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Article 199 (Locus Standi) And Public Interest Litigation
In today’s modernized world, where citizens already enjoy quite a few rights, there is a further increase in awareness among those citizens. The citizens, now in contemporary phase, are also well aware of their qualified rights. This awareness has increased public approach towards courts against the violation of their rights along with a significant increase in the public interest litigation. Public interest litigation involves the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan. This writing involves a discussion of the impact of Article 199 of the Constitution on public interest litigation.
Public interest litigation as defined by Black’s Law Dictionary is something in which the public or community at large has some pecuniary interest, or some interest by which their legal rights or liabilities are affected, while the jurisdiction of High Court in this regard is defined in Article 199 of the Constitution which provides that any aggrieved person left with no other remedy can file an application. There are stringent requirements imposed by Article 199 on this basis, such as the arguments of maintainability under the said article against locus standi and the requirement of being an aggrieved person to initiate public interest litigation.
This gives rise to a major question: what if the victim or community cannot approach the court due to any reasons whatsoever? This may include parties suppressed by wealthy parties or minorities or laborers in far off places who are not able to approach the court due to lack of resources. Does this really prohibit any activist, social action group or any person highlighting the same violation of rights of the aforementioned people who are unable to approach the court?
The controversy is still not clear as this development is very slow and overlapping within the provinces of Pakistan. In the case Balochistan Medical Association vs. Govt. of Balochistan, 2017 CLC 1195, it was held that a person cannot be said to be aggrieved under article 199 of the Constitution unless he or she has shown any direct or indirect injury to himself or herself, and substantial interest, with no other available remedy. This imposed an obligation that in public interest litigation article 199 could only be invoked by the injured party i.e. aggrieved person. This again gives rise to an important question on the regulation of fundamental rights by the superior courts. In this regard, a recent case at Lahore High Court, Mian Shabir Asmail vs. Chief Minister of Punjab, 2017 PLD Lahore 597, was heard by the honorable Chief Justice of Lahore High Court, who explained public interest litigation in detail. While commenting on the scope of public interest litigation, he said it was an effort to provide legal representation to groups that had been underrepresented or unrepresented in the legal process – not only the poor or the disadvantaged but ordinary citizens also. Moreover, in the same judgment, it was also deemed to be a powerful tool in the hands of public, spirited individuals and social action groups for combating exploitation and injustice. Does that mean that the requirements of Article 199 shall be given less weight when it comes to public interest litigation?
In another case 2015 SCMR 851, it has been held that public interest litigation is only for the welfare and interest of the public. Does this suggest that anyone can file a claim for the interest and welfare of the general public?
While addressing the above questions, I would like to quote a recent case 2016 SCMR 48, where public interest litigation was filed by a citizen and lawyer, regarding the government not abiding by international obligations. In this regard, the Supreme Court held that public interest litigation did not require the standing and requirement of being an aggrieved person.
Another major argument in the favor of public interest litigation comes from the case Imrana Tiwana vs. Province of Punjab, 2015 Lahore 522. Paragraph 22 of the judgment held that public interest litigation was an INQUISITORIAL PROCEEDING NOT ADVERSARIAL, meaning thereby that the courts should take part in the investigation of facts in the proceedings, and not merely rely on arguments and evidence submitted by counsel. This was also approved by the Supreme Court in Riaz-ul-Haq vs. Federation of Pakistan, 2013 PLD 501.
It is quite a convincing argument that the requirements of locus standi shall be given less weight in public interest litigation. This opinion may be inferred from the case Ardeshir Cowasjee & others vs. Karachi Building Control Authority, 1999 SCMR 2883, cited and referred in 2015 CLC 1978. The court held that ‘sufficient interest’ for public interest litigation meant any type of interest including civic, cultural or environmental, and in that regard gravity of the issue was to be taken into consideration – the more serious the issue at stake, the less significance attached to arguments based on applicants’ alleged lack of standing. This clearly suggests that the requirement of standing (locus standi) under Article 199 is to be given less weightage in public interest litigation.
In the case M. Qahir Shah vs. Federation of Pakistan – Ministry of Railways, 2014 YLR 2571, on the question of personal interest it was said that any citizen who brought forward a public matter disclosing the violation of Constitution or any legal provision, or the unreasonable behavior of a public functionary that was adverse to public interest, then that person may be characterized as an ‘aggrieved person’. Also, according to para 9 of the judgment in Iqbal Ahmad Dhudhi vs. Federation of Pakistan & others, 2014 CLC 1348 it was held that in order to provide remedy to the poor and weaker segments of the society, the principles of ‘locus standi’ and ‘aggrieved person’ had been liberally interpreted by courts, thereby providing the right to a person to maintain the petition in larger public interest (while having sufficient interest too, as explained above). No doubt, with new developments in public interest litigation, a person can invoke constitutional jurisdiction as pro bono publico – he or she only has to show that he or she is litigating in public interest and for public good and welfare (pro bono publico according to Black’s Law Dictionary means generally for public good and welfare).
Another convincing argument in favor of public interest litigation was in the case Benazir Bhutto vs. Federation of Pakistan, 1988 SC PLD 461, where it was held that in cases involving violation of fundamental rights of a class or group, the traditional rules of locus standi could be bypassed and the procedure available in public interest could be used if bona fide intention was shown. To further support this opinion, there is the case of Imran Khan vs. Election Commission of Pakistan, 2013 SC PLD 120, which held that the rules of locus standi were not applicable in cases involving questions of public importance with reference to the enforcement of fundamental rights in the domain of public interest, in order to ensure the protection of rule of law for all citizens.
Furthermore, in the case Muhammad Sher vs. Abdul Karim, 2006 PLD SC 271, it has been well settled that Article 199 puts an obligation on High Court to act in the aid of law to protect rights of citizens within the framework of the Constitution against infringement of the law and Constitution. Also, in a case cited as 2011 YLR 3087, a very strict interpretation of the term ‘aggrieved person’ is not appreciated in case of litigation that is pro bono publico. Any person interested in the performance of functions of concerned authorities in a lawful manner may move the court. Another case, Attaullah Khan Khatak vs. Federation of Government of Pakistan, 2010 PLD 605, held that by giving a liberal interpretation to ‘aggrieved person’ and ‘locus standi’, a person may be able to maintain a petition by only showing larger public interest as an aggrieved person. ‘Sufficient interest’ has been explained above.
In light of this jurisprudence, I conclude that the High Court being a superior court has an obligation towards the enforcement of fundamental rights of the general public. Moreover, the requirements under the Article 199 of the Constitution of the Pakistan should either be done away with or be given less weight while deciding on a petition’s maintainability requirement in public interest litigation. Any person bringing forward any serious matter by showing ‘sufficient interest’ and how and why the matter deals with the violation of rights, should therefore be able to maintain the petition.
Author: Talha Rehman
The writer is LLB (Hons.) (UK) at Pakistan Law College and is a former legal intern at Salahuddin, Saif & Aslam.
In today’s modernized world, where citizens already enjoy quite a few rights, there is a further increase in awareness among those citizens. The citizens, now in contemporary phase, are also well aware of their qualified rights. This awareness has increased public approach towards courts against the violation of their rights along with a significant increase in the public interest litigation. Public interest litigation involves the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan. This writing involves a discussion of the impact of Article 199 of the Constitution on public interest litigation.
Public interest litigation as defined by Black’s Law Dictionary is something in which the public or community at large has some pecuniary interest, or some interest by which their legal rights or liabilities are affected, while the jurisdiction of High Court in this regard is defined in Article 199 of the Constitution which provides that any aggrieved person left with no other remedy can file an application. There are stringent requirements imposed by Article 199 on this basis, such as the arguments of maintainability under the said article against locus standi and the requirement of being an aggrieved person to initiate public interest litigation.
This gives rise to a major question: what if the victim or community cannot approach the court due to any reasons whatsoever? This may include parties suppressed by wealthy parties or minorities or laborers in far off places who are not able to approach the court due to lack of resources. Does this really prohibit any activist, social action group or any person highlighting the same violation of rights of the aforementioned people who are unable to approach the court?
The controversy is still not clear as this development is very slow and overlapping within the provinces of Pakistan. In the case Balochistan Medical Association vs. Govt. of Balochistan, 2017 CLC 1195, it was held that a person cannot be said to be aggrieved under article 199 of the Constitution unless he or she has shown any direct or indirect injury to himself or herself, and substantial interest, with no other available remedy. This imposed an obligation that in public interest litigation article 199 could only be invoked by the injured party i.e. aggrieved person. This again gives rise to an important question on the regulation of fundamental rights by the superior courts. In this regard, a recent case at Lahore High Court, Mian Shabir Asmail vs. Chief Minister of Punjab, 2017 PLD Lahore 597, was heard by the honorable Chief Justice of Lahore High Court, who explained public interest litigation in detail. While commenting on the scope of public interest litigation, he said it was an effort to provide legal representation to groups that had been underrepresented or unrepresented in the legal process – not only the poor or the disadvantaged but ordinary citizens also. Moreover, in the same judgment, it was also deemed to be a powerful tool in the hands of public, spirited individuals and social action groups for combating exploitation and injustice. Does that mean that the requirements of Article 199 shall be given less weight when it comes to public interest litigation?
In another case 2015 SCMR 851, it has been held that public interest litigation is only for the welfare and interest of the public. Does this suggest that anyone can file a claim for the interest and welfare of the general public?
While addressing the above questions, I would like to quote a recent case 2016 SCMR 48, where public interest litigation was filed by a citizen and lawyer, regarding the government not abiding by international obligations. In this regard, the Supreme Court held that public interest litigation did not require the standing and requirement of being an aggrieved person.
Another major argument in the favor of public interest litigation comes from the case Imrana Tiwana vs. Province of Punjab, 2015 Lahore 522. Paragraph 22 of the judgment held that public interest litigation was an INQUISITORIAL PROCEEDING NOT ADVERSARIAL, meaning thereby that the courts should take part in the investigation of facts in the proceedings, and not merely rely on arguments and evidence submitted by counsel. This was also approved by the Supreme Court in Riaz-ul-Haq vs. Federation of Pakistan, 2013 PLD 501.
It is quite a convincing argument that the requirements of locus standi shall be given less weight in public interest litigation. This opinion may be inferred from the case Ardeshir Cowasjee & others vs. Karachi Building Control Authority, 1999 SCMR 2883, cited and referred in 2015 CLC 1978. The court held that ‘sufficient interest’ for public interest litigation meant any type of interest including civic, cultural or environmental, and in that regard gravity of the issue was to be taken into consideration – the more serious the issue at stake, the less significance attached to arguments based on applicants’ alleged lack of standing. This clearly suggests that the requirement of standing (locus standi) under Article 199 is to be given less weightage in public interest litigation.
In the case M. Qahir Shah vs. Federation of Pakistan – Ministry of Railways, 2014 YLR 2571, on the question of personal interest it was said that any citizen who brought forward a public matter disclosing the violation of Constitution or any legal provision, or the unreasonable behavior of a public functionary that was adverse to public interest, then that person may be characterized as an ‘aggrieved person’. Also, according to para 9 of the judgment in Iqbal Ahmad Dhudhi vs. Federation of Pakistan & others, 2014 CLC 1348 it was held that in order to provide remedy to the poor and weaker segments of the society, the principles of ‘locus standi’ and ‘aggrieved person’ had been liberally interpreted by courts, thereby providing the right to a person to maintain the petition in larger public interest (while having sufficient interest too, as explained above). No doubt, with new developments in public interest litigation, a person can invoke constitutional jurisdiction as pro bono publico – he or she only has to show that he or she is litigating in public interest and for public good and welfare (pro bono publico according to Black’s Law Dictionary means generally for public good and welfare).
Another convincing argument in favor of public interest litigation was in the case Benazir Bhutto vs. Federation of Pakistan, 1988 SC PLD 461, where it was held that in cases involving violation of fundamental rights of a class or group, the traditional rules of locus standi could be bypassed and the procedure available in public interest could be used if bona fide intention was shown. To further support this opinion, there is the case of Imran Khan vs. Election Commission of Pakistan, 2013 SC PLD 120, which held that the rules of locus standi were not applicable in cases involving questions of public importance with reference to the enforcement of fundamental rights in the domain of public interest, in order to ensure the protection of rule of law for all citizens.
Furthermore, in the case Muhammad Sher vs. Abdul Karim, 2006 PLD SC 271, it has been well settled that Article 199 puts an obligation on High Court to act in the aid of law to protect rights of citizens within the framework of the Constitution against infringement of the law and Constitution. Also, in a case cited as 2011 YLR 3087, a very strict interpretation of the term ‘aggrieved person’ is not appreciated in case of litigation that is pro bono publico. Any person interested in the performance of functions of concerned authorities in a lawful manner may move the court. Another case, Attaullah Khan Khatak vs. Federation of Government of Pakistan, 2010 PLD 605, held that by giving a liberal interpretation to ‘aggrieved person’ and ‘locus standi’, a person may be able to maintain a petition by only showing larger public interest as an aggrieved person. ‘Sufficient interest’ has been explained above.
In light of this jurisprudence, I conclude that the High Court being a superior court has an obligation towards the enforcement of fundamental rights of the general public. Moreover, the requirements under the Article 199 of the Constitution of the Pakistan should either be done away with or be given less weight while deciding on a petition’s maintainability requirement in public interest litigation. Any person bringing forward any serious matter by showing ‘sufficient interest’ and how and why the matter deals with the violation of rights, should therefore be able to maintain the petition.
Author: Talha Rehman
The writer is LLB (Hons.) (UK) at Pakistan Law College and is a former legal intern at Salahuddin, Saif & Aslam.
