PUBLIC INTEREST LITIGATION: SOUTH ASIAN PERSPECTIVE BY - MAHMUDUL HASAN SABUZ

PUBLIC INTEREST LITIGATION: SOUTH ASIAN PERSPECTIVE

 

AUTHORED BY - MAHMUDUL HASAN SABUZ

 

ABSTRACT

This thesis is a reflection of the past and present practice of public interest litigation in Bangladesh, India and Pakistan. 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. This thesis paper has made an attempt to look into how the legal systems of Bangladesh, India and Pakistan have been able to introduce and exercise in their respective domestic law to bring justice to the common people’s door. Furthermore, this paper will also try to address how the judiciary as a major actor have contributed to allow PIL practice how PIL mechanism is being using as a tool to give justice to the common people as a group.

 

On the basis of some famous case discussion those which contributed a lot establish human rights ,the paper is also an attempt to reflect the practice of these three legal systems where PIL is widely spread specially in India .Also ,the analysis part will focus on why the growing of PIL is comparatively slow although we  have all the ingredients to exercise the practice more widely, how few provisions of law is creating bar to exercise the public interest litigation for the benefit of the common people. This paper will also try to find out the ways how we can overcome the barriers and how the judiciary and the concerned citizen can contribute more elaborately for the enjoyment of the sweet fruit of PIL by the common people.  Lastly how the three countries can be benefited from other country’s experience will also be covered in this thesis paper.

 

 

 

 

 

 

 

 

Chapter One: Introduction

1.1 Statement of the Problem

Public Interest Litigation is a critical concept in countries like South Asia where a large number of people has no or limited access to justice although the constitutions of the South Asian countries provide for equality before law and equal enjoyment of fundamental rights by all citizens. The objectives of public interest litigation are to ensure the constitutional and legal rights of the poor, to enhance social and collective justice, to ensure the accountability of concerned government and public authorities towards the issues of public importance. It is the such kind of power given to the public at large by judicial activism. Any person can file a public interest litigation on behalf of a group of persons whose rights are affected. Here, it is not necessary that the person filing a case should have a direct interest in that particular subject matter. If the petitioner has the legal capacity to invoke the jurisdiction of the court with regards to public interest litigation it is sufficient to prove the locus standi of him. Previously, the rule was that if a person has suffered a legal injury by reason of violation of any legal right or interest which is legally protected or is likely to suffer a legal injury by reason of violation of his legal right, that person could file a public interest litigation. But nowadays any member of the public, acting bona fide and having sufficient interest can maintain action for redressed of public wrong or public injury. Such actions may be brought by individuals, groups, voluntary agencies, etc. That is why PIL is an important tool for ensuring the rights of people at large and we need for effective social justice for all. 

 

In South Asian Countries specially in Bangladesh concerned citizens and organizations have challenged and still challenging environmental damages resulting from defective flood action program[1] ,importation of radioactive milk , adulteration in food , illegal detention of innocent persons for years without trial[2] .With continuous expanding within the scope of PIL  it also includes poverty related issues , atrocious behavior of the law enforcing agencies ,illegal detention ,environmental and consumer issues health related matters ,minority affairs also other human rights issues .It seems that the future of this public interest litigation based on judicial activism depends on an ongoing fine-tuning process of the public interest litigation movement in Bangladesh, which has still a long way to go towards realizing constitutionally promised social and political justice. In the case of Dr. Mohiuddin Farooque v. Bangladesh (FAP 20 cases)[3] it was held that the Supreme Court interpreted the term ‘an aggrieved person’ in a liberal mood and with a progressive attitude and thus widens the writ Jurisdiction of the High Court conferred on it by Article 102 of the Constitution of the people’s Republic of Bangladesh.[4] Writ petition filed by the aggrieved person, whether on behalf of group or along with group will be treated as a public interest litigation. However, the writ petition should involve a question, whether it affects public at large or a single individual. There prayer should be specific by asking the court to direct the state authorities to take note of the complaint allegation. 

 

And I think, the judicial system of our country is not so much pro PIL. The general rules which have in our country regarding PIL, these are turning into PIL by expanding. For insufficient rules we are being deprived from the highest benefit of PIL.

1.2 Research Question

How effective is public interest litigation in ensuring fundamental rights of people?

 

1.3 Objective of the Research

The research primarily aims to discuss about the Public Interest Litigation on the basis of the constitutions among the south Asian countries through examining critically the existing case laws .Also it is required to analyze the current position of the courts of these countries which will help us to get an overview of the whole concept .It is also required to compare the judicial decisions among these countries in line with contemporary issues relation to the actual position of the judicial departments and their view on PIL .Further some proposals will be submitted in order to fill the gaps that will help us to establish a more effective pro people PIL where conscious citizens or organizations approach the court bona fide in public interest .

 

1.4 Literature Review

Naim Ahmed focused on the development of public interest litigation (PIL) in Bangladesh from a constitutional perspective.[5]He analysed the use of PIL by the elite from several perspectives. First, the conceptual and constitutional basis of PIL, as expounded by the Bangladeshi courts, emphasizes people's power rather than social justice. Second, the gradual progress of PIL cases demonstrates how it has been influenced by its close connection with recent constitutional and democratic developments. Third, the development of the rules of public interest standing illustrates the negative effects of the use of PIL by the elite for their own purposes. Fourth, analysis of relevant constitutional provisions demonstrates the extent of success of the attempts by constitutional activists to re-define power-relations through PIL, raising the question whether such attempts actually benefited the general public.[6]  He said about the process of recognition of PIL as an integrated feature of the Bangladeshi law and argues that the use of the techniques of PIL by the elite to participate in the power-relations debate has actually undenied the much-needed focus on social and economic justice for the poor and the deprived.[7]

 

I am fully agree with the author about what he discussed throughout his research. Structure of my work and what I will discuss will be different because our research topic is not same where his area of study is Bangladesh and my area of study is south Asia. My primary concentration will be south Asia and to evaluate the present situation in India, Pakistan along with Bangladesh. Apart from this my focal point will be the role of judiciary regarding PIL. Also, I would like to analyse the contribution of different NGOs in spreading the concept of PIL among the common people. Furthermore, I will try to find out the gaps in laws and what better role the judiciary can play, their duties and responsibilities.

 

Sheikh Mohammad Towhidul Karim states that PIL in Bangladesh is a result of relentless efforts by legal activists and NGOs, working for the protection of public interest.[8] NGOs file many PIL cases through which law gradually develops.[9]Then he observed that PIL has a far-reaching economic influence around the world, including in Bangladesh, through NGOs, local actors and civil society comprised of public interest groups such as lawyers, teachers, journalists, human rights workers and so on.Lastly, he said that involvement of NGOs in PIL is not only ensuring justice in the society, but also promoting judicial activism and social justice for all the people specially the marginalized people. This is how PIL is facilitating the judiciary to play an effective role in upholding fundamental rights and justice of all people. In the research what the author has discussed I am fully agree with him. The difference between these two researches is where the author’s main topic of discussion is only the role of NGOs in developing public interest litigation but in my research, I will discuss the role of the NGOs very shortly to fulfill the objective of my research. Besides this I would like to focus in the role of the judiciary also through analysis and case references. Moreover, my discussion will be based on south Asia where hare the author’s topic of discussion is only Bangladesh.

 

Mahfuzoor Rahman elaborates the journey of PIL from its beginning up to date in our legal system.[10] His article primarily emphasizes what role the court, NGOs or lawyers can play for greater movement of PIL. In this article Mr Rahman mentioned several landmark case comment and reasoning with broader analysis with the outcomes. He further expressed the success of PIL cases in resent time and how the judgements are opening the new era of justice for the common people also removing all doubts and confusions about the validity of the PIL cases.[11]Where I disagree with the author are in my dissertation, I would like to concentrate in the contemporary status of the notion PIL in the south Asian perspective where the author has discussed only in Bangladesh perspective. This will be the fundamental difference between the two dissertations. Moreover, I will focus on the role of the judiciary through analysis.

 

Dr. Hari Bansh Tripathi in his article has discussed the concept of PIL, brings out its salient features, and examines the rationale and comparative practices in Nepal, India, Pakistan and Bangladesh. [12] He said for the purpose of facilitating access to justice for all classes of people the judiciary now a days is trying to eliminate the barriers that exit between the common people and the justice system. In the past few years, the judiciary has been struggling hard to develop a new jurisprudence which could bring justice within the reach of the common people, particularly to the marginalized people those who are not visible in the eye of law, sometimes.[13] He discussed the term ‘sufficient cause’ with some case reference and tried to show that sufficient cause is that touch stone which will determine whether any person is eligible to claim under the public interest litigation or not. Although I support his statement but he did not elaborate that how they are interconnected.  I will try to make a clear concept that why PIL is called a byproduct of judicial activism. He has discussed PIL in the USA and PIL in United Kingdom. Moreover, I would like to discuss the difficulties the concerned citizen or organization face to file PIL and the limitation of the court in performing their duties and responsibilities and will try to elaborate some effective solutions to such difficulties. 

Dr. Parvez Hassan and Azfar Azim discussed in relation to the comparison origin and evolution of public interest litigation from environmental perspective   among Bangladesh, India and Pakistan.[14] They referred that environmental lawyer from developing countries like Bangladesh, India and Pakistan generally find that their countries do not have the political will to implement the environment conservation measures and the shortage of resources, lack of awareness, and development is preventing the executive and legislative branches of governments from giving priority to this area of concern. Then they discussed also that state that public interest litigation is now a establish doctrine in the South Asian countries by referencing the constitution and some establishes case law principles and the concept was actually pioneered in the South Asian context by the Indian courts under the leadership of Justice P.N. Bhagwati.[15]

In my thesis I would like to discuss about poverty related problems, police atrocities, illegal extension, consumer matters, health related problems, and other human rights issues along with the environmental issue where the authors have discussed the notion of PIL only from environmental perspective. Besides this I would also like to focus on how the courts can play an active role in securing the justice of the common people through PIL and how common people can claim their rights in a proper way to the court. Moreover, I will try to focus on the role of Government that how can they create a right notion in mind of the common people about their rights and to raise a strong people's movement at the root level supporting their rights. 

Muhammad Sher Abbas opined that a member of public, having special interest, can move the court for the enforcement of constitutionally guaranteed fundamental rights, in a bona fide manner.[16] Abbas further provides PIL  will go on to explore the limitations on exercise of such jurisdiction, in that; the proceedings are not adversary in nature to involve rival parties for contest.[17] He explained  the proactive role of judiciary in Pakistan for encouraging the legislature to transform guiding principles into legal shape and the executive to implement those solemn principles of policy and fundamental rights in a legitimate manner through due performance of their functions..

I agree with him as he discussed the proactive role of judiciary in Pakistan for encouraging the legislature to transform guiding principles into legal shape, nevertheless he does not discuss on the accountability of judiciary, where I disagree with him. Apart from this there is no focused on the role of NGOs, but we all know that in the subcontinent NGOs are playing a very active role to ensure the justice for the common people.

 

Dr Faqir Hussain focuses on legal barriers, procedural limitations, costs and delays in litigation restrict access to courts and hampers marginalized people of the society in reaching the doors of justice.[18] He also emphasizes not only economic but also social obstacles as inhibiting factors in seeking relief. He mainly evaluates though there are the constitutional safeguards of equality and social justice.[19] To them justice is only available to them, not accessible. He treats public interest litigation is a new evolving concept with potential which may reduce the sorrows of the deprived sections, enabling them to seek redressal of their grievances and get their due rights and entitlements. He also states that public interest litigation in this perspective, it is no less than a revolution in judicial administration aimed with dismantling the unjust and exploitative dispensation by empowering the poor and to get their deserve share in national wealth and power.

The main difference between these two researches is where Dr Faqir’s area of discussion is only Pakistan but I will focus on not only Pakistan bit also India and Bangladesh and will try to make a cooperative study among the countries to compare about what we can borrow and share our best principle and ideas relating to PIL to make our legal system more pro people. Except the difference I agree with his understanding about PIL. Besides these I will try to focus on the role of the judiciary and NGOs, how they can play a big role to bring under justice through PIL.

Ajay Kumar and Dr. Sunayana said that public interest litigation is an innovative tool of judicial activism and India has hired this concept from the judicial system of USA.[20] Their main focus was a large number of people in India who are not capable to reach to judiciary through complex judicial procedure. So PIL works as window for those who are unable to reach via door. The study of PIL a humble attempt to go through this journey to analyze the achievements. They then elaborate that higher judiciary has laid down several guidelines to stop the misuse of PIL and this study under the light of these guidelines, try to assess the success of PIL and also discuss various obstacle faced by the target group.[21]

I agree with them about what they have discussed that lots of people specially the poor, backward section or the marginalized people are deprived from justice because of the cost and difficult procedure of the court. Here PIL might be a helpful tool to ensure justice for them but before that they have to aware about their own rights. The author was silent about the role of NGOs and civil society to achieve the goal of PIL. In my thesis I will cover this point elaborately specially the role of NGOs. Furthermore, I will make a comparison among the south Asian countries where he discussed all these things on the basis of India only.

Surya Deva states a vital role of PIL in the civil justice system in which has the ability to achieve those objectives which are difficult to achieved through conventional private litigation. [22]Then he said PIL offers a ladder to justice to backward sections of people, provides a pathway to enforce collective rights, and allows civil society to spread awareness about human rights. [23] He was also concerned and worries about the misuse of PIL that PIL should not be use as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature. Then he focused on the challenge for states, and the duties of the states to strike a balance in allowing legitimate PIL cases and disallow false cases.

In my thesis I will not discuss too much on the danger of PIL because of the topic though at some point it may come very briefly. The difference will be where my main discussion will be based on case laws and he has discussed from constitutional and legislative view and where necessary he referred some cases. Lastly, he emphasized on what we can do to avoid the misuse of PIL and here he has discussed incentives which might be helpful for common people. Also, he was silent about the role of NGOs in ensuring the justice for poor people but in my thesis role of NGOs will be an important part.

 

1.5 Analytical Framework

1.5.1Role of constitution

In my dissertation the role of the Constitution is the first criteria because of being the highest law of the land. I have chosen the role of the Constitution as a criterion because the constitution of Bangladesh provides that every person is entitled to equal protection of law under Article 27 and article 31 ensures that everyone should treated only in accordance with law, also that no action harmful to the life, body, liberty, property or reputation of any citizen shall be taken except in accordance with the laws of Bangladesh.[24] We all know that constitution means “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.” Here as a criterion the role of the Constitution will be used as the basis of this thesis because if any citizen of Bangladesh thinks that his/her fundamental right which include the rights provided under article 27 and Article 31 has been violated, he/she has the chance to apply before the High Court Division of the Supreme Court under Article 102 of the constitution.[25] Article 44(1) of the constitution, which itself is a fundamental right of a citizen,[26] provides the right to a citizen to move the High Court Division in accordance with Article 102(1), for the enforcement of the rights conferred in Part III. As per the article mentioned above it can be said that public interest litigation as a valid litigation under the constitution of Bangladesh.

Most of the rights of the citizen are provided by the Constitution are free from all discrimination and all have the equal access to those rights. The constitution is of utmost importance except that Public Interest Litigation can never be applied and as a result a big portion of the vast population will be deprived from enjoying their fundamental rights.

 

1.5.2 Role of the NGOs

 The second and another important criterion of my dissertation is the role of NGOs. Role can be defined as the rights, obligations and expected behavior patterns with any definite social status; and NGOs are the that part of our society who have taken the responsibility to put decisions or to raise the voice to the court. I have chosen the role of the NGOs as a criterion of my dissertation because some renowned NGOs which were involved to establish the notion of PIL from its very beginning in our legal atmosphere. Among them two NGOs name as Bangladesh Environmental Lawyers Association (BELA) and Bangladesh Legal Aid and Services Trust (BLAST) are pioneer.

 

 O-Shalish Kendra (AOSK), Bangladesh Legal Aid Services Trust (BLAST), Bangladesh National Women Lawyers’ Association Bangladesh Nari Progati Sangha, Bangladesh Mahila Ainjibi Samiti and many public-spirited bodies brought public interest litigations before the High Court Division for redress of the grievances of the deprived sections of the people. The Advocacy and Public Interest Litigation (PIL) Cell of BLAST bears with the objective of effecting systemic pro-poor changes in legislative policy and practice through advocacy as well as litigating in the interest of the poor and the marginalized people. BLAST brought a number of public interest issues to the Supreme Court and obtained positive judgements.[27]

 

1.5.3 Role of judiciary

 The third and final criterion of my dissertation is the role of the court in PIL. We know that before taking the subject matter in its consideration firstly the court satisfies about the person who has brought the issue into the court's consideration has sufficient interest in the matter. In dealing with the new laws and institutions relating with public rights and interests is of the role that judiciary should play in the governance of the country as an important hand of the State. Here a question may arise that should the judiciary’s role be limited to preventing illegal encroachments on the rights of private individuals by examining the extent of infringement of individual rights and the regularity of law and administration only to that limited extent, or does its judicial function include a constitutional duty to confine the legislative and executive organs of the State within their powers in the interest of the public? The answer lies in Lord Denning comment i.e. “it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it in a way which offends or injures thousands of subjects, then anyone of them offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.” We can only have the pro poor people judiciary when it will work in an advance way like the PIL cases.[28]

I have chosen this particular criterion because in the legal atmosphere the court can play the most vital role in administration of PIL justice. Various constitutional and statutory provisions have established to regulate the conduct of governmental institutions in a wide range such as, social welfare, industrial relations, consumer protection, improvement of environment, industrial health, protect the places of national importance etc.

1.6 Limitation of the Research 

The major limitation relating to this research is the insufficiency of time which is allocated. Apart from this my research is of twofold, the first part is discussing the PIL in Bangladesh perspective and then compare it with other south Asian countries like India and Pakistan. The time from PIL's emergence in Bangladesh is comparatively new. Though there are several pioneer case laws already but there is a lack of materials that I could relate to my research work. In terms of India and Pakistan though there are lots of materials but it’s difficult to manage all the reagents. For that the lack of materials regarding this piece of work and the primary understanding being a preliminary researcher would play a critical role resulting into my primary limitation.

 1.7 Structure of the Research 

In chapter two there will be discussion about the conceptual issues of PIL like what is it, meaning of it, determining it limitation of PIL. All these will introduce the main element of this thesis. I will also determine “public interest “in PIL cases by discussing case examples.

Chapter three will provide constitutional mandate and the basis of PIL in South Asian countries. In this chapter PIL under the constitutional scheme of India, Pakistan and Bangladesh will be discussed. This would result in analysing the basis of constitutional legitimacy of PIL in these countries. There will be inter relations between principles and rights under the heads of those constitutions. Basis of constitutional legitimacy of PIL in Bangladesh will also be discussed in this chapter

 

Chapter four will primarily focus on locus standi of a PIL petitioner; the developments and the new principles. This will help to understand to define the definition of an aggrieved person and will have a clear understanding on who can file a PIL petition and who can’t. Locus standi under Indian and Pakistani constitution will also be discussed in this chapter

 

In Chapter five there will be discussions on the basis of some remarkable cases of the south Asian countries. It will summaries of the main arguments of the dissertation.

 

Chapter six will finally present a general conclusion in the light of the decided cases. This chapter will provide a synopsis about the success and failure of PIL and identify the specific problems addressed in the dissertation, it will also give the summaries of the main arguments of the dissertation. And finally, I will give the answer of the research question in this chapter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Two

Constitutional mandate and basis of Public Interest Litigation in South Asian Countries

2.1 Introduction

The concept and practice of PIL should be capable of being explained and justified by constitution itself. The judges, lawyers and scholars specially in the sub-continent, including Bangladesh, proceeded to show that PIL not only conforms to the constitutional spirit and scheme, but the Constitution itself mandates a PIL approach. In the sub-continent, those who advocates the theory of PIL advance their arguments in two stages.[29] Firstly, it is argued that the constitutions are people oriented and also support the social justice approach. Along with the intention and spirit, the constitutions of the sub-continental countries are pro-PIL.[30]Lastly, they depend on the rule that no provision of the Constitution should be treated individually. The interpretation of individual constitutional provisions is given on the basis of its scheme and spirit, which supports social justice.[31] Besides all the above-mentioned similarities the development procedure of PIL is different in different jurisdictions. For example, PIL in Pakistan is not just a copy of Indian PIL. Similarly, as the Constitution of Bangladesh has its uniqueness, PIL has been explained and justified in a different way.

 

This constitutional basis of PIL is the subject matter of the present Chapter. I will examine in the present chapter how a PIL approach, under the constitutions of India, Pakistan and Bangladesh, is guaranteed and how they are different from each other.In this particular chapter I will also discuss the guiding principles of PIL in Bangladesh and the Appellate Division’s interpretations in the FAP 20 cases.[32]

 

2.2 Public Interest Litigation under the constitutional scheme of India

Constitution of India in its Preamble has emphasized on the aspirations of the people to secure to all citizens social, economic and political justice and thus it shows it as a socialist character.[33] Preamble also guarantees to secure liberty of thought, expression, belief, faith and worship and equality of status and opportunity and to promote amongst the people a feeling of fraternity, ensuring the dignity of the individual and the unity of the nation.[34] In 1976, the 42nd amendment of the Constitution added the words 'socialist' and 'secular' making India a 'sovereign socialist secular democratic republic'. [35] The Constitution has incorporated in Part III (from Articles 12 to 35) a range of fundamental rights which are legally enforceable and in Part IV (from Articles 36 to 51) a range of directive principles of state policy which are not enforceable by law.[36]

 

Regarding the enforcement of these rights under Articles 32 and 226, the Supreme Court and the High Courts have power to issue writs in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warranto.[37] Here one this is important to mention that the jurisdiction of the Supreme Court is limited to matters of fundamental rights but the High Courts have no such limitation under Article 226 of the Indian constitution. Bhagwati2 J said “they encapsulate the social and economic rights of the people and hold out social justice as the central feature of the new constitutional order.”[38] Supreme Court in the case of D.S. Nakara & Others vs Union of India[39] incorporated of the term 'socialist' and its effect was recognized in the same case. Here the judges considered 'socialism' as the core basis of the decision itself, not as a mere figurative framework.

Though there are criticisms from the traditionalists and the difference of opinion among the judges as to the small details, it has generally established that the constitution of India is socialist in nature by the combined effect of the preamble, the fundamental rights and the directive principles.

 

2.3 Relation between principles and rights

In the case of State of Madras v. Champakarn Doraira Jan[40] the directive principles of state policy have to conform to and run as subsidiary to the chapter on fundamental rights. This was followed in MU Qwireshi v. State of Bihar[41]  which explaining that a similar interpretation must be placed upon the constitution. While the state, implementing the principles of state policy, it should do so in such a way that its laws do not take away the fundamental rights. Similarly, in Kerala Education Bill case [42] it was held that in determining the scope of fundamental rights, the court cannot wholly ignore the directive principles of state policy but may adopt the principle and should attempt to give effect to both as much as possible. In 1973, in the leading case of Kesavananda Bharati v. State of Kerala[43] it was again held that the rights and the principles supplement each other and it is the duty of the court to ensure the application of the principles in similar with the rights so long as no harm to the basic structurer of the constitution. The issue was whether parliament can amend the Constitution by cut down any of the fundamental rights.[44] The court answered in the affirmative sense and it was held that the validity of the newly inserted Article 31C, 15 which conferred on Articles 39(h) and (c) of the directive principles a status which is superior to the fundamental rights referred to in Articles 14, 19 and 31.

 

The next great leap was the 42nd amendment of the Constitution which was made in 1976. As we saw, this included the word 'socialist' in the Preamble which strengthened the links between the directive principles and the fundamental rights and impressed upon the judges the importance of the directive principles and their obligation to assist in the realization of social justice.[45] The 42nd amendment also amended Article 31C to confer primacy on all the directive principles of state policy over the fundamental rights contained in Articles 14,19 and 31.[46] However, Article 31C, as amended by the 42nd amendment, was struck down by the Supreme Court in Minerva Mills Ltd. v. Union of India[47] as unconstitutional on the ground that neither the principles, nor the rights can he given absolute supremacy and that to destroy the guarantees given by Part III in order to achieve the goals of Part IV would subvert the constitution by destroying its basic structure. The Court held, “The Indian Constitution is founded on the bedrock of balance between Part III and Part IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of the Constitution.[48]

 

Finally, we can say that the Indian judges advocated a social justice approach that has got its validity from the Constitution. Though the social justice principles of the Constitution are not enforceable by law, a gradual rise of the status of the principles is relating to the fundamental rights has been attained.

2.4 PIL under the constitutional scheme of Pakistan

Major difference with India is special status of Islam in Pakistan and in Pakistan social justice means Islamic social justice. Because of being an Islamic Republic Islam is the state religion of Pakistan.[49]The Constitution of Pakistan contains a number of very important Islamic social justice provisions.[50] The Preamble declares the sovereignty of Allah alone which is delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him as a sacred trust. It also declares that the principles of democracy, freedom, equality, tolerance and social justice as stated by Islam shall be fully observed. Chapter two include, among other things, the duty of the State to take steps to ensure the Islamic way of life[51] , the promotion of social and economic well-being of the people [52] and promotion of social justice and eradication of social evils.[53]Part II Chapter I (Articles 8-28) of the constitution discuss about the fundamental rights as guaranteed by assembly and speech, right to property, freedom of movement, right to equality and non-discrimination etc. Article 199 gives the power to make orders to enforce the fundamental rights, guaranteed by the Constitution by writ jurisdiction. The supreme court also holds the power to issue writs under Article 184(3) when it considers that a question of public importance with reference to the enforcement of any fundamental right is involved.

 

2.5 Relation between principles and rights

Article 7 and Article 29 of the Constitution of 1962 and the Constitution of 1973 consecutively said that, regarding to the principles of policy, that it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those principles until they relate to the functions of the organ or authority. Despite the non-enforceability, the Court in Haji Nizani Khan v. Additional District Judge[54] ,it was held that, “The judiciary which is not included in the definition of the State cannot direct the organs, authorities and persons included in the definition of the State to act in accordance with the principles of policy. But this does not mean that the Superior Judiciary would not be able, on account of the said bar, either:

1. to set down a rule for itself to follow the Principles of Policy: or
2. to declare it for the subordinate judiciary to act in accordance therewith.[55]

After the insertion of Article 2A in the Constitution in 1985, the responsibility to act in accordance with the principles has gained a strong support.[56] Article 2A declares that the principles and provisions set out are substantive part of the Constitution and shall have effect accordingly. If any organ of the State fails to implement the sacred pledge as set out in the principles of policy, then there is no barrier on the judiciary to give effect to these principles. In the case of Benazir Bhutto v. Federation of Pakistan[57] the Supreme Court extended the scope of fundamental rights and observed that such rights include the rights guaranteed by Article 2A as well as the rights available under the directive principles of policy. The court declared as “While construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usage of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, i.e., this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution”.[58]It may be said that due to the ongoing Islamisation of the laws, Pakistani activists attest that PIL does not make any conflict with Islamic principles and further proceeded to show that PIL draws its inspiration and legitimacy from the Islamic social justice theory as has been declared by the Constitution.

 

2.6 PIL under the constitutional scheme of Bangladesh

2.6.1 Social and collective justice provisions in the Constitution

In April 1971, the Proclamation of Independence was issued.[59] A major aim was to ensure equality, human dignity and social justice for the people of Bangladesh. The Preamble of the Constitution of Bangladesh says, “We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent sovereign People's Republic of Bangladesh.” Further promise was that it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation and a society in which the rule of law, fundamental human rights and freedom, equality and justice, political will be secured for all citizens. The intention of the framers of the constitution was to attain a socialist society through democratic means becomes very important. The meaning of socialism is economic and social justice has to be attained.[60] In the 8th Amendment case,[61]Mustafa Kamal J. said, “the Preamble of our constitution stands on a different footing from that of other Constitutions by the very fact of the essence of its birth which is different from others.”[62]The ultimate power belongs to the people then the priority must be given to people’s collective rights and interests. As to the rights and interests of the people that are to be upheld in accordance with Article 7, the Constitution declares certain matters to be fundamental. Part II of the Constitution (Articles 8-25) contains the fundamental principles of state policy where Part III (Articles 26-47) sets out the fundamental rights. Regarding the fundamental principles, Article 8(2) says that, “The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable”.BH Chowdhury J. notes that in the 8th Amendment case[63] that Article 8 is a protected Article and cannot be amended without referendum.[64]

Article 44 clearly declares that the right to move to the High Court Division for the enforcement of the fundamental rights ensured by Part III is guaranteed.[65] Powers of the High Court Division to issue 'certain orders and directions' in order to enforce the fundamental rights are elaborated in Article 102.[66]

 

2.7 Inter-relation between principles and rights

The rights guaranteed under Part III are political in nature while the principles declared in Part II relate to economic, social and cultural matters. While the rights are judicially enforceable, the principles are not.[67] It is, therefore, important to examine the status of the principles in relating to the rights because of the higher status of the principles enables the courts to give priority the social and collective interests over individual interests. The principles work as guideline to interpretation and the court must explain constitutional and legal provisions in accordance with the principles.[68]

This raises the question of conflict between principles and rights. Mahmudul Islam observes that since the Bangladeshi and Indian constitutional scheme in this regard is the same. We know that Indian judges have rejected the supremacy of rights doctrine and have gradually adopted a liberal 'harmonious interpretation rule, giving the principles higher importance.[69] The same position should obtain under Bangladesh constitutional dispensation.[70]In anticipation of possible conflicts in cases where welfare measures of the State might conflict with the fundamental rights, the framers of the Constitution provided some exceptions in Article 47(1). [71] In matters specified in that Article, any law made shall be immune from challenge on the ground of inconsistency with the fundamental rights if the Parliament declares that such law has been made to give effect to any of the fundamental principles.[72] This does not conclusively answer the question of enforceability of the fundamental principles where there is no conflict with the rights. in Sheikh Abdus Snbur v. Returning Officer and others, [73] BH Chowdhury CJ held that the fundamental principles of state policy cannot be judicially enforceable despite the supremacy of the Constitution recognized by the Constitution itself.

Further discussion can be found in the case of Kudrat-E-E!ahi Panir v. Bangladesh,[74] where Shahabuddin J. said: “The reason for not making these principles judicially enforceable is clear. They are in the nature of People's program for socio-economic development of the country in peaceful manner, not overnight, but gradually. Implementation of these Program require resources and many other things.”[75]

 

2.8 Conclusion

The above discussion illustrates a unique feature, the provision of Article 47(1) is the interrelation between the rights and the principles. Article 47(1) has enhanced the position and status of the principles as Parliament has been given express power to make laws to attain the objectives of the principles. This has helped to avoid possible conflicts between rights and principles in many cases. In other words, social and collective rights have got importance in relation to individual rights.

 In the Kudrat-E-Elahi Panir’s case,[76] the Appellate Division clarified the distinction between rights and principles and at the same time encouraged the judges to use the principles as a guide to make wide the scope of the rights. This has resulted in more liberalization and emphasis on socio-economic rights of the people.

 

 

 

 

Chapter Three

The concept of Public Interest Litigation: An Examination

3.1     Introduction
The term 'public interest litigation' (PIL) is comparatively new concept in our legal system, which is mainly used to describe cases where conscious citizens or organizations try to reach the court to protect public interest. In Bangladesh, concerned citizens and organizations have challenged illegal detention of an innocent person for 12 years without trial,[77] importation of radio-active milk,[78] environmental damage resulting from defective flood action program and so on. This development is significant from at least two sides. The first one is, the courts are for the first time concerned with public interest matters. This is beyond the traditional role that is of adversarial process. And lastly, 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. The concept and practice of PIL is 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 brings along with it a new set of principles and procedures that it denies the traditional approach when public interest is concerned.

 

In this chapter I will discuss about the conceptual issues of PIL, for example what is it, meaning of it, limitation of PIL along with the difference between representative suit and PIL. All these will give us a general idea about PIL with its utility.  There are a few general elements that help us to determine whether a particular issue is of public interest or not.

 

3.2 What PIL is

Dictionary meaning of PIL is, it is a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have interest and for which their legal rights or liabilities are affected. There is no doubt as to the general meaning of PIL that is ‘litigation in the interest of the public’. Terms like ‘litigation’, ‘public’ or ‘interest’ have different meanings as well as different scope in different situations. But the confusion or complication whatever we say arises when the term ‘public interest’ together is in use. Because of being a culture specific term, no single definition can satisfy everyone.[79]Practically, there has been a compromise of different viewpoints about the scope of PIL. 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.[80]

 

3.3 Meaning of the term public interest litigation

At the earlier age while the concept of PIL was taking shape, Bhagwati J, one of the pioneers of PIL in India observed in People’s Union of Democratic Rights vs Union of India is[81], “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.”[82]So PIL may be differentiated from the ordinary litigation in the following way.

Firstly, PIL is only for the benefit of the common people or of the society at large in a collective way. This includes several situations which are in the following:

1. Where the matter in question affects the entire community, e.g., illegal appointment of an unfit person as a government official [83]
2. Where the issue involves with a vulnerable segment of the society, e.g., eviction of poor people for development work without any alternative arrangement and [84]
3. Where the matter affects one or more individuals but the nature of the act is so serious that it affects very badly to the whole community, e.g., rape in police custody.[85]

 

Secondly, in the above-mentioned situations, any conscious individual or organization may go to the court. In other words, PIL involves liberalization of the rules of standing which includes cases initiated suo motu; because the judge himself is a concerned citizen in some cases.[86]Thirdly, the court adopts a non-adversarial approach as opposed to an adversarial system of litigation.As a result, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders.[87]So, we can say that PIL may be considered as such type of litigation which aims to ensure social and collective justice. Thus, when conscious citizens or organizations, 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, only then it is considered as 'public interest litigation'.

 

3.4 What is 'public interest?'

The word 'public’ literally means which relating to the people of a country or locality. In other words, "the community as an aggregate, but not in its organized capacity, hence the members of the community".[88] The term can be used for either all members of the community or groups of members or class of that community.[89]The term 'interest' is a relation of being concerned in something by having a right or title to or a claim in that thing which includes sum of rights and privileges. When the words 'public' and 'interest' use in together to form the term 'public interest', it becomes difficult to define due to a number of factors. It depends on the user and one's purpose; from democrats to autocrats everybody uses it. [90]

 

Thus, while a special interest furthers the ends of some part of the public, public interest ultimately serves the ends of the whole public. 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. Public interests have also been seen as the sum total of all interests in the community balanced for the common good.[91]This principle of common law appears to have been generally followed in the sub-continent as well as in Bangladesh. In a Bangladeshi case, while borrowing from the English jurisdiction, Anwarul Hoque Chowdhuiy J. held, “The expression public interest is nowhere defined in the Passport Order. It has however received judicial interpretation years ago from the courts of English Jurisdiction.

 

3.5 Determining 'public interest' in a PIL cases

In PIL, the litigation must involve some dearly 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:

1. public interest is given priority over special interests and private interests. In other words, in a free competition of interests of different kinds, the interest of the public prevails;[92]
2. It is none but the judge who decides what is public interest by exercising his own discretion. This is predominantly a matter of fact and is decided in a case-to-case basis[93] and
3. The discretion of the judge is exercised not arbitrarily but judiciously.[94]

We can say that no one needs special legal training to understand that unhindered importation and distribution of radio-active milk is against public interest. In other words, it is almost automatic that the element of public interest is recognized and appreciated.

Secondly, 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.[95]

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 rigidity.

 

3.6 Boundaries that PIL cannot cross

PIL is essentially a litigation must have to operate within the limits of certain limitations.[96] Followings are some of them:

Firstly, as it is in case of any litigation, the court cannot proceed with a PIL case unless certain basic requirements are fulfilled before. Some of the important points are in the following:

1. There must be some violation of constitutional or legal rights, entitlements or non-performance of constitutional or legal duties.[97] In PIL cases, issues are liberally construed to protect diffused and collective rights, but mere moral rights or unsubstantiated apprehension, for example, are not enough to demand relief.
2. The courts are reluctant to do anything that the judicial mechanism is not designed to perform.[98] The courts sometimes assume monitoring and supervisory role - but only in rare cases, for a limited time and if there is no other alternative.
3. The courts step in only when it is possible to provide an effective and adequate remedy through judicial process.[99]
4. It is a general rule that where there is an alternative remedy, the High Court Division will not allow a petition, unless it can be shown that the alternative remedy is not efficacious. This also applies to PIL cases. In PIL cases also, the judges are not absolutely prevented by the general rule, although it will be broken only in rare circumstances.[100]

Secondly, the courts must adhere to the judicial respect for the constitutional allocation of responsibility, i.e., the theory of separation of powers. Even in PIL matters, due to this self-imposed restraint, the courts cannot do the followings:

1. The court cannot force the executive to shape 'public policy'.[101]
2. The legislature cannot be forced or compelled to initiate legislation.[102]
3. The court cannot interfere the administration. monitoring of public bodies can be made for limited period only in extreme and rare cases where no alternative at all is available.[103]
4. Where the administration is already dealing with a matter, the court cannot order parallel investigation unless it is fully satisfied that the statutory body is not functioning property.[104]

But it has been declared that despite the constitutional allocation of responsibility, when the court is satisfied that other branches of the government are not functioning properly, it must act to ensure social justice.[105]

 

3.7 Representative suits and PIL

Representative suits are described in the Code of Civil Procedure in the following way, “Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such a suit, on behalf of or for the benefit of all persons so interested.”[106].In the following there are some points which will denote how PIL is different from the representative suit. They are: Firstly, a representative suit is conducted within the limitation of the traditional adversarial system. It is neither of inquisitorial nature, nor designed to assist social activism. PIL, on the other hand, involves a denial of the adversarial method and includes innovative techniques in the process of adjudication as well as in granting relief. Secondly, the petitioner of a representative suit is aggrieved in the traditional sense of the term and some other persons share the same grievance with him. In contrast PIL cases often involve a petitioner who is not aggrieved personally, especially in the traditional sense.

 

Thirdly, representative suits may be filed where there are 'several persons'. 'Several persons' do not strain the general public.[107] On the other hand, the word is not synonymous with numberless or innumerable and the body of persons represented must be sufficiently definite. [108]It appears that there is a scope of filing PIL cases as representative suits where a segment of the society, whose number is sufficiently definite, is injured. But representative suits do not offer relief to the public as a whole and the innovative remedies provided under the writ jurisdiction are not available.[109]

 

3.8 Conclusion

This principle of common law was followed in the sub-continent as well as in Bangladesh. Generally public interest means a commonality of interest, a single interest that a certain group of people or citizens are presumed to share and be affected badly if violated. PIL is not an attempt to overthrow the entire existing system but it brings along with it a new set of principles which denies the traditional approach when public interest is concerned. Generally, PIL is 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 and the scope of PIL in any particular jurisdiction depends more on practical experiences.The people as a whole or a segment of the society, those who are suffering are often poor, ignorant, unorganized or afraid to approach the court. PIL here in these situations works as a mechanism to ensure justice for these people.

In spite of all these benefits PIL itself has some limitations. If there are no violation of constitutional or legal rights, entitlements or non-performance of constitutional or legal duties then there will be no remedy.

 

 

 

 

 

 

 

 

 

 

 

Chapter Four

Locus standi of the petitioner in PIL cases

4.1Introduction  

Article 102 of the constitution of Bangladesh provides for the 'writ jurisdiction', which enables a petitioner to have direct access to the Supreme Court where public interest is directly or indirectly involved. Traditionally, this concept of law was restrictive due to the conservative principles of locus standi. Remedies which are available in the form of writs in our constitution provided by the constitution of Bangladesh are of two kinds which depends on whether or not a person requires to be 'aggrieved' to come to the Court. The first category of remedies, where 'any person aggrieved' can approach the Court, gets remedies in the nature of certiorari, prohibition and mandamus. The second category of remedies, where a person is not 'aggrieved' personally or directly can approach the Court, get the remedies in the nature of habeas corpus and quo warranto.

 

In this chapter I will try to make a discussion about some very primary relation with the criteria   set on my analytical framework in the very first chapter. Every criterion set up in analytical framework has their own role to play in case of application of PIL for ensuring justice for all. The very first criterion is the role of constitution because the constitution of Bangladesh provides that every person is entitled to equal protection of law under Article 27 and article 31 ensures that everyone should treated only in accordance with law, also that no action harmful to the life, body, liberty, property or reputation of any citizen shall be taken except in accordance with the laws of Bangladesh if there is any violation of these rights people can go to the court under the shelter of the constitution. Beside this in this chapter I will examine of the arguments in favor of public interest standing and formulation of the rules for public interest standing on the basis of some famous cases. The constitutional provisions are in the following how people can go to the court for claiming their violation of the fundamental rights ensured by the constitution itself.

 

4.2 Standing rules in Bangladesh with respect to habeas corpus cases

4.2.1 Habeas corpus under the Constitution of Bangladesh

The Constitution of Bangladesh guarantees right to life and liberty as Fundamental Rights under its Article 31 and 32. Article 33 provides safeguards against arrest and detention. Although there was no provision of preventive detention in the original Constitution, the oversight was quickly corrected by the majority party in 1973 by amending Article 33.[110] The judges responded by taking a very wide view of interpretation. In fact, the Court introduced so many exceptions to the general rules and required such stringent criteria to be fulfilled that once a detenue managed to come before a Court, he had a very good chance of being released. As a result of the Supreme Court's interpretations of various provision of the Special Powers Act, "it has become exceedingly difficult for the Government to sustain an order of preventive detention".[111]

 

Even in the traditional law, the principles of standing in habeas corpus are quite liberal. [112] But the detenue is often unable to act because of the nature of his detention. In such a case a person other than the detenue can come before the Court. When the detenue is unable to come to the Court, the proper person to file a petition is any of his relations. Thus, in Bangladesh, a mother was allowed to apply for her son,[113] and a wife for her husband.[114] In absence of a relation, a friend was allowed to apply.[115] In these Bangladeshi cases, however, standing was taken for granted and was not contested. Application by a total stranger is said to be allowed only in the rarest of cases where the Court has been informed of material which immediately and obviously establishes the illegality of the detention or custody.[116] Thus, the Court has discretion to ask whether the application made by a stranger is reasonable under the circumstances of the particular case.[117]

 

4.2.3Impact of PIL on standing in habeas corpus

If we argue on the progress of public interest, we can do it at least three ways: Firstly, the definition of personal liberty may be widened thereby granting standing in previously unrecognized cases. Thus, in Avesha Khanam and others v. Major Sabbir Ahmed and others.[118] the Court declared that Article 102 (2) (b) (i) applies not only to detention by the authority but also to cases of private detention.Secondly, whether a stranger should be allowed to proceed in a particular case, the Court may take a more liberal view. Here the success depends largely on the genuineness of the claim. In the case of Avesha Khanam[119], a voluntary organization was petitioner No. 1 and helped the mother who was petitioner No. 2, to file the case.  since PIL has now been recognized in principle in FAP 20[120] it appears that the Court will decide liberally rather than conservatively.[121]

The Indian and Pakistani Courts have long overlooked the procedural formalities and treated telegrams, letters and other communications as writ petitions.[122] In Bangladesh, there are only two such examples: Nazrul Islam[123] and Ehada.[124] Nazrul Islam was detained without trial for 12 years and as such the public interest element in that case was very strong. In the second case, the judge proceeded on the wrong assumption that Eliada,[125] accused of drug trafficking, was underage at the time of trial. In both these cases, the judge treated Newspaper reports as writ petitions and acted suo moto. In these two cases we can find out some conclusions. The first one is, there is no bar for the Bangladeshi Courts to overlook procedural formalities for habeas corpus petitions. Secondly, the law is already established and does not need to be further argument or conformation. Lastly, the already established rules from India and Pakistan may be freely borrowed.

 

4.3 Standing rules in Bangladesh with respect to Quo warranto case

The High Court Division dealt with the question in the leading case of Sikder Mohammad Faruque v. Md Mostafa Hossain and another[126] where a person holding the office of the chairman of an Upazila Parishad was challenged. The petitioner, having never been a candidate for the challenged office, had no personal direct interest as such. On the bona fide of the petitioner, Mahmudur Rahman J said, “The grant of relief in a writ jurisdiction is a matter of discretion and the High Court Division in issuing of such a high prerogative writ is within its province to test the bonafide of the relator in order to see whether he has come with a clean hand for the reason that a writ of quo-warranto is not to issue "as a matter of course on sheer technicalities on the doctrinaire approach". [127] On appeal, the decision of the High Court Division was upheld.[128] The public interest element is made even more clear when he says, “There is no room to entertain any doubt as to the maintainability of a writ petition by any citizen who questions the title to office of any person who is, or purportedly, holding a public office whenever it is found that the said functionary is disqualified from holding the office and the Court in its extra-ordinary jurisdiction will entertain the petition and examine the question on merit.”[129]Here the locus standi of the petitioner was not disputed at the threshold in any of these cases.

 

 Another important criterion is the role of the judiciary. I have chosen this particular criterion because in the legal atmosphere the court can play the most vital role in administration of PIL justice. We cannot deny that what people has got in the name of PIL, judges and the judiciary have played a very pro-active role in bringing the collective justice to the common people. Though there are some limitations and slower grow of PIL, but in spite all of these judiciary has played a vital role and also a huge area where it can contribute a lot. In my thesis last criteria was the role of NGOs in ensuring justice for the common people on behalf of the people though in most of the cases the NGOs are not directly or personally aggrieved .But it is established by case principles that they or anyone can go to the court on behalf of any person, though there are some conditions .In the present chapter I have discussed some cases which were brought by different NGOs and they successfully reestablished the violated rights ensured by the constitution . Throughout the whole thesis particularly in this chapter I will discuss some case principles where the contribution of judiciary and the NGOs were very significant and the very relevant criterions as I mentioned earlier.

 

4.4 Bangladesh Sangbadpatra Parishad (BSP) v. The Government of People's Republic, Bangladesh and others [130]

PIL, was pleaded in Sangbadpatra, is a case where an association of newspaper owners challenged the Constitutional provision and an award declared by a statutory Wage Board.The High Court division relied on the principle that since direct personal interest is absent, an association, not being itself a 'person aggrieved', cannot come to Court on behalf of its members.[131] Abdul Jalil J observed that the association in question, Bangladesh Sangbadpatra Parishad, “This Parishad may represent the employers anywhere but it has no locus standi to invoke the jurisdiction of this Court under Article 102 of the Constitution as it is not a "person aggrieved" for the purpose of Article 102 of the Constitution.”[132]

 

After coming to the Appellate Division, Mustafa Kamal J further added that, "It can and it may, if it has a personal interest in the subject matter."[133]The above case demonstrates that the techniques of PIL were taken up by the elite for their own interest at the very beginning of the introduction of the concept of public interest standing in Bangladesh.

 

4.5 Liberalizing representative public interest standing: Welfare Association

Welfare Association[134] is an association of retired government officials challenged a discriminatory law involving the pensions. The Court granted standing.

 

Here the judge argues that the Constitution is not a morbid document but a dynamic instrument capable of being interpreted and applied in the ever-changing socio-economic circumstances.[135] Thus, when someone is unable to come to the Court due to poverty or otherwise, his representative should not be denied standing on merely technical grounds.”[136]The second test in determining standing is that as long as an association looks after the welfare and common interest of its members "it is entitled to ventilate this interest before this Court in the form of public interest litigation".[137]The liberalization in Welfare Association[138] is limited in its scope and application. The above association was the representative of the retired government employees and here it is important to remember that it is not representing the poor or helpless.

 

The distinction between Sangbadpatra[139] and Welfare Association[140] lies in the fact that locus standi is a mixed question of fact and law. Thus, a group of elite Newspaper’s owners do not have the same status as a group of old middle-class retired government employees. The court itself failed to expressly inform us that it was exercising its discretion.[141]

 

4.6 Development of new rules of public interest standing: Cases in the High Court Division before FAP 20

4.6.1 Formulation of the rules for public interest standing in FAP 20[142]

'Public interest rules of interpretation of the Constitution' were finally established in FAP 20 case. The result has been a consistency that the entire Constitution must be taken to interpret any specific provision and, PIL cannot be denied. On the basis of these rules of interpretation, four judges of the Appellate Division gave their different views of public interest standing. The principles established and the words used by them were more or less the same.[143] The leading judgement delivered by Mustafa Kamal J is representative of all the four versions: “. . . when a public injury or public wrong of a fundamental right affecting an indeterminate number of people is involved it is not necessary, in the scheme of our constitution, that the multitude of individuals who have been collectively wronged or injured or whose collective fundamental right have been invaded are to invoke the jurisdiction under Article 102 in a multitude of individual writ petitions, each representing his own portion of concern. In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association as distinguished from a local component of a foreign organization, espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102”.[144]

 

Latifur Rahman J explains that the traditional rules requiring the petitioner to be personally aggrieved is based on the theory that the remedies and rights are co-relative and therefore only a person whose own right is violated is entitled to seek remedy.[145] BB Roy Choudhury J said that “the Constitution neither defines the term 'person aggrieved' nor requires the applicant to be personally aggrieved.”[146]Thus, whenever a dispute is in question, the Court must determine whether the petitioner is supporting an individual cause or a public cause.[147] If an individual cause is supported, the petitioner needs to be a person aggrieved and his own interests require to be affected. So, it appears that the traditional law of private interest standing, which is narrow in application. Mustafa Kamal J says: "The traditional view remains true, valid and effective till today in so far as individual rights and individual infraction thereof are concerned."[148] This case creates a new set of rules only for public interest standing where a public cause is getting the priority.

 

 In the leading judgement, Mustafa Kamal J emphasizes not on public right but on 'public wrong or public injury of Fundamental Rights’.[149]Afzal CJ grants standing in cases of 'breach of public duty or for violation of some provision of the Constitution or the law’. [150] Latifur Rahman J merely requires public wrong or public injury.[151]BB Roy Choudhury J is concerned with 'wrong done by the Government or a local authority in not fulfilling its constitutional or statutory obligations’. [152]This also clarifies another important aspect - public interest standing is not limited to constitutional rights.[153]In case of public standing, it is sufficient for the petitioner to show an interest or concern common with the general public. But in cases of representative public interest standing where the petitioner is supporting the cause of a vulnerable section of the society, he must show that his concern is real. While Mustafa Kamal J does not use the term, Latifur Rahman J requires 'sufficient interest' from the petitioner. [154]

 

The rules laid down in FAP 20 say that since the intention of the petitioner is relevant, his standing depends largely on the merit of the case. Confusions arose because public interest standing was a new concept and in a state of initial development and as a result, it took a long time to find an appropriate case, the FAP 20 which establish public interest standing.

4.7 Conclusion

The 'public interest rules of interpretation of the Constitution' were finally established in Dr.Mohiuddin Faaroque case[155]. The result was that the entire constitution should be taken to interpret any provision. The consequence of the case was that in case of public standing, it is sufficient for the petitioner to show an interest or concern common with the general public.

 

 

 

 

 

 

 

 

 

 

 

Chapter Five: Conclusion

5.1 Conclusion

In modem societies, traditional litigation often fails to ensure relief where collective rights of the citizens are involved. PIL is generally seen as an attempt to raise the voice on behalf of the community specially the unprivileged like the poor or backward section of the society so that the rights of all citizens may be ensured. Development of PIL in Bangladesh is undoubtedly one of the most significant legal developments in recent years. Although the term ‘people’ include everyone, in the socio-economic context of Bangladesh who are the majority of the public, poor and deprived, who are the 'real people’. In India, there has been a large number of cases involving socio-economic issues and the activist judges emphasized on the problems of the poor and the deprived. In Bangladesh, analysis illustrates that the development of PIL has been dominated, from the very beginning, by the elite and there was neither an initial period of social activism nor a substantial number of pioneering cases involving socio-economic issues. No grass-root movement facilitated the development of PIL. This in turn was often seen as failure to recognize PIL by the Bangladeshi courts. In fact, this use of PIL to participate in the power-relations debate has diminished the potential power of PIL to sway the minds of the judges and lawyers in favour of social and economic justice. Attempts by political and constitutional activists to use PIL to re-adjust power arrangement have achieved limited success.

 

Even after the full recognition of PIL in FAP 20[156], the effects of the factors discussed above dominate the scene. After more than a year of the authoritative judgement of FAP 20, the number of cases filed remains very limited. While in India and Pakistan, the authoritative interpretations of PIL cases were followed by a huge petition, the situation remains remarkedly down in Bangladesh. After the FAP 20 case a number of statutes relating to public interest matters have come into force in the last few years. We know that the broader is the application, the more is the success. The most significant or influential whatever we say is the Environment (Pollution Control) Act.[157] This Act fulfils the long-standing demands relating to environmental problems and opens a guideline of pollution control. However, as to the adjudication of offences under the Act, section 17 states that no court shall accept any complaint under the Act unless a written petition is made by a person authorized by the director of pollution control. This section actually restricts the rights of the citizens to directly participate in the procedure. Similar standard clauses can be found in section 8(1) of the Nuclear Safety and Radiation (Control) Act[158] and section 51 of the Sewerage Authority Act.[159] This kind of development shows us that the use of the techniques of PIL by the elite to participate in the power-relations has actually undermined the much-needed focus on social and economic justice for the poor and the deprived, and affected badly the opening up of the field for the active involvement of the common propel.

 

Though the development PIL failed to reach the desired goal but it is not unpleasant totally.The problem, if any, is not a real or imagined legal bar it is to use the techniques of PIL for socio-economic justice.  One thing is true that is PIL has come to stay and further progress is almost certain. Because in the recent time BELA (Bangladesh Environment Lawyers Association) and BLAST (Bangladesh Legal Aid and Services Trust) are bringing number of public interest cases relating to the environment, consumer protection, rights of women, unlawful detention etc.[160] Lastly   there have been some attempts by various voluntary sector organizations and NGOs are coordinating their efforts, sharing experiences, working for the people’s rights. This is an indication that the movement for PIL is gradually moving towards maturity. Today, that denial of the right of the poor is difficult, to some extent it’s impossible to. The reason behind is that other people can bring the case before the court on behalf of these backward section of the society. The consequence is that people do not feel that- the constitution and the law are only for the benefit for the elite or for privileged group of people only.

 

My analysis illustrates that in Bangladesh initial shortcomings and problems have been sorted out to a great extent since PIL has been recognized as an integral part of the legal system. Now the demand of the time now is litigation for the people, not in the name of the people.

 

BIBILOGRAPGY

Cases

1. Dr. Mohiuddin Farooque v. Bangladesh (FAP 20) 17 (1997) BLD, AD, 1.
2. Kazi Moklesur Rahman v. Bangladesh [26DLR(AD)44]
3. D.S. Nakara & Others vs Union of India (1983) AIR Sc 130
4. Madras v. Champakarn DorairaJan (1951) AIR SC 226 at 228
5. MU Qwireshi v. State of Bihar (1958) _AIR Sc 731 at 732
6. Mumhai Kamgar Sabha v. Abdulvai (1976) AIR SC 1455
7. Minerva Mills Ltd. v. Union of India (1980) AIR SC 1789.
8. Haji Nizani Khan v. Additional District Judge (1976) PLD Lah 930 at 979
9. Benazir Bhutto v. Federation of Pakistan (1988) PLD SC 416.
10. Harnidul Huq Chowdhury v. Bangladesh (1982) 34 DLR 190 at 200
11. Sheikh Abdus Snbur v. Returning Officer and others 41 DLR (1989) (AD) 30
12. Kudrat-E-Elahi Panir v. Bangladesh 44 DLR (1992) (AD) 319
13. People’s Union of Democratic Rights vs Union of India (1982) AIR SC 1473 at 1477
14. PV Kapoor v. Union of India (1982) AIR SC 1473
15. Tatem Steam Navigation Co v. Inland Revenue Commissioners (1941) 2 KB 194.
16. Sri Venkararaman Devaru v. State of Mysore AIR (1958) SC 255.
17. Bearmans Lid v. Metropolitan Police District Receiver (1961) 1 All ER 384 at 391 and 393
18. South Hetton Coal Company vs North Eastern News Association Limited 1894 1 QB at page 133
19. Vincent Parikulangara vs. Union of. India (1987) 2 SCC 165.
20. Ain 0 Salish Kendra (ASK) and others v. Government of Bangladesh and others (1999) 19 BLD (HCD) 489 at 498.
21. M Saleern Ullah v. Bangladesh (1995) 47 DLR 218.
22. Himachal Pradesh v. A Parent of a Student of Medical College, Simla (1985) 3 SCC 169.
23. Peoples Union for Democratic (1985) AIR Delhi 268 at Rights v. Ministry of Home Affairs 281.
24. State of West Bengal v. Sampat Lal (1985) AIR SC 195 at 201
25. Gurushiddappa v. Gurushiddappa (1937) AIR Born 238 at 241
26. Ilasan v, Masoor (1948) AIR PC 68 at 70
27. People's Union for Democratic Rights v. Union of India (1982) AIR SC 1473 at 1476.
28. Aruna Sen v. Bangladesh (1975) 27 DLR 122.
29. Nasrin Kader Siddiqui v. Bangladesh (1991) 44 DLR (AD) 16.
30. Dheman Chakma v. Secretary. Ministry of Home Affairs and others (1991) WP 3276/1991.
31. Ram Kumar v. District Magistrate (1966) AIR P H 51.
32. Avesha Khanam and others v. Major Sabbir Ahmed and others (1994) 46 DLR  399
33. Alam Ara Huq v. Government of Bangladesh (1990) 42 DLR 98.
34. S Sunil Batra II v. Delhi Administration (1980) AIR SC
35. Darshan Masih v. the State (1990) PLD SC 513.
36. State v. Deputy Commissioner. Satkhira and others (1993) 45 DLR  643

Books

1. Sara Hossain, S Malik and Bushra Musa: Public Interest Litigation in South Asia: Rights in Search of Remedies (Dhaka, University Press Limited)
2. Mahmudul Islam: Constitutional Law of Bangladesh

 

Journals

1. Asif Saeed Khan Khosa,” Islamic provisions in the constitution of Pakistan” (1995) PLO Journal, pp. 17-22

2. PB Gajendragadkar, ‘The rule of law and role of law’ (1975) Vol. 1 Law and international Affairs, pp. 1-13 at 4

3 Nairn Ahmed, ‘Public Interest Litigation Constitutional Issues and Remedies’ {PhD thesis, Bangladesh Legal Aid and Services Trust (BLAST)}.

4.Nasirn Hasan Shah, ‘Public interest litigation as a means of social justice’ (1993) in PLD Journal, pp. 31-34 at 32.

5. GE. Peiris,'Public interest litigation in the Indian subcontinent: Current dimensions’ (1991)   Vol. 40 International and Comparative Law Quarterly, pp. 66-90 at 84.

6. Sheikh Mohammad Towhidul Karim, ‘Role of NGOs in Developing Public Interest Litigation: An Analytical Study’ Environmental Policy and Law, 49/ (2-3) (2019).

7. Mahfuzoor Rahman, ‘Development of public interest litigation in Bangladesh’ (Lawyers and Jurists)

8. Muhammad Sher Abbas, ‘The Dynamics of Public Interest Litigation (PIL) in the Perspective of Adversarial Legal System of Pakistan’ (2021)

9. Dr Faqir Hussain, ‘Public Interest Litigation in Pakistan’ (1993) Sustainable Development Policy Institute (SDPI)

 

Legislations

 1.Constitution of the People's Republic of Bangladesh

2. The Constitution of India

3.Constitution of the Islamic Republic of Pakistan

 

Website and other sources

1. Bangladesh Legal Aid and Services Trust [https://www.blast.org.bd/ last visited 1st September 2021]

 

---

[1]  Dr. Mohiuddin Farooque v. Bangladesh (FAP 20) 17 (1997) BLD, AD, 1.

[2] State v. Deputy Commissioner Satkhira and others 45 (1993) DLR, 643.

[3] Supra,see note 1.

[4] ibid

[5] Naim Ahmed, ‘Public interest litigation, constitutional issues and remedies ‘(PhD thesis, University of London 1998)

 

[6] ibid

[7] ibid

[8] Sheikh Mohammad Towhidul Karim, ‘Role of NGOs in Developing Public Interest Litigation: An Analytical Study’ Environmental Policy and Law, 49/ (2-3) (2019).

[9] ibid

[10] Mahfuzoor Rahman, ‘Development of public interest litigation in Bangladesh’ (Lawyers and Jurists)

[11] ibid

[12] Hari Bansh Tripathi, 'Public Interest Litigation in Comparative Perspective' (2007) 1 NJA LJ 49

[13] ibid

[14] Parvez Hassan and Azim Azfar, 'Securing Environmental Rights through Public Interest Litigation in South Asia' (2004) 22 Va Envtl LJ 215

[15] ibid

[16] Muhammad Sher Abbas, ‘The Dynamics of Public Interest Litigation (PIL) in the Perspective of Adversarial Legal System of Pakistan’ (2021) SSRN

[17] ibid

[18] Dr Faqir Hussain, ‘Public Interest Litigation in Pakistan’ (1993) Sustainable Development Policy Institute (SDPI)

 

[19] ibid

[20] Ajay Kumar, Dr. Sunayana , ‘Public Interest Litigation: A Window for Justice’ (2020) European Journal of Molecular & Clinical Medicine

[21] ibid

[22] Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ (2009) 

[23] ibid

[24] The Constitution of the People’s Republic of Bangladesh 1972 Part III

[25] The Constitution of the People’s Republic of Bangladesh 1972 Part VII

[26] Supra, see note 24

[27] Bangladesh Legal Aid and Services Trust [https://www.lawyersnjurists.com/article/development-of-public-interest-litigation-in-bangladesh/ last visited 1st September 2021]

 

[28] Supra, see note 5

[29] Supra, see note 5.

[30] Ibid.

[31] Ibid.

[32] Supra, note 1.

[33] Supra, note 5.

 

[34] Ibid.

[35]Indira Gandhi's Congress party brought the Constitution (Forty-Second Amendment) Act 1976 socialist, secular and integrity these three words were added in the preamble of the constitution.

[36]Gokkulesh Sharma, "An evaluation of relationship between Fundamental Rights and Directive Principles under Constitution" (1993) AIR Journal, pp. 75-77.

[37] Ibid

[38] PN Bhagwati, “Judicial activism and public interest litigation" in Vol. 23 Columbia Journal of Translational Law” (1984-85) pp 561-577

[39] D.S. Nakara & Others vs Union of India (1983) AIR Sc 130

[40] Madras v. Champakarn Doraira Jan (1951) AIR SC 226 at 228

[41] MU Qwireshi v. State of Bihar (1958) _AIR Sc 731 at 732

[42] The Kerala Education Bill, ... vs Unknown on (1958) AIR 1958 SC 956.

[43] Kesavananda Bharati v. State of Kerala (1973) AIR SC 1461.

[44] Previously, the Supreme Court affirmed that the Parliament can make such amendments in Shankar Prasad v. Union of India AIR 1951 SC 548 and Sajjan Singh v. State of Rajasthan AIR 1965 SC 845. But in Golak Nath v. State of Punjab AIR 1967 SC 1643, this power was taken away. In consequence, the Parliament passed the Constitution (Twenty-fourth Amendment) Act 1971 seeking to restore the power. The 24th Amendment, along with the 25th, 26th and 29th amendments affected the fundamental rights.

[45] Supra,see note 5.

[46] Subsequently, the Constitution (Forty-fourth Amendment) Act 1978, as an extension of the 42nd amendment, further strengthened the position of the directive principles by incorporating new articles and by removing the right to property altogether from the list of fundamental rights and by placing it elsewhere as Article 300A.

[47] Minerva Mills Ltd. v. Union of India (1980) AIR SC 1789.

[48] Supra note 5.

[49] Articles 1(1) and 2 of the Constitution of Pakistan 1973.

[50] Asif Saeed Khan Khosa,” Islamic provisions in the constitution of Pakistan” (1995) PLO Journal, pp. 17-22

[51] Article 31 of the constitution of Pakistan ,1973.

[52] Article 38 of the constitution of Pakistan ,1973

[53] Article 37 of the constitution of Pakistan ,1973

[54] Haji Nizani Khan v. Additional District Judge (1976) PLD Lah 930 at 979

[55] Ibid

[56] Revival of Constitution 1973 Order, 1985 (Presidential Order 14 of 1985).

[57]Benazir Bhutto v. Federation of Pakistan (1988) PLD SC 416.

[58] Ibid

[59] Ibid

[60] Supra note 5

[61] Anwar Hossain Chowdhury v. Bangladesh (1989) 41 D.L.R. (AD) 165

[62] Ibid

[63] Supra, see note 5

[64] Ibid

[65] It has been held in Haji Joynal Abedin v. State 30 DLR (1978) 375 that the right to enforce the fundamental rights is itself a fundamental right.

[66] Ibid

[67]Article 8(2) and 26 of the Constitution of Bangladesh.

[68] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edition Dhaka, Bangladesh Institute of Law and International Affairs )

[69] Ibid

[70] ibid

[71] The exceptions include: acquisition, nationalization, requisition or taking over control or management of property; amalgamation of commercial or other bodies; controlling the rights of administrators or executives of such bodies; controlling rights to search mineral wealth; protection of government ventures through monopoly; controlling rights to property and any right in respect of profession, occupation, trade or business including rights of employers or employees.

[72] PB Gajendragadkar, ‘The rule of law and role of law’ (1975) Vol. 1 Law and international Affairs, pp. 1-13 at 4

[73] Sheikh Abdus Snbur v. Returning Officer and others 41 DLR (1989) (AD) 30

[74] Kudrat-E-Elahi Panir v. Bangladesh 44 DLR (1992) (AD) 319

[75] Ibid

[76] Supra see note 74.

[77] State v. Deputy Commissioner Satkhira and others (1993)45 DLR, 643

[78] Dr. Mohiuddin Farooque v. Government of Bangladesh (Radioactive Milk Case) (1996) 48 BLD (HDC) 438

 

[79]Nairn Ahmed, ‘Public Interest Litigation Constitutional Issues and Remedies’ {PhD thesis, Bangladesh Legal Aid and Services Trust (BLAST)}

[80] ibid

[81] People’s Union of Democratic Rights vs Union of India (1982) AIR SC 1473 at 1477

[82] PV Kapoor v. Union of India (1982) AIR SC 1473

[83] Supra,see note 79

[84] Ibid

[85] Ibid

[86] Ibid

[87] Ibid

[88] Tatem Steam Navigation Co v. Inland Revenue Commissioners (1941) 2 KB 194.

[89] Sri Venkararaman Devaru v. State of Mysore AIR (1958) SC 255.

[90] Supra,see note 79

[91] Supra, see note 79

[92] Frank Shipping Ltd. vs Bangladesh 50 (1998) DLR (AD) 140. The petitioner's prayer was rejected because it failed to show that its own private interest was so overwhelming that public interest should be subordinated thereto.

[93]Ibid 

[94] Ibid

[95] Supra note, see 5

[96] GE. Peiris,'Public interest litigation in the Indian subcontinent: Current dimensions’ (1991)   Vol. 40 International and Comparative Law Quarterly, pp. 66-90 at 84.

[97]Supra see note 5

[98] Vincent Parikulangara vs. Union of. India (1987) 2 SCC 165.

[99] Ain 0 Salish Kendra (ASK) and others v. Government of Bangladesh and others (1999) 19 BLD (HCD) 489 at 498.

[100] Supra note, see 5.

[101]  M Saleern Ullah v. Bangladesh (1995) 47 DLR 218.

[102] Himachal Pradesh v. A Parent of a Student of Medical College, Simla (1985) 3 SCC 169.

[103] Peoples Union for Democratic (1985) AIR Delhi 268 at Rights v. Ministry of Home Affairs 281.

[104] State of West Bengal v. Sampat Lal (1985) AIR SC 195 at 201.

[105]  State of West Bengal v. Sampat La! AIR 1985 SC 195 at 201.

[106] Code of Civil Procedure 1908, Order I rule 8(1).

[107]  Gurushiddappa v. Gurushiddappa (1937) AIR  Born 238 at 241

[108] Ilasan v, Masoor (1948) AIR PC 68 at 70

[109] Supra, see note 5.

[110] Constitution (Second Amendment) Act (XXIV of 1973), section 3.

[111] Supra, see note 5

[112] Ibid.

[113] Aruna Sen v. Bangladesh (1975) 27 DLR 122.

[114] Nasrin Kader Siddiqui v. Bangladesh (1991) 44 DLR (AD) 16.

[115] Dheman Chakma v. Secretary. Ministry of Home Affairs and others (1991) WP 3276/1991.

[116] Ram Kumar v. District Magistrate (1966) AIR P H 51.

[117] Supra note, see note 5.

[118] Avesha Khanam and others v. Major Sabbir Ahmed and others (1994) 46 DLR  399 where A minor son, abducted by the father, was given back to the mother.

[119] Ibid.

[120] Dr. Mohiuddin Farooque vs.Bangladesh and others (1997) 17 BLD (AD)  Page-1 to 33

[121] Ibid.

[122] [122] In India, S Sunil Batra II v. Delhi Administration (1980) AIR SC. In Pakistan, the leading case is Darshan Masih v. the State (1990) PLD SC 513.

[123]State v. Deputy Commissioner Satkhira and others (1993) 45 DLR  643.

[124] Eliadah McCord v. State (1996) 48 DLR 495.

[125] Ibid.

[126] Sikder Mohammad Faruque v. Md Mostafa Hossain and another (1987) 7 BLD 52

[127] Ibid.

[128] Md Mostafa Hossain v. SM Faruque and another 7 BLD (ADI (19871 315.

[129] Ibid

[130] Bangladesh Sangbadpatra Parishad (BSP) v. The Government of People's Republic of Bangladesh and others (1991) 43 DLR  424.

[131] Ibid

[132] Ibid.

[133] Ibid

[134]Bangladesh Retired Government Employees Welfare Association v. Bangladesh (1994) 46 DLR 426.

 .

[135] Ibid

[136] ibid

[137] Ibid

[138] ibid

[139] Supra note, see note 130

[140] Supra, see note 134

[141] Ibid

[142] Supra, see note 1

[143] Ibid.

[144] Ibid.

[145] note

[146] Ibid

[147] Ibid

[148] Supra note,see note 5.

[149] Supra note, see note 1.

[150] Ibid.

[151] Ibid.

[152] Ibid.

[153] Supra note, see note 5.

[154] Ibid.

[155] Supra note, see note 12.

[156] Supra,see note 1.

[157] The Environment (Pollution Control) Act, Act no.1 of 1995, s 17

 

[158] Nuclear Safety and Radiation (Control) Act, Act no 17, 2015, s-8

[159] Water Supply and Sewerage Authority Act, Act no 6 ,1996, s-51.

[160] Supra, see note 5.