A long way that PIL has to go

by Tasmiah Nuhiya Ahmed | Published: 00:05, Apr 19,2018 | Updated: 23:15, Apr 18,2018

 
 

THE concept of public interest litigation, as has emerged into the judicial administration of Bangladesh, is yet to mature with the concept of justice as guaranteed by the constitution. This is a critical concept in a country like ours where a large share of the total population has no or less access to the judiciary although the constitution provides for equality before law, justice, right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-economic constraints and a long history of feudal past, the realisation of legally recognised rights is at its nascent stage. The concept of public interest litigation has developed in Bangladesh as a performance of public duty by civil society groups advocating in support of progressive ideologies.
Public interest litigation is the power given to the public by courts through judicial activism. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognisance of the matter and proceed suo motu or cases can commence on the petition of any public and spirited individual.
The development of public interest litigation in Bangladesh began its journey in the 1990s. Initially, it was difficult to overcome threshold procedural problems such a rule of standing. However, relentless efforts by social and legal activists and also civil society members enabled progressively-minded judges to interpret the constitutional provisions liberally through a number of cases. The constitution of Bangladesh provides that every person is entitled to equal protection of law under Article 27. Article 31 ensures that everyone is to be treated only in accordance with law and also that no action detrimental to the life, liberty, body, reputation or property of any citizen shall be taken except in accordance with the laws of Bangladesh.
The citizens of Bangladesh who have been aggrieved because of the breach of their fundamental rights which include the rights provided under these two articles — Article 27 and Article 31 — can apply before the High Court Division of the Supreme Court under Article 102 of the constitution. Article 44(1) of the constitution, which itself is a fundamental right of a citizen, provides the right to a citizen to move the High Court Division in accordance with Article 102(1), for the enforcement of the rights conferred by Part III of the constitution. Therefore, if the fundamental rights of a citizen guaranteed under Articles 27 and 31 of the constitution are breached, a citizen has the right to go to the High Court Division for enforcing these fundamental rights. In 1996, in the case, namely Dr Mohiuddin Farooque v Bangladesh, the Supreme Court declared public interest litigation as a valid litigation under the constitution of Bangladesh.
In Bangladesh, a few other examples of public interest litigation may be that the citizens and organizations concerned have challenged the illegal detention of an innocent person for 12 years without trial, appointment of the chief metropolitan magistrate without prior consultation with the Supreme Court and so on.
Public interest litigation is not defined in any statute or act. It has been interpreted by judges to consider the intent of public at large. Although the main and only focus of such litigation is only ‘public interest’, there are various areas where a public interest litigation can be filed.
The broader objectives of public interest litigation are to ensure the constitutional and legal rights of the poor and excluded groups, to enhance social and collective justice, to ensure the accountability of concerned government and public authorities towards the issues of public importance.
Any public spirited person can file a public interest litigation on behalf of a group of persons whose rights are affected. Hence, it is not necessary that the person filing a case should have a direct interest in that public interest litigation. If the petitioner has the legal capacity to invoke the jurisdiction of the court with regards to public interest litigation should be determined as per the liberalised rules of local standi developed through case laws.
Initially the rule was that if a person has suffered a legal injury by reason of violation of his legal right or legally protected interest or is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest, that person could file a public interest litigation. However, for now, any member of the public, acting bona fide and having sufficient interest can maintain action for redressal of public wrong or public injury. Such actions may be brought by individuals, groups, voluntary agencies, etc. However, the member of the public should not be a mere busybody or meddlesome interloper but one who has sufficient interest on the proceeding.
A writ petition filed by the aggrieved person, whether on behalf of group or together with group can be treated as a public interest litigation. However, the writ petition should involve a question, which affects public at large or group of people, and not a single individual. And there should be a specific prayer, asking the court to direct the state authorities to take note of the complaint allegation. Also, according to some lawyers, the representative suit instituted under the Code of Civil Procedure can also be treated as public interest litigation when it represents the interest of a large faction of people.
A public interest litigation may be filed only against the state/central government and municipal authorities. However, private party can be included in public interest litigation as respondent, after making party the state authority concerned.
Judicial public interest and constitutional activism in Bangladesh have made notable progress and reached achievements. However, it seems that much of the future of this public interest litigation-based judicial activism depends on an ongoing fine-tuning process of the public interest litigation movement in Bangladesh, which has still a long way to go towards realising constitutionally promised social and political justice. The underperformance of Bangladeshi public interest litigation has been attributed to its elitist use. While this accusation is largely well founded, a purely social and rights-based functional definition of public interest litigation lurked behind this. In the Bangladeshi judicial system, this is a more challenging and daunting task than merely passing good orders. The courts in Bangladesh are expected to do justice by promoting good faith and prevent law from crafty invasions. Courts are also duty-bound to maintain a social balance through establishing equity and justice.

Tasmiah Nuhiya Ahmed is a research assistant (law) at the Bangladesh Institute of Law and International Affairs. 

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