The Mid-1990s: Crucial Years for Public Interest Litigation
Rights can be Suspended, not Courts: This period was marked with judicial activism and respect earned through PIL, enhanced by the attacks from the legislature. Individual rights could be suspended but not the courts, according to Farooq Ahmed Laghari v Federation of Pakistan.
While deciding this case, the courts articulated their own domain, accepted the suspension of fundamental rights to deal with emergency, but denied the second proclamation to stop the courts. Furthermore, it stated that the judiciary itself was not accountable and “no writ can be issued by a High Court of the Supreme Court against itself or against each other or its judges” when exercising their constitutional jurisdiction.[1066] In another very important case, the court strongly defended its right to PIL in 1996.[1067] The court did not allow any legislation to take away its jurisdiction.Limits to Public Interest Litigation and Political Questions: At the same time, the limits of PIL as an alternative stream of justice were becoming evident, including its use as a political tool. Khosa pointed out that judges should not try to be wiser than the law while trying to do justice, and that judgments should not be used to restrict the rights of others.[1068] PIL was also criticized as a key reason behind the backlog of cases. Courts refused PIL cases that were considered frivolous and not genuine PIL cases, declaring them a ‘packing of the courts’.[1069] In some cases, the courts did not trust bona fide petitioners and the courts checked the misuse of PIL for personal benefit.[1070] M.D. Tahir filed many cases and was unmindful of criticism of frivolous action.[1071] At the same time, genuine cases of PIL were refused, like the case of Zainab Noor and the lawyers against VIP culture (an unnecessary given protocol to important persons).[1072]
Menski ultimately found there was a decline of PIL in Pakistan because of ‘distractions of the big politics’.[1073] Al-Jehad Trust v Federation of Pakistan was a case he cites as, like in India, PIL was used in struggles over the division of power between the judiciary and the executive. In other cases, the judiciary sought to fill in gaps in legislation that were inconveniencing citizens.[1074] Another objection was the misuse of PIL by middle-class entrepreneurs for their personal gains.[1075] Menski proposed a balance between public interest activism and private interest.[1076] In his view, the judiciary could play arole in monitoring standards.[1077] Yet, Menski argued there was a false dichotomy between ‘normal’ litigation and PIL.[1078] Supreme Court Chief Justice Ajmal found that because of PIL, public utility services did improve to some extent.
But according to him, the judges did not use this facility sufficiently. The concept of the Quetta Declaration was valuable but remained only on paper.[1079] By the end of the 1990s, PIL in Pakistan was of some use by cutting the excesses of free market capitalism, through consumer protection, and market-oriented environment protectionism. A detailed analysis is in the last empirical chapter about 2000s. The consolidation of PIL was also evident in the lawyers’ movement, which swept through the country in the 2007 onwards. PIL and its principles had become an integral part of the constitution in spite of criticism and misuse.[1080] Ultimately, I view PIL as a legal development that evolved with political developments in Pakistan but which became co-opted within the good governance paradigm.4.7