Public interest litigation As a means of social justice

PUBLIC INTEREST LITIGATION PUBLIC INTEREST LITIGATION AS A MEANS OF SOCIAL JUSTICE Observations of Mr. Justice Dr. Nasim Hasan Shah President, Saarclaw, Pakistan [5th February, 1993] Pakistan like several other countries of the SAARC Region is a developing country. As the problems confronting it are similar to the problems and difficulties being faced by other countries of the region I will in this presentation like to tell you as to how law has been utilised by the Superior Judiciary of Pakistan as an instrument of change for correcting injustices and restoring equilibrium in the Society. The changing and ever demanding needs of our society undoubtedly require a new dispensation of justice urgently. Lord Denning once wrote:‑‑ "Law does not stand still. It moves continually. Once this is recongnised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time." In Pakistan we are making such an attempt. After the return of civilian rule in our country in 1985, the judiciary has responded to the demands of the society and played a positive role for alleviating the sufferings of the masses. is is through the technique of public Interest Litigation. Public Interest al Igation, in a sense, is an effort to eradicate social evils through the agency of "Law". And this technique has been employed quite consistently with the provisions of the Constitution. We all know that law‑making is an inherent and inevitable part of the Judicial process. Even where only interpretation of statutes is concerned, there is considerable scope for the Judge to develop and mould the law. The Judge infuses life and blood into the dry bones of the law and makes it a working and living organism. When a law comes before a Judge he has to invest it with meaning and content. There are times, where the language of law is clear and the role of the Judge is not very significant but there are cases where this is not so. Here a Judge gets an opportunity to mould the law and to give it a shape and direction. It is this highly meaningul and constructive role by which a Judge can advance the interests of the society by catering to its needs. The Superior Judiciary in Pakistan, during the past few years has been tackling multifarious problems of the society by a Judicial initiative in what we call Human Rights cases of Public Importance. This initiative can properly be undertaken by us under the provisions of Article 184(3) of our Constitution. This reads as follows:‑‑ "184(3). Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." Article 184(3) of the Constitution read with Article 199 (Writ Jurisdiction of High Courts) empowers the Supreme Court to pass any approperiate order. There is no other limit or condition imposed on the Supreme Court except that the appropriate order which is made should be for the "enforcement" of the "Fundamental Rights" conferred by Chapter 1 of Part 11 of the Constitution. Broad outlines for taking such an initiative were laid down by the Supreme Court in the case of Benazir Bhutto (PLD 1988 SC 416) namely (1) Supreme Court can exercise its powers to issue the writ when a question of "public importance" is involved, (2) this power under Article 184(3) is'dot dependent only at the instance of the "aggrieved party" in the context of adversary proceedings but can be used in any appropriate case and the traditional rule of locus standi can thus be dispensed with. The scope of Article 184(3) was explained as follows:‑‑ "While construing Article 184(3), the interpretative approach should not be cermonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this article is enacted i.e., this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2‑A), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam." The first judgment by the Supreme Court given under its original jurisdiction in this regard was in Darshan Masih's case (PLD 1990 SC 513). Herein, the Fundamental Rights of Bonded Labour in the Brick Kiln Industry were enforced and it was ruled that any conceivable just and proper order can be passed which is deemed to be appropriate for enforcement of Fundamental Rights. . By now, over 600 subjects have been identified and classified requiring action. It is interesting to note that these subjects have been identified from‑‑ (1) a large number of letters written by various individuals and groups of persons to the Chief Justice of Pakistan wherein the violation of human right was alleged; (2) newspaper reports which indicated violations of Fundamental Rights; (3) matters coming before the Supreme Court, in various cases, which involved also the violations of Human Rights and directions were issued to initiate separate proceedings under Article 184(3) in respect of those aspects. The Court has already passed some significant orders in these Human Rights cases. To cite some examples, orders have been made to do away with‑‑ (1) malpractices in our educational system; (2) afford protection to women of any origin (Pakistan or Foreign) subjected to any sex related offences and to stop the menace of obnoxious calls to them; (3) protect the property rights of female heirs/owners by issuance of directions to the Attorney‑General to take steps to amend the relevant existing law or to cause fresh legislation to be initiated for securing their rights; (4) prevent exploitation of the children by restraining the authorities from taking them to public places for reception of dignitaries. It has also ruled that children shall not be forced to undertake any such work which under the law has only to be done by the labour force; (5) suspended all restrictions imposed against Nurses working in Military Hospitals and Air Hostesses of Pakistan International Airlines to getting married while in service; (6) stayed public hangings as being contrary to the Constitutional provisions guaranteeing dignity of man; (7) issued guidelines for controlling the traffic muddle in Karachi; (8) checked the practice of extortion of money by Railway staff from the passengers travelling; in the Samjhota Express (train running between Pakistan and India) and appointed a Commission of Advocates and Human Rights activists to monitor the situtation; (9) directed the Federal and Provincial Governments to stop making appointment against the recruitment rules, a practice which was violative of fundamental right of equal opportunity for all citizens to enter upon a profession; and (10) issued guidelines to be observed by the authorities to check renvironmental pollution caused by fumes of motor vehicles, deforestation, open sewerages, dumping of nuclear waste etc. All this has been done under Public Interest Litigation. The fact is that the old individual rights have now assumed a secondary place and instead social rights have come to the fore. These rights may be equated to "Civic Justice". To enforce these new social rights, the State is required to play a more active role. By so doing, the individual is enabled not only td get his classical rights but can also got these now social rights Or Civic Justice. These social rights include freedom from indigence, freedom from ignorance and discrimination, a right to healthy environment, protection from massive corporate frauds and governmental oppression: The Judiciary has to play its full part to assist the citizens to obtain these rights, The legal technique employed to secure those rights has become possible in Pakistan through Public Interest litigation. Indeed Public Interest Litigation is tine of the most significant developments which have come about in the traditional civil procedure. A proper utilisation of the Public Interest Litigation technique can greatly contribute to the protection of Human Rights and for securing Social Justice. Happily, this technique is being resorted to in Pakistan quite extensively. We have, however, still to think of ways and means td craft the strategy to use the Court system to advance social rights and procure civic justice. The results gained, even during this short period, in the use of this technique have been quite encouraging, but the full potential of this powerful technique has still to be realised.