Public Interest Litigation
Public Interest Litigation Under the common law adversarial system of the administration of justice judges are looked upon as neutral arbiters or umpires and not as activists. They are not expected to initiate and decide a case unless that is brought before them by a person who has suffered some wrong or whose rights are threatened. In other words, under the anglo-saxon jurisprudence a person having locus standi to file a suit or an action can seek remedy from the court of law, and unless he is affected by any wrong done to him or his legal right is threatened by another person he cannot seek relief or remedy from the court. This strict rule of standing is founded on the laissez faire theory of the state where the main function of the state is to maintain internal law and order and to defend the country from external aggression and having little or no concern for the welfare of the citizens of the state. In the welfare economy adopted in the United Kingdom governmental functions, increased manifold with corresponding increase in the instances of abuse of power by the government functionaries, at times affecting many people. So the English courts felt it necessary in the changed circumstances to liberalise the rule of standing to facilitate challenge of illegalities committed by public functionaries.
Long before this wave of liberalization of the rule of locus standi to enable public interest litigations reached Bangladesh in the case of Kazi Moklesur Rahman v. Bangladesh [26DLR(AD)44] known as Beru Bari case petitioner, an advocate, who challenged the legality of the Delhi Treaty of 1974 entered into between India and Bangladesh for demarcation of land boundary between the two countries. In that case question of locus standi of the petitioner was raised. Court held:
“It appears to us that the question of locus standi does not involve the court's jurisdiction to hear a person but of the competency of the person to claim a hearing, so the question is one of discretion which the court exercises upon due consideration of the facts and circumstances of each case.”
But subsequent thereto in several other cases court struck to the old view on the question of locus standi.
Question of locus standi has finally been settled by the Appellate Division in the Flood Action Plan case brought by Dr Mohiuddin Faruk, founder secretary of BELA in 1996 holding that any member of the public suffering a common wrong, common injury or common invasion of fundamental rights of an indeterminate number of people or any citizen or an indigenous association espousing such cause has locus standi. Before and after that decision BELA, Ain O Shalish Kendra, Bangladesh Legal Aid Services Trust, Bangladesh National Women Lawyers' Association, Bangladesh Nari Progoti Sangha, Bangladesh Mahila Ainjibi Samiti, Bangladesh Mahila Parishad and many public spirited persons brought public interest litigations before the High Court Division for redress of the grievances of the deprived sections of the people.
Since locus standi has been liberalized in 1996, some of the public interest litigations have been disposed of by the High Court Division in 1997. In Flood Action Plan Case the government was directed to protect the environment and ecology and to observe relevant provisions of law in executing the flood protection scheme. In 1999, High Court Division directed Rajdhani Unnayan Kartripaksha (rajuk) not to reduce the area of park and other common facilities by converting the same into residential or commercial plots in Uttara Model Town. Earlier in a case, High Court Division declared that park in Gulshan residential area should be maintained free from nuisance for the protection of health and hygiene of the residents of that area. That Division also directed removal of bar fetters of a prison detainee, and also released a woman in handcuffs from safe custody. The court also stayed construction of a market building on the site earmarked for car parks, filling up of a lake, and eviction of slum dwellers in the Dhaka City.
Appellate Division took opposite view as to the locus standi of the petitioner recently in two public interest litigations. In the earlier case of BRAC v. Professor Muzaffar Ahmed [(2002)22 BLD (AD) 41] it held that the petitioner having no connection with any existing bank and intending promoters of banking companies not being less fortunate persons he is not an aggrieved person to seek judicial review against issuance of order of incorporation and no objection certificate in favour of BRAC Bank. But without reviewing that decision in the subsequent case of ETV Ltd. v. Dr. Chowdhury Mahmood Hasan [(2002) 54 DLR (AD) 130] the Appellate Division held that the petitioners being conscious members of the society have sufficient interest to challenge the public wrong committed by the respondents in the performance of their public duty which is vitiated by non-transparency and malafide due to their abuse of power by total disregard of law and Court must respond to prevent subversion of the rule of law though other competitors for broadcasting licence did not challenge granting of such licence to the ETV Ltd. Appellate Division felt the necessity of reviewing the decision of brac Bank case after its contrary decision in ETV case and the matter is still pending for disposal.
With the liberalization of locus standi public interest litigation has great prospect in ameliorating the conditions of the downtrodden and deprived sections of the people, and bringing succour to their sufferings making the assurances of fundamental rights in the Constitution a reality in their lives. But there is also the danger of flooding the court with unnecessarily burdening the High Court Division which is already overburdened with cases which take years together for disposal, and thus causing undue hardship on the litigant public. This crisis can be averted if the court remains vigilant at the inception, and meticulously examines the bonafide of the petitioner to seek redress through public interest litigation. But taking advantage of the decision of the Appellate Division in the ETV case busy bodies are now flooding the High Court Division with so called public interest litigations with the object of fulfilling their oblique agenda overburdening the already heavy case dockets of that court. It is high time that the Appellate Division should settle the matter to prevent busy bodies from overcrowding the presincts of this court with unnecessary so-called public interest litigations. Appellate Division should also give guideline for preventing misuse of court's jurisdiction in the name of public interest litigations as done by the Indian Supreme Court in the BALCO Employees Union versus Union of India, (AIR2001SCWeekly5135) to compel the petitioner to furnish security to indemnify the other side in case of dismissal of his case. [Kazi Ebadul Hoque]