectively then the opinion of at least 10 persons should be sought instead

of relying on the Chief Justice’s statement alone.

He said that it is also clear that sitting judges cannot hear complaints against

themselves and, therefore, there should be two permanent bodies, a judicial

appointment commission and a complaint commission to take action against

any judicial misconduct. He said these measures would not compromise the

independence of the judiciary, which means independence from executive and

legislature but not independence from accountability. He said public interest

litigation would also benefit if the judiciary was held accountable.




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

the judiciary had made considerable contribution with regard to rights but

tensions were now visible. He stressed the need for a discussion on the reasons

why the situation remained unchanged “even after a mini-revolution” in the

form of a prolonged movement by lawyers that culminated in reinstatement of

superior court judges. He said the legal systems

of Pakistan and India were still stuck in the 19th

century grooves as the main laws in voguewere framed by the British in the late 19th

century. Mr Khan said efforts had not been

made to modernise those laws. He was of the

view that the delay in determination of cases

was because of outdated laws. He called public

interest litigation an aberration, a shortcut to

bypass problems and find easy solutions and

added that the Constitution provided for a

channel to grant expeditious relief.

Hina Jilani stressed the need to

understand the ultimate objective of publicinterest litigation beyond the obvious criterion

that it should be for public welfare. Public

... the main problem is

that the 19 th

century laws have

not been

replaced or

modernized




interest litigation could be through individualcases but must benefit the people at large, be

it economic, social and cultural rights, or political

rights.

She said that when a matter is taken up in

public interest litigation, either suo motu or

through a petition, the ultimate aim in the larger

context also should be that the relief granted

or judgment rendered should have the overall

effect of strengthening democratic institutions.

It must not encroach upon the jurisdiction of

other institutions so that democracy is not

undermined.

She said respecting the jurisdiction of other

institutions would ensure that the objectives of

public interest litigation are successfully

achieved, malpractices curbed and social

attitudes changed.

She said that there must not be any scope

for using public interest litigation in such a

manner that it undermines democracy or

democratic institutions.Ms Jilani said the problem confronting

Pakistan is that the judiciary takes suo motu

notice with the understanding that it would

facilitate the people or resolve the problems in

the country but that understanding is tainted

because the judiciary is probably under the

impression that it has the solution to every

problem the country faces. She said the

judiciary should understand that it is just one

part of the democratic system and if it

undermines or weakens other parts of the

system through its judgements then even

judgments passed with the best of intentions

... respect for other

institutions ’ jurisdictions will ensure success of

public interest litigation

... credibility of public

interest litigation among people is conditional on people ’ s

confidence in

the judiciary ’ s

independence and integrity




would not serve any purpose.Ms Jilani said credibility of public interest litigation among people is

conditional on people’s confidence in judiciary’s independence and integrity.

The problem in Pakistan is that there has been polarization in society and

confusion about the roles of various democratic institutions, where one

institution is strong and the others are either weak or are being weakened.

These were some of the issues that had to be confronted when one talked

about the positive aspects of public interest litigation, Ms Jilani said.

“Here the question of accountability arises. One institution in the country

wants to hold everyone accountable and may want to do it with the best of

intentions. But the same institution constantly obstructs all moves aimed at its

own accountability,” she added.

Ms Jilani said the proposed constitutional package has suggested the

creation of a body for appointment and accountability of judges. She said

there can be a number of formulas, and the formula offered in the package

suggests that there would be a balance of power between the judiciary and

the executive within that body.

She said that it cannot be argued that the judiciary should have monopoly

over judicial appointments and judicial accountability. She said the judiciary

had that power in the past and it had not worked.

She emphasised the need to identify the principles upon which judicial

accountability should be based so that judges’ independence was not infringedin any manner, but added that at the same time there must be real accountability

and the judiciary must not become judge and jury in its own case.

Justice (r) Tariq Mehmood said Article 193 of the Constitution of Pakistan

regarding the procedure for the appointment of judges to the high courts

contains a provision that has not been followed for a considerable period.

According to that provision, the individuals selected for civil service through

competitive examinations were asked for their priorities regarding the

department they wanted to serve in. They could also opt to serve in the judiciary

in the past. Justice Mehmood said that that practice had been discontinued for

quite some time and added that reviving it would largely put an end to questions

being raised about the credentials of individuals appointed as judges.

He said he had asked a law book house for a book on public interest

litigation, but the book sent to him was a compilation of judgments in public




interest litigation cases. Justice Mehmood regretted that not a single judgementin the book explained the meaning, significance or principles of public interest

litigation. He said most of the cases in the book were about high-rise buildings

in Karachi, conversion of the use of property from residential to commercial,

and similar matters. He said that in all of those cases, the decisions were not

made on the basis of any principle of public interest litigation but in the same

manner as in common civil cases. He said the Supreme Court has the power

to make rules in this regard and such rules should be framed to end uncertainty

so that everyone knows what the principles are.

He said the procedure for the appointment of judges should be determined

before discussing an accountability mechanism for the judiciary. He said that

the Supreme Court has observed in a number of judgements that the executivehas no authority to act in violation of the procedure even if it wants to hire

someone for a monthly salary of 6,000 rupees and that procedure is followed,

at least in official hiring. Justice Mehmood said similar emphasis on procedure

is absent in judicial appointments. Urging the need to establish a transparent

procedure for judges’ appointment, he said a person whose name is suggested

by chief justice of a high court for appointment as a high court judge need not

have any further quality. Unless the Supreme Court chief justice removes the

name from the list, the practice is that the person in question would become a

high court judge.

Justice Mehmood said that many of the laws prevalent in Pakistan may be

old but they are not bad laws. Any system, however good, cannot work when

those implementing it are inefficient or dishonest, he added.

He said that judges’ discretion was deemed valuable in providing justice in

exceptional cases of hardship where other provisions of law were silent, but

discretion had been abused.

He emphasised that principles for the exercise of public interest litigation

should be laid down. The judiciary must first determine its jurisdiction and not

exceed limits and it must let other democratic institutions function.

Justice Mehmood said the demand that the Chief Justice of Pakistan should

be consulted for any constitutional amendment in the procedure for

appointment of judges was wrong in principle.He said if the judiciary wishes it can form a separate bench exclusively for

public interest litigation cases, as determination of other cases was suffering




on account of the courts’

focus on public interest litigation cases. JusticeMehmood said another option could be expansion of the human rights cell in

the Supreme Court and assigning several individuals qualified to be district

and sessions judges to sort out the applications and refer only the important

ones to the court. But he added that clear principles and procedure need to

be laid down even for that.

Justice Mehmood said that judges should not pass orders that cannot be

implemented. Any decision in public interest litigation cases must not be a

decision in favour of an individual but truly in the interest of public at large. He

said that Justice Zahid used to take up cases brought to his attention as a

judge through telegrams and if he too was now disappointed then the matter

merits a closer look at the manner in which the public interest litigation regimeoperates.




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

discourse are that public interest litigation and judicial activism are two distinct

things but their combined objective is the same, which is the welfare of society.

She said that it could be a beneficial practice, particularly in view of

disempowerment of the people and lack of access to justice. However, misuse

or motivated use of public interest litigation can be detrimental to public interest.

She said there should be limitation and restraint on the public interest litigation

jurisdiction but even to determine that restraint guidelines need to be

established, such as the requirement of notice, etc.

Justice Zahid said a bench of judges can make a decision. He said there

is a human rights cell in the Supreme Court which peruses all applications

made to the court. He said he does not know how that cell works in deciding

what applications are taken up. He said he does not know the exact procedure,

but it should be done in a transparent manner. He said appointment of judges

should also be made in a transparent manner and people should know two or

three months prior to a judge’s nomination so that objections, if any, can be

raised.

He also said making provision for public interest litigation cases to be taken

up at the city/district court level would make the procedure accessible to thecommon citizen. He said people are not getting justice and if they can get it

through public interest litigation then that would be a very good step. He said




the Asian Development Bank had given a US $350 million loan for improvingthe judicial system but that has not yielded any qualitative or quantitative

difference and the common man involved in litigation is still suffering. He

emphasised the need to fill the vacancies of civil judges.

He said when one talks about public interest litigation one is talking about

justice for the people. He said providing justice at the grassroots, at the city

court and at the police level can solve many cases. He said nobody wants to

go to court. They want their issues resolved.

He cited a case in which the London police apprehended a young boy

stealing a Spiderman costume from a shop. However, the police did not register

a case but talked to the child’s parents and said they would observe the child

for the next six months and if he committed any crime he would be dealt with inaccordance with the law.

Justice Zahid said that one should look at the result and ask oneself whether

the multitude of orders passed in public interest litigation have improved the

socio-economic situation of the people. He said an honest reply to that question

would determine the utility of public interest litigation. He said that if not a

single person had benefited from it then one has to question the purpose of

public interest litigation.

Justice Mehmood stressed the need to lay down the principles for resort

to public interest litigation, rather than picking and choosing cases. He said

the Supreme Court should make rules for public interest litigation cases to be

taken up under Article 184 (3) so that the criterion is ascertainable. He saidthe Supreme Court rules should have a separate chapter dealing with public

interest litigation and exercise of public interest litigation jurisdiction should

not be left to the sweat will of any judge.

Hina Jilani observed that there have been attempts to use suo motu

powers for populist pursuits. She said judicial activism is important in Pakistani

society but it is imperative to see how the judges used it, as public interest

issues would be resolved not through self-righteousness but through wisdom.

She said judges should also seek the opinion of lawyers and other experts to

understand the issue at hand and do justice after understanding people ’s

problems.

She said the biggest benefit public interest litigation offers to a human

rights lawyer is expectation of a judgement which would then serve as a tool

for lawyers, who do not have that many tools at their disposal as human rights




defenders.She said that that expectation is seldom

fulfilled nowadays as judges often speak less

through the judgements and more through

verbal remarks. She said the judges often do

not realise that the verbal comments they make

have substantial effect politically and socially.

She said judges cannot become

independent unless they want to be

independent. She said judicial independence

does not mean independence from the

executive alone, but also from social biases andprejudices. She cited an observation by the

Lahore High Court chief justice who said that

Hindus were responsible for acts of terrorism

in Pakistan because Muslims could not do such

things.

Justice Mehmood observed that relief by courts has become discretionary

and judges extend the meaning of right to life or interpret it broadly when they

want to give relief to someone. He said the fundamental rights listed in the

constitution of Pakistan do not consider right to a healthy environment a natural

extension of the right to life. He suggested that the committee drafting the 18th

constitutional amendment should be asked to add the right to a healthyenvironment and to live with dignity to the right to life guaranteed in the

constitution of Pakistan and provide a specific criterion of what the right to life

amounts to. He said, as things stand, the question whether the meaning of the

right to life is expanded or limited depends on the judge interpreting that right.

Justice Zahid observed that every human being has biases, the quality

of a judge is that he should be aware of his biases and he should know the

baggage he is carrying, but he should also be aware that when he decides a

case he should base the decision on facts.

He said that that was why proper training for civil judges and magistrates

was crucial, adding that in Bangladesh a civil judge is trained for two years

before getting his first appointment. He studies English and laws for the first

year and in the second year he sits with experienced judges and observes

how they work. Justice Zahid said that in Pakistan a person gets a bachelor’s

In Bangladesh

a civil judge is

trained for

two years, in

Pakistan fresh

law graduates start work as

civil judges




degree in law one day and is working as a judge the next day.Justice Zahid said he was a passionate advocate of public interest litigation,

but several very good judgements delivered by courts in the past have not

been implemented, and the judgments given by courts now are subjective. He

suggested that the seminar should demand that public interest litigation should

be a separate chapter in the Supreme Court rules, indicating the principles

according to which the suo motu jurisdiction under Article 184 (3) of the

constitution would be exercised.

Ms Asma Jahangir suggested that another demand should be that in

public interest litigation cases, the court should issue detailed judgements

rather than short orders, and the detailed judgments should explain with

reasons a matter’s nexus with fundamental rights.

Justice Zahid said that his study showed that orders in public interest

litigation cases have been short orders to an overwhelming extent, granting

stay or setting up a commission, and there have been few final orders. He said

that barring exceptions, orders in public interest litigation cases should not be

interim orders but detailed orders, explaining reasons for the judgement.

Mr Bhushan said that in India also interim orders granted in public interest

litigation cases remain in effect for years and courts do not give reasoned

orders, with the result that the principles and rationale for the decisions are

not explained.

He said that the decisions in public interest litigation cases that are not

implemented are not implemented because the courts probably lack the will toget them implemented. If the contempt jurisdiction is relied upon to seek

implementation of the orders, the orders would be implemented to a large

extent, he added.

To curb arbitrary use or misuse of public interest litigation, some basic

principles should be laid down, Mr Bhushan said and added that judges must

not substitute their views for those of the executive. If a judge wants to intervene,

that intervention must be based on principles. He can, for instance, say that in

a certain matter the executive has ignored to pay attention to a relevant

consideration. He can ask the executive to examine that issue and make a

decision after proper consideration, but the judge cannot impose his own view

by saying that the court would now order how the matter would be decided.However, the judge can and should ensure that the executive acts after

full application of mind and after proper and full consideration and does not




trample any fundamental rights of the people, Mr Bhushan added.Justice Zahid said he is not suggesting an end to public interest litigation,

but the judiciary must put its house in order first. The judiciary clearly is lagging

in its primary work, determination of cases, and yet despite the backlog of

cases it continues to increase its workload through public interest litigation,

and even there only short orders are passed. He said the judiciary should

focus on appointing upright and competent judges including ad-hoc judges to

clear the backlog of cases.

Justice Zahid said he is an ardent advocate of public interest litigation but

added that his experience is that in Pakistan people have not received the

benefits they should have from public interest litigation. Benefits for people

from the judicial system would come about only if the judiciary at the city/ district court level is improved.

Mr Bhushan said that the Indian Supreme Court had observed in SP

Gupta case that transparency demands that all the correspondence/noting

regarding appointment of judges should be available to public and the people

should be allowed to see how public functionaries behave in appointment of

judges. He said at the time of the Supreme Court ruling the Right to Information

Act was not implemented in India. But now even under Right to Information Act,

access to information on that point is barred, he added. He said transparency

ensures accountability.

Mr Bhushan said a judicial accountability commission should be establishedas a constitutional body, whose members should neither be from the judiciary

nor the executive. He said the appointments to the commission could be made

through consultation with judges, government officials including president, prime

minister, law minister and chief justices of the high courts and the Supreme

Court. Once appointed each member of the commission should have security

of tenure for a specified period.

Mr Khan said that there is no denying the utility of public interest litigation

but it is not the answer to every problem. He said that though in theory

procedure and technicalities should not be allowed to defeat substantive justice,

the exact opposite of that often happens in courts.

Mr Bhushan said litigants have to depend on lawyers because lawyersknow the judicial procedure that regulates access to justice. He said the biggest

hurdle in the pursuit of justice in India and Pakistan is that more than half the




people cannot afford to engage a lawyer, even to defend themselves in acriminal case. He said Pakistan and India need a judicial system where the

common man can plead his case even orally and without having to rely on

lawyers. He said the real challenge is whether such a judicial system can be

established though it is clear that failure to establish that would amount to

denying access to justice to more than half of the population in the two countries.

In conclusion, the HRCP chairperson, Asma Jahangir, said the seminar

was the first of a series of discussions on the subject. She said there is now a

realization that the issue is not confined to Pakistan but has regional dimensions

and the discussion should be taken to the South Asia level. She said that the

judiciary should be urged to keep the objective of public interest litigation in

mind and also to streamline the process for the exercise of this jurisdiction.




Recommendations Specific provisions of the constitution should prescribe specific

principles for the exercise of public interest litigation jurisdiction by the Supreme

Court of Pakistan under Article 184 (3) of the constitution, so that uncertainty ends and litigants, lawyers and judges know the principles involved. That would

also go a long way towards putting an end to arbitrary or motivated use of discretion and misuse of suo motu jurisdiction.

The Supreme Court of Pakistan should add a separate chapter on

public interest litigation in the Supreme Court rules, indicating the procedure regulating the exercise of suo motu jurisdiction.

The judiciary must ensure that exercise of suo motu jurisdiction does

not encroach upon the jurisdiction of other institutions. The ultimate aim of

public interest litigation should be that the relief granted should not weaken

democratic institutions.

In public interest litigation cases, the court should issue detailed

judgements rather than short orders. The detailed judgments should explain

how a matter taken up suo motu is connected with fundamental rights.

Judges must only speak through their judgements and desist from

making verbal comments during hearings.

The judiciary should desist from issuing orders whose implementation




it cannot ensure. The courts must ensure that determination of other cases does not

suffer on account of the hearing of public interest litigation cases. The judiciary

can either form a separate bench exclusively for hearing public interest litigation

cases or expand the existing human rights cell in the Supreme Court to sort

out such applications and refer only the important ones to the court.

Mechanisms to ensure strong and independent judiciary, as well as

for transparent appointment of judges and for their accountability, must be put

in place. The judiciary and all other institutions should welcome transparent

measures for accountability rather than creating obstructions in that path.

Public interest litigation jurisdiction should be devolved to city/district

courts to benefit the people at the grassroots.

The number of judges should be increased and the judges should be

given exhaustive training to clear backlog of 1.4 million pending cases and

ensure expeditious dispensation of justice.

public interest letigation - hrcp seminar report

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