Public interest litigation (PIL) is a very popular concept in the country. There are many lawyers known mostly for their excessive involvement in it. There are also lawyers who largely refrain from it. They support judiciary’s involvement in the matters of the Executive only when it becomes unavoidable, and advocate limited use of suo motu powers by superior courts.

There is also a concern among the legal fraternity regarding cases taken up by the Supreme Court under the powers conferred by the Article 184 (3) of the Constitution of Pakistan, and Article 199 for high courts. The question here is whether courts shall interfere in every other matter of the government or remain selective and play this role when there is no remedy in sight.

The incidence of such litigation has not remained stable or consistent. It has fluctuated over time with leadership changes in the courts. When judges are seen amenable to what passes for judicial activism, incidence of PIL rises; conversely, it falls when the judges are not inclined to give such relief.

One remembers the late MD Tahir, a Lahore-based lawyer, known for filing a record number of human rights petitions in the Lahore High Court as well as the Supreme Court on myriad grounds. He would appear on a pro bono basis, meaning that he offered his services for free to guard the interests of people with limited or no income. In recognition of his role, he was popularly called Public’s Prosecutor; and there were calls to include his name in the Guinness Book of World Records for filing the highest number of human rights petitions in the world.

Against this backdrop, one is compelled to think of lawyers whose names come to our minds the moment we talk about PIL and what inspires them to do this. Why certain lawyers oppose the judiciary’s interference in the work of the Executive altogether or back selective use of these powers are also questions that need to be explored.

Abdullah Malik, an advocate of Lahore High Court (LHC), is a relatively new name in the list of the lawyers interested in PIL in Pakistani courts. In his view, hardly one percent of lawyers in the country go for it, with the big names in the profession not even taking up one such case. "My law practice and pro bono litigation go on side-by-side. Why can’t they do this too?"

He insists that talk about judicial restraint is totally out of place in a country like Pakistan where the Legislature and the Executive have failed to perform their assigned roles. In this situation, he says, one cannot stop an aggrieved citizen from availing a remedy provided by the Constitution.

"Such debates are fine in developed countries where the relevant forums are delivering without fail", he adds.

Malik says his background as a human rights activist encouraged him to take up PIL and the allegations by some quarters about him being a frontman for vested interests are baseless. "I always wanted to play this role but was waiting for the right time. Former chief justice of Pakistan, Justice Saqib Nisar provided the required space, and I made the best use of it."

Malik would be around whenever the former CJP was at Lahore registry, helping people submit their applications to the Human Rights Cell of the Supreme Court. He would also explain their complaints to the former CJP and try to get notices issued to the concerned departments.

Malik says he earned the wrath of influential people when he got dubious petrol pump leases cancelled and the Miani Sahib graveyard in Lahore vacated from encroachers with the help of the Supreme Court. He adds that many lawyers avoid PIL due to similar risks as well as the fear of losing powerful potential clients.

However, those who advocate judicial restraint have other reasons to cite in this respect. For example, lawyer Hamid Khan says the major drawback in such litigation is that there is no provision of appeal against court’s decision which has to be abided by despite its demerits. He says he is not a proponent of PIL unlike many others because he thinks that the contours of this domain are a bit vague and need to be defined clearly.

"The Reko Diq case was taken up as an appeal against a decision of Balochistan High Court. The human rights petitions were made part of it later", he explains. The Reko Diq case, he says, was not a human rights case from the start. He adds that just as there are diverse views among lawyers on this topic, judges are also divided.

"Former chief justices Iftikhar Chaudhry and Saqib Nisar encouraged judicial activism but Chief Justice Asif Khosa is discouraging its excessive use", he adds.

Lawyer Salman Akram Raja, who was counsel for the petitioner in Royal Palm Golf Club (RPGC) case, also considers this domain to be a poorly demarcated area. He says there are "no set rules to define what the superior courts shall take up and what they shall not". The suitability for this purpose, he believes, varies from one case to another. The RPGC case, for instance, was a human rights case filed by former minister and Pakistan Railways’ employee Ishaq Khan Khakwani against the allotment of railway land to a private party for development into a world-class golf course.

Apart from counsel for the petitioner and respondent, a major role in such cases is that of amici curiae, experts and commissions formed by the court to assist it and conduct investigations.

Mohsin Bhatti, president of Consumer Solidarity System (a non-profit working for consumers’ rights, recalls how he was engaged by the Supreme Court under Justice Nisar to give his input in a case concerning the quality of packaged milk. He says that he excitedly attended all hearings, without any financial incentive, because the cases were relevant to his field. Bhatti also hosts TV shows on food adulteration and was on the scientific panel of Punjab Food Authority (PFA). Bhatti was satisfied because his input was incorporated into the court judgment.

Lately, senior lawyers have urged the Supreme Court to amend its rules in human rights cases and give litigants the right of appeal against a judgment. This, they assert, will ensure due process of law and fair trial as enshrined in Article 10-A of the Constitution of Pakistan. In tandem with this, a smear campaign against lawyers involved in PIL is also ongoing - these lawyers are being blamed for pursuing such cases at the behest of the Establishment.

Azhar Siddique, a Lahore-based lawyer, brushes these allegations aside. He claims that his fight for the people’s rights is motivated by empathy for the down-trodden. He explains that PIL is not popular among lawyers because there is no monetary support; and legal aid, if any, is available for individual cases only. An overwhelming majority of lawyers, he says, do not even pay wages to their juniors so "why would they even think about PIL?"

"Young lawyers have the passion and energy, and can therefore be the best at this," he states.

Siddique says that he started PIL because of the late MD Tahir; and not for the reason that he was hyperactive in his field but because hardly any cases he took up were result-oriented. He says that people would make fun of him, instead of praising his efforts to bring issues of public interest to the fore.

"I decided to enter the field and restore the dignity of PIL." He says he takes up cases very carefully, does all the research work with the help of his team and provides related documents and evidence to the court.

"That’s why my success ratio is above 95 percent," he asserts.

Siddique denies that his cases are mostly against the PMLN. He says that he has got decisions against various governments.

Also read: Editorial

"The list is extensive," he says.

The decisions include, among others, stopping Pervaiz Elahi’s government from constructing IMAX theatre in a playground, Yousaf Raza Gilani’s disqualification, abolition of Contempt of Court Act, disbanding of 56 companies formed by Shahbaz Sharif, Orange Line Metro Train, and demolition of Governor’s House wall.

"PIL has made many departments, put things in order, and needs to be practiced by more lawyers", he opines.

Lawyer Ahmad Rafay Alam believes there was always space for PIL in Pakistan as the country’s Legislature failed to develop and fundamental rights remained suspended for a major part of its history. "Then there are ambitious lawyers who take up human rights cases to become popular because these cases are cited under their names in court", he reflects.

"They have formed an organisation of lawyers and experts and file human rights cases under its name because this gives greater legitimacy to their actions," he concludes.