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.
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 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 is 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’, ‘public1 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 PH. 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 PEL 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.
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. 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.
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 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 litigation1. 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. 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 inBangladesh 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.However, the present book
WHAT IS ‘PUBLIC INTEREST’
The terms ‘public1 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”. 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.
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
Generally, public interest means a commonality of interest, a single interest that a certain group of people or citizens are presumed to share. 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. 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. practical purposes, however, the courts have attempted to describe ‘public interest1 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. 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, Anwamlj 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 English 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. Public 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”
THE CONCEPT OF PIL: THEORETICAL APPROACHES
‘Whether PIL is essentially a revolution or a reformation depends on the perspective of the observer rather than on any theoretical paradigm. Yet, being radical development, PIL requires to be justified by its proponents, explained by the activists and understood by the lawyers. As a result, various attempts have been made to theories the concept of PIL.
However, it must be stressed that a single precise ‘theory’ of PIL, accepted by everyone, is neither available nor possible. Instead of a ‘theory of PEL’, the following discussion attempts to follow the patterns of some of the theoretical approaches taken by the proponents of PEL. It needs to be mentioned that our discussion is in no way exhaustive.
CAPPELLETITS ANALYSIS: MASSIFICATION THEORY
PEL has been explained as a consequence of the ‘basification phenomena’ of modern societies. In other words, due to the ever-increasing size, concerns and complexity of modern societies, certain rights can not be attained through traditional means. PIL is one attempt to solve this problem. Thus PIL is considered as a reflection, in the field of law, of the emerging, growing and lasting need of modern societies.
In 1978, Appellate advanced the so-called ‘basification theory’ He used comparative analysis and assumed that some basic socio-economic and political needs are shared by all advanced societies and on this premise he examined the legal answers given to those common needs.
According to Cappelletti, our contemporary society or more ambitiously, our civilisation, may be characterised as a mass-production mass-consumption civilisation. But this massification extends far beyond the economic sector and embraces all spheres of our lives, including the field of law. Cappelletti says:
More and more frequently, because of the “massification” phenomena,! human actions and relationships assume a collective, rather than a merely individual character; they refer to groups, categories and classes of people, rather than to one or a few individuals alone. Even basic rights and duties are no longer exclusively the individual rights and duties of the 18th or 19th century declarations of human rights inspired by natural law concepts, but rather meta-individual, collective, “social” rights and duties of associations, communities and classes. This is not to say that individual rights no longer] have a vital place in our societies; rather, it is to suggest that these rights are practically meaningless in today’s setting unless accompanied by the social rights necessary to make them effective and really accessible to all.
Cappelletti says that the complexity of modern societies generates! situations in which a single action can be beneficial or prejudicial to a large number of people. This makes the traditional scheme of litigation as a two party affair quite inadequate because an individual alone is unable to protect himself efficiently in these cases. His interest is either too small, so that a I legal action would not pay, or too diffuse, so that his rights are denied by the court or he may even be unaware of his rights. To protect his new social, collective and diffuse rights, therefore, it is necessary to abandon the individualistic traditional approach. New social, collective, diffuse remedies and procedures are required. The quest for these new remedies and procedures is responsible, among other things, for the development of1 public interest law and PIL.
SOCIAL ACTIVISM FOR SOCIAL JUSTICE
Of all the perspectives from which PIL has been examined, the social justice preach, accompanied with social activism, is perhaps the most significant me for the sub-continental proponents of PIL. The social responsibility of the citizens, including the legal professionals, which stems out of their social consciousness, is considered to be responsible for the development and success of PIL.
Although the promoters of PIL in Pakistan shared the notion of social consciousness with their Indian counterparts, one distinguishing element was apparent from the very beginning – the emphasis on Islam. In Pakistan, Mamisation has its roots in the very creation of the State. However, effective Islamisation of the laws of Pakistan started in the late 1970s. Social justice, as promoted by the Pakistani judges, is Islamic social justice. While introducing PIL, as they were under the Islamisation process, a most important issue for the pioneering judges was whether PIL conforms with Islamic principles. They established this conformity and proceeded further by showing that the inspiration and rationale of PIL can be drawn from Islam itself.
The social activism advocated by the sub-continental activists proceeded with the assumption that judges are law makers, insisting that traditional view that they merely interpret the law is fundamentally wrong. Baxi observed that while the elaboration of certain values in the Constitution assists the process of legitimisation of the ruling elite, at the same time, it tends to expose them to new demands and fresh challenges to their legitimacy. The scope for judicial law-making widens when the legislature and the executive fail to perform their socio-economic functions. He further said:
In other words, an activist judge will consider herself perfectly justified in resorting to lawmaking power when the legislature just doesn’t bother to legislate. … in almost all countries of theThird World such judicial initiatives are both necessary and desirable.
For a detailed analysis see mansoor Hassan Khan (1993) public imerest litigation growth of the concept and its meaning in Pakistan Karachi Pakistan law House at 48-53.
Upendra Baxi (1987) “On the shame of not being an activist” in Neelan Tiruchelvam andRadhika Coomaraswamy (eds.) The Role of the Judiciary in Plural Societies, London, Frances Pinter, pp. 168-178 at 168 claims that one does not attain jurisprudencial adulthood unless one accepts that judges are law makers. For details of Bhagwati’s argument on this point, see Bhagwati, as above note 13 at 562-563. Prasad shows that even in the pre-PIL period, the Indian Supreme Court has created not only ordinary law but also constitutional law in the course of the exercise of its interpretative powers; see Anirudh Prasad (1980) “Imprints of Marshallian judicial statesmanship on Indian judiciary” in Vol. 22JILJ,pp 240-258.
BACKGROUND AND DEVELOPMENT OF PEL
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 law1, 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 specialized lawyers and organizations. PIL, litigation in the interest of the public, is thus only one of the various methods of the greater movement of public interest law.
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’
The first major root of public interest law may be traced to the legal aid movement that started during the 1870s. 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.
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.
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.
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.
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;11
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.
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. 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 crucial concept in a country like ours where 65% of the total populace have no or less access to judiciary although the constitution commits 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 realization of legally recognized rights is at its nascent stage.
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 GovernmentMedicalHospitals, 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 DhakaCity 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 (WPNo.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 UttaraLake 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.
Over the years, Public Interest Litigation (PIL) has emerged as an effective tool for seeking judicial responses and subsequent government actions to the socio-economic challenges of the unorganised, powerless and those segments of the society who are precluded from resorting to legal redress owing to resource or knowledge constraints. PIL has enabled public-spirited individuals, groups and conscious citizens to litigate in the interest of the poor and disadvantaged; and widened the scope for NGOs and civil society to participate in formulation of pro-people policies and laws.
A PIL (a petition brought before the High Court Division of the Supreme Court of Bangladesh in the nature of writ under Article 102 of the Constitution) is generally instituted for the enforcement of the constitutional and legal rights of the poor and excluded groups as well as ensuring accountability of concerned government and public authorities towards issues of public importance. Persistent efforts by NGOs and social action groups through PIL has, in many occasions, prompted the High Court Division to issue directives and orders that in turn addressed the socio-economic concerns of the poor and the marginalized groups.
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