INTRODUCTION
The term 'public interest litigation' (PIL), a new phenomenon in our legal system, is used to describe cases where conscious citizens or organisations approach the court bow fide in public interest.[1]
In Bangladesh, concerned citizens and organisations have challenged illegal detention of an innocent person for 12 years without trial,[2] importation of 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 Court[5] 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 a significant new development from at least two standpoints. First, the courts are for the first time concerned with public interest matters. This is beyond the traditional role of the judges who previously adjudicated private disputes only. Second, it involves a public law approach with respect to the rules of standing, procedure and remedies so that private citizens can advance public aims through the courts.
What prompted this new advancement and how? What are the meaning, scope and basis of PIL? What is the constitutional position of PIL? What are the new rules of standing, procedure and remedies? The present book is an attempt to answer these questions in the Bangladeshi context.
The basis of legitimacy of the law courts is impartiality. In the Common law based legal systems, including that of Bangladesh, this impartiality is safeguarded through an adversarial model of litigation. Thus the judge is a neutral umpire and is not supposed to intervene while the parties debate their case in front of him. So sacred is this impartial stance that it is believed that 'bias even for a good cause is bias all the same'.
This system works well in most of the cases as long as they involve private disputes where the strengths of the parties are more or less evenly balanced. But when one of the parties is disproportionately poor and powerless, it becomes very difficult to litigate on equal terms. The disadvantaged party can afford neither the best lawyers nor the other resources available to his adversary. In private interest cases, this is the basis for providing legal aid to The poor The some problem crops un in public interest matters as well. those who are suffering, the people as a whole or a segment of the society, are often poor, ignorant, unorganized or afraid to approach the court. Since indifference and absolute reliance on the adversarial model would cause injustice, social activists advance PIL believing that 'equal treatment of unequal is inequality'.
The concept and practice of PIL is thus an exception to the general rules of our Common law based legal system. It is not a revolution in the sense that it does not attempt to overthrow the entire existing system. But it is not a mere tinkering with the system either. It brings along with it a new set of principles and procedures that negate the traditional approach when public interest is concerned. Accordingly, the courts act suo motu, liberally interpret the rules of standing, treat letters as writ petitions, appoint commissioners, enlist aid from volunteers, award compensation to the victim and provide for continuous monitoring of the situation. PIL thus is a major reformation at both conceptual and practical levels.
Advancement of PIL in Bangladesh coincided with the restoration of democracy. Some attempts to introduce PIL in Bangladesh started since 1992.[6] Initially, it was difficult to overcome the threshold problem. However, lentless efforts of the social activists enabled the progressive minded judges interpret the Constitution liberally through a series of cases. When success rally came in 1996, the Supreme Court not only found that PIL is valid under ie constitutional scheme, but that the Constitution mandates a PIL approach.
WHAT IS PIL: AN EXAMINATION
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. Hence the scope of the term depends, to a great extent, on the point of view chosen.
In practice, there has been a compromise of different viewpoints about the scope of PIL. The activists and jurists accept the general meaning of PIL and leave the details to the discretion of the individual judge. Thus the scope of PIL in any particular jurisdiction depends more on practical experiences as demonstrated by judicial pronouncements than on any particular theoretical framework.
Yet there are a few general components that help us to determine whether a particular issue is of public interest and whether a particular litigation is PIL. These general components of the meaning and scope of PIL have been discussed in the present chapter, along with a number of associated terms that one can not avoid while attempting to understand PIL.
MEANING OF THE TERM 'PUBLIC INTEREST LITIGATION'
While the concept of PIL was just taking shape, Bhagwati J., one of the pioneers of PIL in India, observed in People's Union of Democratic Rights v. Union of India:
Public interest litigation is essentially a co-operative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable section of the community and to reach social justice to them.[7]
PIL started to evolve and develop with great speed and the judges extensively applied the concept to different areas. This wider scope of PIL was ensured by defining it from a very broad angle, by describing PIL simply as litigation in the interest of the public.[8] Kirpal J. said in People's Union for Democratic Rights v. Ministry of Home Affairs:
As I understand the phrase "Public Interest Litigation", it means nothing more than what it states namely it is a litigation in the interest of the public. Public interest litigation is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society.[9]
Like the Indians, Pakistani judges and writers have generally considered PIL as a purpose-oriented idea. PIL is described as a task of the eradication of social evils through the medium of law as is enjoined by the Constitution.Hussain says:
Public interest litigation means what it says namely litigation in the interest of \ the public. … it must be emphasised that the raison d'etre of public interest I litigation is to break through the existing legal, technical and procedural constraints and provide justice, particularly social justice to a particular individual, class or community who on account of any persoal deficiency or \ economic or social deprivation or state oppression are prevented from j bringing a claim before the Court of law.
PIL 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 and collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:
a. Where the matter in question affects the entire public or the entire community, e.g. illegal appointment of an unfit person as a government servant;
b. Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-dwellers without any alternative arrangement;
c. Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole 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 liberalisation of the rules of standing. This includes cases initiated suo motu; because the judge himself is a concerned citizen in such a case.
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, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders.
In short, PIL may be described as a type of litigation where the interest of the public is given priority over all other interests with an aim to ensure social and collective justice, the court being ready to disregard the constraints of the adversary model of litigation. Thus when conscious citizens or organisations, with bonafide intentions, approach the court for the interest of the public in general or a disadvantaged or under-privileged segment of the society and not for any private, vested, special or group interest, it is termed as 'public interest litigation'. An injury to the public interest will be apparent only when some constitutional or legal rights, privileges or benefits are affected or where a constitutional or legal duty or obligation has not be performed. PIL becomes a necessity when protection of law is unavailable to the public or a segment of it due to ignorance, poverty, fear or lack of organised endeavor.
'LITIGATION' AND FORUM OF PIL
One important aspect of PIL is that it entails 'litigation' – the process of settling legal disputes in a court of law under appropriate procedures.[10] From a wider viewpoint, it includes cases not only in law courts but also at the instance of quasi-judicial or administrative authority. Yet, PIL being a specific type of litigation and nothing more, it excludes legislative activities and other extra-legal means of promoting public interest, e.g. lobbying, negotiation, etc.
As it is a type of litigation, PIL has all the constraints and limitations of the litigation process. However, to promote public interest, the constraints of the litigation process have been liberally construed where PIL is involved.
In general, PIL indicates a petition in public interest in the nature of writ under Article 102 of the Constitution of Bangladesh. Development of PIL in Bangladesh so far has revolved around this constitutional jurisdiction. But PIL is not confined only within the constitutional jurisdiction. There is scope for PIL in Civil and Criminal courts as well as in special courts and tribunals provided that such litigation fulfills the criterion of PIL. Thus for example, Order 1 rule 8 relating to representative suits or section 91 regarding public nuisance of the Civil Procedure Code are relevant.8
However, the present book is concerned, apart from certain exceptions, with the constitutional aspects of PIL and the civil and criminal law aspects are not within its scope.
WHAT IS 'PUBLIC INTEREST'
The terms 'public' and 'interest' are by no means easy to define. When they combine to form the term 'public interest' – we have a fertile ground for confusions and competing ideas.
The word 'public' literally means pertaining to the people of a country or locality. In other words, "the community as an aggregate, but not in its organised capacity, hence the members of the community".[11] The term can be used for either all members of the community or groups of members or any section or class of that community. It is a term of uncertain import and must be limited in every case by the context in which it is used.
The term 'interest' is a relation of being objectively concerned in something by having a right or title to, a claim upon or a share in that thing. It includes varying aggregates of rights, privileges, powers and immunities. Here also, the word has different implications in different contexts.[12]
When the words 'public' and 'interest' combine to form the term 'public interest', it becomes difficult to define due to a number of factors. The phrase is
used in different disciplines including political science, economics and law with different connotations and from different perspectives. It again depends on the user and one's purpose; from democrats to autocrats everybody uses it. Finally, it also varies from one jurisdiction to another. This confusion has led writers to say that 'no general agreement exists about whether the term has any meaning at all and that the concept 'makes no operational sense'[13]
Generally, public interest means a commonality of interest, a single interest that a certain group of people or citizens are presumed to share.[14] Barry and Rees actually extend this still further:
The concept of public interest … is a device which permits us to treat the human interests of all men as a function of human interests within a given political region. It has considerable value as a weapon for criticizing selfish private interests or class interests, and its advantages in a highly individualistic and often savagely competitive society are obvious.
Thus, while a special interest furthers the ends of some part of the public, public interest ultimately serves the ends of the whole public.18 Even in the case of a conflict among different private or special interests, the public interest lies in the best and most just solution of the conflict which ensures that the public as a whole gain a better environment after the conflict is resolved. Thus, for example, it is a matter of public interest to protect minority rights because, although a major portion of the public might lose something, the community as a whole would gain by the progress made in terms of human and fundamental rights.
As to how this commonality of interest might be determined, there is no agreement. It is often supposed that public interest suggests a consensus among the 'preponderance' of the people or the dominant portion of the public. Public interest has also been seen as the sum total of all interests in the community balanced for the common good.[15] Some idealists believe that public interest consists of the course of action that is best for society as a whole according to some absolute standard of values regardless of whether any citizens actually desire them.
For practical purposes, however, the courts have attempted to describe 'public interest' with more certainty. Thus a principle emerged in early English law that a matter of 'public interest' is one in which a class of the community have a pecuniary interest, or some interest by which their legal rights 01 liabilities are affected.[16] This principle of common law appears to have been generally followed in the sub-continent including Bangladesh. In a Bangladeshi case, while borrowing from the English jurisdiction, Anwarulj Hoque Chowdhury J. held:
The expression public interest is nowhere defined in the Passport Order. It hast however received judicial interpretation years ago from the courts of Engliskj Jurisdiction. In South Hetton Coal Company case, reported in 1894 1 QB at 133 Lord Esher MR while dealing with the question of fair comment in mastiff of public interest observed that when so many people of a particular locality! affected by failure of sanitation, a fair comment is in public interest. Publij interest [sicl thus, connotes matter of interest in which a class of community would have pecuniary interest or any other interest by which legal right or liabilities are effected.
This description depicts the traditional and well established attitude ta by the courts both in England and in the sub-continent.
The term 'public interest', has some other traditional meanings as well. J often equated with national interest, national security or even justifiability. It has also been acknowledged that "the expression interest the general public embraces public security, public order and public
Morality"
DETERMINING PUBLIC INTEREST IN A PIL CASE
In PIL, the litigation must involve some clearly ascertainable public interest which is given due recognition and conscious preference with an aim to ensure collective justice. Apparently, three stages are involved in an ideal case:
a. Public interest is given priority over special interests, private interests, group interests and vested interests. In other words, in a free competition of interests of different kinds, the interest of the public prevails;[17]
b. It is the judge who decides what is public interest by exercising his discretion. This thus is predominantly a matter of fact and is decided in a case to case basis;
c. The discretion of the judge is exercised judiciously and not arbitrarily or whimsically.
It may appear that 'public interest' is a vague and fluid concept, the meaning of which changes from time to time depending on the problem at hand. Accusations of vagueness, however, may be countered in several ways.
First, in most cases, we instantly know whether a matter involves public
interest or not when we encounter it. Nobody needs special legal training to I appreciate that unhindered importation and distribution of radio-active milk is against public interest. In other words, in a good case, it is almost automatic that the element of public interest is recognised and appreciated.
Second, there is a whole body of PIL case laws already accumulated in India and Pakistan. We must also add the growing number of Bangladeshi cases to the list. We now have a considerable number of decided cases which the judges can follow in determining public interest elements in similar situations.
Third, evidence of public awareness and reaction, especially through popular protests and newspaper reports, is a good indication for the judge that the matter at hand is one of public interest. However, a matter would not be a case of public interest merely because the public are interested in it.
Fourth, the court may also lay down its own guidelines for entertaining PL cases.28 In India, the High Court’s constituted PIL cells back in the 1980s to deal with PIL by distinguishing the good cases from the bad ones before the process of admission.
In fact, rigidly specifying acts and issues as public interest matters would actually hamper the interest of the public, stifling the future growth of PL Public interest can be properly served only if there is a level of elasticity in the concept so that it can change its shape to meet the demands of time and social changes without rigors.
WHAT IS PIL: AN EXAMINATION
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. Hence the scope of the term depends, to a great extent, on the point of view chosen.
In practice, there has been a compromise of different viewpoints about the scope of PIL. The activists and jurists accept the general meaning of PIL and leave the details to the discretion of the individual judge. Thus the scope of PIL in any particular jurisdiction depends more on practical experiences as demonstrated by judicial pronouncements than on any particular theoretical framework.
Yet there are a few general components that help us to determine whether a particular issue is of public interest and whether a particular litigation is PIL. These general components of the meaning and scope of PIL have been discussed in the present chapter, along with a number of associated terms that one cannot avoid while attempting to understand PIL.
MEANING OF THE TERM 'PUBLIC INTEREST LITIGATION'
While the concept of PIL was just taking shape, Bhagwati J., one of the pioneers of PIL in India, observed in People's Union of Democratic Rights v. Union of India:
Public interest litigation is essentially a co-operative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable section of the community and to reach social justice to them.[18]
PIL started to evolve and develop with great speed and the judges extensively applied the concept to different areas. This wider scope of PIL was ensured by defining it from a very broad angle, by describing PIL simply as litigation in the interest of the public.[19] Kirpal J. said in People's Union for Democratic Rights v. Ministry of Home Affairs:
As I understand the phrase "Public Interest Litigation", it means nothing more than what it states namely it is a litigation in the interest of the public. Public interest litigation is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society.[20]
Like the Indians, Pakistani judges and writers have generally considered PIL as a purpose-oriented idea. PIL is described as a task of the eradication of social evils through the medium of law as is enjoined by the Constitution.Hussain says:
Public interest litigation means what it says namely litigation in the interest of \ the public. … it must be emphasised that the raison d'etre of public interest I litigation is to break through the existing legal, technical and procedural constraints and provide justice, particularly social justice to a particular individual, class or community who on account of any personal deficiency or \ economic or social deprivation or state oppression are prevented from j bringing a claim before the Court of law.
PIL 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 and collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:
a. Where the matter in question affects the entire public or the entire community, e.g. illegal appointment of an unfit person as a government servant;
b. Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-dwellers without any alternative arrangement;
c. Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole 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 liberalisation of the rules of standing. This includes cases initiated suo motu; because the judge himself is a concerned citizen in such a case.
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, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders.
In short, PIL may be described as a type of litigation where the interest of the public is given priority over all other interests with an aim to ensure social and collective justice, the court being ready to disregard the constraints of the adversary model of litigation. Thus when conscious citizens or organisations, with bonafide intentions, approach the court for the interest of the public in general or a disadvantaged or under-privileged segment of the society and not for any private, vested, special or group interest, it is termed as 'public interest litigation'. An injury to the public interest will be apparent only when some constitutional or legal rights, privileges or benefits are affected or where a constitutional or legal duty or obligation has not be performed. PIL becomes a necessity when protection of law is unavailable to the public or a segment of it due to ignorance, poverty, fear or lack of organised endeavor.
'LITIGATION' AND FORUM OF PIL
One important aspect of PIL is that it entails 'litigation' – the process of settling legal disputes in a court of law under appropriate procedures.[21] From a wider viewpoint, it includes cases not only in law courts but also at the instance of quasi-judicial or administrative authority. Yet, PIL being a specific type of litigation and nothing more, it excludes legislative activities and other extra-legal means of promoting public interest, e.g. lobbying, negotiation, etc.
As it is a type of litigation, PIL has all the constraints and limitations of the litigation process. However, to promote public interest, the constraints of the litigation process have been liberally construed where PIL is involved.
In general, PIL indicates a petition in public interest in the nature of writ under Article 102 of the Constitution of Bangladesh. Development of PIL in Bangladesh so far has revolved around this constitutional jurisdiction. But PIL is not confined only within the constitutional jurisdiction. There is scope for PIL in Civil and Criminal courts as well as in special courts and tribunals provided that such litigation fulfills the criterion of PIL. Thus for example, Order 1 rule 8 relating to representative suits or section 91 regarding public nuisance of the Civil Procedure Code are relevant.8
However, the present book is concerned, apart from certain exceptions, with the constitutional aspects of PIL and the civil and criminal law aspects are not within its scope.
WHAT IS 'PUBLIC INTEREST'
The terms 'public' and 'interest' are by no means easy to define. When they combine to form the term 'public interest' – we have a fertile ground for confusions and competing ideas.
The word 'public' literally means pertaining to the people of a country or locality. In other words, "the community as an aggregate, but not in its organised capacity, hence the members of the community".[22] The term can be used for either all members of the community or groups of members or any section or class of that community. It is a term of uncertain import and must be limited in every case by the context in which it is used.
The term 'interest' is a relation of being objectively concerned in something by having a right or title to, a claim upon or a share in that thing. It includes varying aggregates of rights, privileges, powers and immunities. Here also, the word has different implications in different contexts.[23]
When the words 'public' and 'interest' combine to form the term 'public interest', it becomes difficult to define due to a number of factors. The phrase is
used in different disciplines including political science, economics and law with different connotations and from different perspectives. It again depends on the user and one's purpose; from democrats to autocrats everybody uses it. Finally, it also varies from one jurisdiction to another. This confusion has led writers to say that 'no general agreement exists about whether the term has any meaning at all and that the concept 'makes no operational sense'[24]
Generally, public interest means a commonality of interest, a single interest that a certain group of people or citizens are presumed to share.[25] Barry and Rees actually extend this still further:
The concept of public interest … is a device which permits us to treat the human interests of all men as a function of human interests within a given political region. It has considerable value as a weapon for criticizing selfish private interests or class interests, and its advantages in a highly individualistic and often savagely competitive society are obvious.
Thus, while a special interest furthers the ends of some part of the public, public interest ultimately serves the ends of the whole public.18 Even in the case of a conflict among different private or special interests, the public interest lies in the best and most just solution of the conflict which ensures that the public as a whole gain a better environment after the conflict is resolved. Thus, for example, it is a matter of public interest to protect minority rights because, although a major portion of the public might lose something, the community as a whole would gain by the progress made in terms of human and fundamental rights.
As to how this commonality of interest might be determined, there is no agreement. It is often supposed that public interest suggests a consensus among the 'preponderance' of the people or the dominant portion of the public. Public interest has also been seen as the sum total of all interests in the community balanced for the common good.[26] Some idealists believe that public interest consists of the course of action that is best for society as a whole according to some absolute standard of values regardless of whether any citizens actually desire them.
For practical purposes, however, the courts have attempted to describe 'public interest' with more certainty. Thus a principle emerged in early English law that a matter of 'public interest' is one in which a class of the community have a pecuniary interest, or some interest by which their legal rights 01 liabilities are affected.[27] This principle of common law appears to have been generally followed in the sub-continent including Bangladesh. In a Bangladeshi case, while borrowing from the English jurisdiction, Anwarulj Hoque Chowdhury J. held:
The expression public interest is nowhere defined in the Passport Order. It hast however received judicial interpretation years ago from the courts of Engliskj Jurisdiction. In South Hetton Coal Company case, reported in 1894 1 QB at 133 Lord Esher MR while dealing with the question of fair comment in mastiff of public interest observed that when so many people of a particular locality! affected by failure of sanitation, a fair comment is in public interest. Publij interest [sicl thus, connotes matter of interest in which a class of community would have pecuniary interest or any other interest by which legal right or liabilities are effected.
This description depicts the traditional and well established attitude ta by the courts both in England and in the sub-continent.
The term 'public interest', has some other traditional meanings as well. J often equated with national interest, national security or even justifiability. It has also been acknowledged that "the expression interest the general public embraces public security, public order and public
morality"
DETERMINING PUBLIC INTEREST IN A PIL CASE
In PIL, the litigation must involve some clearly ascertainable public interest which is given due recognition and conscious preference with an aim to ensure collective justice. Apparently, three stages are involved in an ideal case:
a. Public interest is given priority over special interests, private interests, group interests and vested interests. In other words, in a free competition of interests of different kinds, the interest of the public prevails;[28]
b. It is the judge who decides what is public interest by exercising his discretion. This thus is predominantly a matter of fact and is decided in a case to case basis;
c. The discretion of the judge is exercised judiciously and not arbitrarily or whimsically.
It may appear that 'public interest' is a vague and fluid concept, the meaning of which changes from time to time depending on the problem at hand. Accusations of vagueness, however, may be countered in several ways.
First, in most cases, we instantly know whether a matter involves public
interest or not when we encounter it. Nobody needs special legal training to I appreciate that unhindered importation and distribution of radio-active milk is against public interest. In other words, in a good case, it is almost automatic that the element of public interest is recognised and appreciated.
Second, there is a whole body of PIL case laws already accumulated in India and Pakistan. We must also add the growing number of Bangladeshi cases to the list. We now have a considerable number of decided cases which the judges can follow in determining public interest elements in similar situations.
Third, evidence of public awareness and reaction, especially through popular protests and newspaper reports, is a good indication for the judge that the matter at hand is one of public interest. However, a matter would not be a case of public interest merely because the public are interested in it.
Fourth, the court may also lay down its own guidelines for entertaining PL cases.28 In India, the High Courts constituted PIL cells back in the 1980s to deal with PIL by distinguishing the good cases from the bad ones before the process of admission.
In fact, rigidly specifying acts and issues as public interest matters would actually hamper the interest of the public, stifling the future growth of PL Public interest can be properly served only if there is a level of elasticity in the concept so that it can change its shape to meet the demands of time and social changes without rigors.
BACKGROUND AND DEVELOPMENT OF PIL
A scrutiny of PIL in various jurisdictions demonstrates a very interesting pattern. PIL first emerges as a result of expressions of social commitment of conscious individuals. Then it faces an initial period of recognition problem. Eventually, it breaks down the traditional constrains. Once successful, it is treated as a major development and becomes a permanent feature of the legal system. Finally, this success in its part inspires other jurisdictions to follow the same route. PIL thus travels from one jurisdiction to another.
However, development of PIL is closely dependent on the constitutional culture and historical experience of the people. Therefore, its history in each jurisdiction is unique. The present chapter outlines the development of PIL in USA, England, India and Pakistan. These have immensely influenced the Bangladeshi developments, which will be examined in the next chapter.
EMERGENCE OF PUBLIC INTEREST LAW IN AMERICA
The term PIL, as it is now known, and the associated term 'public interest law', were first coined in the United States. While arrogant capitalism and excessive individualism often typifies the American society, there is also a strong tranquil current of collectivism and social mindedness. This concern for the society has brought many changes during this century. In the legal field, it has brought new techniques, mechanisms, approaches and procedures in favour of the collective interest. Public interest law includes a number of these developments including legal aid, research, formation of public opinion, lobbying and litigation conducted by specialised lawyers and organisations. PIL, litigation in the interest of the public, is thus only one of the various methods of the greater movement of public interest law.
Roots
'There are a number of movements that may be identified as the roots of public interest law and have shaped its 'patterns of organization, modes of financing and choices of strategies'[29]
The first major root of public interest law may be traced to the legal aid movement that started during the 1870s.[30] Legal aid movement brought two new features to the established system. One is that pro bono work became institutionalized. The other is that it reflected not an individual lawyer's concern but the concern of the community that was often subsidized by a third party benefactor. By the first half of the century, legal aid became a regular and established feature. Public interest lawyers borrowed the organizational form of legal aid firms. On the one hand, there was commitment and enthusiasm to serve the people. On the other hand, they were professionals with independent offices, salaried staff and full time devotion.
'The second root of public interest law lies in the works of the Progressive Era Reformers. At the turn of the twentieth century, during the time of rapid industrialization and social and political changes, a movement aimed to check the evils of unregulated business enterprises achieved remarkable success. New legislation aimed to protect the workers and consumers and monitoring institutions like the Federal Trade Commission came up to defend collective rights.
Progressive Era Reform helped to advance the philosophical basis of public interest law as it proceeded with the assumption that the Government should intervene in the economic life of the society so that the market does not operate in a way injurious to public welfare. Another contribution of the progressive legacy is that it focused on the self-realization of the lawyers; their commitment and obligation to the society.[31]
The third root directly antecedent of public interest law is the American Civil Liberties Union (ACLU) and its offshoot the National Association for the Advancement of Colored People Legal Defense and Education Fund (NAACP/LDF). ACLU was founded during the World War I and was mainly a citizens' lobbying group. It worked to protect the democratic rights of the citizens including rights to free speech and due process. With the help of a network of volunteer lawyers, ACLU acted as a watchdog of governmental corruption and abuse of power.
Expansion
In American history, the 1960s and 1970s were people's decades. It was a time when Post World War II technological advancements tended to dehumanize the society and Cold War/ Vietnam issue galvanized conservatism. At the same time, however, social movements reached to astonishing peaks. Socially conscious activist individuals and organisations proceeded to advance the causes of unrepresented constituencies like the poor and the helpless, consumers, minorities, women and sought to eliminate a plethora of discrimination and inequality. While so doing, they found the mechanisms of public interest law, especially PIL, as one of their main tools.
Support came from several quarters. First, charitable organisations, often in the form of private foundations, came forward offering financial assistance to the PIL lawyers. Contribution from organisations such as Sierra.
Club Legal Defense Fund and the Ford Foundations was crucial in the expansion of public interest law.[32]
Second, the Federal Government took an increasingly liberal view that was, to a considerable extent, the result of successful PIL cases. Consequently, government funded legal aid organisations were given more support and financial assistance; new laws relating to social and civil justice were passed; administration became more open to the citizens with respect to its decision making process; and public interest law firms were recognised as tax-exempt charitable organisations.
Third, the private bar and the law schools began to stress on pro bono activities. Young bright lawyers often voluntarily ignored the lure of commercial law firms. Lawyers found involvement in PIL cases a good way of discharging their social responsibilities.
Eventually, due to gradual progress throughout the late 1960s and 1970s, public interest law and PIL became a part of the American legal system. By 1985, Fred Stressed could declare:
Fifteen years after the new generation of public interest law was born, the turbulent practice has survived to become a permanent fixture on the American legal landscape.[33]
PUBLIC INTEREST LAW AND PIL IN ENGLAND
‘Regarding individual legal activism for common good, the historical experience of the English has been somewhat different from that of the Americans. Yet, as in the States, the movement for legal aid is probably the most important precursor of the modern public interest law.
Legal aid in England, although practiced in one form or another prior to the 2nd World War, became firmly entrenched since 1949. A major reform began with the creation of the Legal Aid and Advice Scheme and entrusting it to the Law Society, the national association of solicitors.8 The emergence of the so-called 'welfare state' attempted to ensure that the poor, for their individual problems, get some sort of legal assistance. However, further major developments were made only in the early 1970s when the legal aid system was reorganised incorporating the modern concepts.9 In fact, litigation in social or public interest, public advocacy, formation of public opinion for social interest, etc. did not start earnestly till the mid 1960s.
In terms of litigation in public interest, the development in England mainly took place within the ambits of administrative law where administrative actions are challenged by the citizens. It was a slow process.
Gradually a number of liberall judges, including Lord Denning, extended the meaning of the term 'locus standi', enabling the activists to approach the court.10 Significant changes were brought in 1977-1981 when a set of new rules liberalised applications for judicial review.
'Thus, the development of PIL in England is mainly a story of the evolution of the 'locus standi' rules. We shall not enter into the details here since it has been discussed elaborately in chapter seven below.
It must be noted, however, that the success of the English activists in terms of PIL appears to have been less pronounced than the Americans. One reason is the difference of legal and political culture – the Americans are more litigation oriented than the English. Another reason involves the history of the English Administrative law. It has been pointed out that during and after the 2nd World War, adrninistrative law in England became conservative and non-adventurous. The development of administrative law started in earnest during the 1960s. Thus, it took some time for the law to adjust with the growing demands of social justice.
PIL IN INDIA
The background
It has been suggested that the judges and scholars pioneering PIL in India were influenced and inspired by the American development. Especially, Bhagwati J. cited Cappelletti in the Judges' Transfer case and favourably discussed his ideas in a subsequent article. Western scholars including Cappelletti were discussed by other Indian writers as well, but this generally happened when the concept of PIL had already been introduced and accepted in India.[34]
'Perhaps the primary and most important factor that prompted the development of PIL in India was a strong sense of social consciousness of a number of judges. By the late 1970s, even after more than three decades of independence, India was still an underdeveloped and poor third world country with millions of people barely surviving in abject poverty. The state not only failed to ameliorate the conditions of the poor, it faltered to incorporate substantial distributive or social justice for the masses. The legislature was seen as insensitive to the cause of the poor and merely a forum for politicians who were desperate to realise their personal ambitions. The executive also failed to meet the expectations of the people and there were widespread governmental inefficiency, mistakes and lawlessness.
The situation became all the more precarious during the emergency period of 1975-77. On the one hand, the democratic institutions were under pressure and the judiciary became increasingly subordinate to the executive and the legislature. On the other hand, it was a populist period led by Indira Gandhi when many judges, including justices Krishna lyer and Bhagwati, became part of a nation-wide movement for legal services and became 'people-prone'.[35]
The cases
After the emergency period, it gradually became clear that a number of social activist judges were trying to find a new way to revitalise their constitutional power in favour of the people. Thus, for example, although the term PIL was not used, Krishna lyer J. in a 1976 case observed.
By the late 1970s and early 1980s, social activist judges, including Justice Krishna lyer and Justice Bhagwati, were busy constructing a PIL jurisprudence through a number of cases involving social justice matters. Thus the Judges acted on the basis of a letter sent by a prisoner describing torture upon another prisoner, reviewed the system of confinement of undertrial prisoners in a case where some of them were held in custody longer than the maximum sentence that could be imposed upon conviction and ordered a municipality to carry out its statutory duties.[36]
A few of the leading cases of this time gained considerable media attention and also played important role in the construction of the new rules of standing. For example in Fertilizer Corporation Kamagar Union v. Union of India where the employees challenged sale of plants and equipment of a factory, Krishna lyer J. treated the matter as a public interest and gave the employees standing. He observed:
Law, as 1 conceive it, is a social auditor and this audit function can be put into action only when someone with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation-happy and waste their time and money and time of the Court through false and frivolous cases.
In another leading case, People's Union for Democratic Rights v. Union of India a letter sent by a social welfare organisation claiming violation of labour laws was treated as writ petition and the court emphasised on a non-adversarial approach by appointing ombudsmen. Krishna lyer J. constructed a new set of rules of standing for PIL matters and declared that the court 'would cast aside all technical rules of procedure' where public interest in involved.
Similarly, the court adopted a non-adversarial approach to investigate and ameliorate the conditions of bonded labourers in the famous case of Eondhua Mukti Morcha v. Union of India, which eventually necessitated subsequent monitoring of the situation by the courts.
PN Bhagwati J., AC Gupta J., S Murtaza Fazal Ali J., VD Tulzapurkar ]., DA Desai J., RS Pathak J. and ES Venkataramaiah J. gave detailed judgements constructing a PIL jurisprudence, including a liberal set of rules of locus standi. The spirit of these judgements is summarised.
PIL has not only become a permanent feature of the Indian law, Indian developments have immensely influenced PIL in a number of other common law based legal systems. The first jurisdiction to follow the Indian example was Pakistan.
PIL IN PAKISTAN
The background
'Pakistan, being an underdeveloped country like India, has the same problems of poverty and social injustice. Executive lawlessness, combined with the failure of the legislature to ensure the progress of law, has given rise to similar frustrations as had been experienced by the Indians. Yet the situation was perhaps been even more complicated in Pakistan because of the failure of democracy for prolonged periods due to the imposition of martial law. While Pakistan had three Constitutions in the formal sense of the term, there were several interim constitutional arrangements in between. One consequence of this chaos was the pathetic status of the fundamental rights of the people. Annulled, curbed or declared non-applicable, these rights could not be claimed by the aggrieved for long periods at a time. Whenever the Constitution was restored, the judiciary started to move towards establishing its authority till the next Martial Law came to halt everything once again.
This situation resulted in the popular perception that the traditional litigation was failing in many respects. The realization dawned that ". . . the weaker sections of society because of their economic or social position, remain cut off from the rest of the society and thereby suffer hardships".47 The integrity of the entire legal system was in question, as Khan observed that the people seemingly do not respect the "Common Law" which they feel has been imported into the country. This feeling, it has been noted, was shared by a number of judges.[37]
The cases
The environment was conductive and Pakistan was soon to follow the Indian example. PIL developed there in the late 1980s.54 In 1988, in the famous case of Miss Benazir Bhutto v. Federation of Pakistan,55 a political party challenged a new order by the Martial Law government for registration of political parties. The Supreme Court gave standing to the political party and refused to take a conservative or traditional stance. Benazir Bhutto's case established a framework of standing rules in matters of public importance.
This was soon followed by the leading case of Darshan Masih alias Rehmatay and others v. The State. The court acted on the basis of a telegram demanding enforcement of fundamental rights involving bonded labourers. The court enunciated the philosophy, rules of standing and procedure of PIL. The proceeding was concluded and an order was passed on the basis of an agreement reached by all concerned.
Afzal Zullah CJ, followed by Nasim Hasan Shah CJ, played vital roles in the development of PIL in Pakistan. They invited PIL cases and attempted to establish a procedural framework to deal with PIL petitions. This was made public in a judicial conference held in Quetta on 15th and 16th August 1991.[38] It was declared that it is the responsibility of the Judiciary under the Objectives Resolution and under the Constitution to take notice of violations of rights of citizens.
As it happened in the USA and India, despite opposition, PIL became an integral part of the Pakistani legal system by the early 1990s.
DEVELOPMENT OF PIL IN BANGLADESH
'The colonial legacy is responsible for many of the shortcomings of the Bangladeshi legal system. The fact remains, however, that even after gaining independence twice in the last fifty years, we find the system fundamentally unaltered. When the British started to reform, change and eventually transform the legal system inherited from the Mughals, they attempted to import and transplant the common law system and the Anglo-Saxon jurisprudence.[39] In many cases this was compromised because of the difference of society, culture, politics and religion. But essentially, the rulers believed that they were introducing the common law system for the betterment of the colony. In any case, the prime motive was to create a system that would help to rule the colony effectively.
'The east-west conflict finally resulted in an armed liberation movement in 1971. Bangladesh was born under the leadership of Sheikh Mujibur Rahman, the head of the Awami League, the largest political party. This marked the point of departure of the Bangladeshi legal system from that of Pakistan. The new country adopted a Constitution in 1972.
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.[40] One of these early amendments, the Third Amendment,6 was triggered by Kazi Mukhlesur Rahman v. Bangladesh and another, popularly known as the Berubari case..,
INITIAL EXPERIENCE AND THE BERUBARI CASE (1972-74)
On 16 May 1974, the Prime Ministers of Bangladesh and India signed a treaty in Delhi providing inter alia that India will retain the southern half of South Berubari Union No. 12 and the adjacent enclaves and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves. This treaty was challenged on the ground that the agreement involved cession of territory and was entered into without lawful authority by the executive head of government. The petitioner Kazi Mukhlesur Rahman was an advocate and came to the Court as a citizen and as such his standing was in question.
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. 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.
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"[41] 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 neighbouring jurisdictions. This argument is summed up by Afzal CJ in the FAP 20 case as he says:
It is a matter of some pride that quite early in our Constitutional journey the question of locus standi was given a liberal contour in that decision by this Court at a time when the Blackburn cases were just being decided in England which established the principle of "sufficient interest" for a standing and the doctrine of public interest litigation or class action was yet to take roots in the Indian jurisdiction.
THE BARREN PERIOD (1975-1986)
The Constitution, which provided for a parliamentary democracy, was under serious threat due to post-war instability, natural calamities including a famine and deterioration of the law and order situation. A desperate ruling party engineered the Fourth Amendment of the Constitution in January 1975 This introduced a dictatorial presidential government with a one-party political system.
The civil government, which lasted till 1982, was dominated and controlled by General Zia. Still, the political and legal environment was comparatively free and the Court started to give a series of bold and significant decisions.[42] But this was again interrupted when, after the assassination of Zia in a failed coup de etat, the newly elected President was removed by General Ershad in March 1982.
Party, started to transform himself as a political leader. Eventually, martial law was withdrawn in 1986, but the system remained primarily an autocratic one.
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, notes Ishtiaq Ahmed, but the process was thwarted when the constitutional order was disrupted. Mustafa Kamal J explains in the FAP 20 case.
A significant case from this period is AK Mujibur Rahman v. Returning Officer and others. General Ziaur Rahman was a presidential candidate while still being a member of the Armed Forces. Military laws were 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. Banglades[43] where an advocate challenged an Ordinance as a citizen. As he was not personally affected, Munim CJ denied standing following the traditional view.
BEGINNING OF PUBLIC INTEREST CASES (1987-1990)
After the withdrawal of martial law, from 11th November 1986, the Supreme Court started functioning with respect to its original writ jurisdiction. General Ershad's democracy was controlled and guided, elections were held but failed to ensure the legitimacy he desired. The limited democratic practice, however, gave the Court some opportunity for a more active role. In 1988, the Eighth Amendment[44] of the Constitution made Islam the state religion and decentralized the higher judiciary. This decentralization was successfully challenged in the Court, resxilting in one of the most important of all post liberation judgements.
In Saiyid Munirul Huda Chowdhury v. AKM Nurul Islam an advocate challenged the appointment of the Vice President of Bangladesh on the ground that he formerly held the office of Chief Election Commissioner and as such Article 118(3)(a) of the Constitution disqualifies him for a 'service of the Republic' MS AH J. held that the office of the Vice President is excluded from the category of persons holding an 'office of profit in the service of the Republic' and summarily dismissed the petition.
In another quo warranto matter, M Saleem Ullah v. Justice Mohammad Abdul Quddus,33 an advocate challenged the appointment of a Supreme Court Judge in the post of Joint Secretary in the Ministry of Law as violative of the Constitution. AMK Chowdhury J. decided that the appointment was valid but only because it was protected by a Martial Law Proclamation.[45]
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 by resorting to lottery techniques.36 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.
For the first time during this period, we see a number of lawyers forming into groups and attempting to fight pro bono publico cases. Justice Quddus Chowdhury's case was the first of a series of cases where M Saleem Ullah and his friends appeared before the Court as concerned citizens. Over the years they brought a considerable number of constitutional cases and subsequently formed the Association for Democratic and Constitutional Advancement of Bangladesh (ADCAB).38 On the other hand, the Young.
Lawyers Forum did not pursue its initial success by filing more public interest cases, perhaps because it was mainly concerned with young advocates 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 classes rather than those of the poor or the socially deprived.
HEIGHTENING OF THE CONSCIOUSNESS OF PIL (1992)
In the political arena, 1992 was a year of calm when the newly earr democracy started to function. The most significant PIL cases in this y related to personal liberty matters.
Anwarul Hoque Chowdhury J. in Ayesha Khanam and others v. Ma Sabbir Ahmed and others expanded the traditional habeas corpus principle giving standing in a case of private detention.[46] The petitioner was a moth seeking custody of her child. Bangladesh Mohila Parishad, a volunta organisation, fought successfully as a party.
Since the government responded promptly, there was no reason fc Hatem Ali or Falu Mia to come to the High Court. A precedent on PIL wz to be set in State v. Deputy Commissioner, Satkhira and others, known as Nazn Islam's case. Nazrul Islam had been held in prison for 12 years without an trial. Justice MM Hoque noticed a newspaper reporting this news, initiatet the criminal miscellaneous case suo motu and released Nazrul.
However the success in detention cases was offset by failures in some other cases. In Syed Mahbub AH and others v. Bangladesh[47] 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 all these cases, we see co-operation among journalists, NGOs, judges, lawyers and the administration. The most important role was played by the journalists who were using the full potential of the newly found freedom of speech. As soon as these reports were published, they provoked strong public reaction and criticism of the law enforcement agencies. In the Hatem Ali's case, a Government Minister became involved, in the Falu Mia's case an NGO came forward.56 The Court praised the co-operation of journalists and government officers in the Nazrul Islam's case. This case was not only the first suo motu case of its kind by the High Court, it was also bold in the way it criticised law enforcement agencies and the directions it gave for further investigation into similar matters. On the whole, 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.
NEW WAVE OF PIL ATTEMPTS: GAINING MORE GROUNDS (1994)
Although a considerable 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
horn I 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.
Since the Constitution is of revolutionary origin and derives its validity and power from the people, locus standi can not be denied if the people come forward to 'safeguard, protect and defend the Constitution'. The Court also noted the Berubari principle that in questions of grave constitutional importance, any citizen can come to the Court. The Parliament members were ordered to return to the Parliament.
In Md Kafiluddin v. Maulana Syed Fazlul Karim and another[48] it transpire 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 Saleem Ullah, in the Haiti Troops case, 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,[49] 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,[50] the eligibility of two judges was challenged. The government swiftly removed both of them and the case became infractuous.
In Md Idrisur Rahman v. Shahiduddin Ahmed and others, an advocate claimed that the appointment of the CMM (Chief Metropolitan Magistrate) without prior consultation with the Supreme Court was unconstitutional. Rule was issued but judgement 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. In general, these cases failed to bring immediate positive results as the Court often doubted either the elements of public interest or the intentions of the applicants.
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 recognized 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.114 The first Caretaker government was formed under former Chief Justice Muhammad Habibur Rahman. The Thirteenth Amendment was challenged in Syed Muhammad Mashiur Rahman v. President of Bangladesh and others.115 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 Asaduzzaman Ripon v. The State[51] 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.
Dr Farooque came in 1996 with a number of PIL cases. In Judges Appointment,©[52] 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 Milk122 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,123 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.
RECENT CASES: EXPANDING 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.
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 u 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. In some of the cases, either the public interest element was not strong enough, or the judges were unwilling to embark on adventures for which they were not yet ready. But generally, PIL petitioners approaching with genuine social action matters are successful.
NATURE OF PIL PROCEEDING
Under the traditional procedural law, two competing interests clash in front o the judge who acts as a neutral umpire. This is the so called adversarial mode of litigation that has developed in relation to private interest litigation. Where public interest is concerned, this model is unsuitable for obvious reasons. The poor and the disorganised, or a conscious citizen, can not compete with powerful vested interests in terms of time, money and energy required to figh a case. Anti public interest elements can easily out-resource good intentiona PIL activists. So the PIL activists stress on the fact that, in many cases, 'equal treatment of unequals is inequality'.
To remedy the situation, the concept of PIL suggests that, to the extent it is thought proper and necessary to ensure justice, the courts should be ready to abandon the features of the private law model. In other words, a non-adversarial model may be chosen over the adversarial system of litigation.
Suitability of private law litigation model for resolving public law issues has been seriously questioned back in 1976 by Abram Chayes.[53] He observes the fact that a public law litigation approach reverses many of the crucial characteristics and assumptions of the traditional concept of adjudication. Ina public law model:
(1) The scope of the lawsuit is not exogenously given but is shape primarily by the court and parties;
(2) The party structure is not rigidly bilateral but sprawling am amorphous;
(3) The fact inquiry is not historical and adjudicative but predictive and legislative;
(4) Relief is not conceived as compensation for past wrong in a form logically derived from the substantive liability and confined in its impact to the immediate parties; instead, it is forward looking, fashioned ad hoc on flexible and broadly remedial lines, often having important consequences for many persons including absentees;
(5) The remedy is not imposed but negotiated;
(6) The decree does not terminate judicial involvement in the affair: its administration requires the continuing participation of the court;
(7) The judge is not passive, his function limited to analysis and statement of governing legal rules; he is active, with responsibility not only for credible fact evaluation but for organising and shaping the litigation to ensure a just and viable outcome;
(8) The subject matter of the lawsuit is not a dispute between private individuals about private rights, but a grievance about the operation of public policy.
Although Chayes dealt with the American jurisdiction The characteristics of Public Law Litigation identified by him were adopted by Cunningham in 1987 to describe the Indian situation with the observation that the phenomenon described by Chayes was perhaps intended to encompass a wider range of cases.[54] In 1988, analysing the case of Skeela Barse v. Union of India, Singh identified a number of characteristic features of PIL following the Chayes model. In the Bangladesh perspective also, the Chayes model[55] holds true and good.
In short, PIL involves activism and flexibility on the part of the court in three phases.
First, the rules of locus standi have been liberalised.35 Any conscious citizen or organisation, with bonafide intentions, can approach the court for public good.
Second, the court ignores procedural rigidity and formalities during the process of adjudication.36 This includes acceptance of letters, telegrams etc. and treating them as petitions, suo motu actions by the judge, investigative commissions, enlisting aid from volunteers, seeking assistance from amicus curiae etc.
Third, the court ventures to grant innovative and appropriate remedies going beyond the traditional techniques of providing relief.37 These include, apart from traditional remedies, continuing supervision and monitoring, granting of compensation, devising guidelines for government departments etc.
REPRESENTATIVE SUITS AND PIL
Representative suits are described in the Code of Civil Procedure in the
following way:
Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such a suit, on behalf of or for the benefit of all persons so interested.[56]
This is very similar to class action suits in the American jurisprudence.
A representative suit, however, is not the same thing as a PIL for the simple reason that it is designed to deal with group interests to avoid a multitude of similar actions and protection of social or public interest is not its primary purpose.
First, a representative suit is conducted within the perimeters of the traditional adversarial system. It is neither of inquisitorial nature, nor designed to assist social activism. PIL, on the other hand, involves. Negation of the adversarial method and includes innovative techniques in the process of adjudication as well as in granting relief.
Second, the petitioner' of a representative suit is aggrieved in the traditional sense of the term and some other persons share the same grievance with him. PIL cases often involve a petitioner who is not aggrieved personally, especially in the traditional sense.
Third, representative suits may be filed where there are 'numerous persons'. This term carries its specific meaning. On the one hand, 'numerous persons' do not embrace the general public. So it excludes cases where the interest of the entire public is concerned. On the other hand, the word is not synonymous with numberless or innumerable and the body of persons represented must be sufficiently definite. Still, there is no rule fixing any limit to the numbers and the actual number need not be capable of being ascertained.[57] So the court must apply its discretion as to what is or is not numerous in a particular case.[58]
It appears that there is a scope of filing PIL cases as representative suits where a segment of the society, whose number is sufficiently definite, is injured. But representative suits do not offer relief to the public as a whole and the innovative remedies provided under the writ jurisdiction are not available.
CONSTITUTIONAL MANDATE AND BASIS OF PIL
Whatever may be the reasons and justifications of the newly emerging concept of PIL, it must conform to the prevailing scheme and spirit of the Constitution. In other words, the concept and practice of PIL must capable of being justified, explained and supported by constitutional I provisions. Accordingly, the judges and lawyers in the sub-continent, including Bangladesh, proceeded to show that PIL not only conforms to the constitutional spirit and scheme, but the Constitution itself mandates a PIL approach. This constitutional basis of PIL is the subject matter of the present Chapter.
In the sub-continent, proponents of PIL advance their arguments in two j stages. First, it is argued that the constitutions are people oriented and] support the social justice approach. Thus, in intention and spirit, the] constitutions of the sub-continental countries are pro-PIL. Second, they rely! on the rule that no provision of the Constitution should be treated in] isolation. Since interpretation of individual constitutional provisions is] given on the basis of its scheme and spirit, which supports social justice, any interpretation is bound to support PIL. We shall examine in the present] chapter how a PIL approach, under the constitutions of India, Pakistan and Bangladesh, is thus guaranteed.
Despite similarities, however, PIL evolves differently in different] jurisdictions. In fact, it has long been demonstrated that the particular brand of constitutionalism prevailing in a given jurisdiction influence, and in tuni is influenced by, the growth of PIL.[59] PIL in Pakistan is not just a copy of Indian PIL. Similarly, as the Constitution of Bangladesh has its uniqueness, f PIL has been explained and understood in a unique Bangladeshi way. It has been labelled as ACL – autochthonic constitutional litigation'. The relationship between constitutional autochthony and PIL, a peculiar] Bangladeshi feature, is also examined in the present chapter.
PIL UNDER THE CONSTITUTIONAL SCHEME OF INDIA
Social justice provisions in the Indian Constitution
The socialist character of the Constitution of India has been emphasized in the Preamble by spelling out the aspirations of the people to secure to all citizens social, economic and political justice. The Preamble also affirms a determination to secure liberty of thought, expression, belief, faith and worship and equality of status and opportunity and to promote amongst the people a feeling of fraternity, ensuring the dignity of the individual and the unity of the nation. In 1976, the 42nd amendment of the Constitution added the words 'socialist' and 'secular' making India a 'sovereign socialist secular democratic republic'.2 The Constitution incorporates in Part III (Articles 12 to 35) a range of fundamental rights which are legally enforceable and in Part IV (Articles 36 to 51) a range of directive principles of state policy which are not enforceable by any court, but are declared to be fundamental in the governance of the country and which the state has a duty to apply in making laws.[60] It is the directive principles of the Constitution which elaborate the provisions relating to distributive and social justice.,
RELATION BETWEEN PRINCIPLES AND RIGHTS
A strong socialistic bias is not enough for the purpose of the development of PIL jurisprudence, because the matters relating to distributive and social justice found their place in the 'unenforceable' directive principles of state policy. There arose the important question of how to translate into law the socialist approach of the Constitution and how to deal with the relationship between the 'enforceable' rights and the 'unenforceable' principles.[61]
PIL UNDER THE CONSTITUTIONAL SCHEME OF BANGLADESH
Social and collective justice provisions in the Constitution
The bias towards social and collective justice in the Constitution of Bangladesh can be traced back to its origin. In April 1971, the Proclamation of Independence was issued.[62] This historic document proclaimed independence against unjust war and genocide and acclaimed heroism, bravery and revolutionary fervour of the people. A major aim was "… to ensure for the people of Bangladesh equality, human dignity and social justice." So the document envisaged was an 'autochthonous' and 'social justice' Constitution. In December 1972, the Constitution was adopted. The Preamble of the Constitution of Bangladesh says:
We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent sovereign People's Republic of Bangladesh;
Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the war for national independence, shall be fundamental principles of the Constitution;
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and cooperation in keeping with the progressive aspirations of mankind;
In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S. corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.
There are certain general rules of interpretation of the Preamble.[63] It is neither a source of power nor a limitation on the enacting provisions of the Constitution. It can not be used to modify the clear language of the Constitution but if the language indicates more than one meaning, the meaning which is nearest to the purpose of the Constitution is to be preferred. In cases of ambiguity of the enacting part, the Preamble may be considered in order to resolve the doubt.
In the 8th Amendment case, it was held that it is the intention of the makers of the original Constitution, as expressed in the Preamble, that is the guide to its interpretation. It was further held that the Preamble is a part of the Constitution. This is declared on the basis that the Preamble can only be amended by referendum.[64] Thus when a constitutional provision is clear but runs counter to the Preamble, the intention of the framers of the Constitution must be considered.
As a result the intention of the framers to attain a socialist society through democratic means becomes very important. 'Socialism meaning economic and social justice' has to be attained. In the 8th Amendment case, BH Chowdhury J. pointed out that few constitutions have a Preamble like this one and observes that the Preamble under the Bangladesh Constitution is given a status higher than it enjoys in the Indian or Pakistani Constitution. Mustafa Kamal J. says:
. . . the Preamble of our constitution stands on a different footing from that . of other Constitutions by the very fact of the essence of its birth which is different from others.[65]
While interpreting the Preamble in favour of social and collective justice, it must be read along with Article 7. It declares:
(1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.
The various functionaries and institutions created by the Constitution exercise people's power, not their own indigenous or native powers. Mustafa Kamal J. regards this Article as a cornerstone of the Constitution and a proud expression of constitutionalism.[66] Latifur Rahman J. observed recently in the FAP 20:
I This supremacy of the Constitution is a special and unique feature in our Constitution. Neither in the Constitution of India nor in the Constitution of Pakistan there is reassertion of the supremacy of the Constitution. This is a substantive provision which contemplates exercise of all powers in the Republic through the authority of the Constitution.[67] nee the ultimate power belongs to the people, the priority must be to their collective rights and interests. This is in harmony with the and objectives of the Constitution as declared in the Preamble.
As to the rights and interests of the people that are to be upheld in accordance with Article 7, the Constitution declares certain matters to be fundamental. Part II of the Constitution (Articles 8-25) contains the fundamental principles of state policy while Part III (Articles 26-47) sets out the fundamental rights. These provisions are very much similar to those of the Indian and Pakistani constitutions.
Regarding the fundamental principles, Article 8(2) says:
The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.
Article 8(1) says that the principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in Part II constitute the fundamental principles of state policy. It also states that absolute trust and faith in the Almighty Allah shall be the basis of all actions.
BH Chowdhury J. notes in the 8th Amendment case that Article 8 is a protected Article and cannot be amended without referendum.46 This shows the importance attached to this Article. Kamal Hossain says that the Bangladeshi Constitution has gone beyond both the Indian and Pakistani Constitution in this regard.[68] It not only lays down that these principles would be applied in law making as provided in the Indian Constitution, but it also declares the principles as guide to the interpretation of laws and basis of the work of the State and its citizens.
The Constitution sets out the fundamental principles under the following heads: promotion of local government institutions (Article 9), participation of women in national life (Article 10), democracy and human rights (Article 11), principles of ownership (Article 13), emancipation of peasants and workers (Article 14), provision of basic necessities (Article 15), rural development and agricultural revolution (Article 16), free and compulsory education (Article 17), public health and morality (Article 18), equality of opportunity (Article 19), work as a right and duty (Article 20), duties of citizens and of public servants (Article 21), separation of judiciary from the executive (Article 22), national culture (Article 23), national monuments (Article 24), promotion of international peace, security and solidarity (Article 25).
The fundamental principles contain a charter for extensive affirmative action. They are re-distributory rather than conservative in character and aim to bring change in a constitutional way. Ishtiaq Ahmed goes so far as to say that they are the nation's dream of social revolution.[69]
As regards the fundamental rights, Art 26 declares that all existing and newly made laws must conform with Part III containing fundamental rights and any inconsistent law will become void to the extent of such inconsistency. The fundamental rights guaranteed under Part III include: equality before law (Article 27), discrimination on grounds of religion, etc. (Article 28), equality of opportunity in public employment (Article 29), prohibition of foreign titles, etc. (Article 30), right to protection of law (Article 31), protection of right to life and personal liberty (Article 32), safeguards as to arrest and detention (Article 33), prohibition of forced labour (Article 34), protection in respect of trial and punishment (Article 35), freedom of movement (Article 36), freedom of assembly (Article 37), freedom of association (Article 38), freedom of thought and conscience, and of speech (Article 39), freedom of profession or occupation (Article 40), freedom of religion (Article 41), rights to property (Article 42) and protection of home and correspondence (Article 43).
Article 44 declares that the right to move the High Court Division for the enforcement of the fundamental rights conferred by Part III is guaranteed. Powers of the High Court Division to issue 'certain orders and directions' in order to enforce the fundamental rights are elaborated in Article 102.50 Although the word 'writ' is not used, this Article actually deals with the five writs commonly practiced in common law based legal systems. Article 102 thus provides a mechanism to enforce public rights and interests.
Constitutional autochthony' and 'people's power': basis of constitutional legitimacy of PIL in Bangladesh
What is the nature of the constitutional mandate that enables PIL to be recognized and accepted in Bangladesh? One uniqueness of the Bangladesh Constitution is its autochthonous nature – which in consequence highlight the 'people's power concept'. Accordingly, since this autochthonous Constitution reflects the power of the people, a PIL approach is mandated. The present sub-chapter examines this aspect with reference to the relevant cases.
'Development of a guiding principle for PIL in Bangladesh
The case that first provided a conceptual groundwork for PIL is the 8th Amendmen case of 1989 where it was declared that the Parliament cannot alter the basic structure of the Constitution and decentralise the Supreme Court. This was not a case on social justice, but related to the power relations debate. It came as an inspiration to the judges and lawyers favouring activism and a greater role for the judiciary. The judges declared the need for progressive and dynamic interpretation of the Constitution. They reaffirmed and re-established the principle that while interpreting the Constitution, the intention of its makers and its spirit must be taken into consideration and an Article should not be looked into in isolation. Accordingly, an interpretation requires consideration of the so called 'unique features' of the Constitution of Bangladesh, one of which is its autochthonous nature.[70] BH Chowdhury CJ says:
. . . our Constitution has proceeded from the people and it is not rhetorical flourish. Our Constitution is not the result of the process of the Indian Independence Act 1947 though we have taken inspiration from the wisdom of the past. Ours is an "autochthonous Constitution".72
This line of argument however was not adopted for PIL matters immediately. In 1993, Naimuddin Ahmed J. acknowledged the necessity to interpret the Constitution liberally and stressed on socio-economic issues in the Welfare Association:
It must, however, be remembered that the Constitution of a country is not a morbid document but a dynamic instrument capable of being interpreted and applied in the ever-changing socio-economic context of society. The judicial function is to interpret it in such a way as to meet the socio-economic needs of those who are incapable, on account of poverty or otherwise, to seek assistance of the court which exists for safeguarding the rights and interests of all citizens.
The first hint of an emerging unique Bangladeshi argument in favour of PIL came in the same year from Ishtiaq Ahmed, a leading constitutional lawyer.74 He argued that a Constitution always carries the spirit of the age and the Constitution of Bangladesh reflects the historical realities of the time of its creation and contain a vision and dream of the unfolding future. Framers utilised the wisdom of the two decades long experience gained by the Indian and Pakistani Constitutions and enacted a Constitution 'which is distinctively our own'. Then he said:
The emphasis is relevant and important because it is a cardinal principle of interpretation of a constitution that in interpreting a word or a provision in the constitution the constitution must be read as a whole, every part of it throwing light on the other, every word used deriving its meaning and colour from the total context of the constitution. The preamble and part which follows the preamble, particularly Article 7, the Fundamental Principles of State Policy, the Fundamental Rights, the scheme of limited government – all these exist not in isolation but as parts of one whole document.
LOCUS STANDI OF PIL PETITIONER:
BACKGROUND AND DEVELOPMENT
For public interest litigants, direct access to the High Court Division has teen ensured through Article 102 of the Constitution of Bangladesh that provides for the 'writ' jurisdiction. To enforce fundamental rights, and other lights where no equally efficacious remedy is provided by law, an application may be made to the High Court Division for directions and orders.
The background and history of this power, enjoyed by the High Court Division, may be traced from the English courts to the courts of the subcontinent. Bangladeshi legal system has not only inherited the principles of common law regarding writs, it continues to be influenced by the recent English and sub-continental developments. This is especially so in case of locus siandi of the PIL petitioner.
Generally, in private law litigation, only the person aggrieved can approach the court. In cases where interest of the society or the public in general is concerned, the applicant must have some special grievance apart from the general grievance suffered by the public. This simple rule is based on certain basic jurisprudential principles. One is to avoid multiplicity of proceedings; the other is that the person who suffers knows best his own case.
This general private law rule of locus siandi goes directly against PIL, the essence of which is litigation by one in the interest of another. Thus the first challenge in the development of PIL has been to overcome the traditional rules of locus siandi.
The present chapter will briefly outline the background of the writ jurisdiction, trace the traditional rules of standing and examine recent PIL developments in this regard in England, India and Pakistan. The following chapter will discuss the Bangladeshi developments in this respect.
WRITS AND THE LAW OF STANDING IN ENGLAND
The discussion of the present sub-chapter has two main themes, first the background of the five writs in England are o outlined to focus on the fact that their origins, histories and purposes have been different and that these writs have been under the process of continuous development. Second, the principles of standing are analysed to emphasise the lack of uniformity in traditional rules and somewhat unsatisfactory present situation despite recent developments. The impact of these issues are detailed in chapter eight relating to the development of public interest standing in Bangladesh.
REMEDIES IN THE NATURE OF WRITS IN INDIA AND PAKISTAN
THE RULES OF STANDING
In British India, the power to issue writs was conferred on the Supreme Courts of Calcutta, Madras and Bombay from the very beginning. When the successor High Courts were created under the High Courts Act 1861, this power was inherited. But the power was applicable mainly within those towns. In 1877, the Specific Relief Act took away from the three High Courts the power to issue the common law writ of mandamus and granted power to, issue directions in the nature of mandamus. Again in 1898, the Criminal j Procedure Code replaced the writ of habeas corpus with directions in the j nature of habeas corpus and extended the Court's territorial jurisdiction.[71] In j 1923, other High Courts gained the power to issue directions in the nature of] habeas corpus All these changes were of form, not of substance.
The most significant development came when the Constitution of was adopted on 26 January 1950. Under Articles 32 and 226, the Supri Court and the High Courts have power to issue writs in the nature of hah corpus, mandamus, certiorari, prohibition and quo warranto. The jurisdiction0 the Supreme Court is limited to matters of fundamental rights – the Courts have no such limitation under Article 226.
In Pakistan, Article 22 of the 1956 Constitution conferred power on I Supreme Court to enforce fundamental rights.[72] This resembled Article 32 of j the Indian Constitution. Again, Article 170 followed the Indian I Constitution's Article 226 and power of judicial review was given to the High Courts mentioning the name of the five writs. Unlike the Supreme Court, the power of the High Court was discretionary. When a new Constitution was framed 1962, the Pakistan Supreme Court's original jurisdiction was taken away and it could only hear appeals from the judgements of the High Courts. Also, Article 98, which replaced Article 170 of the old Constitution, did not mention the English writs by name. Instead, the article codified the jurisdiction incorporating the essence of the English writ jurisdiction. The power of the High Court remained discretionary. finally came the Constitution of 1973 where Article 199 retained the formulation of Article 98 of the 1962 Constitution. Despite these changes, there is little difference between the provisions of the Indian and the Pakistani Constitutions either in substance or in form.
By the time India and Pakistan introduced the writs as constitutional remedies, a very large body of case law had grown up in England around prerogative writs and the Indian and Pakistani judges turned to English decisions for guidance. But unfortunately, the approach of the judges turned conservative and static. The reason, as we have noted earlier, is that after the and World War, administrative law in England relapsed into an impotent condition.[73]
Locus standi under Indian constitutional provisions
I As regards habeas corpus, the traditional English rule, that even a person I other than the detenue can approach the court, is followed in India.[74] In quo Iwranto matters, from the very beginning, the Indian judges relied on R v. I Speyer and allowed any member of the public to apply provided that the application is made bona fide.[75]
With respect to certiorari, prohibition and mandamus, Indian judges had
the opportunity to diverge from the English law of standing when 'prerogative writs' were incorporated as constitutional remedies. But initially the courts took a rather restrictive approach. It was held that the existence of a right of the petitioner is the foundation of the exercise of jurisdiction under Article 226. Similarly, the right to be enforced under Article 32 must ordinarily be a right of the petitioner.
Accordingly, it became an established principle that although in strict law any member of the public can apply for certiorari, it is unlikely that it would be granted to a person who was not aggrieved. The High Court has no option but to accept the application by an aggrieved party. But in case of a stranger, the Court must be satisfied as to the validity of his claim. So there was little practical difference with the old English law. The situation was the same in prohibition. In mandamus, numerous cases established that the applicant must be a person aggrieved.
By the 1970s, the shortcomings of these restrictive rules became a matter of concern.[76] One line of exceptions gave some right to ratepayers and taxpayers. Sometimes, statutes recognised locus standi of persons not aggrieved in the traditional sense.[77]
Lochs Standi Under Pakistani Constitutional Provisions
In habeas corpus matters, Pakistani judges follow the traditional English rules like their Indian counterparts and allow persons other than the detenue to approach the court.[78] Similarly, in quo warranto matters, the rule establishei in R v. Speyer is followed and bona fide applications by strangers an allowed. This has not been affected even after the replacement of the Latir term since the Constitution of 1962.
As regards certiorari, prohibition and mandamus, the courts in Pakistan initially followed the restrictive traditional rules of standing like the Indian judges. The court emphasised the need for the existence of a legal right of the petitioner to demand performance. Thus a direct personal interest was required and the applicant had to be a person aggrieved. This view was taken with respect of Article 170 of the Constitution of 1956 in Taricj Transport v. Sargodha Bus Service. Later, when the Latin terms were replaced in Article 98 of the Constitution of 1962, the old view was reconfirmed in Abdus Salam v. Chairman, Election Authority.[79]
'The present chapter illustrates a number of important factors of the development of public interest standing in India and Pakistan. The judges were influenced by the English situation where each 'prerogative writ' has its own distinct origin, purpose and history of development. To the sub-continental judges, a huge body of English case law gave a false sense of security that the various rules and principles of writs were firmly established. But in fact, being a patchwork of authorities, there were numerous contradictions within this complexity. Also, the law was conservative, especially after the Second World War, when the Indian and Pakistani Courts turned to these decisions. In the sub-continent, the distinct teal trend advocated by the written Constitutions was thus overlooked for a long time.
PROCEDURE AND REMEDIES: JUDICIAL ACTIVISM IN PIL
Since it is opposed to the adversary model of private interest litigation, PIL brings with it a number of innovative changes in relation to procedure and remedies. There are several reasons why these innovative techniques are essential. First, PIL petitioners are concerned citizens. It can not be expected in all cases that they will bear all the expenditure, time and energy required to properly present and pursue the cases initiated. Second, the poor and the helpless are often no match for powerful opponents such as vested interest groups. Huge disparity of strength of the contending parties may cause injustice unless the court intervenes. Third, public interest matters often involve thinly spread out rights and diffused rights. As a result, traditional private interest model sometimes fails to provide adequate and appropriate relief. Fourth, safeguarding public interest demands a wider vision, which is not concerned merely with the settling of disputes. The court considers in detail the effects and consequences of its decision upon the social-economic life of the nation. This demands an approach that differs from private interest litigation model.
EPISTOLARY JURISDICTION
The court has power to treat letters and telegrams sent to it as writ petitions and initiate PIL cases on the basis of such communications.
Termed as epistolary jurisdiction, this has been an invention of the Indian courts in epoch-making cases including Sunil Batra v. Delhi Administration[80] and Ichhu Devi v. Union of India[81] This was later followed in Pakistan in the famous case of Darshan Masih v. the State.[82] In Bangladesh, this practice has yet to be developed. Any objection on the ground that Article 102 of the Constitution contains the terms 'on the application of is not tenable because the Constitution neither defines the term 'application' nor restrictively determines its scope. Also, the Constitution itself does not lay down any specific procedure for preparing such an application. Thus, it appears that there is no bar to treat or convert letters as writ petitions.
Acceptance of letters and telegrams as writ petitions does not mean that it makes all sorts of procedural rules and requirements redundant. Once the communication is accepted as a petition, the court follows all rules and procedures which are applicable in a writ case.
Power of the court to treat letters and telegrams as writ petitions is not unfettered. It is mainly a matter of discretion of the court which is to be considered according to the facts and circumstances of each case. First, it must be apparent from the circumstances that justice will be denied unless the letter is given consideration. Second, epistolary jurisdiction applies mainly to violations of fundamental rights. Third, it applies to very grave, inhuman and serious situations only, for example, habeas corpus matters including police atrocities and torture.
One important principle to be followed is that the letters and telegrams should be addressed to the court, and not to any particular judge. Even when such a communication is addressed to a particular judge, it should be treated as directed to the court and accordingly forwarded to the court designated to deal with such communications. This is to avoid judge shopping by the litigants since it is an accepted principle of law that 'no litigant can choose his own forum'. Pathak J has observed:
No such communication or petition can properly be addressed to a particular judge. Which judge or judges will hear the case is exclusively a matter concerning the internal regulation of the business of the Court, interference with which by a litigant or member of the public constitutes the grossest impropriety.[83]
Ideally, every letter and telegram should be considered under a general set of rules to be prescribed for the purpose. All letters should be dealt with by the Registrar of the Court for being posted, according to normal practice, before appropriate Benches. Special PIL cells in the Indian and Pakistani courts receive, sort out and determine priority of the hundreds of letters the courts receive each month.
SUO MOTU INTERVENTION
Where public interest is concerned, the judge can act suo motu and initiate a PIL case. The words 'suo motu' mean 'on his own motion' as opposed to 'on an application by a party'.[84]
Generally, and in almost all the cases, newspaper reports prompt the judges to act suo motu. But the judge's source of information may be anything other than newspapers including letters, news item in any communication media including television, report given by a friend, somebody knocking at his door or the judge coming across some injustice in his daily life.
In a suo motu case, the judge himself appears, as a concerned citizen, to be the applicant. This is problematic from a theoretical perspective in the sense that it violates one of the basic tenets of jurisprudence – no one can be the judge of his own case. However, PIL cases merely create an exception without violating the general rule. Suo motu interventions in public interest do not propose to violate the principles of justice – the only intention is to protect social and public interest where immediate intervention is necessary. In fact, any apprehension that the judges might use the suo motu power arbitrarily is unfounded due to several reasons.
CONTINUING SUPERVISION AND MONITORING
One important device adopted by the courts in order to try to ensure enforcement of their orders has been the creation of special monitoring agencies who report back to the courts on the effectiveness of the ordered enforcement procedure. This only demonstrates that in some cases, the remedy requires to be tailor made to match the problem.
Although it appears in the first glance that this amounts to encroachment by the judiciary in the domain of the executive, it is not so in practice when applied judiciously and only in appropriate cases. Generally, supervision and monitoring involves a limited period until the case is finally disposed off or until the executive mechanism is ready to take over the responsibility.
What kind of monitoring is appropriate in PIL cases? It is not expected or proper for the judges themselves to take part in the actual on spot supervision, even though this has been attempted in Indian in a few earlier instances. In Sheela Barse y. Union of India,[85] where the issue was the protection of women in police custody, the court instructed a woman judicial officer to make regular visits to the police stations in question and report back to the High Court on whether the directives were being obeyed. In Bandhua Mukti Morcha v. Union of India[86], the Supreme Court appointed the Joint Secretary of the Ministry of Labour to visit and monitor the quarries where the bonded labour network had existed. In Mehta v. India[87], where environmental pollution was caused by a gas leak from a chemical plant, the court appointed an independent committee to visit the plant every two weeks.
AWARD OF COMPENSATION
In PIL cases, the High Court Division can award compensation to the victim for wrong done to him. Awarding of compensation is neither new nor exclusive to PIL cases – but public interest matters are probably the most appropriate ones where compensation may be granted. This power of the court has been recognised in Bangladesh in the following words of MM Hoque J.
Since this Court exercises its Special Original Jurisdiction and since this Court has got extraordinary and inherent jurisdiction to pass any order as it deems fit and proper, we are of the view that this Court has the power to award simple cost of the case as well as monetary compensation considering the facts and circumstances of each case.[88]
Although habeas corpus matters are considered as fit cases for awarding compensation, there is no bar in awarding compensation in other cases.
Generally, a money claim has to be agitated in a suit to be instituted in a court of the lowest grade competent to try it.[89] Award of compensation under Article 102 is an exception to this general rule and is thus not a substitute for such a civil suit. In other words, even after awarding of compensation under Article 102, the right to claim compensation through the ordinary process of civil suit remains unaffected.[90]?
Compensation awarded under Article 102 is thus of a palliative nature. It aims to provide immediate relief to the victim since it would amount to injustice if a poor, destitute, long suffering victim is sent to the civil court for a compensation suit, without a penny in hand, to establish his claim through the long and rigorous process of civil litigation.
Compensation is awarded under Article 102 only when the infringement of fundamental rights appears to be gross and patent and ex facie incontrovertible. In many cases, compensation appears to be the most appropriate immediate remedy due to the poverty, disability or socio-economic disadvantaged position of the victim.
The leading case with regard to compensation in Bangladesh is Bilkis Akhter Hossain v. Bangladesh and others1 where illegal detention of a political leader for 17 days was challenged. The Court awarded an amount of one lakh taka to be paid by the government. In Shahanewas v. Bangladesh and others[91] the detenue was held in custody in place of an absconded convict with mala fide intentions. The Court ordered an award of twenty thousand taka to be realised from respondent No. 4, an ASI, who was in charge of the police outpost where the wrong was done.
Some of the trend setter Indian cases of compensation include illegal detention in prison for over 14 years, unlawful detention of civilians by army personnel,[92] illegal detention of a person on the basis of "untrustworthy and meaningless evidence",[93] failure of police to produce arrested persons before the Magistrate within the requisite period, police opening fire in a peaceful assembly of peasants and landless people.
Compensation may be awarded in two stages. First, as soon as the rule is issued, the court may grant an amount as compensation. This is aimed at providing immediate interim relief till the case is finally disposed off. Second, at the time of disposal, the Court may finally determine the amount of compensation and adjust the amount with the portion already released. In any case, any amount awarded by the High Court Division may be described as interim compensation since the victim is free to file a regular suit for compensation and damages. Thus the High Court Division may send the case for disposal to a more appropriate forum.
LIMITATIONS AND DILEMMAS OF PIL
^Jt is common to use activism and restraint with reference to the operations of the judiciary. It is clear from the detailed study of writ petitions that the courts have entertained, in public interest, certain matters and have brought justice to the doors of those who live hand to mouth existence and are illiterate and unorganised. They are not aware of their rights under the Constitution or those which are granted to them by benevolent legislation. The cost of litigation is so prohibitive, the resources at the command of those who employ them are so large, the enforcement machinery is so ineffective and at times so corrupt that the employers do whatever they like with them, treating them virtually as bonded or slave labourers. To lift them out of the morass, public-spirited individuals and social organisations have taken up their cases to the Supreme Court and the Court by its activism and ingenuity in interpreting fundamental rights and the law of locus standi has given relief to them, thereby doing a commendable job. In the process, the machinery of justice has become meaningful for such people.
Hence in order to confine their activities to judicial determination or a controversy and not to involve themselves with determination of policy-oriented issues or matters with political overtones the courts have developed many doctrines which operate as self-imposed limitations.2 The doctrine of standing, exhaustion of administrative remedies and political question, prevent judicial review of legislative and administrative actions by not allowing a person to invoke the jurisdiction of court.
'In Bhartiya Homeopathy College, Bharatpur v. Students Council1, the Vice-Chancellor of the University with a view to remove hardship of students admitted in accordance with a State Act to a college which was at that time not affiliated to the university, permitted them to appear at university examination. A Union of Students challenged such order by a Public Interest Litigation. It was held by the court that before allowing such a Union to litigate in the name of public interest, the following must be disclosed,
(1) Whether it was authorised to file litigation?
(2) If so by whom?
(3) Whether it has sufficient funds to indulge in such litigation?
(4) Basis for alleging harm to public interest?
Regarding disclosing identity of the petitioner the Andhra Pradesh High Court in B. Kishtaiah v. Government of India, held, that it is not as if any person can walk into the portals of the court and lodge a complaint making irresponsible allegations against any person or the authority concerned. In public interest litigation the public would have to make a strict scrutiny of the pleadings. The court has to satisfy itself regarding the bona fides of the petitioner in filing a public interest litigation. The petitioners in public interest litigation are bound to disclose their particulars, details about their avocation, the efforts made and the methods adopted by the petitioner in obtaining and collecting data and information for filing a public interest litigation, credibility of the person initiating the public interest litigation is an important aspect which requires the attention of the court at the threshold otherwise the unscrupulous litigants would hijack the system and use it as an instrument of blackmail. Liberalising the rule relating to standing does not mean licence granted to one and all for filing cases of their choice in the name of public interest litigation. Relaxation is meant to seek judicial relief by public-spirited citizens on behalf of the marginalised poor, weaker sections of the society for espousing the cause of community.
In the second case, State of H.P. v. limed Ram Sharma15, the H.P. High Court entertained a letter by some Harijans of villages of Shimla, as a writ petition and directed the Superintending Engineer, PWD, to proceed with the construction of the road and complete the work within the current financial year. He was also directed to apply for grant of Rs 50,000 for the completion of the road as right to life under Article 21 implied the right to access by roads. The court also recommended to the State Government to consider the application favourably. The court then directed the Engineer to report back about the progress in the matter in the next hearing of the case.
The State Government challenged the action taken by the High Court under Article 226. The challenge was based mainly on the question of the competence of the court to regulate the financial control, assigned exclusively to the legislature and the executive under Articles 202-207 of the Constitution.
In Umed Ram case (supra), the Supreme Court was called upon to decide the following questions:
(1) Whether the right to life implied the right to access by roads?
(2) Whether the High Court was right in issuing directions which were administrative in nature asking the officers of the State to build roads?
(3) Whether it was within the parameters of judicial function to supervise the construction of roads?
The issues raised were of far-reaching constitutional significance relating to the limits of judicial intervention under Public Interest Litigation jurisdiction.
The Maharashtra State Electricity Board (MSEB) floated a tender for pipes and steel tanks with specifications for the bidders. Pursuant to the invitation, the MSEB received tenders from eleven bidders including Raunaq International Ltd. and I.V.R. Construction Ltd. The Board of Directors of MSEB decided to accept the offer of Raunaq International Ltd. in view of the price advantage to the Board and adequate experience of Raunaq International Ltd and accordingly tender was awarded to it (though Raunaq and I.V.R. both did not fulfil the qualifying criteria).
' I.V.R. Construction Ltd. challenged the decision in a writ petition filed
in the High Court of Bombay.
The High Court passed the impugned interim order under which it stayed the operation of Letter of Patent issued to Raunaq. The present appeal was filed against the order.
The court looking into various details came to the conclusion that it failed to see how the High Court intervened and stayed the operation of award of contract. In the case, the mala fides have not been alleged against
The Maharashtra State Electricity Board (MSEB) floated a tender for pipes and steel tanks with specifications for the bidders. Pursuant to the invitation, the MSEB received tenders from eleven bidders including Raunaq International Ltd. and I.V.R. Construction Ltd. The Board of Directors of MSEB decided to accept the offer of Raunaq International Ltd. in view of the price advantage to the Board and adequate experience of Raunaq International Ltd and accordingly tender was awarded to it (though Raunaq and I.V.R. both did not fulfil the qualifying criteria).
' I.V.R. Construction Ltd. challenged the decision in a writ petition filed in the High Court of Bombay.
The High Court passed the impugned interim order under which it stayed the operation of Letter of Patent issued to Raunaq. The present appeal was filed against the order.
The court looking into various details came to the conclusion that it failed to see how the High Court intervened and stayed the operation of award of contract. In the case, the mala fides have not been alleged against.
any member. And if, Raunaq International Ltd. did not fulfil the qualifying criterion, the challenger I.V.R. Ltd. too did not fulfill
The court delved into the question of public interest: "What are these elements of public interest?
(1) Public money would be expended for the purpose of the contract;
(2) The goods or services which are being commissioned could be for a public purpose such as construction of roads, power plants, public building or other public utilities;
(3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously;
(4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer.
"When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. Therefore unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderness.
The Supreme Court in Judges Transfer case91 it was held that it was only by liberalising the rule of locus standi in public interest cases that it is possible to effectively police the corridors of power and prevent violation and corruption and inefficiency. Apparently in applying these principles, the courts would have to use a lot of circumspection so as not to usurp functions assigned to the other wings of the State or ignore altogether the internal checks and controls of administration itself. Public interest litigation is a good strategy to remind the government of its failings and lapses but it is beyond the courts to force the executive to initiate a particular ameliorative or social legislation. Public interest litigation is not meant to satisfy the curiosity of people about the role of police or politicians or administration. It is meant to provide effective and complete relief to the victimised groups.
Another condition which must be carefully examined and fulfilled by the court before entertaining a public interest litigation is that it should be in a position to give relief to the cause of litigation and it cannot shrug its responsibility of alleging its non-implementation by the authorities concerned. And if there are reasons for the court to believe that no effective or complete relief can be given, court should not entertain public interest litigation so that the judicial processes do not lose their legitimacy or to prevent erosion of faith in the dignity of courts and majesty of law.
Public interest litigation cannot be looked in isolation as filing petitions on behalf of aggrieved and obtaining orders from the court. It has to be looked at as a part of our scheme of the assignment of responsibilities to various institutions, the patterns of control entrusted to each, to overview the discharge of these responsibilities, and the various remedies provided for the same. Each part has to function conscientiously and efficiently if the machinery as a whole has really to perform.
From a deep study it emerges that the Supreme Court has widely enlarged the scope of public interest litigation by relaxing and liberalising the rule of standing by treating letters or petitions sent by any person or association complaining violation of any fundamental rights. It has also entertained Writ Petitions, filed under Article 32 of the Constitution by public-spirited and policy-oriented activist, persons or journalists of any organisation rejecting serious challenges made with regard to the maintainability of such petitions. It has rendered many virtuosic pronouncements and issued manifold directions to the Central and the State Governments, local and other authorities within the territory of India or under the control of the Government of India for the betterment of the public at large, in many fields, in conformity with constitutional prescription of what constitutes the good life in a society's just democracy. The newly-invented proposition of law laid down by many learned Judges of the Supreme Court in the arena of public interest litigation irrefutably and manifestly establishes that our dynamic activism in the field of public interest is by no means less than those of other activist judicial systems in other parts of the world.
ACHIEVEMENT FORM PIL
The use of legal mechanism as a tool produced various means and ends in addressing environmental injuries. The agenda of PIL was mainly based on strategic issues to generate awareness amongst the common people and all the actors for development of a realistic regulatory framework and parochial environmental jurisprudence.
Following a BELA case in 1996, the concept of PIL was recognized by the judiciary that has allowed the millions of voiceless an access to the formal justice system.
Meanwhile, BELA has instituted more than 40 cases on environmental issues. The cases involve wide range of issues including river pollution, industrial pollution, vehicular pollution, labor welfare, compensation for losses inflicted by development projects, encroachment of important wetland, relocation of industry and so on. The issues are both national and local in nature.
The major achievements of BELA in the filed of Public Interest Environmental Litigation (PIEL) include recognition of ‘right to environment’ as part of constitutional ‘right to life’; directive judgments with regard to against industrial pollution, vehicular pollution; payment of environmental compensation in development projects; river encroachment; unlawful filling of flood plain zones and so on.
| LIST OF PUBLIC INTEREST LITIGATION (PIL) |
In recent times the civil society movement for enjoyment of rights took a new dimension with the judiciary being increasingly occupied with public interest cases seeking relief against administrative anarchy and ignorance. It is interesting to note that the concept of PIL is developing in Bangladesh as a performance of public duty by civil society groups advocating in support of progressive ideologies. In 1994 a petition was first taken before the High Court by BELA on behalf of the people of a given locality where a disputed development action was being implemented. The petition was at first rejected by the court on the ground of standing of the organization. An appeal was preferred from that rejection where the core question was whether groups like BELA with dedicated and sincere record of activism can claim to have acquired sufficient interest to seek judicial redress against anarchy in its own field of action. The question was vital as it was a constitutional requirement under Article 102 that it is only “a person aggrieved” who can file petitions for enforcement of fundamental rights. Being positively responded by the Supreme Court this case became the turning point in the history of PIL in Bangladesh.
BELA that led the movement for opening up the horizon of PIL in Bangladesh has filed the following cases noted below:
This is not an exhaustive list of the cases filed by BELA
1. Dr. Mohiuddin Farooque Vs Election Commission & Others WP No.186/1994 (Nuisance during Election Campaign)
The first ever-environmental litigation was filed in 1994 in the form of a Writ Petition in the High Court Division of the Supreme Court of Bangladesh by a group of environmental lawyers called the Bangladesh Environmental Lawyers Association (BELA). It was filed against the four authorities of the Government responsible for the enforcement of various civic rights, and accordingly, the respondent was the State. The election of the four Municipal Corporations of the country, held at the beginning of this year, evidenced gross violation of some legal obligations and, consequently, interfered with the various rights of the people. The unlawful activities created by the election campaign resulted in encroaching on public properties, restricting and depriving the rights to life, property, enjoyment of public resources, etc. of the city dwellers. The footpaths and other public places were saturated with election camps; incessant use of loudspeakers and other noisy instruments rendered life miserable; the walls of the four major cities of the country where the elections were being held were all covered with election slogans; unscheduled and unregulated processions created serious traffic jams, and so on. Repeated appeals by the Election Commission for showing respect to the laws of the country were virtually ignored. All this anarchy prompted the institution of a petition where the Hon’ble Court issued rule nisi upon the respondents asking them to show cause as to why they should not be directed to comply with the directive issued by the Election Commissioner touching upon the various acts and laws and rules. The Court also considered the prayer of the petitioner to restrain the Election Commissioner from holding the election till full compliance with the respondents. The rule, however, was disposed of, following assurance from the Attorney General that the Government would take all necessary steps to implement all the directives of the Election Commission.
2. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No.891/1994 (Industrial Pollution Case)
In 1994 BELA filed this Writ Petition seeking relief against indiscriminate pollution of air, water, soil and the environment by 903 industries of 14 sectors identified as polluters by the Ministry of Local Government, Rural Development and Cooperatives (LGRDC) vide Gazette notification dated 7 August 1986. The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute.
The Notification of 7th August 1986 directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by those industries. The Notification also required the said authorities to ensure that no new industry could be set up without pollution fighting devices. But unfortunately, even after the lapse of eight years when no measure was taken the above Petition was filed.
After seven years since the date of filling of the petition on the 15 July of 2001, the court has directed the Directed General, Department of Environment to implement the decision taken with regard to mitigation of pollution by 903 industries identified as polluters within the time frame of six months from the date of the judgment.
The Petitioner pleaded that the ecological system of the country more particularly the air and water including the major rivers (Buriganga, Surma, Karnaphuli and so on) are being severely affected by the identified 903 industries and that no affirmative action has been taken in furtherance of the decisions of the Gazette dated 7th August, 1986. Rather the number of polluting industries has multiplied as the recent list prepared by the DoE shows that the number of polluting industries have risen up to 1176. The Court earlier issued Rule Nisi to the Respondents including the LGRDC, Ministry of Environment and Forest, Ministry of Industries and Department of Environment to show cause as to why they should be directed to implement the decisions of the Government dated 5 June, 1986 which was published in the official Gazette. After hearing the Petitioner, the Rule has been made absolute today and the DG, DoE has been directed to “Report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court”. To ensure implementation of the Court directions, the Hon’ble High Court further held that “It will be imperative on the part of the Director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995.”
3. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 1783/1994 (Doctor's Strike Case)
This Writ Petition was filed on 3.10.94 by Dr. Mohiuddin Farooque in the Vacation Bench of the High Court Division of the Supreme Court praying intervention of the Hon'ble Court in restoring the public medical services and care all over the country disrupted by the continuous strike of BCS (Health) Cadre doctors. The petition was filed against the following respondents: (1) Bangladesh, represented by the Secretary, Ministry of Health and Family Welfare, (2) the Director General of Health Services, (3) the Bangladesh Medical and Dental Council and (4) the Bangladesh Medical Association.
In this writ petition the petitioner challenged the continuance of strike by the doctors of all the Government Medical Hospitals, Health Complexes and Centres since September 21, 1994. It was submitted that due to long strike by the Government Doctors BCS (Health Cadre) in the Government Medical Hospitals, Health Complexes and Centres the entire system for getting treatment by the people has become paralysed and the sufferings of the people knew no bounds. News of sufferings of the people was being published in the several daily Newspapers everyday for the indefinite strike by the Government doctors BCS (Health Cadre) through out the country.
Since it was a case of great public importance and since it involves the interest of the nation as whole, Court issued Rule and grant mandatory injunction calling upon the respondents to show cause why their failure to perform their statutory and Constitutional duties to ensure health services and medical care to the general public, arising out of the abstention from duties by the striking doctors, since 21 September, 1994 should not be declared illegal and why they should not be directed to restore, provide and ensure the public medical services immediately through out the country in all Government Medical Hospitals, Complexes and Centres and why their call for an indefinite strike began on 21 September, 1994 resulting thereby wilful absence of the doctors of BCS (Health Cadre) as members of the Association from their statutory and public duties causing threat to life and body should not be declared to have been made against public interest, without any lawful authority and is of no legal effect.
Pending hearing of the Rule, the Respondents were directed by way of mandatory injunction to call off the strike of the doctors BCS (Health Cadre) of all the Government Medical Hospitals, Complexes and Centres immediately with effect within 24 hours from the date of service of notice and to join their offices respectively.
4. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No.300/1995 (Vehicular Pollution Case)
This writ petition was filed by BELA seeking appropriate direction upon the Respondents to perform their statutory public duties and functions for controlling environmental pollution created by motor vehicles and to take effective measures to ensure the most appropriate mitigative measures, devices and methods to prevent further aggravation and danger to life and public health. The petition was filed against 13 Respondents, namely, (1) The Secretary, Ministry of Communications; (2) The Chairman, Bangladesh Road Transport Authority; (3) The Secretary, Ministry of Home Affairs; (4) The Commissioner, Dhaka Metropolitan Police; (5) The Secretary, Ministry of Environment and Forest; (6) The Director General, Department of Environment; (7) The Dhaka City Corporation; (8) The Secretary, Ministry of Health & Family Welfare, (9) The Secretary, Ministry of Commerce, (10) The Secretary, Ministry of Energy and Mineral Resources, (11) Chairman, Bangladesh Petroleum Corporation, (12) The Secretary, Ministry of Industries, and (13) The Bangladesh Standards and Testing Institution.
In his submission the petitioner stated that the air pollution from faulty motor vehicles has been universally identified as a major threat to human body and life. Such pollution in Dhaka City is acute and incompatible with the conditions required for the growth of human life and ecology. The lives of the City dwellers and its environment are endangered and the failures of the respondents in the performance of their statutory and public duties are depriving people of their fundamental rights disturbing the public peace creating public annoyance. He submitted that the lead-laced gas emitted because of the use of leaded petroleum were severely affecting the lungs, liver, brain and the nervous system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deformed babies. The high sulphur content in the petroleum, and hence in the smoke, causes severe damage to the ecology.
The main thrust of Dr. Farooque's submission was that although the right to a safe and healthy environment has not been directly specified in the Constitution as a fundamental right, such a right is inherent and integrated in the "right to life" as enshrined in Article 32 of the Constitution. Hence, the right to a sound environment was also a fundamental right under Article 32 being supported by Article 31 that ensures that no action detrimental to life, body, property could be taken. Therefore, the failures of the Respondents in their duties denied the people of their basic fundamental right.
Upon hearing the Petition, the Court issued a rule nisi upon the Respondent to show cause as to why they should not be directed to take all adequate and effective measures to check pollution caused due to the emissions of hazardous smokes from the motor vehicles and the use of audible signaling devices giving unduly harsh, shrill, loud or alarming noise.
The matter was pending for a long time and after a lapse of 7 years, on the 27th March of 2002 the High Court has directed the government to phase out all two stroke vehicles from city street by December 2002.
The court also directed that all petrol and diesel-fuelled government vehicles have to be converted into Compressed Natural Gas (CNG) powered within six months and pneumatic horns being discarded within 30 days.
It asked the Bangladesh Road Transport Authority (BRTA) to check fitness of vehicles, using computerized system with immediate effect. The court also asked the government to ensure international standard of fuel by reducing or eliminating toxic elements.
The High Court further directed the government to set up adequate number of CNG filling stations within six months and to ensure that all cars imported since July 2001 be fitted with catalytic converter.
The government was also asked to strictly comply with its decision to ban two stroke vehicles of over nine years old.
BELA also prayed for ensuring that the exemption of motor cycles from the requirement of certificate of fitness under the Motor Vehicles Ordinance, 1983 be withdrawn immediately which was also directed by the Court.
On behalf of the government BRTA, Dhaka Metropolitan Police, Environment Ministry, Department of Environment, Commerce Ministry and Ministry of energy and mineral resources submitted testimony (affidavit) in opposition before court.
The matter is pending for further monitoring.
5. Sharif Nurul Ambia Vs Bangladesh & Others
WP No.937/ 1995 (Unlawful Construction)
The Petition was filed with legal assistance from Bangladesh Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia, Joint General Secretary of Jatiya Samajtantric Dal (JSD).
The Petition was moved by the Secretary General of BELA, Dr. Mohiuddin Farooque submitting that the DCC has undertaken the construction of the multi‑storied building at the site earmarked for public car park in the RAJUK Master Plan unlawfully and without the latter's approval and hence liable to be demolished. It was further submitted that the construction was continuing defying DoE's finding that the said building would create a disruption to the environment of the area and the neighbourhood depriving them the right to life, body and healthy environment against hazardous pollution and obstruction to air and light as being endangered by the unauthorised construction by the Respondents.
Upon hearing the petitioner, the Court stayed the said construction till disposal of suit. The rule was ultimately disposed of against which an appeal is pending before the Appellate Division.
6. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 92/1996 (Radiated Milk)
This petition was filed by Dr. Farooque as a potential consumer seeking redress against the failure of the authorities in taking effective and efficacious measures in dealing with the consignment of 125 metric tons Skimmed Milk Powder which was imported to Bangladesh and was found by the Atomic Energy Commission to be containing high concentration of radioactivity.
It was argued that the consumers must be protected against all unscrupulous activities aiming to release the said consignment of radiated milk to give meaning to the Constitutional right to life.
The Judgement addressed some vital issues for the first time. While the authorities were directed to adopt necessary measures to ensure proper testing of milk, the scope of constitutional right to life was given a broader meaning. Right to environment was expressly recognised as being included in “right to life”.
7. Master Issa N.Farooque & Others Vs Bangladesh and Others
WP No.278 of 1996 (Use of Children as Camel Jockey)
Three children filed a Writ Petition before the High Court Division of the Supreme Court against Bangladesh represented by the Secretary, Ministry of Foreign Affairs, the Secretary, Ministry of Home Affairs, the Secretary, Ministry of Social Welfare and the Secretary, Ministry of Women and Children Affairs questioning the failure of the Government to prevent camel race using Bangladeshi children as jockeys in United Arab Emirates.
It was submitted that the Petitioners being minors were expressing their grievances and those of their generation yet unborn for judicial redress from the adult generation. The Petition pointed out that since 1989 there have been too many reports in the national and international media that children and minors of our country were being smuggled out of Bangladesh illegally to some gulf countries specially the United Arab Emirates (UAE) for engaging them as jockeys for camel race which continues for weeks and long distances with the technique of using the panicking screams of the children as the scary force that makes the camels run faster. Many children died during such races and in captivity. These children are kept mal-nourished to ensure their under weight. This inhuman sport and facts are the end results of a chain of heinous criminal activity and are shocking for the nation and is especially frightening to the children of our country.
It was mentioned that the children of Bangladesh have become the subject of the sports of the rich in violation of their fundamental rights as citizens of Bangladesh. The law and the Constitution have failed to protect them and to prevent recurrence of such horror. Once some of these kidnapped, abducted and trafficked children have been located in the UAE no effective step has been taken by the authorities including the Foreign Service officials in Bangladesh diplomatic missions abroad having extravagant life at the expense of tax-payers money. A number of international media including the BBC telecasted horrifying visual reports on the Bangladeshi children presenting dreadful scenario, which psychologically affects the children. Yet no satisfactory evidence exists to suggest that these children have been brought back or that no children were being smuggled out to UAE for the said purpose although there are penal laws both national and international. Rather in recent newspaper reports it has been stated that a week long dreadful camel race using the Bangladeshi children were held in UAE from 31 December, 1995, titled as Grand Zayed Race which has further shocked the common people specially the younger generation.
It was further submitted that the alleged incidents were threat to the children of Bangladesh and are clear manifestation of inefficiency of government in discharging statutory duties and obligations under various laws of the country and the Constitution of Bangladesh and also the Convention on the Rights of the Child ratified by Bangladesh on 3 August 1990. But the inaction of the authorities made the future generation panic-ridden, unsafe, vulnerable and commodities for sports of the rich nations. Hence, the petitioners have the right to ask for intergenerational justice, responsibility and equity.
Upon hearing the matter the High Court Division directed the Secretary, Ministry of Home Affairs to submit a Report on kidnapping, abduction and trafficking of Bangladeshi children outside Bangladesh especially regarding their engagement in the Middle East countries as camel jockeys contrary to the provisions of the Constitution and the International Convention on the Rights of the Child as has been alleged in the writ petition and also asked for measures taken by the Government to ensure the safety of the children of Bangladesh. The Court heard and considered the Report that Dr. Farooque alleged to be totally vague and incomplete and an admission of their failure. On hearing the matter the learned Court asked the Respondents to show cause, why they should not be directed to perform their respective and collective duties in preventing the kidnapping, abduction and trafficking of Bangladeshi children outside Bangladesh specially to engage them in the United Arab Emirates as camel jockeys. The show cause also alleged that such events were contrary to the provisions of law, the Constitution and the International Convention on the Rights of the Child, 1990, for ensuring safe and protected conditions necessary for the children to live and grow up in Bangladesh. It further stated that why the Respondents should not be directed to take all necessary measures to repatriate all Bangladeshi children engaged as camel jockeys in the United Arab Emirates to Bangladesh and rehabilitate them with their parents and/or guardians.
It is worth mentioning that following severe protest from the global community, the Government in UAE in 1993 banned the use of children under 14 or less than 45 kg as camel jockey. The news upto 2002 suggest that the Government of UAE has failed to enforce the ban. There has been recent development, please find it???
8. Dr. Mohiuddin Farooque Vs Bangladesh and Others CA No 24/1995 (Case on Standing)
This Appeal arose from the judgement of the High Court Division dismissing a writ stating that BELA had no right to sue on behalf of the people of Tangail where the Flood Action Plan-20 was being implemented.
On Appeal, the Appellate Division granted standing to BELA on 25th July 1996.
The main thrust of the appeal was to get a judicial verdict as to whether a person or group of persons could be “aggrieved” in ways beyond the strict traditional concept, which are now emerging in many legal systems, like suits by evidently public-spirited persons or bodies having proven dedication. The appeal being allowed is a landmark decision in addressing the Constitutional knot and riddle that have been prevailing on the threshold question as to who is an "aggrieved person” for last twenty four years history of our constitution.
9. Dr. Mohiuddin Farooque Vs Bangladesh & Others (WP No.998/94)
Sekandar Ali Mondol Vs Bangladesh and Others (WP No.1576/1994)
(Challenging Flood Action Plan-20: Direction for Payment of Compensation)
In 1994, a Petition was filed by BELA challenging the implementation of Flood Action Plan-20 in Tangail. The Petition, first rejected by Court on the ground of Standing of the Petitioner was subsequently sent for hearing on merit to the High Court after the Appellate Division granted standing (Bangladesh Legal Decisions, (BLD) 1997 Appellate Division (AD), pg.1).
In the petition, the authorities were accused of violating a number of laws that provide for compensating affected people for all sorts of loss and protecting the national heritage. The Court delivered Judgment on 28 August ’97 and observed that “… in implementing the project the respondents cannot with impunity violate the provisions of law . We are of the view that the FAP-20 project work should be executed in complying with the requirements of law.”
10. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 867/97 (Contaminated Drink)
The petitioner Dr. Mohiuddin Farooque, Secretary General of BELA, bought a 1000 ml bottle of soft drink brand name PEPSI produced by the Bangladesh Beverage Industries Limited for consumption from a shop in Dhanmondi. After going back home while he was about to open the said bottle he found that the liquid in it contained various foreign materials and substances including dead insects, sediments etc. He, therefore, without opening the bottle went to various statutory bodies and got the bottle physically examined and the fact was admitted and recorded by everyone including BSTI and Institute of Public Health. The petition is filed and moved alleging that the presence of such materials and substances were the result of utter failure and negligence in maintaining the acceptable quality, preventing adulteration, in performing statutory duties, and a detrimental act to human and public health under various laws of the country and the Constitution of Bangladesh. It is also stated that although the authorities were informed including the Respondents, no satisfactory step was taken to protect the right of the petitioner and the public health and interest at large. The right to life of the people was endangered by such actions and inactions of the Respondents. The acts and omissions that had led to such contamination and the presence of foreign substances and materials were also criminal offence under various penal laws, stated Dr. Farooque.
After hearing the matter the High Court Division issued show cause notice on the Ministry, BSTI and the Institute of Public Health for their failure to take appropriate action against the Pepsi Cola manufacturer. The Court also asked the Bangladesh Beverage Industries Ltd to show cause why its license to manufacture Pepsi Cola should not be cancelled. The Matter is now pending before the Court.
Subsequently, the Petitioner also lodged a criminal case against the Bangladesh Beverage Industries Ltd. since such contamination and adulteration were crime. The Chief Metropolitan Magistrate Court also issued summons upon judicial enquiry and the criminal case was also pending.
11. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 948/1997 (Uttara Lake Fill-up)
A division Bench of the High Court Division issued an injunction of the filling up of Uttara Lake for housing purposes. The injunction was issued on an application of Dr. Mohiuddin Farooque, Secretary General, BELA upon the Secretary, Ministry of Housing and Public Works, Chairman, Rajdhani Unnayan Kartripakhya (RAJUK) and DG, DoE. The petition was filed on an appeal from the local residents of Uttara, who accused RAJUK of creating an environmental hazard in the area by filling up part of the lake in violation of the original Master Plan of Uttara. The injunction would remain effective till disposal of the case.
The matter is pending hearing.
12. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 1252/1997 (Unregulated Operation of Brick Fields)
The indiscriminate operation of 19 brickfields in Senbag of Noakhali District in violation of applicable legal provisions and circular was brought to the notice of the High Court through the above petition. The petition filed by BELA on behalf of a local group called Senbag Thana Pollution Free Environment Committee accused the local administration for being indifferent towards the environmental havoc created by the brick furnaces. The management of the brickfields were not conducting their business with due regard to the legal provisions mandating in favour of sound environment and health state. Moreover, leasing agricultural land to brick fields in violation of existing land management laws and manual resulted in a tremendous pressure on the available stock of agriculture land, as after a given period the lands do not remain fit for agricultural purposes.
Upon hearing the petitioner BELA, the Court issued a Rule Nisi calling upon Secretary, Ministry of Land, Deputy Commissioner, Noakhali and DG, DoE to show cause “as to why the issuance and renewal of licences permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District causing threat to the natural environment and health of the neighbouring residents of the area should not be declared to have been done without any lawful authority and be directed to implement the circular.”
The matter is now pending for hearing.
13. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 6020/1997 (Hill Cutting Case)
The indiscriminate, unlawful and unauthorized cutting and raising of hills within the Chittagong City Corporation and its adjoining areas was brought to judicial notice by BELA through the above petition. The Court on hearing the petitioner, Dr. Mohiuddin Farooque, directed the DG, DoE to submit a report on alleged illegal and indiscriminate cutting of hills, contributing to ecological imbalance and degradation of environment of the city. The Court further ordered that the report should contain the measures taken by the Government to prevent such illegal activities. Subsequent application has been filed under the petition.
The matter is now pending for hearing.
14. 14. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 6105/1997 (Gas Explosion at Magurchara)
The above petition was against the Secretary, Ministry of Energy and Mineral Resources, Chairman, Bangladesh Oil, Gas and Mineral Development Corporation (PETROBANGLA), DG, DoE and Occidental of Bangladesh Limited for their negligence in preventing the fire that engulfed the Magurchhara Gas Field and the adjoining areas, while the Occidental of Bangladesh Ltd., a reputed foreign oil company, was carrying on with their regular excavation. The statutory authorities permitted such risky operation without proper EIA, as required by the ECA. BELA, the petitioner, also blamed the respondents for failing to combat the after effects of the fire, as reports suggest that it took quite a long time before normal life was restored in the affected areas.
A show cause notice was issued upon the respondents to clarify their own position.
With the filing of subsequent applications, the petition is pending for hearing.
15. Dr. Mohiuddin Farooque Vs Bangladesh & Others
WP No. 7422/1997 (Gulshan Lake Fill-up)
A division bench of the High Court Division issued a Rule in the last environmental petition filed in 1997 against implementation of an agreement called the “Banani, Gulshan, Baridhara Lake Development Project Agreement” signed between RAJUK and Indus Valley Investment Pvt. Ltd. to undertake a huge construction in the said areas, defying and violating the constitutional and legal requirements. The Court directed them to show cause as to why “the agreement and the subsequent agreements to lease out a total area of 220 acres of public land should not be declared to have been entered/undertaken without lawful authority in violation of law and the constitution against public interest and as such be declared null and void and of no legal effect.”
The Government subsequently cancelled the project.
16. Nijera Kori Vs Bangladesh & Others
WP No. 1162/1998 (Allotment of Land for Shrimp Cultivation)
The petition was filed against allotment of Government owned Khas Land to Shrimp Cultivators in Sudharam, P.S. of Noakhali District in contravention of the provision of the Land Management Manual, 1991 and Articles 15, 19, 31 and 32 of the Constitution depriving thereby the landless people. The Court on two occasions restrained the respondents from disturbing the peaceful possession of the landless families.
The matter is now pending for hearing.
17. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh and Others
WP No. 2482/1999 (Gulshan Lake Fill-up)
The unlawful filling up of Gulshan, Banani, Baridhara Lake for creating housing plots was challenged by another writ petition No. 2482 of 1998 filed by BELA. Following the Petition a division bench of the High Court directed RAJUK to take measures for suspending all construction and/ or filling up of the water body and lakeside areas of Gulshan, Banani and Baridhara Model Towns in specific areas. The Court also issued a rule nisi upon the Ministry of Works and RAJUK to show cause as to why the allotment of on the lake water lake-side area in Gulshan, Banani, Baridhara Town shall not be declared to have been undertaken in violation of the Town Improvement Act, 1953, against public interest and why they should not be directed to restore public property in a manner best suited to public interest.
The Court further directed RAJUK to prepare and submit before it a detailed and complete statement regarding allotment of plots and filling up of the lake water and/or lakeside area in violation of the approved Master and Lay Out plan rendering thereby water bodies of the Lake into private properties along with list of names and address of persons in whose favor such allotment have been made and those encroachment upon the lake water and or lakeside.
The matter is pending for hearing:
18. Biplob Kumar Roy Vs Bangladesh and Others
WP No. 1840 of 1999 (Unlawful Leasing of Nabaganga River)
A Rule Nisi was issued upon the Deputy Commissioner, Narail District for unlawfully leasing out part of the River Nabogonga having its flow through Rajpur to Jaipur Ghat. The rule came as a result of the Petition No. 1840 of 1999 filed by BELA and one member of the local fisherman community, alleged that such leasing violated the notification of the Ministry of Land dated 5 September ’95 prohibiting leasing of open fisheries for protecting the rights of the poor fishermen community and ensuring their livelihood. The rule required to show cause as to “why the leasing out of the part of the river Naboganga shall not be declared to have been made in defiance of legal and constitutional obligations and against public interest, is of no legal effect and without any lawful authority”.
The authority ultimately cancelled the lease.
19. Bangladesh Environment Lawyers Association (BELA) Vs Bangladesh and Others
WP No. 4098/1999 (Encroachment over Buriganga River)
A direction was issued upon the Secretaries, Ministry of Land, Home Affairs, Water Resources; Chairmen, Bangladesh Water Development Board and Bangladesh Inland Water Transport Authority and the Deputy Commissioners of Dhaka and Narayanganj requiring them to prepare and submit a report in the form of an action plan setting out a definite time frame and stating the measure to be undertaken for recovering the public property of the river Buriganga and evict the illegal encroachers as identified by a report of the Deputy Commission of Dhaka dated 5 February, 1998. The direction was issued by a division bench of the High Court following a Writ Petition No. 4098 of 1999 filed by BELA and required the report to be submitted within two months.
The Hon’ble Court also issued a Rule Nisi upon the above state parties also including the Secretary, Ministry of Environment to show cause as to why they should not be directed to perform their legal duties in taking immediate appropriate measures for removing the illegal encroachment over the river Buriganga and protecting its environment and restoring the same in a manner best suited in the interest of the public.
In the above Writ Petition the Honorable Court upon hearing the Petitioner was pleased to pass an Order on 18 January 2000 directing to take immediate appropriate measures for removing the illegal encroachment over the river Buriganga for recovering the public property and protecting its environment. After the said Order the Honorable Court issued directions on 23 April, 19 July and 20 August’ 2000 virtually extending time for compliance with the Order dated 18 January ‘2000. Despite such repeated Orders from the Honorable Court and service of the notices the Respondent failed to comply with the direction of Honorable Court. For the non compliance of the Court directions by the Respondents, BELA filed a Contempt Petition No. 33 arising out of Writ Petition No. 4098 of 1999 on 8th April, 2001.
With filing of subsequent applications, the matter is now pending for hearing.
20. Contempt Petition No. 33 of 2001
Arising out of Writ Petition No. 4098 of 1999
One contempt petition has been filed before the Hon'ble High Court Division to willful disregard to the order of the High Court Division relating to the Buriganga Encroachment in this petition the division bench calling upon the respondents contemnors to show cause as to why they should not be prosecuted for committing contempt of court in my some meeting the report in compliance to the order dated 18 January 2000, 23 April, 2000 and 19 July, 2000 passed in writ petition No. 4098 of 1999 and take appropriate action to punish the respondent contemnors according to law and / or such other or further order passed as to this Court may seem fit and proper.
The matter is pending for hearing.
21. Khushi Kabir Vs Bangladesh and Others
Writ Petition No. 3091 of 2000
A Division Bench of the High Court Division comprising Mr. Justice Mohammad Gholam Rabbani and Justice Begum Nazmun Ara Sultana has issued a Rule Nisi on 6 June, 2000 upon the Secretary and Assistant Secretary, Ministry of Fisheries and Livestock, Director General, Fisheries Directorate, District Commissioner, Khulna, District Fisheries Officer, Khulna to show cause as to why the impugned order for utilizing the land of Polder 22 for shrimp cultivation under Deluti Union, Paikgachha P.S. of Khulna district dated 9 May, 2000 shall not be declared to have been issued without lawful authority and have no effect as being ultra virus and in violation of the fundamental rights of the petitioner as guaranteed under articles 27, 31 and 42 of the Constitution. The Hon’ble Court also stayed the operational effect of the above-mentioned letter issued by the Respondent No. 2 and of any steps taken for shrimp cultivation pursuant to the impugned letter issued from the same Respondent.
The petitioners were aggrieved by the order issued by the Respondent No. 2 vide letter bearing No. Motsho-2 (Niti) 10/99/52 that purported to direct that Polder No. 22 under Deluti Union of Paikgacha Thana be earmarked for shrimp cultivation upon the application submitted by Advocate Sheikh Mohammad Nurul Hoq, MP.
The petition alleged that if the area under Polder 22 is allowed for shrimp cultivation that would create environmental problems.
22. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh and Others
Writ Petition No. 1691 of 2001 (PAP Case)
A division bench of the High Court comprising Mr. Justice Kazi AT Monwar uddin and Mr. Justice Mozammul Hossain has issued a Rule Nisi upon the Secretary, Ministry of Water Resources and Land; Chairman, BWDB; Director General, WARPO; Deputy Commissioner, Tangail and Executive Engineer, BWDB to show cause as to why they should not be directed to assess the compensation claims of the Project Affected People in compliance with the provisions and procedures of the Acquisition and Requisition of the Immovable Property Ordinance, 1982; section 28, 30 and 31 of The Embankment and Drainage Act, 1952 (East Bengal Act I of 1953); Article 11(1)(c) of Bangladesh Water and Power Development Boards Order, 1972 (President’s Order No. 59 of 1972) and the judicial pronouncement dated 28 August, 1997 passed in Writ Petition Nos. 988 and 1576 of 1994 by this Hon’ble Court.
This matter is pending for hearing.
23. Md. Shahjahan Mondol and others Vs Executive Engineer CPP Division Water Development Board Tangail and Others Civil Revision no. 2873 of 2001
A single bench presiding by Mr. Justice Md. Abdul Wahhab Miah the court issued rule calling upon their opposite parties to show cause as to why the order dated 25.2.2001 passed by the Sub-Ordinate Judge Arthorin Adalat Tangail in miscellaneous appeal no. 78 of 1999 setting aside the order maintaining a status que dated 4-11-99 passed by the Senior Assistant Judge, Tangail in Title Suit No. 113 of 1999 should not be set aside and or passed such other or further order or orders as to this court may seem fit and proper. Pending hearing of the rule Parties are directed to maintain status quo in respect of possession of the suit property.
The matter is now pending for hearing
24. Quazi Faruque, Secretary General CAB Vs Ministry of Shipping and Others
Writ Petition No.631of 2001
A division bench of the High Court Division of the Supreme Court of Bangladesh on 22 February, 2001, directed the responsible authorities to immediately ensure that all launches carrying passengers be equipped with adequate number of lifesaving buoy and other life saving apparatus before voyage as required by law and also to take all necessary measures to prevent overloading of extra passengers during the Eid-ul-Azha. The Court comprising Mr. Justice K M Hasan and Mr. Justice A F M Mesbah Uddin further directed the Secretaries, Ministries of Shipping and Home Affairs; BIWTA, BIWTC, Director General, Director (Port and Transportation) and the Chief Inspector of the Department of Shipping, and the Chairman, Launch Owners Association to arrange for wider dissemination of the provisions of the Inland Shipping Ordinance, 1976 relating passenger safety through public media and ensure display and dissemination of such legal provisions at the launches and launch terminal during the Eid-ul-Azha.
The directions of the Court came in a Writ Petition filed by Quazi Faruque, Secretary General of Consumers Association of Bangladesh (CAB) with legal assistance from Bangladesh Environmental Lawyers Association (BELA).
In view of the submission of the Petitioner to implement the recommendations of the Committees for ensuring safety for the launch passengers, the Court further issued a Rule Nisi upon the respondents to show cause within 4 weeks from the date of the Order as to why they shall not be directed to ensure compliance of law and orders relating navigational safety and also why they shall not be directed to take immediate step for the implementation of recommendations of the Committees.
The matter is now pending for hearing.
25. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh & Others (Writ Petition 3336 of 2002) (Filling up of Ashulia)
A Division Bench of the High Court comprising Mr. Justice S.A.N Mominur Rahman and Mr. Justice Arayesuddin has directed to immediately stop the unlawful earth filling of the Ashulia flood flow zone by Jamuna Builders Ltd. Following a writ petition filed by BELA, the Hon’ble High Court has given the direction on 13th of July, 2002.
In the petition filed by BELA relief was sought against 8 respondents including Secretaries, Ministry of Housing and Public Works, Ministry of Land, Ministry of Environment and Forest; Chairmen, RAJUK and BWDB; Director General, Department of Environment; Deputy Commissioner, Dhaka; and Managing Director of Jamuna Group Ltd.
The BELA petition alleged that the earth filling by the Jamuna Builders Ltd. and other developers in Ashulia flood flow zone for housing purposes has no approval from the RAJUK. The filling up of the flood flow zone and the branches of the Turag River flowing thereon was essentially changing the nature, character and utility of the natural water body. Such filling up was in gross violation of the Master Plan of the City prepared by RAJUK and also the 2000 Act that aims to protect the open spaces including the flood flow zones from being filled up. The 2000 Act strictly prohibits activities that would change the nature of the water bodies including flood flow zones without prior approval from the government.
The Master Plan prepared by RAJUK discourages all development in main flood flow areas to enable free flow of flood water. The only activities allowed therein under the Master Plan are agriculture, dry season recreation and ferry terminals. The violation of the Act of 2000 is punishable with imprisonment of 5 years and fine upto Taka 50 thousand.
In defiance of all these legal requirement, the Jamuna Builders Ltd. proposed to develop housing over an area of 2276.19 bigha encroaching upon 5000 acre flood flow zone and also the branches of Turag that the government, as claimed by BELA failed to prevent effectively.
Upon hearing the petition, the Hon’ble Court directed the respondents to show cause as to why the unlawful filling up of Ashulia flood flow zone and branches of the Turag River by the Jamuna Builders Ltd. should not be declared illegal under Act XXXVI of 2000, Town Improvement Act, 1953 and the Environment Conservation Act, 1995.
The Court has further directed to immediately stop all kinds of earth filling in the Ashulia flood flow zone. The matter is now pending for hearing
26. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh and Others
Writ Petition No. 4685 of 2002 (Protection of Fuldi River from Unlawful Leasing)
In ensuring sustainable management of public properties BELA has filed this Writ Petition before the Hon’ble High Court Division of the Supreme Court on 9March, 2002. A large portion of the river Fuldi of village Sonar Kandi under Gazaria police station of Munshigonj District was unlawfully leased for a period of 99 years. The villagers have been using the said river in their agricultural activities including irrigation and drainage. Peasants of nearby villages have been earning their livelihood by carrying out various income generating activities in and around the river that includes boat ferry service, traditional fishing, daily convenient usage, water transport and other usual utilisation like many other rivers of the country. The petitioners claim that the respondents have been acting collusively with mala fide abuse of power with intention to deprive the petitioners and the general public of the locality from their livelihood and environmental protection as the Scheduled Land forms part of natural water flow of the rive Fuldi.
The Court issued a Rule Nisi calling upon the Respondents to show cause as to why the impugned settlement of the disputed scheduled land being against public interest and violative of the petitioners fundamental rights guaranteed under Articles 27 and 31 of the Constitution should not be declared to have been done without lawful authority and is of no legal effect .The Court also stayed the operation of the impugned lease deeds for a period of 3 months from date. The rule was made returnable within 4 weeks from date.
The respondents were Secretary, Ministry of Land; Divisional Commissioner, Dhaka Division; Chairman, Bangladesh Water Development Board; Director General, Department of Environment; Deputy Commissioner, Munshigonj, Additional Deputy Commissioner (Revenue), Munshigonj; the Assistant Commissioner (Land), Munshigonj; Amina Khatun, Ameenuddin & Lal Banu.
The matter is now pending for hearing
27. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh and Others
Writ Petition No. 1430 of 2003 (Relocation of Tannery)
To relocate Tannery Units from Hazaribagh the High court has issued a Rule Nisi on 3 March , 2003.A division bench of the court comprising of Mr. justice M.A Aziz and Mr. Justice Nazrul Islam Chowdhury has called upon the seven government agencies and two tannery associations as respondents namely; the secretaries of the Ministries of Industries and Commerce, Environment and Forest, the Director General and the Director of DoE ,member of Planning Commission ,Chairmen of RAJUK ,BSCIC and Tanners Association and BFLLFEA .They were asked to show cause why they should not be directed to relocate within 18 months from date the tannery units from Hazaribagh area of the city to suitable location as contemplated in the Master Plan prepared under the Town improvement Act 1953 and ensure that adequate pollution fighting devices are developed in the new location /site as required under the Environment Conservation Act, 1995 and the Factories Act, 1965 and the rules made there under.
Pending hearing of the Rule, the respondents are also directed to apprise the Court regarding the process of relocation of Tannery Units and submit a report in this regard to the Court within 6 months from date. The rule is made returnable within 4 weeks.
The matter is now pending for hearing
28. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh and Others
Writ Petition No. 2911 of 2003 (Ship Breaking to be Regulated by Law)
Most recently BELA has also filed a petition on the 19th of April, 2003 before the Honb’le High Court division to check pollution of coastal / marine ecosystem caused by the disposal of hazardous ship wastes as taking place in the ship breaking operation in Sitakunda of Chittagong. Seeking relief against violation of legal provisions on environment and labour protection, the petition has been filed, amongst others, the Secretaries, Ministry of Shipping, Industries and Commerce, Labour and Employment, Environment and Forest. The Director General, Department of Environment, Fire Service and Civil Defence, Chief Inspector of Factories and Establishments, Department of Explosives, Collector of Customs, Chittagong, Mercantile Marine Department and the President of Bangladesh Ship Breakers Association are amongst the other respondents. According to the petitioners; the available records suggest that no ship-breaking agencies have environmental clearance despite the clear requirement to have such clearance as a hazardous industry/factory. Moreover, the persistent violation of labour related laws in the ship breaking agencies have resulted in few major explosions in the past three years.
Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice M. M. Ruhul Amin and Mr. Justice Mohammad Bazlur Rahman has issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure that ship breaking operation is undertaken only after obtaining certificate of environmental clearance as required under section 12 of the Environment Conservation Act, 1995 and on adopting detailed and appropriate safety and labour welfare measures as required under the Factories Act, 1965.
The Court has also asked the respondents to show cause as to why ship breaking shall not be undertaken only after obtaining gas free certificate from the custom Department to prevent dangerous explosion and protect the workers/labourers from the risk of death, grievous heart and injuries. In this regard the respondents would also show cause why import of ship for breaking purposes shall not be regulated in line with the requirements of the Basel Convention, 1989.
The Rule is made returnable within 4 weeks. The matter is now pending for hearing
29. Bangladesh Environmental Lawyers Association (BELA) Vs Bangladesh and Others
Writ Petition No. 3475 of 2003 (Protecting Park and Playground of Dhaka City)
A petition was moved on 11 May, 2003 before the High Court Division by Bangladesh Environmental Lawyers Association (BELA) seeking proper maintenance and protection of 10 playgrounds and 61 parks of the City.
This petition was filed against the Mayor, Dhaka City Corporation (DCC), Chief Engineer, Public Works Department (PWD) and Chairman, RAJUK the petitioner prayed for direction to (i) ensure proper maintenance and protection of open spaces of the City as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the Open Space Protection Act, 2000, (ii) complete the process of demarcation of all open spaces, (iii) develop, time bound plan for development and maintenance of the open spaces as required under the Town Improvement Act, 1953 and the Dhaka City Corporation Ordinance, 1983, and (iv) implement the said plan within such time as may be fixed by the Court.
Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice Md. Tafazzal Islam and Mr. Justice A. F. M. Abdur Rahman has issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure proper maintenance and protection of open spaces of the city as a Annexure- C and C-1 (10 playgrounds and 61 parks of the City) as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the Open Space Protection Act, 2000.and or pass such other or further order or orders as to this court seem fit and proper.
Pending hearing of the rule the Court also directed to (i) complete within six months from the date of the order the process of demarcation of all open spaces as of annexure C and C-1 protect these as envisaged under the open space protection Act-2000 (ii) develop a time bound plan for development and maintenance of the open spaces as required the Town Improvement Act 1953 and the Dhaka City Corporation Ordinance 1983 and (iii) implement the said plan within such time as may be fixed by this Court and the respondents Nos. 2 and 5 are also directed to submit periodic reports of compliance time bound directors of this court and or require any further person, body or authority to monitor such progress and report in a manner to be determined by this Court.
The Rule has been made returnable within 3 weeks from date. The matter is now pending for hearing
30. Fishery related Cases
As a partner of the Community based Fishery Management Programme (CBFM-phase II), BELA is assisting the other partner NGOs/department of fisheries/Local Management Committees of CBFM to defend cases to protect the rights of the beneficiary fishermen. Ten such cases are pending before the sub ordinate courts of Rangpur, Kishoregonj, B’Baria and Narail districts. The suits relate to leasing out of public fisheries to poor fishermen for conservation-oriented management (known as biological management) as opposed to revenue management in favour of individual lease-holder.
The suit numbers are:
a. Title Suit No. 24/2002
b. Appeal No. 30 of 1999 and Mis. case No. 19 of 2002
c. Complainant Register Case No. 02 of 2003
d. Title Appeal No. 142 of 2000
e. Title Suit No. 161 of 2002
f. Other Suit No. 22 of 2003
g. Others Suit No. 27 of 2003
h. Others Appeal No. 23 of 2002
i. Title Suit No. 84 of 2001
j. Title suit no. 66 of 2002.
In these cases BELA is representing the interest of the community in supporting the case of defendants who are partner NGOs of CBFM. Out of these cases, BELA has already won two while the rest are pending.
31. Bangladesh Environmental Lawyers Association (BELA) Vs Ministry of Land and Others
A petition (Writ Petition no. 4286 of 2003) was moved by BELA on 6 July, 2003 before the High Court Division seeking special protective measures to protect and conserve the 4916 hectors of Sonadia Island as an Ecologically Critical Area (ECA). The petition for the first time has relied on the principle of ‘polluters pay’.
The petition of BELA made the Secretaries, Ministry of Environment & Forest (MoEF) and Ministry of Land, the Chief Conservator of Forest, the Deputy Commissioner, Cox’s Bazar, the Divisional Forest Officer, Cox’s Bazar respondents.
The petition stated that the declaration of the total of 4916 hector of land of the Sonadia Island as ecologically critical area (ECA) establishes the facts that the mangrove forest of the said land area has special ecological significance in protecting and preserving the char land of Sonadia Island from erosion and also to save the people living nearby from being inundated and swept by the tidal bore during natural disaster. The declaration was withdrawn by the Ministry of Environment and Forest on the erroneous ground that the said forest was once declared reserve and hence following specific management guidelines as developed by the Department of Forest. BELA’s investigation revealed that the forest was never declared reserve and hence withdrawal of its status as ECA has virtually left it unprotected.
Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice ABM Khairul Haque and Mr. Justice Syed Shahidur Rahman issued a Rule Nisi calling upon the Respondents to show cause as to why they should not be directed to undertake special protective measures as required under Section 5 of the Environment Conservation Act, 1995 to protect and conserve the 4916 hectors of Sonadia Island as an Ecologically Critical Area as declared vide Gazette notification dated 19 April, 1999 under section 5 of the Environment Conservation Act, 1995. Further granting of lease of or otherwise tampering with the 4,916 hectors of the forest land of Sonadia Island has also been stayed by the Court.
The Respondents have been directed to undertake investigation to identify and measure the areas within the 4,916 hectors of the Sonadia Island where shrimp cultivation/clearing of forest is taking place or has taken place, list those who are involved in such cultivation/clearing and the enabling arrangements, assess in monetary terms the loss of forest resources for such individual shrimp cultivation/clearing of forest and submit a report on the same within two months before this Court.
The Rule has been made returnable within 4 weeks. The matter is now pending for hearing
CONCLUSIONS
Initially, 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 interpretations of the Constitution, including the development of PIL, became possible.
Apparently, the process of democratisation of the 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 the 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.
However, the courts had to be very cautious. When confronted with issues that were mainly political in nature, the judges carefully separated the legal and constitutional aspects from the political ones. In some cases, as a result, the petitioners were unsuccessful. But in cases with genuine social justice matters, the courts did not hesitate to pronounce in favour of the petitioner. This is why almost all the successful PIL cases involve matters relating to the poor and the disadvantaged.
In any case, PIL has not only been successfully introduced, it has been domesticated as well. The role of the Supreme Court in this regard is momentous. As a result of wise and judicious use of its constitutional powers, the status of the court is now firmly entrenched in the popular mind. At the same time, we now have a Bangladeshi brand of PIL that is in tune with our constitutional and legal culture. Therefore, PIL has surely come to stay. The way forward is not to deny, criticize or restrict PIL, but to widen its scope and to bring it even nearer to the 'people'.
Finally, it needs to be mentioned that PIL does not work in isolation. It is a part of the greater movement for legal aid or 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.
Future of PIL in Bangladesh, therefore, is very bright. But the most important element for the continued advancement of PIL is the very spirit of activism that introduced it in the first place. Continued success depends less on the cold calculations of law and more on the warm feelings of our hearts. Since PIL is an expression of social consciousness of the fortunate few, its progress is guaranteed to the extent we appreciate, acknowledge and remain conscious of our social responsibility.