2 APEX LAW REPORTS The Issue of “Locus Standi” in Development of PIL in Bangladesh. Public Interest Litigation is the process whereby a person individually or an organization as pressure group can seek remedy to enforce the fundamental rights. PIL first came into prominence in the 1970s in the United States of America, as a strategic extension of the wider public interest law movement, and was adapted thereafter in a number of different countries. Public interest litigation or “Pro Bono public Litigation” is litigation at the instance of public spirited citizen espousing cause of others. It is a strategic aim of legal aid movement which is intended to bring justice within the reach of poor masses who constitute the law visibility area of humanity. During the last two decades, Judicial Activism of Bangladesh has played a major role in protecting the rights and freedoms of individuals, as guaranteed under the constitution. Though there is written constitution in Bangladesh and fundamental rights are enunciated in the constitution, Public Interest Litigation in regards of protecting fundamental rights has also greatly developed by the judges of constitutional court interpreting the rights considering the intend of public at large. Justice Krishna Iyra Considers-“Public interest litigation as a product of creative judicial engineering. Concept of Locus Standi: Charan Lal Sahu Vs. Giani Zail Sing, (1984) 1 SCC 390: AIR 1984 SC 309. The court held that- Locus Standi means the legal capacity to invoke the jurisdiction of the court. If the petitionar has no locus standi he cannot be heard in a court. In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. A very broad definition of the term locus standi denotes the existence of a right on an individual or group of individuals to have a court enter upon the adjudication of an issue brought before that court by proceedings instigated by the individual or group. The Question of Locus Standi in PIL: Generally, in private law litigation, only the person aggrieved can approach the court. In cases where interest of society or public in general is concerned, the applicant must have some special grievance apart from the general grievance suffered by public. This simple rule is based on certain basic jurisprudential principles. One is to avoid multiplicity of proceeding; the other is that person who suffers knows best his own case. The general private law rule of locus standi goes directly against PIL, the essence of which is litigation by one in the interest of another. Thus the first challenge in the development of PIL has been to overcome the traditional rules of locus standi. Public Interest Litigation is concerned primarily with the constitutional remedies sought under Articles 44 and 102 of the constitution of Bangladesh. Constitution provides mechanism to enforce Public Interest and rights. Article 44 of the Constitution of Bangladesh guaranteed the right to move in the High Court Division of Bangladesh Supreme Court in accordance with the Art. 102 for enforcement of fundamental rights. Art. 102 speak about “any person aggrieved”. The constitution has not defined expression nor has it mentioned “any person aggrieved”. The question was vital as it was a Constitutional requirement under Article 102 that it is only “a person aggrieved” who can file petitions for enforcement of fundamental rights. In Law Lexicon “any” means all, each, every, some amongst many. The expression has given a meaning in the context of the scheme and objectives of the constitution and in the light of the purpose behind the grant of the right to the individuals and the power to the court. It is also provided in Art. 21(1) that- It is the duty of every citizen to observe the constitution and the laws to maintain discipline to perform public is duties and to protect public property. In the English Courts which successfully introduced the restrictive rule of standing. The UK Courts applying purposive approach in the cases such as- ex parte Greenpeace Ltd (No.2) [1994] 4 All ER 328; ex parte Rees-Mogg [1994] All ER 457. In the Case, R. v. Secretary of State for Foreign & Commonwealth Affairs; Ex parte Ree-Mogg [1989] 1 All E.R. 1047; R v. Her Majesty Treasury; Ex parte Smedley [1985] 1 All E.R. 589. The court held that- It is, however, not necessary that applicant’s interest should be different from that of an ordinary member of the public. New Vista in PIL; Liberation of Locus Standi in Bangladesh: PIL has brought about a new vista in respect of locus standi. An applicant having no personal connection with the dispute, in the traditional sense of locus standi, may be allowed standing, if in its discretion, the court considers the case to be of sufficient public importance. In Kazi Mukhlesur Rahman Vs. Bangladesh, 26 DLR (1974) (AD) 44, an advocate challenged the legality of Delhi Treaty of 1974, the Appellate Division took a liberal view. BB Roy Choudhury J. observed that- “Person aggrieved” means not only any person who is personally aggrieved but also one whose heart bleeds for his less fortunate fellow-beings for a wrong done by the government or a local authority in not fulfilling its constitutional or statutory obligations. In the case of Agragem Engineers Ltd. Vs. Bangladesh Bank, 45 DLR (1993) 143, the court observed that- In Bangladesh, standing is thought to be always a “threshold” question. In Dr. Mohiuddin Farooque Vs. Bangladesh, 49 DLR (1997) (AD) 1. It was held that an association such as an environmental pressure group has standing to challenge the legality of the 1988 Bangladesh Flood Control Plan. It was an “aggrieved person” within the meaning of Article 102(1) & 102(2) of the Bangladesh Constitution. In this case the spirit of the constitution was invoked to ascertain the meaning of words “any person aggrieved” meaning only and exclusively individuals and excluding the consideration of the people as collective and consolidated personality would be a stand against the construction. The constitution as a whole, including the fundamental rights, ought to be considered in deciding the question of standing. In accordance with this liberal attitude towards constitutional interpretation, locus standi of the PIL petitioner the most significant gain from PIL is that it brings issues in the lime light before the general public. PIL has enlarged the door of public accountability through the judiciary. Through PIL, multiple sectors and stakeholders become involved in the development process, as envisaged in the idea of sustainable development. PIL has brought forth an element of accountability, and created a space for the portrayal of a human face in development. In recent years, PIL has begun to emerge as a potent new force within the justice system of Bangladesh. Social and political activists have expressed high levels of interest in the potential of this phenomenon to bring about significant change in Bangladesh society.
Posted on: Sun, 09 Jun 2013 18:56:24 +0000