12 Public Interest Litigation under Article 184 of the Constitution

The International Commission of Jurists (ICJ) has been examining and has noticed the following shortcomings in the handling of cases of public interest litigation under Article 184 (popularly known as ‘suo moto’ action) of the constitution. As published in Dawn newspaper Karachi dated September 16th, 2011 with a follow-up story published on September 7, 2018.

1. “It appeared that Supreme Court was exceeding the limits of reasonable use of suo motu procedure. Such overuse is likely to endanger rule of law”
2. “ This leads to corrosion of Rule of Law and a blurring of the constitutional separation of powers “
3. The apex court to adopt rules setting out the criteria for the use of suo motu procedures and the allocation of cases to benches.
4. “When the apex court took up the cases itself the parties might be deprived of their right to appeal.
5. “ Concern has also been raised with regard to the allocation of cases to different benches of the Supreme Court. It appears there may be a need for greater transparency in this respect.”
6. “The problem of corruption in lower levels of the judiciary is particularly acute and widespread. It affected the functioning of the judiciary and undermined the public confidence in the institution.”

Objection 1: Overuse of the Provision

A look at the long list of cases being handled by the highest court of the country under this jurisdiction shows that every aspect of public administration, less of judiciary, more of executive and private institutions of governance, are being scrutinized, physically by local visits, by oral questioning of the public functionaries in court, and by calling for returns and reports at short notice, and trying to ensure immediate obedience of its commands. One immediate visible result of all this is that crowd of people, whatever the nature of their grievance, knock at the door of the courts early in the morning and that provides an unbecoming solace that the Courts alone are the provider of relief and redress. Such intrusion into the jurisdiction of others without identifying the fundamental right under threat and the nature and extent of public interest involved becomes a directionless effort, a roaming enquiring, at times paralyzing the very functioning of such institutions.

What is more, in the name of doing complete justice, derogatory words are used, embellished judgments are written, and public functionaries are called in court and given a dressing down. The words and the scenes are repeatedly shown in the media, to the enjoyment of most, to the agony of some, to the distress of those who have concerns about the even-handed justice in the highest court of the country.

Example 1

Dr. Parvez Hassan, a senior advocate speaks (‘Right to fair trial‘ in Dawn newspaper of Karachi dated July 6th, 2017.

“Judicial decorum enhances the Majesty of the law but when indecorous remarks as “Mafia”, “throw them out of the window”, “trash them in the dustbin”, “Chacha mamas,” “Paper good only for selling Pakoras” are made, it lowers the pedestal of justice and undermines the basic requirements of a fair trial.”

Tom Tyler on Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform (page 891)

Studies suggest that being treated politely, with dignity and respect and having respect shown for one’s right and status within Society, all enhance feelings of fairness”

US Senator from Massachusetts Daniel Webster said in 1831:

There is no happiness, there is no liberty, there is no enjoyment of life, unless a man can say, when he rises in the morning, I shall be subject to the decision of no unwise judge today.

Example 2

At the very start of the hearing of a contentious case, the senior judge utters in clear and loud voice, heard globally on media that he is going to deliver a judgment which will be remembered for twenty years. When the judgment comes it is in the most embellished language to the great admiration of people fond of ornate language. It is so worded that both parties thought that they had won. What a celebration followed on the roads. Well-attired ladies showing signs of V (victory) by fingers jumping on the road, youngsters dancing bhangra, a few others violating the law by firing in the air. A week after, when the judgment was cleared of its embellishments, of similes and hyperboles etc. the correct winner surfaced. The Supreme Court from that day became an arena of exchange of unending contemptuous utterings.

Objection 2: Blurring of the constitutional Separation of powers

Syed Shahid Hussain Khan CSP has in a book written by him (“What was once East Pakistan” page xiv)  mentioned that National Defense College of Pakistan was raised to the status of a university. There was no copy of the Constitution to be found in it, only a commentary. Not surprising that Gen Musharraf found no solution to his ambitions but he did find it only in a letter written by President Lincoln of USA. (See Musharraf’s book “In the line of fire” page 152). The key part of that letter and its follow up is described as follows.

I felt that matter otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the constitution through the preservation of the nation. I assumed this part and now avow it. 

“I have always agreed with these views of Abraham Lincoln. In fact, I found this passage so inspirational and so beautifully worded that I have kept it in my briefcase ever since I read it in 1990”

This theory of serving the nation avoiding all the requirements of constitution, religion, and morality has become the order of the day at the hands of everyone in the country. The judiciary found an equally misconceived plank of duty to “do complete justice” for overblowing itself and landing in the arena of politics and self-projection, bringing itself in the limelight as a savior of the country and of its downtrodden people.

Objection 3: Rules, Criteria, Benches:

Article 191 of the Constitution provides

Subject to the Constitution and the law, The Supreme Court may make rules regulating the practice and procedure of the Court

In order to avoid personal projection of the judges, to identify the fundamental rights and the nature and extent of the public interest involved in each case a rule be framed that:

1. A case under Article 184 of the constitution shall be taken up for further hearing only on the unanimous recorded opinion of at least two judges of the court, identifying in very precise and objective words the fundamental rights to be examined and the nature and extent of public interest involved.
2. The hearing of the case shall be done by three senior most judges available, other than the judges admitting the case.
3. No appeal or other proceedings shall lie against orders passed in such cases.
4. As required by Article 187(3), any order requiring implementation shall be forthwith transmitted to the High Court for its implementation as its own order without any control or oversight of the Supreme Court over it.
5. Orders passed by the High Court shall, in accordance with the existing rules, be taken up by the Supreme Court by leave of the Court and further proceedings may thereafter take place accordingly

Objection 4 & 5:

Taken care of by rules as suggested for Objection 3

Objection 6: Corruption in lower levels of Judiciary

Corruption and Judiciary (page 374 Note 62) “Beyond Common Knowledge: Empirical Approaches to the Rule of Law” edited by Eric G Jensen and Thomas Keller. The role of the judiciary viz-a-viz corruption has two primary dimensions: one is corruption within the judiciary; the other is judiciary’s ability to address corruption in other branches of political administration.

Robert Klitgaard developed a formula to show the impact of institutional characteristics that encourage corruption:

M (Monopoly) + D (Discretion) T (transparency) = C ( Corruption).

Based on these criteria judiciaries are well suited to corruption. For the most part, they are monopolies; they have a large amount of discretion in their decision making authority, and they have low levels of transparency. Perforce if judiciaries are corrupt or corruptible, they are not suited to the task of rooting out corruption in other government institutions.

More important is what late Justice Javed Iqbal has written in his memoirs (“Apna Gariban Chaak” published in December 2002,  pages 180 and 181), translated:

I tried to end the practice of admitting judicial officers on the recommendation of the Government or the executive. Often it happened that the Chief Justice admitted judicial officers in the lower judiciary on the recommendation of Prime Minister, Chief Minister, Governor or an Army President, so the meritorious were kept away—-After I left High Court the same old practice was restored recruitment by examination was abandoned and the old recommendatory method was adopted. Further, at that time the Advocate General Punjab gave arguments in the Supreme Court in favor of it.”

Here I want to describe a personal experience. In 1953, just note that year, when I got a somewhat independent charge of Rajanpur as Assistant Commissioner a senior magistrate advised me how to report the loss of any valuable document so as to avoid complete personal responsibility for it. I noted but was not impressed. In 1975, over 20 years later, he called at my residence in GOR-1 Lahore and informed me that his son was appearing in Provincial Judicial Service and was to appear before the Public Service Commission. I, as a High Court judge, was to act as a co-opted member. I just heard him, nothing more. Next morning when his son appeared before the commission, as usual, the permanent members started questioning him. Towards the end, one member asked him “What is your hobby?”. He answered painting. Next question “Which Pakistani painter has impressed you most”. No reply. “Name any painter of the world who impressed you”. No reply. I did not ask any question. Can the best-written paper ever disclose the basic qualities of honesty, integrity, fairness, patience, and politeness so very necessary in all services but much more in the lower judiciary?

If anyone wants to satisfy himself more he should read Mussarat  Hussain Zuberi grueling ordeal before the Public Service Commission while appearing for Indian Civil Service Examination in 1936. His memoirs are “Voyage through History”.

There are the following three very strong reasons why judiciary, or even the executive, should not take up the duties of making ad hoc appointments.

1. Public Administration is divided into two broad and distinct categories, those doing more of scholarly work, and what has come to be known as ‘legwork’. The Society tries to confer the highest honor, privilege, and protection to those doing scholarly work.  They are supposed to lay down the principles and guidelines for the advancement of the country and the Society without providing shock and upheavals to individuals, families, and society. I did not find any substitute ad hoc appointing authority looking for these qualities. They look to merit in their written answers. Albert Einstein said, “we want men of values not men of merit.”  I have described elsewhere how a  judicial officer asked the Session judge Abbottabad to arrange for him and his family a car to roam about, how a Senior civil judge asked me in the same position to get the cases registered by the police against him cancelled. How could a trial judge in a sensitive case pending for four years write the following order continuously for months “Parties are present their counsel are not ready to argue the case. Adjourned” ?
2. Late Justice Javed Iqbal has in his memoirs written (reproduced above) what sort of nepotism took place in making the ad hoc appointments. That is more than a sufficient reason for keeping judiciary away from it.
3. How can judiciary create and sustain such a clear division in the lower judiciary- elite group appointees of Public Service Commission with set rules , prospects, and security of tenure, the other group of appointees by the judiciary from the residual bulk without set rules, without security of service, to await for long uncertain period for absorption in the regular service. The agony of the individual judge and his family can be visualized only by one who has served in such a position.

Present State of Bureaucracy

The bureaucracy of all types in the country has now become the hardest nut to crack. The cause of it is the vicious treatment that it has been receiving from every quarter over a long period. Now it can take on every system, not systematically, not collectively, but individually with the rudderless media and disparate religious groups available to come to its rescue for their own strength and survival.

Restore Bureaucracy

The remedy now is to turn the table on the entire bureaucracy itself by insisting on

1.  timely collection and publication of complete and correct data, making material omission  a major departmental delinquency
2.  by insisting on everyone to remain and think within the jurisdiction
3. by handing over to everyone  his duty list, his responsibility list, demanding periodically from everyone his written record of self-accountability to  be shared by others in the department
4. everyone to act as the whistle blower so far as the statuary duties of the department are concerned
5. to progressively substitute all oral reporting, briefings, submissions, expression of opinion to written record
6. all officers in grade 16 and above to read at least one professional book of their choice every month, to write an evaluation report of it not exceeding six hundred words by the 15th of the next month and share it with two other officers of higher or equivalent grade. No exception to be allowed to anyone
7. each department to prepare a list of experts engaged during the last ten years, recommendations made by them and what action was taken. This report to be circulated to all grade 19 officers and above under their signature.

Government Support

I cannot give all the details of the case, just the outline. A head of the state not properly guided can cause  havoc even with a copy of the written constitution in his hand. A judge of the Lahore High Court recorded wildest obiter dicta in Nizamdin case that if the Constitution and the laws of Pakistan do not provide an answer to a question then instead of going to Anglo Saxon Common law refer to Shariat law, which Shariat law he did not mention. The confidence between the President and the executive Government somewhat diminished at one stage. The President was ill-advised not to return any file  of the executive if he did not agree with it. He followed it till the end. The judge who had recorded the obiter had become Chief Justice of Pakistan. The executive Govt passed its time partially paralyzed. With Eighteenth amendment a limit of 15 days and ten days was allowed to the President to decide.

In all sphere of human activity, particularly the media and Politics, a culture should progressively be developed to look for the law when faced with a problem, follow the law or get it changed if defective. Where no law available follow what God has ordained maintain balance with justice and fairness:

For guidelines look to the American concern for protecting and encouraging the awareness of the Constitution. September 17, 1787 signing of the Constitution of the United States, Congress has designated September 17th of each year as Constitution Day and September 17- 23 of each year as ‘Constitution Week’.

In 2004 Public Law 108-447 Section 111 was passed requiring the following:

Each educational institution that receives Federal Funds for a fiscal year shall hold an educational programme on the United States Constitution on September 17 of such year for the students served by the educational institution.

Each Federal agency or department shall provide educational and training materials concerning the United States Constitution to each employee on September 17 of each year.

Conclusion

Having served in the executive and judiciary, lowest tier as well as higher, I have come to the firm conclusion that facts if correct and full, prove, opinion without such facts confuses, and lack legitimacy (usurpation of jurisdiction ) destroys.