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“Role of Public Interest Litigation in judicial activism of Bangladesh while enforcing fundamental rights”

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Fundamental rights have been inserted into the Constitution along with effective procedure of enforcement when any violation is made to them by any act or omission of either executive or legislative; which is an independent fundamental right and without which existence of fundamental rights in the Constitution would have been meaningless. If any fundamental right enumerated in Part III of the Constitution is violated by any act of public authority or any law, then aggrieved person can make application to High Court Division[i] to enforce the same and once HCD founds that fundamental rights have been violated, it’s under constitutional obligation to grant relief and to give orders or directions to enforce the same.[ii] Right to move to HCD for the enforcement of fundamental right is itself an independent fundamental right guaranteed by the Article 44(1) of the Constitution of People’s Republic of Bangladesh and no restriction can be imposed upon this right. Aggrieved person can make application to the HCD in form of writ petition for enforcing fundamental rights under Article 102(2).

Every citizen of Bangladesh, (in some cases ‘any person’) is entitled to enjoy fundamental rights, irrespective of race, color, sex, language, religion, political or other opinion, social origin, property, birth or other status. Moreover, it’s fundamental right for every citizen and residents of Bangladesh to be treated in accordance with law, which is an inalienable right.[iii] In other words, fundamental rights are equally there for every person belonging to every sphere of society including poor, underprivileged and marginalized group. Easy and effective remedy is also another right of them as per constitutional provision. Nevertheless, so far as the fundamental rights of poor, uneducated, powerless portion of society are concerned, it’s not easy for them to enforce the same owing to resources, finance and knowledge constraints. To meet up this delinquent, Supreme Court of Bangladesh pioneered the Public Interest Litigation (PIL) as its judiciary’s core duty to play vital role to enforce the constitutional and statutory rights of the people, including rights of the people of a section of society who are ignorant, if any defilement is made to such rights.

Public Interest Litigation (PIL) is a legal action or legal proceeding imitated in the Court of law, purpose of which is to enforce rights or seek remedy of an individual or group of people.[iv] Over the years, PIL has been an operative tool to seek remedy and enforce fundamental rights of disadvantaged, poor and uneducated portion of the society when their rights were violated by any action or omission of public authority, government organ or body. Many NGOs, civil societies and even conscious individuals were enabled to stand beside poor and disadvantaged group of people of society to ensure their rights through judicial process. PIL is filed in the HCD under Article 102 of the Constitution for the purpose of enforcing constitutional and legal rights of poor and excluded groups, ensure the accountability and transparency of the government and public authorities. However, PIL was a new concept in legal system of Bangladesh, as a result it wasn’t easy to establish the locus standi (right to sue), as well as convince the judges to give relief. However, in the year 1996 finally judiciary realized not only the constitutional validity but also to mandate of PIL. Afterwards, good number of PIL have been filed in matter relating to environmental protection, tort, consumer rights protection, public health related, political matters, anti-pollution, illegal arrest and detention etc. which surely paved the way to secure, ensure and enforce public rights against any infringement made by public authority, ensure accountability of government and various public organs and in broad sense enforce fundamental right of underprivileged people.

As per the words used in Article 102(1) ‘aggrieved person’ can move to HCD in case any fundamental right of such person have been infringed by the act or omission of government or public authority. To enforce fundamental right by filing PIL the person has to show that he is an aggrieved person i.e. his right have been disrupted and he has locus standi. Before 1996, court used to interpret ‘person aggrieved’ in narrow sense, according to which person aggrieved means a man who has suffered legal grievance, wrong or violation of right. This view was adopted from leading cases on locus standi named Exparte Sidebotham[v] and Exparte Offcial Receiver in Re Red Bowen & Co.[vi] However, in kazi Muklesur Rahman v. Bangladesh[vii] where an advocate challenged legality of Delhi Treaty of 1974 regarding demarcation of the land boundary between India and Bangladesh, Appellate Division took liberal view of the locus standi as constitutional right of the appellant i.e. right to movement was violated by the activity of government despite the fact that he wasn’t a resident of South Berubari Union No. 12 or adjacent enclaves involving in that treaty. Finally, issue of locus standi was settled by Appellate Division in case Dr. Mohiuddin Farooque v. Bangladesh,[viii] where it was stated that any person suffering a common wrong, common injury or common invasion of fundamental rights of an indeterminate number of people or any citizen or an indigenous association espousing such caused has locus standi. Later, PILs were filed in diverse matters where fundamental rights of people were violated either by act or omission of the government or public authority. ETV Ltd vs Dr. Chowdhury Mahmood Hasan,[ix] Engineer Mahmudul Islam & others vs. Govt. of Bangladesh and others,[x] Nurul Islam v Government of Bangladesh,[xi] BLAST v Bangladesh,[xii] ASK, BLAST & others vs. Bangladesh,[xiii] Bangladesh Legal Aid and Service Trust v Secretary Ministry of Education,[xiv] Consumer Association of Bangladesh (CAB) v Bangladesh,[xv] Children’s Charity Bangladesh Foundation vs. Govt. and others[xvi] require special mention when discussion is about PIL, development of PIL and liberalization of locus standi in legal system of Bangladesh.

Lately, in judicial system of Bangladesh significance of PIL has increased to praise worthy level, as through PIL constitutional rights of affected people were enforced by HCD. PILs are not only being used as an instrument to bring justice for people in general, but also a heavy medium to make both executive and legislative alert about their responsibilities. Order to make Buriganga, Shitolokkha, Dhaleshwari, Turag free from illegal possession by HCD, order to transfer the tanneries from the bank of Buriganga, prohibiting the use of hydraulic horn, prohibiting the manufacture and trade of contaminated medicines and baby foods, order to build speed breakers to avoid road accidents, order to bring reform in laws relating to rape, road safety, order to safeguard the consumers’ rights, orders made against anti-corruption activities and lastly order of HCD to prevent Dengue are some of the profitable outcomes which have been gained via PIL.

In order to ensure fundamental rights High Court is given wide power to enforce the same through judicial process. PIL is an effective tool to seek the resort of HCD when fundamental rights of a class of people are infringed who are unable from resorting to legal redress owing to some reasons like poverty, lack of education and awareness etc. However, when any infringement is made to the fundamental rights then no government authority should be left free to interrupt the same, as this would violate the public interest, rule of law and natural justice. In such case, PIL can be used as instrument to direct government or other public authority for enforcement of fundamental right through High Court Division following constitutional obligation. Moreover, concept of PIL is a new one in legal system of Bangladesh and still in experimental stage. Practice of PIL should be well-accepted and increased, as this would ensure government’s accountability towards people whenever any constitutional right will be infringed. Independent judiciary would be able to apply the ‘check and balance’ mechanism by dint of PIL. As per Constitution, Supreme Court is the guardian of the Constitution and HCD has constitutional obligation to enforce fundamental rights when any infringement is made. PIL would surely be an avenue for higher judiciary while following these constitutional mandates. More developments in this field should be brought by innovating better techniques e.g. by providing compensation in PIL cases. Locus Standi or right to sue shouldn’t be retrenched, as this step would narrow the scope of filing PIL, specially for the establishment of right of marginalized segment of the society. In a developing country like Bangladesh, where incidents of fundamental rights’ infringement have become common occurrence, PIL is likely to be an operational resource to encounter the situation and to change the phenomenon. However, revolution wouldn’t be observed in judicial activity unless joint attempt is made by judiciary, public-spirited individuals, NGOs and civil society where PIL would be a medium to bring such change. Moreover, it was the dream of framers of the Constitution to establish a society where fundamental human rights and justice would be ensured, which was reflected in preamble, and such dream can be turned into reality by ensuring fundamental right and justice for every single person, where PIL can contribute efficiently.   

Writer:

Md Arif  Rayhan,  LL.B (Honors), Department Of Law & Justice, Metropolitan University

& Member, NILS Bangladesh

 

References:  

[i] Hereinafter referred as ‘HCD’

[ii] Article 102(1), Constitution of People’s Republic of Bangladesh

[iii] Article 31, Constitution of People’s Republic of Bangladesh

[iv] Md. Shahidul Islam, Administrative Law in Bangladesh, 4th Edition.

[v] [1880] 14 Ch. D. 458

[vi] (1887) 19 QBD 174       

[vii] (1974) 26 DLR (AD) 44

[viii] (1997) 49 DLR (AD)

[ix] 54 DLR (AD) 130.

[x] 23 BLD 2003 (HCD) 80

[xi] 20 BLD (HCD)

[xii] 57 DLR (2005) 11

[xiii] Writ petition No. 15693 of 2012

[xiv] 40 CLC 2011 (HCD)

[xv] Writ Petition No. 631 of 2001

[xvi] 5 CLR (HCD) (2017); Writ Petition No. 12388 of 2014.

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