A dissertation report submitted in partial fulfillment of the requirements for the Degree.
Bachelor of Laws (Honours)
Department of Law
Stamford University Bangladesh
Md. Mahfuzoor Rahman
ID: LL.B 02805622
Batch: 28 (A)
Department of Law
Stamford University Bangladesh
Md. Reza – E-Morshed Kamal
Department of Law
Stamford University Bangladesh
Stamford University Bangladesh
The term ‘public interest litigation’ (PIL), a new phenomenon in our legal system, is used to describe cases where conscious citizens or organizations approach the court bona fide in public interest. 1
In Bangladesh, concerned citizens and organizations have challenged illegal detention of and innocent person for 12 years without trial,2 importation if radio-active milk,3 environmental damage resulting from defective flood action programme,4 appointment of the Chief Metropolitan Magistrate without prior consultation with the Supreme Court5 and so on. Within its scope, which is continuously expanding, PIL includes cases involving poverty related problems, police atrocities, illegal detention, environmental and consumer matters, health related problems, rights of children and women, minority affairs and other human rights issues.
This is significant new development from at least two standpoints. First, the courts are for the first time concerned with public interest matters. This is the beyond the traditional role of the judges who previously adjudicated private disputes only. Second, it
1. Naim Ahmed, Public Interest litigation- Constitutional Issues and Remedies, 1st ed. (Dhaka: Bangladesh Legal Aid and Service Trust, 1999), P.1.
2. State v. Deputy Commissioner Satkhira and others 45 (1993) DLR, 643.
3. Dr. Mohiuddin Farooque v. Bangladesh represented by Secretary Ministry of Commerce and others
48 (1996) DLR, 438.
4. Dr. Mohiuddin Farooque v. Bangladesh (FAP 20) 17 (1997) BLD, AD, 1.
5. Md. Idrisur Rahman v. Shahiduffin Ahmed and others 51 (1999) DLR, AD, 162.
involves a public law approach with respect to the rules of standing, procedure and remedies to that private citizen can advance public aims through the courts.
Advancement of PIL in Bangladesh coincided with the restoration of democracy. Some attempts to introduce PIL in Bangladesh started since 1992. Initially, it was difficult to overcome the threshold problem. However, relentless efforts of the social activists enabled the progressive minded judges to interpret the Constitution liberally through a series of cases. When success finally came in 1996, the Supreme Court not only found that PIL is valid under the constitutional scheme, but that the Constitution mandates a PIL approach
Meaning of the term ‘Public Interest Litigation’
There is no confusion as to the general meaning of PIL- that it is ‘litigation in the interest of the public’. Yet the more one attempts to be specific about the scope of PIL, the less satisfactory becomes this general description. Terms like ‘litigation’, ‘public’ or ‘interest’ have different meanings and scope in different situations. Further complications arise when the term ‘public interest’ is the issue. Since the term is culture specific, no single definition can satisfy everyone. Now, I should explain meaning of the term ‘public interest litigation’.
Actio Popularis, Writ and Public Interest Litigation- these three terms are interrelated and may be denominated as indivisible. First, I should explain the term actio popularis.
This term comes from the very ancient Roman law. It means such action to obtain remedy by a person or a group in the name of the general public, or other abstract entities such as morale etc. without being or directly in an authorized way representing the victim.6 The undeveloped concept of public interest litigation can be traced in the system of actio popularis of Roman law which permitted anyone in the society to initiate an action for a public delict in the court of law can be described as historical basis of the present form of public interest litigation.7 The expression next is ‘writ’, which is the most popular and over the years it’s playing significant role in upholding justice not only in our country but many other countries all over world. Historically it was originated and developed in British legal system. In law, a writ is a formal written order issued by a
body with administrative or judicial jurisdiction.8 It may also be defined as
6. Actio popularis, [http://sim.law.uu.nl/sim/thesaurus, nsf, last visited 26th July 2009]
7. Kaylash Rai, Administrative Law, 4th ed. (Faridabad: Central Law Publication, 2005), p.327.
8. Writ, [http://en.wikipedia.org/wiki/Writ, last visited 26th July 2009]
written document by which one is summoned or refrain from doing something.9
As the governmental functions increased and the concept of rule of law come into sight and the courts become independent, writ came to be prerogative of the people. By gradual evolution, it becomes a strong machinery to enforce fundamental rights for the person suffers injury. Five kinds of prerogative writs have been introduced in Bangladesh through Article 102 (ii) of the Constitution. Those are- habeas corpus, quo warranto, prohibiton, mandamus, and certiorari.
It is assumed that the expression ‘Public Interest Litigation’ my generated from the idea of the above two terms. Through gradual evaluation we find PIL in recent yeas in a new dimens on but the skeleton is actio popularis and writ. It is a special type of litigation which may be distinguished from ordinary litigation in the following way.
First, PIL is for the benefit of the people as a whole or a segment of the society. It aims to enhance social ad collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:
i) Where the matter in question affects the entire public or the entire
community, e.g. illegal appointment of an unfit person as a government
ii) Where the issue involves a vulnerable segment of the society, e.g.
eviction of slum-dwellers without any alternative arrangement;
iii) Where the matter affects one of more individuals but the nature of the actis so gross or serious that it shocks the conscience of the while community,
e.g. rape of a minor girl in police custody
Second, in the situations mentioned above, any individual or organisation may approach the court. In other words, PIL involves liberalization of the rules of standing. This includes cases initiated suo motu; because the judge himself is a concerned citizen in such a case.
9. Md. Abdul Halim, Constitution, Constitutional law and politics: Bangladesh Perspective, 4th ed. (Dhaka: CCB Foundation, 2005), p. 369.
Third, the court adopts a non-adversarial approach as opposed to an adversarial system of litigation. This includes procedural aspects as well as the aspects of granting relief. As a result, award compensation or supervise and monitor the enforcement of its orders.
A PIL can be filed when the following conditions are fulfilled:
-There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority.
-It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed.
-It must act be frivolous litigation by persons having vested interests. 10
Over the years, Public Interest Litigation (PIL) has emerged as an effective tool for seeking judicial responses and subsequent government actions to the socio-economic challenges of the unorganized, powerless and those segments of thesociety who are precluded from resorting to legal redress owing to resource or knowledge constraints. PIL has enabled public-spirited individuals, groups and conscious to litigate in the interest of the poor and disadvantaged; and widened the scope for NGOs and civil society to participate in formulation of pro-people policies and laws.
10. PIL-who can file, [http://www.virtualpune.com/citizen-centre/html/file-pil.shtml, last visited 26th July 2009]
Development of PIL in Bangladesh
Development of PIL has been gradual. Before its introduction in Bangladesh, it successfully developed in several other jurisdictions. The term ‘Public interest litigation’ was first used in the USA. Success of PIL in the USA influenced other jurisdictions including Canada, Australia and England. The most remarkable development of PIL took place in India. However, we have welcomed PIL in Bangladesh very recently. Bangladesh adopted a constitution in 1972.11 Now, I should explain development of PIL in Bangladesh.
3.1 Initial experience and the Berubari case (1972-1974)
The Constitution of Bangladesh has a chequered history. From the very beginning, it was subject to major amendments that tended to restrictively redefine the limits of fundamental rights. One of these early amendments, the Third Amendment, was triggered by Kazi Mukhlesur Rahman v. Bangladesh and another,12 popularly know as the Berubari case. In Berubari case, this was reported as the first case of public interest in Bangladesh.
Locus standi was granted by Sayeem CJ on the ground that Mr Rahman agitated a question affecting a constitutional issue of grave importance posing a threat to his fundamental rights that pervade and extend to the entire territory of Bangladesh. The Court decided that the question is not whether the Court has jurisdiction but whether the petitioner is competent to claim a hearing. So the question is one of discretion which the Court is to exercise upon due consideration in each case.
11. Ibid at p.21.
12. 26 (1974) DLR, SC, 44.
The application, however, was rejected on the ground of being pre-mature. But since the Court observed that a cession of territory needs parliamentary approval and enactment, the government soon initiated the Third Amendment of the Constitution. Where it is merely a question of law, the old rules of certiorari, prohibition or mandamus will determine standing depending on the type of relief sought. But when it is a question of fact, the old rules can be abandoned since standing will depend on the gravity of the situation.13
The effect and influence of the Berubari case is enormous. It has often been considered as the starting point of PIL in Bangladesh where “the Court went very close to the doctrine of public interest litigation”.14 Being the judgement of the Appellate Division, Berubari was resorted and referred to whenever a widening of the standing rule was sought. This case may be regarded as an early achievement of the young Bangladeshi jurisdiction in its attempt to assert its creative authority. This case, it has recently been claimed in the FAP 20 case, is unique since it precedes the PIL developments of the neighboring jurisdictions.15 The Berubari is often regard as the first Bangladeshi PIL case and was relied upon by the PIL petitioners in almost. But from a PIL perspective, the Berubari has its limitations.
3.2 The barren period (1975-1986)
The effect of the Berubari case is vast but after that it took a long time to come in lime light. Because from 1975-1986, the constitutional was under a serious threat due to post-war instability, natural calamities including a famine and deterioration of the law and order situation. Martial law becomes the power of the rulers and the constitution, which is provided for a parliamentary democracy, remains powerless and inactive.
13. Ibid at P.123.
14. Sayed Ishtiaq Ahmed, ‘An expanding frontier of judicial review- public interest
litigation’ in DLR journal, Vol.45 (1993), PP.36-45.
15. Dr. Mohiuddin Farooque v. Bangladesh and others (FAP 20) 17 (1997) BLD, AD, 1 at 14.
The Constitutional journey in the first 15 years shows that the Court did not have an opportunity to function properly, let alone allow for the development of new ideas and views under the martial law regimes. The Berubari principle could have marked the turning point in the Bangladeshi jurisdiction for carrying forward the movement of PIL but the process was thwarted when the constituter was disrupted.16
A Significant case from this period is Ak Mujibur Rahman v. Returning Officer and others.17 General Ziaur Rahman was a presidential candidate amended to facilitate his candidacy. This amendment was challenged by a Voter. The petition was summarily rejected by Shahabuddin Ahmed J. on merit but the question of standing was not disputed.
Standing was discussed in MG Bhuiyan v. Bangladesh18 where an advocate challenged an Ordinance as a citizen. As he was not personally affected, Munim CJ denied standing following the traditional view.
The modern legal aid movement can be traced back to this period. In 1978, the Madaripur Legal Aid Association was established. It was the first village-based and grass-root legal aid organisation in Bangladesh.19 This association not only spread the idea of legal rights of the poor but gradually came to assist public interest activists
3.3 Beginning of public interest cases (1987-1990)
In this time, concerned citizens started coming to the court with their petitions. The first group of petitions came in the nature of quo warranto, since such proceedings do not require the petitioner to have a personal grievance.
16. Sayed Ishtiaq Ahmed, ‘An expanding frontier of judicial review- public interest
litigation’ in DLR journal, vol.45 (1993), at 8 at 44.
17. 31 (1979) DLR, 156.
18. BCR 1981 (AD) 80. This was an appeal from MG Bhuiyan v. Bangladesh BCR 1982 HCD 320.
19. Alimuzzamn Chowdhury, ‘Collective legal self reliance movement in South Asia’ in
DLR journal, vol.39 (1987), PP. 21-23.
The position of quo warranto petitioners was strengthened in M Mostafa Hassain v. Sikdar M Faruque and another,20 where BH Chowdhury CJ reaffirmed that in a writ of quo warranto challenging authority of a person holding public, any citizen, irrespective of personal grievance can come to the court. In that case the court even rejected a compromise petition on the ground that a mater of great public interest was involved.
In Anwar Hassain Chowdhury v. Bangladesh (8th Amendment case)21 the amended Articles 100 of the Constitution was challenged as ultra vires. The Court, by a majority judgement of three against one, declared that the basic structure of the Constitution can not be altered and as such the amendment was void. This case is sometimes described as a forerunner of PIL cases.
In 1988, the Young Lawyers Forum (Jubo Ainjibi Forum) initiated KM Zabir v. Amanullah and others. The petitioner claimed that the soft drink company Pepsi had violated the law resorting to lottery techniques. Claimed by the Forum to be the first of its kind, the case was fought in the name of PIL and won. The Court even awarded cost to the association since they had ‘fought the case on behalf of the whole country’.
During this period, the Young lawyers Forum did not pursue its initial success by filing more public interest cases, perhaps because it was mainly concerned with young advocate rather than with social justice. But the reason the Pepsi remained relatively unimportant was due to the fact that it was fought in a Magistrate Court, the Judgement having no force of judicial precedent. However these cases dealt mainly with the political rights of the applicants. Even in the few cases where the subject matter is not political, they represent concerns of the middle classer rather than those of the poor or socially deprived.22
20. 7 (1987) BLD, AD, 315.
21. 41 (1989) DLR, AD, 165.
22. Ibid at p.28.
3.4 Misconceived attempts (1991)
In this year came Bangladesh Sangbadpatra Parishad v. The Government of Bangladesh.23 The Government had constituted a wage board for fixing the wages of newspaper employees. An association of newspaper owners challenged the Constitution of the wage board and its authority and pleaded PIL. In the Appellate Division, Mustafa Kamal J. refused standing on the ground that the applicant was not a ‘person aggrieved’. It was also pointed out that the Indian PIL decisions can not be followed blindly since the Indian constitutional provisions are not similar to the Bangladeshi ones.
The effect of this pronouncement by the Appellate Division was perhaps greater than anticipated. Sangbadpatra was not a PIL case. If it had been, the decision of the court could have been different.
The lawyers and some judges of the High Court Division remained under the impression that since the Constitution of Bangladesh does not have provisions similar to the Indian ones, there is no scope for PIL. Also, the use of the term ‘a phrase which have received a meaning and a dimension over the years’ caused some confusion at a time when very few of the lawyers and judges had any firm idea or understanding about this new concept.24 This judgement for them meant that there can be no departure from the traditional view. The Sangbadpatra is, therefore, a perfect example where attempts by a privileged group to use the techniques of PIL have actually damaged the movement for cases with genuine concern for social justice.
3.5 Heightening of the consciousness of PIL (1992)
In the political arena, 1992 was a year of calm when the newly earned democracy started to function. The most significant PIL cases in this year related to personal liberty matters
23. 43 (1991) DLR, 424.
24. Mustafa Kamal, ‘Democracy, Constitutionalism and Compromise’, in BLD Journal, vol. 15 (1995), pp.6-10.
Anwarul Hoque Chowdhury J. in Ayesha Khanam and others v. Major sabbir Ahmed and others25 expanded the traditional habeas corpus principle by giving standing in a case of private detention. The petitioner was a mother seeking custody of her child. Bangladesh Mohila Parishad, a voluntary organisation, fought successfully as a party.
A precedent on PIL was to be set in State v. Deputy Commissioner, Satkhira and others, known as Nazrul Islam’s case.26 Nazrul Islam had been held in prison for 12 years without any trial. Justice MM Hoque noticed a newspaper reporting this news, initiated the criminal miscellaneous case suo motu and released Nazrul.
These cases demonstrated the power of PIL and the prestige it can give to the Court. It was difficult for law professionals to remain ignorant of these newly emerging public interest issues. As these personal liberty cases involved genuine and serious violations of fundamental rights, the Court was not hesitant to resort to a liberal approach.
However the success in detention cases was offset by failures in some other cases. In syed Mahbub Ali and others v. Bangladesh a number of subordinate court judges were promoted without consultation with the Supreme Court. This was challenged by a group of practising advocates as ‘concerned citizens’. Relying on the Sangbadpatra. Abdul Jalil J. held that they had no locus standi.
In another interesting case, Dr Ahmed Hussain v. Bangladesh,27 an advocate was given standing to challenge the reservation of seats for women in the parliament as anti-constitution. But MH Rahman J. held that the case itself had no merit.
The steady increase of the involvement if lawyers’ groups and voluntary sector organizations was further boosted when in October 1992, a two-day seminar on PIL titled
‘Rights in Search of Remedies’ was held in Dhaka.28 The initiative was taken by
25. 46 (1994) DLR, 399.
26. 45 (1993) DLR, 643.
27. 44 (1992) DLR, AD, 109.
28. Sara Hossain, S Malik and Bushra Musa, Public Interest Litigation in South Asia.: Rights
in Search of Remedies,1st ed. ( Dhaka: University Press Limited, 1997), p.23.
two voluntary sector associations: the Madaripur Legal Aid Association and Ain-O-Shalish Kendra. Eminent jurists, Judges and lawyers from India and Pakistan joined their Bangladeshi counterparts and exchanged views. Wide presence and participation from the bench and the bar made it a very successful venture. For the first time, PIL become an issue in the discourse of Bangladeshi law. For a relatively close-knit legal community, this single seminar did more than anything else to popularise the idea of PIL and ‘visibly created immense interest particularly in the legal circle.29
3.6 Facing a threshold problem: limited success through technical innovations (1993)
Number and variety of PIL cases continued to increase in 1993. A highly sensitive issue came for the determination of the court in the Kadiani case. The petitioner, advocate Nurul Islam, claimed to be a ‘concerned citizen’ and Muslim. He held important posts in several religious organisations. The Court was asked to compel the government to declare the members if the Kadiani sect non-Muslims. Abdul Jalil J. decided that the government has no authority to determine whether or not a particular sect is non-Muslim. However, standing was allowed and a prima facie case was recognized.
The Committee for the Protection of Lawyers’ Rights initiated another consumer case. The petitioner in M Ali Akand v. Shamsul Islam and others came as a concerned and affected citizen and challenged a company selling certain Indian-made soap representing that it was made in Bangladesh.
Since these cases were fought in the lower courts, their effect on the development of PIL remained limited. The opportunity to get a High Court ruling for PIL came in the Paracetamol case. A journalist, a father of a child of four, hoped to compel the government to perform its duty to monitor the production of toxic Paracetamol syrup
29. M Amir-ul Islam, ‘Rights in search of remedies’ in DLR Journal, vol.45 (1993), pp. 6-14.
which was causing death to infants.30 Rule was issued. But before any judgement could be pronounced, the medicine was withdrawn for the market under the direction of the government. This prompt action rendered the case infractuous.
Although these were the first batch of consumer cases fought in the name of PIL, none of these cases were pursued by consumer associations or other organised citizen’s rights groups. Organisations of young lawyers pursued less than well-researched briefs. The efforts were not only random, but mainly targeted middle-class concerns. Apparently, the most genuine public interest issue was involved in the paracetamol where the opportunity to get a judgement in favour of PIL was lost due to prompt governmental action.
A genuine issue concerning the poor was raised in the Slum Dwellers case. When Mirpur area slum dwellers were ordered to vacate government lands within 24 hours, public-spirited lawyers helped a destitute old lady to claim that she must not be removed unless the government provides her with an alternative home. The Court’s rejection of the plea that she has a right to stay or be alternatively provisioned was seen by the lawyers as a denial of PIL. However, the Court maintained the status quo for quite a long time, practically giving ample time to the slum dwellers to make alternative arrangements.
A pronouncement in favour of PIL finally came in Bangladesh Retired Government Employees Welfare Association and others v. Bangladesh.31 An association of retied government employees sued, challenging discrimination on pension matters.
The judgement of this case was a remarkable achievement as it firmly supported and established PIL. It must be noted, however, that even though the standing of the association was in question, other petitioners, i.e. the pensioners, were personally aggrieved and had clear standing. Also, this case involved a particular interest group as apposed to the public in general. Furthermore, the Court avoided the Sangbadpatra
30. BELA Newsletter, in vol.1 (1992), p.1.
31. 46 (1994) DLR, 426.
principle by pointing out that the facts of the two cases are different. So, this being a judgement of the High Court Division, the negative influence of the Appellate Division’s judgement in the Sangbadpatra was still there.
3.7 New wave of PIL attempts: gaining more grounds (1994)
Although a consideration number of cases were filed as PIL in 1994, they fall into two broad categories. The first type involved political issues while the second type dealt with environmental and consumer concerns.
Political issues as PIL cases:
From 1 march 1994, the opposition parties started to boycott sessions of the Parliament. Their first complaint was against a supposedly slanderous statement made by a government minister in Parliament. But after a highly controversial parliamentary by-election, they continued the boycott on the demand of a caretaker government. This proposed non-party government, they explained, will run the country in times of parliamentary elections, eliminating the possibility of vote-rigging. This demand gained popular support and was accompanied by demonstrations, processions, picketing and frequent nation-wide strikes.
The boycott was challenged by a political activist supporting the party in power. Public interest standing rule was successfully used as he approached the Court as a ‘citizen and voter’. This was Anwar Hossain Khan v. Speaker of Bangladesh Sangsad Bhavan and others,32 known as the Parliament Boycott case.
The Parliament Boycott case raised several problems for the movement for PIL. Although public interest standing was recognised, this case was too much politicised to become a good precedent for PIL. Controversy and media attention made the judges more cautious and they were under pressure not to go too far with respect to public interest standing.
32. 47 (1995) DLR, 42.
Also, the Appellate Division’s caution resulted in the lingering influence of the misunderstood Sangbadpatra case to continue.
Another problem of the Parliament Boycott case was that it gave the impression that political activists, being able to disguise as ‘concerned citizens’, could be granted standing to raise their preferred political debate in the judicial arena. In fact, PIL was soon used by the political activists in a number of cases.
In Md Kafiluddin v. Maulana Syed Fazlul Karim and another it transpired that a religious leader had declared in a public gathering that anyone not a fundamentalist is a bastard, not a Muslim. Md Kafiluddin, an advocate, claimed that this statement injured the religious feelings and belief of the public. This case is still pending.
M Slaeem Ullah, in the Haiti Troops case,33 challenged the decision of the government to send peace troops to Haiti under UNO supervision without seeking approval from Parliament. The petitioner’s standing was not discussed, but Mahmudur Rahman J. rejected the petition on merit and also expressed his unwillingness to deal with policy matters.
Mr. Saleem Ullah continued his assault on the government with a number of quo warranto cases. In Justice Sultan Hossain’s case, the question was whether an ex Chief Election Commissioner can be appointed as chairman of the Press Council. The matter is pending. In the Settlement Court judges case, the eligibility of two judges was challenged. The government swiftly removed both of them and the case became anfractuous.
In Md. Idrsur Rahman v. Shahiduddin Ahmed and others, an advocate claimed that the appointment of CMM (Chief Metropolitan Magistrate) without prior consultation with the Supreme Court was unconstitutional. Rule was issued but judgment was delayed.
These cases aimed to establish political rights and advance democratic process. Significantly, lawyers were the petitioners, not volunteer organisations or conscious non-lawyer citizens.
33. M Saleem Ullah v. Bangladesh 47 (1995) DLR, 218.
Environmental and consumer issues:
The misunderstood case of the Sangbadpatra adversely affected a very important environmental case in 1994. The Bangladesh Environmental Lawyers Association (BELA) had been active since 1991. After its initial period of organisation and groundwork, it started initiating test litigation in the public interest. Led by Dr Mohiuddin Farooque, almost all the cases fought by BELA are well-researched, with genuine public or citizen's interest involved and were methodically and relentlessly pursued. Above all, this association is the first to have resources and skill to combine other public interest law activities such as lobbying and negotiation with litigation.
However, relying on the Sangbadpatra, standing was rejected by Ismailuddin Sarkar J. in Dr Mohiuddin Farooque v. Bangladesh / Sikandar Ali Mondol v. Bangladesh. The Flood Action Plan 20 (FAP 20) of Tangail, claimed BELA, would adversely affect more than a million human lives and natural resources including flora and fauna. Also, the plan ignored participation of the local people. But BELA was held not aggrieved.
Another attempt was made in the Industrial Pollution case, where the government and a number of industries were asked to control unchecked pollution. Rule was issued and this case is still pending. BELA also failed to win on merit in Bangladesh Environmental Lawyer's Association v. Election Commission and Others.34 The claim was that during the City Corporation elections, posters, loudspeakers etc. were polluting the environment. The petitioner's standing was not contested in this case.
BELA had its first success in the Doctors’ Strike case. The Bangladesh Medical Association (BMA) went on strike in favour of certain demands.35 MM Hoque J. issued an initial rule directing the doctors to refrain from striking. But again, since the government negotiated successfully with the doctors, the case became infractuous before a full judgement could be delivered. However, even the rule was enormously effective. It gave prestige and popular recognition to Dr Farooque and his organisation, which was an inspiration for subsequent PIL cases.
34. 46 (1994) DLR, 235.
35. Ahmed Shafiqul Huque, and MH Chowdhury, ‘Pressure group and public policy: profile of
the Bangladesh Medical Association’ in vol. 12, No 1 (1989), pp. 67-80.
In Chairman, Civil Aviation Authority of Bangladesh v. Kazi Abdur Rouf and others,36 a headmaster’s attempt to question the formation of the managing committee of a school was held not a case pro bono publico.
In 1994, a number of cases were negotiated before judgement, frustrated by steps taken by the government or kept pending. When judgement was given, standing was either not discussed or rejected. Thus although some important ground was gained in favour of PIL, the search for a pronouncement setting general principles and guidelines for PIL did not end.
3.8 The Supreme Court dragged into politics (1995)
On 28 December 1994, the opposition en-masse resigned from parliament and continued their movement. Thus they could avoid the Court’s direction, given in the Parliament Boycott37 case, to go back to the Parliament. But the Speaker, in the hope of a compromise, was delaying his acceptance of their resignation. This caused a stalemate.
The result, the famous MPs Resignation case,38 comprised of two writs. Raufique Hossain claimed that the attempt to resign is anti-constitutional while Alauddin Khalid asserted that the Speaker, by not accepting the resignation, is violating the Constitution. The Court was again involved in a controversial political issue and was under tremendous pressure, as the future of democracy largely depended on its decision.
The Chief Justice constituted a special bench of three judges. In the leading judgement, Mahmudur Rahman J. rejected the plea that the Court had no jurisdiction. However, both the petitioners, who came as ‘conscious citizens’, were denied standing because they did not have any constitutional or legal right that was violated. The Sangbadpatra provided the guiding principle.
36. 46 (1994) DLR, AD, 145.
37. 47 (1995) DLR, 42.
38. Raufique (Md) Hossain v. Speaker 15 (1995) BLD, 383.
Finally the government, unable to decide, asked the Supreme Court to advise Finally the government, unable to decide, asked the Supreme Court to advise whether the boycott rendered the seats of the members empty. This was the First Constitutional Reference in the history of Bangladesh.39
In the meantime, nation-wide processions, picketing and strike continued. These strikes or hartals were challenged by an advocate. In Abu Bakar Siddique v. Sheikh Hasina and others (Hartal case),40 AB Siddique claimed that calling of hartal infringes his constitutional rights. MM Hoque J. summarily rejected his petition.
The party in power attempted to counter the opposition by using publicly owned radio, TV and newspapers. This ‘propaganda’ by the government was challenged by Dr Farooque in Dr Mohiuddin Farooque v. Bangladesh (Media case). Rule was issued.
When the Government started to compile a voter list in order to conduct an election, a voter challenged the voter registration form in Md Aminul Gani Titu v. Election Commission. Again, the petition was summarily rejected.
Continued attempts by the democratically elected government to influence the judiciary through re-appointment of retired judges in various public posts gave rise to serious controversy. Furthermore, in the parliament, the government prevented a bill proposing more power to the Supreme Court regarding this matters.41 Consequently political and constitutional activists resorted to PIL and raised these issues in the Court.
The controversy relating to justice Abdur Rouf is perhaps the most illustrative of the problem of appointment of judges. Justice Abdur Rouf, a judge of the High Court Division, was appointed by the government as the CEC in 1995. This was challenged by Mr. Saleem Ullah in saleem Ullah v. Md. Abdur Rouf, Chief Election Commissioner42 on the ground that an acting judge can not, at the same time, hold the office CEC. The
39. 47 (1995) DLR, 111.
40. The State v. Md Zillur Rahman and others 19 (1999) BLD, HCD, 303.
41. MI Farooqui, ‘Judiciary in Bangladesh: past and present’ in DLR Journal, vol. 48 (1996), pp. 65-68.
42. 48 (1996) DLR, 144.
appointment was also vehemently criticised by the opposition. In response, a supporter of the ruling party, Dr Ahmed Hussain, approached the Court as a citizen petitioner in Dr Ahmed Hussain v. Shamsul Huq.43
He claimed that criticism by Shamsul Huq Chowdhury, chairman of the ‘Co-ordination Council of the Lawyers’ and an elected member of the Bar Council, amounted to contempt of court. While this contempt case was lost on merits, Justice Abdur Rouf’s case became infractuous because, as the judge retired from the post of CEC, the government reinstated him in the Appellate Division. However, this reinstatement was challenged by Mr Shamsul Huq Chowdhury in Shamsul Huq Chowdhury v. justice Md Abdur Rouf44 on the ground of violation of separation of powers. The Court held that the government has power to make such re-appointments under the existing constitutional provisions.
It appears that 1995 was not a good year for PIL since no good social action case came before the Court. The Vehicular Pollution case was an exception where Dr Farooque sought to oblige the government to take steps to check hazardous smoke and unduly shrill horns of vehicles. This case is pending hearing.
Another activist step was taken by MM Hoque J. in Eliadah McCord v. state.45 A suo motu rule was issued when the judge read a newspaper report that an American girl accused of drug smuggling was sentenced for life when she was a minor. On production before the Court, the accused admitted that she attained majority at the lime of trial. But on humanitarian ground, the Court suo motu reduced her sentence and ordered her release.
Constitutional problems became the most important political and media issues. Mustafa Kamal J. observed: “almost the whole of the educated citizenry of the country has turned into constitutional experts overnight.”46
43. 48 (1996) DLR, 1.
44. 49 (1997) DLR, 176.
45. 48 (1996) DLR, 195.
- Mustafa Kamal, ‘Democracy, Constitutionalism and compromise’ in BLD Journal, vol.15 (1995), pp. 6-10.
3.9 The year of success (1996)
Steady success of PIL cases:
The year of success for PIL was 1996. In a number of cases, the judges not only recognised PIL and granted standing to the petitioners, they proceeded to construct a jurisprudential basis.
Use of PIL for political purposes continued in 1996. The ruling party conducted a general election in March that was boycotted by all major opposition parties. The new Parliament constitutionalised the concept of caretaker government by incorporating the Thirteenth Amendment. The first Caretaker government was formed under former Chief Justice Muhammad Habibur Rahman. The Thirteenth Amendment was challenged is Syed Muhammad Mashiur Rahman v. President of Bangladesh and others.47 MM Hoque J. summarily rejected the application on the ground that the Amendment do not appear to come within the definition of alteration, substitution or repeal of any provision of the Constitution.
The Caretaker government faced a challenge in Md Asaduzznman Ripon v. The State where the Court restrained the functioning of several Government officers. The petitioner, a student leader of the Bangladesh Nationalist Party, claimed that these officers took part in the opposition movement violating their service rules. On appeal, the Appellate Division ordered them to resume duties till hearing of the case. This case is still awaiting hearing.
47. 17 (1997) BLD, 55.
The Caretaker government conducted a free and fair election which was won by the Awami League. Democracy survived another great challenge. The new Awami League Government appointed Justice Shahabuddin Ahmed as the President, a ceremonial post. This appointment was challenged in Abu Bakar Siddique v. Justice Shahabuddin and others48 by AB Siddique, the President of the Muslim Millat Party. Mr. Siddique claimed that one can not join ‘service of the republic’ after retiring as a judge. He lost on merit. But discussing the Berubari principle, MM Hoque J. granted standing: the aforesaid principle enunciated by the Supreme Court we hold that since several constitutional questions of great public importance having far-reaching consequences are involved in the preset case, the present writ petition is maintainable.
This was a great stride for PIL that proved that the Berubari principles wered not dead letters. Dr Farooque came in 1996 with a number of PIL cases. In Judges Appointment,49 he sought to compel the government to appoint judges in vacant seats of the Supreme Court. Mahmudur Rahman J. observed that this is a PIL but refused standing on the ground that no constitutional or legal right has been infringed. The right to life was extended in the Radioactive Milk50 case where the importation of radio-active milk was successfully challenged by Dr Farooque. Kazi Ebadul Hoque J. even went on to dictate how and in what manner government departments should co-ordinate their monitoring system. The standing of Dr Farooque was not challenged by the respondents. This case discussed right to life, extended its meaning and provided another stepping stone for the consumer activists. In the Child Trafficking case, Dr Farooque sought to stop kidnapping and trafficking of Bangladeshi children and using them as Camel jockeys, especially in the United Arab Emirates. Rule was issued.
48. 1 (1996) BLC, 483.
49. Dr Mohiuddin Farooque v. Bangladesh represented by Secrtary Ministry of Law, Justice and
Parlimentary Affairs 48 (1996) DLR, 433.
50. Dr Mohiuddin Farooque v. Bangladesh represented by Secrtary Ministry of Commerce and others 48
(1996) DLR, 438
The FAP 20: Appellate Division’s verdict:
The formal exposition of PIL for which the activists were waiting for a long time came from the Appellate Division in 1996. The standing of the petitioner was seriously contested by the government in the appeal of Dr Mohiuddin Farooque v. Bangladesh/Sikandar Ali Mindol v. Bangladesh (FAP 20).51
This was the case that was previously lost in the High Court in 1994.
The only issue in question before the Appellate Division was the petitioners standing, not the merit of the case. However, the concern of the petitioner was genuine because the environment of a huge area involving more than a million people was in issue.
The five justices of the Appellate Division found that the petitioner's intention was bonafide and unanimously granted standing in an epoch-making judgement. It was declared that in the Constitution of Bangladesh, which is ‘autochthonous’ in nature, the people are the ultimate holders of power. Accordingly, social and economic justice issues must have primacy over special or individual interest. Thus in cases of public wrong or injury, any member or the public can file a writ petition on behalf of the entire public or a particular vulnerable section of the society.
In the FAP 20, PIL was recognised as a special type of constitutional litigation under the Bangladeshi legal system. The conceptual and constitutional basis of PIL was discussed in detail. Public interest standing rules were declared in a liberal manner covering almost all aspects of locus standi of the petitioner.
3.10 Recent PIL cases: expending the horizon
The activists greeted the positive outcome of the FAP 20 judgement with much enthusiasm. It opened the gate for PIL and removed all doubts and confusions about the validity of PIL cases.
51. 17 (1997) BLD, AD, 1 Dr Mohiuddin Farooque v. Bagladesh 50 (1998) DLR, 85.
Yet, the first reaction was not a deluge of frivolous cases, petitions, letters or telegrams. It was soon apparent that Mustafa Kamal J. was right when he said that taking up the people’s causes at the expense of his own is a rare phenomenon, not a commonplace occurrence. Since the court was not flooded with cases, there was no immediate need felt to open PIL cells or declare PIL guidelines like Indian or Pakistani Courts. PIL cases came as a gentle inevitable steam rather than a flood.
The court has embarked on the second phase of the development of PIL. With the help of the wisdom already acquired by the Indian and Pakistani judges, the High Court Division is steadily expanding the horizon of PIL. The judges are applying PIL jurisprudence in new fields taking care that neither the resources of the Court, nor that of the government are stretched in any way.
Certain cases deal with matters relating to the functioning of the democratic process. In Md Idrisur Rahman v. Shahiduddin Ahmed and others, the appointment of the Chief Metropolitan Magistrate without prior consultation with the Supreme Court was challenged in 1994. This case was decuded finally in 1999. The High Court Division decided in favour of the petitioner which was later affirmed by the Appellate Division. In Ziaur Rahman Khan v. Government of Bangladesh,52 a number of political activists and MPs questioned a new provision inserted in three statutes relating to local governments of Rangamati, Khagrachari and Bandarban area. The challenge was partially successful since the Court declared time limit for fresh election. Petitioners failed in Saiful Islam Dilder v. Government of Bangladesh and others,53 where extradition of Indian tribal leader Anup Chetia was challenged.
A very interesting suo motu rule was issued in The State v. Md. Zillur Rahman and other,54 where the legality of hartal was assessed in the light of offences against public tranquility under sections 141 to 160 of the Penal Code. It was decided that
52. 49 (1997) DLR, 491.
53. 50 (1998) DLR, 318; 18 (1998) BLD, HCD, 615
54. 19 (1999) BLD, HCD, 303.
decision to observe hartal by five or more persons amounts to unlawful assembly only when they decide to compel others to do the same. The Court dismissed the petition. In Dr Ahmed Husain v. Bangladesh,55 the petitioner challenged new provisions for securing duty free cars for parliament members. In Mrs parvin Akhter v. The Chairman, Rajdhani Unnayan Kartipakkha and others,56 petitioners successfully challenged destruction of lake and greenery in the Gulshan Model Town.
In the area of detention, the courts remain vigilant. In Bilkis Akhter Hossain v. Bangladesh and others,57 along with three other similar petitions, detention of four political leaders was held mala fide and illegal. For the first time, compensation was awarded to the detenues. Each detenue received an amount of one lakh taka. A similar case where compensation was awarded is Md. Shahanewas v. Government and Bangladesh.58 An innocent person was arrested by an ASI of Police in the name of an absconding criminal. The Court awarded compensation of an amount of twenty thousand taka to be realised from the negligent ASI. In State v. Deputy Commissioner Bogura and others, suo motu rule was issued when a newspaper reported unlawful detention in jail. The rule was subsequently discharged.
Genuine social interest matters involving the poor and the downtrodden have been considered in several cases. In the much-publicised case of Sultana Nahar v. Bangladesh and others,59 eviction of sex-workers from their residences was challenged. Initially, the two justices of the High Court Division arrived at different conclusions. As the case was referred to the third judge, it failed both on the point of standing and on merit.
55. 18 1998 BLD, AD, 184; 51 (1999) DLR, AD, 75
56. 18 (1998) BLD, 117.
57. 17 (1997) BLD, 411.
58. 18 (1998) BLD, 337.
59. 18 (1998) BLD, 363.
Dr Mohiuddin Farooque v. Bangladesh and others,60 the Flood Action Plan (FAP 20) case of Tangail was finally heard on merit and the Court gave a number of directions and orders to be complied with by the government. If media coverage and publicity is taken as a guide, one of the most important recent PIL cases is Ain O Salish Kendra (ASK) and others v. government of Bangladesh and others.61
The petitioners challenged eviction of slum-dwellers in Dhaka without making any alternative arrangement. The Court ordered that the eviction process should proceed phase by phase, giving reasonable time and rehabilitate the slum-dwellers. In Salma Sobhan v. Government of Bangladesh others, the petitioner challenged continued restraint of a prisoner in bear fetter (Danda beri) for a period of 33 months. Interim relief was granted but the rule is awaiting hearing.
Apart from the cases mentioned here, there is a considerable number of PIL cases pendin before the courts and as such have not been reported.62 The number and variety of case indicate the progression of PIL towards maturity. As PIL has become a permanent feature of the Bangladeshi legal system, Non Governmental Organisations and Social Action Groups are working hard to utilise this new avenue. They are popularising PIL through Seminars, publications etc. and filing well-researched PIL cases. Instead of a litigation-only approach, Bangladeshi activists are already attempting to diverge in order to pursue other types of public interest law activities.
60. 50 (1998) DLR, 84; 18 (1998) BLD, 217.
61. 19 (1999) BLD, HCD, 489.
62. Ibid at p.48.
Role of NGOs in developing of PIL
These PILs have brought about a great change of thought in public mind regarding people’s rights, government responsibilities, rules and governance. It definitely shows the progress of PIL in Bangladesh. NGOs, journalists, judges, lawyers and administration are still working hard to utilize this new avenue and try to give a new shape and popularize among people. Among them Bangladesh Environmental Lawyers Association (BELA) and Bangladesh Legal Aid and Services Trust (BLAST) are pioneer.
Public Interest Litigation got great fillip with the emergence of Bangladesh Environmental Lawyers Association (BELA). At the instance of BELA High Court Division prohibited environmental pollution during Dhaka City Corporation election on 1994, and strike by doctors working in the government hospitals causing untold sufferings to the patients. At the instance of BELA High Court Division in 1996 also directed the government to take measures to prevent import of contaminated foods from abroad. In those cases question of locus standi was not raised. In 1993, High Court Division held that President of Retired Government Servants’ Association has locus standi to file a writ petition on behalf of its members and that decision remained stayed till 1996 by the Appellate Division on appeal. BELA brought several public interest litigations for protection of environment, public health, prevention of pollution, enforcement of fundamental right of right to life, freedom of expression to prevent state control of Radio and Television, prevention of child trafficking, prevention of discrimination in public service against blind persons etc, but those are still pending for decision. On the application of a citizen High Court Division directed abstaining members of the parliament to attend the session of the Sangsad. On appeal that direction has been stayed by the Appellate Division.
Question of locus standi his finally has finally been settled by the Appellate Division in the Flood Action Plan case brought by Dr. Mohiuddin Faruk, Founder secretary of BELA in 1996 holding that any member of the public suffering a common wrong, common injury or common invasion of fundamental rights of an indeterminate number of people or any citizen or an indigenous association espousing such cause has locus standi. Before and after that decision BELA, Ain -O-Shalish Kendra (AOSK), Bangladesh Legal Aid Services Trust (BLAST), Bangladesh National Women Lawyers’ Association Bangladesh Nari Progati Sangha, Bangladesh Mahila Ainjibi Samiti and many public spirited persons brought public interest litigations before the High Court Division for redress of the grievances of the deprived sections of the people.
Since locus standi has been liberalized in 1996, some of the public interest litigations have been disposed of by the High Court Division in 1997. In Flood Action Plan Case the government was directed to protect the environment and ecology and to observe relevant provisions of law in executing the flood protection scheme. In 1999, High Court Division direted Rajdhani Unnayan Kartripaksha (RAJUK) not to reduce the area of park and other common facilities by covering the same into residential or commercial plots in Uttara model town. Earlier in a case, High Court Division declared that park in Gulshan residential area should be maintained free from nuisance for the protection of health and hygiene of the residents of that area. That Division also directed removal of bar fetters of a prison detainee, and also released a woman in handcuffs from safe custody. That Court also stayed construction of a market building in the site earmarked for car parks, filling up of a lake, and eviction of slum dwellers in the Dhaka City.
With the liberalisation of locus standi public interest litigation has great prospect in amelioration the conditions of the downtrodden and deprived sections of the people, and bringing succor to their sufferings making the assurances of fundamental rights in the Constitution a reality in their lives. But there is also the danger of flooding the court with unnecessary litigations at the instance of busybodies posing as public spirited persons, and thereby unnecessarily burdening the High Court Division which is already overburdened with cases which take years together for disposal, and thus causing undue hardship on the litigant public. This crisis can be averted if the court remains vigilant at the inception, and meticulously examines the bonafide of the petitioner to seek redress through public interest litigation.63
BLAST took a number of public interest issues to the Supreme Court and obtained positive rulings. Those ranged from release of ling held prisoners to environment protection, from protection of bostee dwellers to enforcement of law on edible iodized salt. The progress in the implementation of the rulings of the High Court Division of the Supreme Court has been skewed, partly due to government administrative indifference and partly due to the limited capacity of BLAST to monitor external agencies specially government.64
The Advocacy and Public Interest Litigation (PIL) Cell of BLAST was conceived with the objective of effecting systemic pro-poor changes in legislative policy and practice through advocacy as well as litigating in the interest of the poor and the marginalized. BLAST thought its unit offices, has effective presence in 18 districts across the country. It also has a very close-knit network with all bar associations, leading human rights organisations, civil society and the media. BLAST has the advantage of having a very knowledgeable and illustrious Board of Trustees comprising eminent jurists and legal luminaries, retired ad experienced Supreme Court judges and prominent journalists of the country. Since its inception in April 2003, the Advocacy and PIL Cell is endeavoring to ensure increased safety and security and access to justice for the poor and the disadvantaged who are deprived of their basic human rights owing to resource and knowledge constraints.
BLAST believes that a ‘just society’ governed by the Rule of Law can best ensure and protect the fundamental and human rights of the people and the activities of the Advocacy and PIL Cell of BLAST are geared to achieve these objectives.
63. Bela, [http://banglapedia.org/HT/P_0307.HTM, last visited 15th September 2009]
64. BLAST & PIL Advocacy, [http://www.blast.org.bd, last visited 15th September 2009]
As a matter of policy and basic mandate, BLAST engages all its strength to ensure an equitable, fair and accessible legal system through which the economically disadvantaged and vulnerable segments of the society, especially women, men children, can establish and enforce their fundamental rights to life, liberty and property. Simultaneously, the organisation is committed to the protection of other fundamental as well as social and economic rights of the indigent people in particular. BLAST strives to empower the poor, women and disadvantaged people through legal aid; legal rights awareness campaigns, mediation and public interest litigation in the establishment of their rights. It also aims to create an enabling legal environment through reviewing and proposing changes to impugned and repressive laws and policies those are discriminatory and oppressive against the poor and the marginalised. The Advocacy and PIL cell is meant to supplement BLAST to achieve is above noted objectives. To this effect, issues under the following categories will, as a matter of general policy, be prioritized and taken up for advocacy and PIL:
- Legal problems encountered by the hardcore poor;
- Reduction of inequality;
- Fundamental human rights violations of the poor in particular;
- Legal issues having vast implication on the overwhelming majority of the impoverished population of Bangladesh;
- All forms of discriminations (particularly against women);
- Burning issues that have a direct linkage to poverty alleviation;
- Laws those are repressive, discriminatory against the poor and women in particular;
- Legal issues concerning safety and human security; and
- Regulatory reform.65
65. PIL & Advocacy, [http://www.blast.org.bd/pilandad.html , last visited 15th September 2009]
I think, the judiciary system of our country is not so befit for the PIL. Truly, there is no definite law for PIL. The general rules which have in our country, these are turning into PIL by expanding. So the rules are not sufficient for it. In this way, I mean, it is necessary to amend the civil procedure and these should have a system for remission from the lower court. These are civil procedure over the country so no pressure will fall upon any definite court. As a result, the judgment will complete very fast and the popularity of PIL will increase gradually.
The NGOs of other countries are charring out creditable contribution in the sector of PIL. It is needed to increase the contribution of PIL in the field of Bangladesh. Besides this, the Bar association should keep contribution for the development of PIL.
Most of the sector there is good judgement on behalf of PIL. But it does not turn into act. So the PIL is being harmful and the people are depriving from the useful of PIL. I mean, to rehabilitee the verdict, the system we have, to have done modernize and active.
I hope that, there will be progress in the sector of law in the next coming new years. As a result, PIL will be blessing for human being.
Some landmark cases
5.1 Kazi Mukhlesur Rahman v. Bangladesh and another197466
In the application Kazi Mukhlesur Rahman prayed for declaration that the agreement between the governments of the PRB and the Republic of India signed on the 16th day of May, 1974 by the prime Ministers of the two countries involved cession of Bangladesh territory was without lawful authority and of no legal effect.
The Prime Ministers of Bangladesh and India signed a treaty in Delhi providing inter alia that India will return the southern of South Berubari Union No. 12 and the adjacent enclaves and in exchange Bangladesh will the Dahagram and Angarpota enclaves.
The appeal dismissed on the ground of being premature. But the main feature is that locus standi was granted by Sayeem CJ on the ground that Mr. Rahman agitated. He said- “The fact that the appellant in not a resident of the southern half of South Berubari Union No. 12 or of the adjacent enclaves involved in the Delhi Treaty need not stand in the way of his claim to be heard in this case. We heard him in view of the constitutional issue of grave importance raised in, the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as an to an impending threat to his certain fundamental rights guaranteed by the constitution, namely, to move freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his of franchise. Evidently, these rights attached to a citizen are not local.
They pervade and extend to every inch of the territory of Bangladesh stretching up to the continental shelf” He added- It appears to us that the question of locus standi does not involve the Court’s jurisdiction to near a person but of the competency
66. 26 (1974) DLR, SC, 44
of the person to claim a hearing so that the question is one of discretion which the court exercises upon due consideration of faces and circumstance of each case”
5.2 Bangladesh Sangbadpatra Parishad (BSP) v. the government of People’s Republic of Bangladesh, 199167
Bangladesh Sangbadpatra Parishad (BSP), an association of owners of newspapers and news organisations, challenged (1) section 9, 10(3) and 11 of the Newspaper Employees Act, 1974 as unconstitutional and (2) the constitution of the Fourth Wage Board and the interim award dated 30.12.90 given by it.
A rule was issued, but it was discharged by the High Court Division. It held that- “The petitioner has no direst personal interest in the Act or in the implementation of the Wage Board Award. It is not liable to pay anything to anybody under the award in question but it is the owners of the individual newspaper who are pay and they actually aggrieved. It is nothing to lose or win by the impugned award.”
The Appellate Division observed, “In our Constitution, the petitioner seeking enforcement of a fundamental right or constitutional remedies must be a ‘person aggrieved’. Our Constitution is not at pari materi with the Indian Constitution on this pint. The Indian Constitution, either in Article 32 or 226, has not mentioned who can apply for enforcement of fundamental rights and constitutional remedies,” We must confine ourselves to asking whether the petitioner is an aggrieved person.
Mustafa Kamal J. further clarified that, “The petitioner can never file a writ petition. It can and it may, if has a personal interest in the subject matter.” The petition was dismissed. Similar sort of opinion was observed in subsequent cases namely Dada Match Workers Union vs. Government of Bangladesh, 29 DLR (1977) 188; Khulna Shipyard Employees Union vs. General Maneger, Khulna Shipyard and Others, 30 DLR (1978) 368. These two cases were also dismissed for not having locus standi.
67. 43 (1991) DLR, 424.
5.3 Dr. Mohiuddin Farooque v. Bangladesh (FAP 20 cases), 199768
Dr. Mohiuddin Farooque, Secretary General, Bangladesh Environmental Lawyers Association shoddy BELA filed the writ petition both under Article 102 (1) and Article 102 (2) (a) of the Constitution praying for issuance of a Rule Nisi upon the respondents to show souse as to why all the activities and implementation of FAP-20 undertaken in the District of Tangail Should not be have been taken without lawful authority and to be of no legal effect. The cause which the appellant espoused in the writ petition is the apprehended environmental ill-effect of a Flood Control Plan affecting the life, property, livelihood, vocation and environmental security of more than a million people in the district of Tangail.
The leading judgment was delivered by Mr. Justice Mustafa Kamal with whom concurred the Chief Justice Mr. Justice ATM Afjal and Mr. Justic Mihammad in the FAP-20 areas. During the local inspection it was found that a significant number of people of the project area were against the project.
Dr. Mohiuddin Farooque, earned Advocate appearing with the leave of the Court, Abdur Rouf, Mr. Justice Latfur Rahman and Mr. Justice Bimalendu Bikash Roy Chowdhury delivered separate judgments fully agreeing with Mr. Mostafa Kamal. The judgment was delivered on July 25, 1996.
As to the locus standi of the petitioner-appellant it was stated that the appellant is the Secretary-General of Bangladesh Environment Lawyers Association, shortly BELA, an Association registered under the Societies Registration Act, 1860. He has been authorised by a resolution of the Executive Committee of BELA dated 16-6-1994 to represent the Association and move the High Court Division under Article 102 of the Constitution and to do all other acts and things in connection therewith. BELA has been active since 1991 as one of the leading organisations in the field of environment, ecology and relevant matters of public interest. It has studied policies, surveyed and examined
68. 17 (1997) BLD, AD, 1.
quasi-legal issues; institutional aspects and traditional issues on environment and ecology and actively predicated in many government, non-Government and independent national and international activities and has gained widespread recognition both at home and abroad. BELA being an Association of Lawyers has been raising the legality of the FAP activities on all available occasions, especially as an invited panel speaker in the Second Conference on the Flood Action Plan held at Dhaka in March, 1992. BELA’s questioning of the legality of FAP and FPCO evoked derogatory remarks from certain quarters. BELA also received written complaints from a number of aggrieved people from Tangail District seeking legal assistance and other supports after having been frustrated in pursuing their own remedies with the FAP-20 authorities, human rights organisations etc. The media has also repeatedly published the adverse environmental and ecological impact of FAP-20.As an environmentally concerned and active organisation. BELA Responded to the complaints of the local people and conducted investigations at various times in 1992-93 has himself argued the appeal on behalf of the petitioner-appellant. He submits that the words “any person aggrieved” occurring in Article 102 of the Constitution have to be read in the context if the entire Constitution, not isolated. Article 102 institution h vehicle for ventilating the rights and duties under the Constitution and not a mere procedural device, Article 38 of the Constitution confers on every citizen the right to form association and BELA has been registered as an association under the Societies Registration Act, 1860 with the aims and objects inter alias to organise legal measures to protect environmentally sensitive and fragile ecosystems. BELA devoted its time, energy and resources in studying the FAP project ever since its inception, meeting local people, listening to their grievances and carrying a lot of research on their behalf to find out the legal and constitutional infraction that FAP-20 has committed- It can claim a legal relationship with the Court in pursuance of its declared aims and objects as the right to form an association also embraces the right to pursue the association’s lawful objects as well.
Dr. Farooque then referred to Article 21 (1) of the Constitution which is as follows: “21. (1) it is the duty of every citizen to observe the Constitution and the laws, to maintain discipline to perform public duties and to protect public property.
He submits that if one has to require doing a thing that is standing. He has to have an opportunity to do so. An association of lawyers dedicated to the protection of a healthy environment has a concern when it perceives and studies an environmental hazard which calls for prevention on rectification. As a concerned group it is very much a “person aggrieved” and it must have an opportunity to put its concern at rest by approaching the Court for redress.
The denial of locus standi to such a group will be not only an unconstitutional bar to the performance of public duty but also a judicial condemnation of the association’s dedicated efforts to perform its public duty. Besides, the preamble of the Constitution, which is a pledge taken by the people of Bangladesh, declares that it shall be a fundamental aim of the State to relies a society in which amongst others “the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”.
Dr. Farooque quotes from the Bar Council Rules of Professional Etiquette for lawyers and submits that the lawyers in general and the present association of lawyers in Particular are committed to realise the rule of law in the country through Law Courts. The preamble gives the association a standing. The preamble and Article 8 also proclaim “the principles of absolute trust and faith in the Almighty Allah” as a fundamental principle of the Continuation and as a Fundamental principle of State Policy. The appellant is aggrieved, because Allah’s creations and environment are in mortal danger of extinction and degradation.
Justice Mustapha Kamal, in his famous judgment, held: Now we proceed to say how we interpret Article 102 as a whole. We do not give much importance to the dictionary meaning or punctuation of the words “any person aggrieved” Article 102 of our Constitution is not isolated island standing above or beyond the sea-level if the other provisions of the Constitution. It is a part of the over-all scheme, objectives and purposes of the Constitution. And its interpretation is inextricably linked with the (i) emergence of Bangladesh and framing of its Constitution, (ii) the preamble and Article 7, (iii) Fundamental principles of State Policy (iv) Fundamental Rights and (v) the other provisions of the Constitution.
As to (i) about, it is wrong to view our Constitution as just a replica with local adaptations of a Constitution of the Westminster model among the Commonwealth countries of Anglo-Saxon legal tradition. This Constitution of ours is not the outcome to a negotiated settlement with a former colonial power. It was not drawn upon the consent, concurrence of approval of any external sovereign power. Nor is it the last of an oft-replaced and often substituted Constitution after several Constitutions were tried and failed, although as many as 13 amendments have so far been made to it. It is the fruit of a historic war of independence, achieved with the lives and sacrifice of a telling number if people for a common cause making it a class part from other Constitutions of comparable description. It is a Constitution in which the people feature as the dominant actor. It was the people of Bangladesh who in exercise of their own self-proclaimed native power made a clean break from the past unshackling the bondage of a past statehood and adopted a Constitution of its own choosing. The Constitution historically and in real terms is a manifestation of what is called the people’s Power”, the people of Bangladesh, therefore, are central, as opposed to ornamental to the framing of the Constitution.
As for (ii) the preamble and Article n7, the preamble of our Constitution stands of different footing form that of other Constitution by the very fact of the essence of its birth which is different form others. It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given to themselves by the people no by way of a presentation from skilful draftsmen, but as reflecting the ethos of their historic war of independence. Among other pledges the high ideals of absolute trust and faith in the Almightily Allah, a pledge to secure for all citizens a society in which the rule of law, fundamental human rights and the affirmation of the sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh are salutary in indicating the course of path that the people wish to read in the days to come. Article 7 of the Constitution bestows the powers of the Republic with people shall be effected only under and by the authority of, the Constitution. Article 7 does not conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the power of the people themselves and the various functionaries and institutions created by the Constitution exercise not their own indigenous and native power but the power of the people on terms expressed by the Constitution. The people, again, are the repository of all power under Article 7.
As for (iii) in Part II of the Constitution, containing Fundamental Principles of State Policy. Article 8 (2) provides that the principles set out in his part “shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh.” It is constitutionally impermissible to leave out of consideration Part II of our Constitution when an interpretation of Article 102 needs guidance.
As for (iv) Part III of the Constitution bestowed Fundamental Rights on the citizens and other residents of Bangladesh. Article 44(1) guarantees the right to move the High Court Division in accordance with Article 102(1) for the enforcement if these rights. Article 102(1) is therefore a mechanism for the enforcement of Fundamental Rights which can be enjoyed by an individual alone in so far his individual in common with others when the rights pervade and extend to the entire population and territory. Article 102(1) especially cannot be divorced from Part III of the Constitution.
As For (v) the other provisions of the Constitution which will vary from case to case may also come to play a role in interpreting Article 102 of the Constitution. Article 102 therefore in an instrumentality and a mechanism, containing both substantives and procedural provisions, by means of which the people as a collective personality, and not merely as conglomerate or individuals, have devised for themselves a method and manner to realize the objectives, purposes, policies, rights and duties which they have set out for themselves and which they have strewn over the fabric of the Constitution.
With the power of the people looming large behind the constitutional horizon it is difficult to conceive of article 102 as a vehicle or mechanism for realizing exclusively individual rights upon individual complaints. The supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the judicial power if the people on behalf of the people, the people will always remain the focal point of concern of the Supreme Court while disposing of justice or propounding any judicial theory or interpreting any provision of the Constitution. Viewed in this context interpreting the words “any person aggrieved” meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be island taken against the Constitution. There is no question of enlarging locus standi or legislation by court.
It is therefore the cause that citizen- applicant or the indigenous and native association espouses which will determined whether the applicant has the competency to claim a hearing or not, If he espouses a purely individual cause, he is a person aggrieved if he is own interest are affected. If he espouses a public causes involving public wrong or public injury, he need not be personally effected. The public worn or injury is very much a primary concern of the Supreme Court which in the scheme of our Constitution is a constitutional vehicle for exercising the judicial power of the people.
The High Court Division will exercise some rule of caution in each case. It will see that the applicant is in fact espousing a public cause, that his interest in the subject matter is real and not in the interest of generating some publicity for himself or to create mere public sensation, that he is acting bona fide, that he is not a busybody or an interloper, that it is in the public interest to grant him standing and that he is not acting a collateral purpose to achieve a dubious goal, including serving a foreign interest. As to the apprehension of floodgate, the people controls are no doubt a flood and the Constitution is the sluice-gate through which the people control its own entry. Our Courts will be prudent enough to recognize the people when the people appear through an applicant as also those who masquerade, under the name of the people. Taking up the people’s causes at the expose of his own is a rare phenomenon, not a common place occurrence.
We hold therefore that the association appellant was wrongly held by the High Court Division not to a “person aggrieved” in the facts and circumstances if the case and we hold further that the appellant is “any person aggrieved” within the meaning of both Article 102 (10 and Article 102(2)(a) of the Constitution.
It (the Supreme Court) interpret the term ‘a person aggrieved’ in a liberal mood and with a progressive attitude and thus widens the writ Jurisdiction of the High Court conferred on it by Article 102 of the Constitution of the people’s Republic of Bangladesh.
The development of PIL in Bangladesh was slow due to the threshold problem. This was mainly because of the prolonged periods of martial laws and autocratic regimes that curtailed the fundamental rights and disrupted the normal functions of the judiciary. Once the democratic institutions had a change to operate, the judiciary boldly re-asserted its proper constitutional role. As a result, progressive interpretation of the Constitution, including the development of PIL, became possible. Apparently the process of democratisation of me system and the development of PIL coincided in Bangladesh. The growth of PIL in the midst of this process has produced interesting results- each in turn influencing the other. Since activists and lawyers were focused on the participation of the people in the decision making process, they often used the new technique of PIL for this end. During the last few years, there is hardly any constitutional question of significance that has not been raised before the Court.69
A PIL (a petition brought before the High Court Division of the Supreme Court of Bangladesh in the nature of writ under Article 102 of the Constitution) is generally instituted for the enforcement of the constitutional and legal rights of the poor and excluded groups as well as ensuring accountability of concerned government and public authorities towards issues of public importance. Persistent efforts by NGOs and social action groups through PIL has, in many occasions, prompted the High Court Division to issue directives and orders that in turn addressed the socio-economic concerns of the poor and the marginalized groups.70
69. Ibid at P.156.
70. Public interest litigation and BLAST, [http://www.blast.org.bd./pilandad.html , last visited 15th September 2009]
Finally, it needs to be mentioned that PIL does not work in isolation. It is a part of the greater movement for legal aid of a constituent of the greater theme of public interest law. So in the hand of the social activist lawyer, PIL is one of many strategies which the concerned citizens and activists in Bangladesh are now using in combination. There is a realisation that litigation is not a cure-all for all types of issues and problems. Retaining a close nexus with the press, the voluntary sector organisations are increasingly using new strategies including publication, lobbying and representation.
1. Naim Ahmed, Public Interest litigation- Constitutional Issues and Remedies, 1st ed. (Dhaka: Bangladesh Legal Aid and Service Trust, 1999).
2. Md. Abdul Halim, Constitution, Constitutional law and politics: Bangladesh Perspective, 4th ed. (Dhaka: CCB Foundation, 2005).
- Kaylash Rai, Administrative Law, 4th ed. (Faridabad: Central Law Publication, 2005).
- Sayed Ishtiaq Ahmed, ‘An expanding frontier of judicial review- public interest litigation’ in DLR journal, vol. 45 (1993).
- Alimuzzamn Chowdhury, ‘Collective legal self reliance movement in South Asia’ in DLR journal, vol. 39 (1987).
- M Amir-ul Islam, ‘Rights in search of remedies’ in DLR Journal, vol.45 (1993)
- MI Farooqui, ‘Judiciary in Bangladesh: past and present’ in DLR Journal, vol. 48 (1996).
- Mustafa Kamal, ‘Democracy, Constitutionalism and compromise’ in BLD Journal, vol.15 (1995).
- Actio popularis, [http://sim.law.uu.nl/sim/thesaurus, nsf, last visited 26th July 2009]
- Writ, [http://en.wikipedia.org/wiki/Writ, last visited 26th July 2009]
- PIL-who can file, [http://www.virtualpune.com/citizen-centre/html/file-pil.shtml, last visited 26th July 2009]
- Bela, [http://banglapedia.org/HT/P_0307.HTM, last visited 15th September 2009]
- BLAST & PIL Advocacy, [http://www.blast.org.bd, last visited 15th September 2009]
- PIL & Advocacy, [http://www.blast.org.bd/pilandad.html , last visited 15th September 2009]
- State v. Deputy Commissioner Satkhira and others 45 (1993) DLR, 643.
- Dr. Mohiuddin Farooque v. Bangladesh represented by Secretary Ministry of Commerce and others 48 (1996) DLR, 438.
- Dr. Mohiuddin Farooque v. Bangladesh (FAP 20) 17 (1997) BLD, AD, 1.
- Md. Idrisur Rahman v. Shahiduffin Ahmed and others 51 (1999) DLR, AD, 162
- M Saleem Ullah v. Bangladesh 47 (1995) DLR, 218
- Raufique (Md) Hossain v. Speaker 15 (1995) BLD, 383