Public interest litigation -III

The Supreme Court of Pakistan in the aforesaid case made recommendations and suggestions which culminated in the promulgation of the Bonded Labour System (Abolition) Act, 1992. In his judgement the Supreme Court of Pakistan examined the concept of Bonded labour System, and its various aspects including prohibition of future laws to the District Administration has approved in prosperity.
Involvement recognised that entrustment of functions to the District Administration has approved in prosperity. Involvement of Bar Councils, local Bar Associations, Press bodies, recognized Social Services together with the Labour Departments both at the Centre and Provinces was to be involve with advantage. Similarly it was suggested by the Supreme Court of Pakistan that the advantage can also be had by citing judgements on similar subjects for example judgement in land Reforms Cases.
It will, therefore, be correct to say that the Supreme Court of Pakistan has equally created an awakening through public interest litigation in the efforts aimed at rehabilitation and abolition of bonded labour as also promulgation of the Bonded Labour System (Abolition) Act, 1962.
Yet another contribution made by the Supreme Court of Pakistan in the field of labour management relations in the context of forced labour is the famous case of Dalmia Cement Ltd, PLD 1958 SC 153 wherein the Supreme Court of Pakistan have held that the law that makes liability to work overtime is a term of employment and no question of "forced labour" attracting the law or spirit of Article 16 of the Constitution as it then, was, arises.
According to the Supreme Court of Pakistan when a person enters into a contract to perform a certain service it does not amount to forcing him to perform that service if he is held to the inability under the contract.
In the year 2007 tussle between two Constitutional Heads had taken place not only in Pakistan but also in India. In India, this tussle was between the Prime Minister, Manmohan Singh and Chief Justice of India Mr Justice K.G. Balakrishanam. The Prime Minister of India while underlying Constitutional obligation of the Legislature, the Executive and Judiciary to work in harmony, said "The dividing line between judicial activism and judicial overreach is a thin line"
Prime Minister of India had alleged substituting writ of mandamus with a take over of the functions of another organ may, at time, becomes a case of overreach.
A CONFERENCE OF CHIEF MINISTER AND CHIEF JUSTICE OF THE STATE WAS CONVENED WHERE CHIEF JUSTICE OF INDIA HAD OBSERVED AS UNDER:
"The application of judicial review to determine Constitutionality of the legislation and to review the executive decision sometimes creates tensions between the judge and the legislative and the executive branch. Such tension is natural and to some extent desirable."
Supreme Court of India noted that the judiciary independence was dependent on the rule of law. It is mistakenly justified as 'veto power' by the judiciary principle of separation of power are to be kept in the forefront and it should be made sure that each of other branch operates within the boundary of law of judicial review. In January 2007 the Supreme Court of India endorsed the parliament decision to expel 12 members of the parliament involving in "Cash for Query" scandal asserted for itself the role of final arbitrator by sitting in judgement on the legality of the decision so taken by the legislature.
This judgement was in two parts. First part validates the decision of the parliament to terminate the membership of those who were caught on camera accepting money for putting questions. However, Supreme Court was unambiguous in conferring on parliament the right to punish which includes expulsion of an errant member. However, it is the other part that is fraught with long term repercussion for the judiciary-legislature inter-play which may not be liked by the parliamentarians.
In an emphatic statement of the judiciary's claim to be the final arbiter, the court said that it had the Constitutional competence to examine the legality of decisions taken by the Parliament if they smacked of mollification or infringement of fundamental rights.
The judgement subjected parliamentary action to judicial review and held that the Supreme Court was the final arbiter for testing the legality of any action and that judicial scrutiny of tainted or illegal parliamentary proceedings was permissible.
It is not known if such eventuality had taken place in our country how our esteemed Constitutional wizards would have reacted. However, in India two Constitutional experts Mr Soli J. Sorabjee and Mr Fali Nariman saluted the verdict and called it a "statesman like decision". Both agreed with the decision that the Supreme Court of India the ultimate authority to test the legality of the manner in which such power was exercised. In India the entire legal fraternity stood behind Supreme Court of India and saluted this judicial activism.
The same year another landmark judgement was delivered in India whereby Indian Supreme Court held that laws put in the Ninth Schedule of Indian Constitution are open to judicial scrutiny. Indian Supreme Court on 11-1-2007 held that laws in schedule to the Constitution are opened to judicial scrutiny and that Ninth Schedule introduced in the Indian Constitution after April 1973 cannot escape judicial scrutiny if they appear to breach the fundamental rights or the basic structure of the Indian Constitution.
This was the unanimous verdict by nine-judge Constitutional Bench who asserted the Supreme Court role as final arbiter at the expenses of the notion of parliamentary supremacy. No doubt judicial activism is not an unguided missile. It has to be controlled and properly canalised. Courts have to function within established parameters and Constitutional bounds.
Courts have to be careful to see that they do not overstep or overreach their limits because to them is assigned the sacred duty of safeguarding the Constitution of the country. People of Pakistan have reposed faith and trust in the courts and therefore, judges of Pakistan have to act as their trustees. Betrayal of the trust would lead to "judicial despotism."
It goes without saying that at least for sometimes Pakistan is going to face judicial activism, which is necessitate due to failure of the Executive and the Legislature. This should continue till such time as Executive and Legislature come up to the high standard that is expected of them. Till such time Supreme Court of Pakistan and High Courts shall and must continue to play important role of judicial activism.
It appears that our Executives have taken exception to these Public Interest Litigation in Pakistan and conveyed in news conferences, both within the country and abroad, grievance before various audience. The Public Interest Litigation dealing with missing persons or ban on kite flying as also the ban on heavy vehicles plying during day time are such petitions which only the person who has been adversely effected can appreciate. One cannot imagine a situation of family, whose sons, brothers and fathers are missing and there is no news of their whereabouts. Kite flying no doubt may be a sport but it should not be at the cost of large number of fatal casualties.
Invariably heavy vehicles plying during daytime including vehicles carrying huge cargo containers have been subjected to road accidents in Karachi resulting in slipping of the containers, crushing cars leading to large number of deaths.
If the Chief Secretary or Inspector General of Police are summoned by the Court, this should be not made a ground for raising accusing fingers against superior judiciary. After all in the past, Prime Minister of this Country having won and having 2/3rd parliamentary mandate has also appeared in person in the Supreme Court of our Country. No one, however, high, is above low.
In 2007 there was a confrontation between the Executive and Judiciary both in India and in Pakistan. The outcome of the confrontation in the two countries are altogether different. Whereas in India both Executive and Judiciary are very much in place and are working in harmony. As against this, in Pakistan the entire judicial system has been paralysed and over 60 judges both of Supreme Court and High Court have either not been administered oath or refused oath. This has resulted in confrontation between the Executive and the Judiciary.
The outcome of this confrontation is reflected in the result of 18th February, 2008 elections. It is hoped that better sense will prevail and our Executive will see to reason that confrontation be brought to an end without further delay and the judiciary is honourably restored to pre November 2007 status. Public Interest Litigation and Judicial Activism exists in all developed and semi-developed countries. There is no reason why the same should not exist in Pakistan.
(Concluded)