Taking justice seriously: judicial public interest and constitutional activism in Bangladesh
2006; Taylor & Francis; Volume: 15; Issue: 4 Linguagem: Inglês
10.1080/09584930701330006
ISSN1469-364X
Autores Tópico(s)Asian Geopolitics and Ethnography
ResumoAbstract By analysing public interest litigation (PIL) jurisprudence, this article examines Bangladeshi judicial activism in dispensing justice through the promotion and protection of the ‘public interest’ and imperatives of constitutionalism. Originally linked with the idea of having an accessible judicial system for the wider community, PIL in Bangladesh previously focused primarily on ‘the weak’, as well as on pure rights. However, while PIL has recently extended its stake to a broader set of constitutional issues, it has not delivered on its promises. It is said that the elitist use of PIL has undermined a much-needed focus on social justice and public empowerment. This article argues that PIL's underperformance is not rooted in its elite-driven use alone, but is also a consequence of judicial unwillingness to remain jurisprudentially creative. Adopting a broader rather than minimalist approach to PIL, it focuses on the limits of social-rights-centric concept of social justice, and argues that enforcing principles of constitutionalism through PIL, even if pursued by the elites, could be a viable avenue towards social and constitutional justice. Acknowledgements The author is grateful to Professor Werner Menski of the School of Oriental and African Studies, UK, for encouraging him to write this paper for the British Association for South Asian Studies Annual Conference 2006, and for his insightful comments and advice on earlier drafts. The author also wishes to thank Dr Prakash Shah of Queen Mary College, UK, and two anonymous reviewers of the Contemporary South Asia whose suggestions were of great benefit. Notes 1. Also famously called ‘social action litigation’, a term prominently crafted by Upendra Baxi. See Upendra Baxi, ‘Taking suffering seriously: social action litigation in the Supreme Court of India’, in Neelan Tiruchelvam and Radhika Coomaraswamy (eds), The Role of the Judiciary in Plural Societies (London: Francis Printer, 1987), pp 32 – 59. Although the term ‘public interest litigation’ is American in origin, the phenomenon to which it now refers in South Asia is distinctively South Asian. See Rajeev Dhavan, ‘Law as struggle: public interest law in India’, Journal of the Indian Law Institute, Vol 36, No 3, 1994, pp 302 – 338; and Werner Menski, ‘Public interest litigation: a strategy for the future. The 4th Cornelius Memorial Lecture’, in Werner Menski et al. (eds), Public Interest Litigation in Pakistan (London and Karachi: Platinium and Pakistan Law House, 2000), pp 106 – 132. 2. The academic and judicial literature on Indian PIL is quite large and is still growing. One leading and excellent work is Sangeeta Ahuja, People, Law and Justice: A Casebook of Public Interest Litigation (New Delhi: Orient Longman, Vols. 1 & 2, 1997). For later PIL decisions, see S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2nd edition, 2002). See also Bandhua Mukti Morcha v Union of India AIR 1984 SC 802, and Sheela Barse v India (1988) 4 SCC 226. 3. Jeremy Cooper, ‘Poverty and constitutional justice: the Indian experience’, Mercer Law Review, Vol 44, No 2, 1993, pp 611 – 635; see p 611. 4. The courts went to the extent of even treating the victims' letters/telegrams as petitions (‘epistolary’ jurisdiction) and initiating actions suo motu. 5. See Cooper, op cit, Ref 3. 6. Indian PIL also influenced Pakistani, Sri Lankan and South African PIL. A comprehensive work on Pakistani PIL is Mansoor H. Khan, Public Interest Litigation: Growth of the Concept and Its Meaning in Pakistan (Karachi: Pakistan Law House, 1993); see also Menski, op cit, Ref 1. On Sri Lanka, see Mario Gomez, In the Public Interest: Essays on Public Interest Litigation and Participatory Justice (Colombo: Legal Aid Centre, University of Colombo, 1993). 7. Jeremy Cooper, ‘Public interest law revisited’, Bangladesh Journal of Law, Vol 2, No 1, 1998, pp 1 – 25. 8. I do not claim that PIL is the only avenue for judicial constitutional activism. It can also be exercised in regular constitutional proceedings or appellate cases having constitutional dimensions. For a useful classification of PIL, apart from my rights-based and constitutionalism-based binary, see M.P. Jain, ‘Public interest litigation in India’, in S.S. Rachagan and M.P. Jain (eds), Public Interest Law (Kuala Lumpur: International Association for Consumer Law, 1998), pp 91 – 122. It is to be noted that suo motu (on the Court's own initiative) judicial interventions constitute a sui generis type of PIL. 9. Despite recent enthusiasm among new researchers, there is simply not much literature on Bangladeshi PIL. However, a leading major work is Naim Ahmed, Public Interest Litigation: Constitutional Issues and Remedies (Dhaka: Bangladesh Legal Aid and Services Trust, 1999); see also Quazi R. Hoque, ‘Scope of public interest litigation in relation to fundamental rights in Bangladesh’, Focus (Dhaka), Vol 1, 1993, pp 43 – 57; and ‘Social values through litigation: the case of Bangladesh’, in Jeremy Cooper and L.G. Trubek (eds), Education for Justice: Social Values and Legal Education (Aldershot: Ashgate, 1996), pp 218 – 232; Sara Hossain, Shahdeen Malik and Busra Musa (eds), Public Interest Litigation in South Asia: Rights in Search of Remedies (Dhaka: University Press Limited, 1997); Altafur Rahman, ‘Public accountability through public interest litigation’, Bangladesh Journal of Law, Vol 3, No 2, 1999, pp 161 – 180; and Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (The Hague; London; New York: Kluwer, 2004). 10. Menski, op cit, Ref 1, p 125. 11. Berubari 26 (1974) Dhaka Law Report (DLR) (1974) AD 44. 12. See Mustafa Kamal, Bangladesh Constitution: Trends and Issues (Dhaka: University of Dhaka, 1994), p 16; and the opinions of Justices Afzal and Kamal in Dr Mohiuddin Farooque v Bangladesh IX (1996) Bangladesh Supreme Court Report 27, pp 31 – 32 and p 45, respectively. 13. Berubari, op cit, Ref 11, per Sayem CJ, p 52: ‘the question of locus standi […] is one of discretion [to be] exercise[d] upon due consideration of facts and circumstances of each case’. 14. Ibid, pp 51 – 52. 15. For example, an advocate was refused standing to challenge constitutionality of an Ordinance; see M.G. Bhuiyan v Bangladesh 1 (1981) Bangladesh Case Report (AD) 80. See also Eastern Hosiery Mills Shramik Samity v Govt. of Bangladesh 27 (1975) DLR (HCD) 674; Dada Match Workers' Union v Bangladesh 29 (1977) DLR (HCD) 188; and Khulna Shipyard Employees' Union v General Manager, Khulna Shipyard 30 (1978) DLR (HCD) 368. 16. 43 (1991) DLR (AD) 126, per M. Kamal J (refusing the leave to appeal). An association of owners of newspapers challenged a wage board decision, fixing wages for newspaper employees. 17. Sangbadpatra, ibid, pp 127 – 128. 18. See Mahmudul Islam, Constitutional law of Bangladesh (Dhaka: Mullick Brothers, second edition, 2002), p 607, and Kamal J's defence of Sangbadpatra – reasoning in FAP 20 (op cit, Ref 23), p 48. 19. See Mahmudul Islam, Constitutional Law of Bangladesh (Dhaka: Mullick Brothers, 2002; first published 1995), p 607. 20. These included non-invocation of the rights of a downtrodden social section, and the opulence of the members of the association. This reasoning begs the question of was the court justified in turning the petitioner away because its members were ‘opulent’, given that the petitioners alleged the breach of the wider principle of legality? 21. Ahmed, op cit, Ref 9, p 127. 22. On initial test cases see, ibid, chapter 3, especially pp 20 – 38. 23. IX (1996) Bangladesh Supreme Court Report 27. Known as FAP 20 case, after the name ‘Flood Action Project 20’. 24. In Dr Mohiuddin Farooque v Bangladesh, Writ Petition (WP) No 998/1994. 25. FAP 20, op cit, Ref 23, p 33, per Chief Justice Afzal. 26. FAP 20, op cit, Ref 23, p 51, per Kamal J. 27. AIR 1982 SC 149. 28. Since the early 1990s, leading lawyers such as Syed Ishtiaq Ahmed were arguing for PIL; see Syed Ishtiaq Ahmed, ‘An expanding frontier of judicial review—public interest litigation’, DLR, Vol 45, 1993, Journal Section, pp 36 – 45. Unnoticed by many, a law reporter advocated for PIL early in 1987; see Editorial in the Bangladesh Case Reports, 1987, pp 4 – 5. A national conference on PIL, held on 26 – 27 July 1996 in Dhaka, apparently contributed to PIL's development in Bangladesh; see Hossain, Malik and Musa (eds), op cit, Ref 9. 29. See Stephen Gulab, ‘From the village to the university: legal activism in Bangladesh’, in Mary McClymont and Stephen Gulab (eds), Many Roads to Justice (New York: The Ford Foundation, 2000), pp 127 – 158. Apart from the legendary organisation BELA, the institutional doyen of the PIL movement in Bangladesh, other human rights groups and individuals began to knock the doors of the Court with public interest causes since the early 1990s. 30. Bangladesh Retired Govt. Employees' Welfare Association v Bangladesh 46 (1994) DLR (HCD) 426. This was later endorsed by the AD; see 51 (1999) DLR (AD) 121. 31. Ibid, p 435. Granting a citizen standing on the ground of constitutionalism (i.e. allowing a voter to challenge the constitutionality of the opposition boycotting Parliament), see also Anwar Hossain Khan v Speaker of Bangladesh Sangsad (Parliament Boycott case) 47 (1995) DLR (HCD) 42. 32. Apart from the Indian decisions, the AD in FAP 20 (op cit, Ref 23) also made explicit references to Pakistani PIL cases, international legal materials and learned authors. 33. On the contrary, judges and jurists, eager to craft an indigenous theoretical framework, have sometimes underlined the need for avoiding Indian and Pakistani approaches to constitutional interpretation. See, for example, Parliament Boycott case, as in Ref 31; and Mohiuddin Farooque, ‘Autochthonic constitutional litigation’, Bangladesh Environmental Lawyers' Association Newsletter, Vol 2, No 4, Dhaka, pp 1 and 4. While locality-consciousness and awareness about the more demanding thrust of the Bangladeshi constitution is highly desirable, these sources left it unclear as to how other South Asian jurisdictions were unhelpful for the development of Bangladeshi law. 34. For example, Justice M.H. Rahman of the AD, after having returned from an overseas judicial colloquium, cautiously approved the developing jurisprudence of PIL in India; see M. H. Rahman, ‘The role of the judiciary in the developing societies: maintaining a balance’, Law and International Affairs, Vol 11, Nos 1 – 2, 1988, pp 1 – 10. In a 1994 lecture given before his 1996 decision in FAP 20, Kamal J extra-curially applauded Indian PIL and tactfully hinted the upcoming shifts in judicial attitude towards this creative jurisprudence; see Kamal, op cit, Ref 12, pp 160 – 166. 35. This autochthonous nature was famously underlined first by B.H. Chowdhury J in Anwar Hossain v Bangladesh (1989) Bangladesh Legal Decisions (BLD) (AD) (Spl) 1, p 59. See also Anwar Hossain Khan, above Ref 31. 36. FAP 20, op cit, Ref 23, pp 49 – 50, per Kamal J. 37. Ibid, p 49, per Kamal J. Other judges, too, took the Constitution as a living instrument (per B. B. Roy Chowdhury J) and emphasised the need for judicial activism in realising ‘social justice’ (per L. Rahman J) through securing constitutional fundamental rights. 38. Dr Mohiuddin Farooque v Bangladesh (FAP 20 merit) 50 (1998) DLR (HCD) 84, 102. Although the Court's order was not implemented in a true sense, there were some good actions on the part of the government such as consulting the locals in making an environmental impact assessment, and the introduction of the National Environment Action Management Plan. See M. Rafiquzzaman, ‘Public interest litigation in Bangladesh: a case study’, Bangladesh Journal of Law, Vol 6, Nos 1 – 2, 2002, pp 127 – 144. 39. For an example where the petitioner himself claimed to be a potential victim, see Dr. Mohiuddin Farooque v Bangladesh 48 (1996) DLR (HCD) 438 in which the Court prevented the release of radio-active dried milk in order to protect public health. See further Master Isa N. Farooque v Bangladesh, WP No 278/1996, where children including a son of BELA's director petitioned the Court to stop the use of children as camel jockeys in the United Arab Emirates. 40. See Ziaur Rahman Khan v Bangladesh 49 (1997) DLR (HCD) 491. Not claimed as a PIL—a politician unsuccessfully challenged the vires of an electoral law, but the Court attempted to vitalise the electoral culture by directing the holding of fresh elections in three Hilly Districts' local government bodies within a specified time-frame. For details, claiming that elitist challenges outnumbered socio-economic issues, see Naim Ahmed, Litigating In the Name of the People: Stresses and Strains of the Development of Public Interest Litigation in Bangladesh (London: SOAS, Ph.D. thesis, 1998), pp 281 – 283. 41. Werner Menski, ‘Public interest litigation: deliverance from all evils?’, Bangladesh Journal of Law, Vol 6, Nos 1 – 2, 2002, pp 1 – 9; see p 8. For details on PIL's developmental stages, see Menski, op cit, Ref 1, p 130 ff. 42. M. Saleem Ullah v Bangladesh, 23 (2003) BLD (HCD) 58; and, not a PIL in the classical sense, RAJUK v Mohshinul Islam 53 (2001) DLR (AD) 79. The Court refused to give a remedy to a person challenging his eviction from a public park, holding that preservation of open space was necessary for the health of the people; see Giashuddin v Dhaka City Corporation 17 (1997) BLD (HCD) 577. Where the construction of a commercial building preventing free air and light and endangering the environment was stayed, see also Sharif Nurul Ambia v Bangladesh, WP No 937/1995. 43. 55 (2003) DLR (HCD) 613, per M.M. Ruhul Amin. 44. CNG – compressed natural gas. 45. Dr Mohiuddin Farooque v Bangladesh 55 (2003) DLR (HCD) 69 (Industrial Pollution). 46. A phrase used by Upendra Baxi in ‘Rule of law in India: theory and practice’, in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (New York: Routledge, 2004), pp 324 – 345; see p 345, n 43. 47. Article 21(1) of the Constitution casts a duty on the general public ‘to observe the Constitution and the laws’. 48. For an instance of this trend see Bangladesh Legal Aid and Services Trust (BLAST) and Ors v Bangladesh 25 (2005) BLD (HCD) 82, a case that unearthed that marketed edible salts contained no or less than the statutory level of iodine. In this case, the HCD, attaching a periodical reportage obligation, directed the concerned government officials to discharge their various regulatory duties, especially to prosecute recalcitrant salt-manufacturers, under the Iodine Deficiency Diseases Prevention Act 1989 and the Rules of 1994. See also ASK v Government of Bangladesh, 4 Commonwealth Human Rights Law Digest (2003) 147, in which the petitioner sought to compel the administration to discharge its duties under a safety legislation so that deaths of workers in garments factories occurring from fire could be prevented. Similarly, in Quazi Faruque, Consumers' Association of Bangladesh v Bangladesh, WP No 631/2001, the Court by its interim order of 3 August 2003 directed the concerned government department to take legal measures to ensure safe plying of launches. 49. 52 (2000) DLR (HCD) 413. 50. Ibid. 51. Ibid., pp 415, 421 – 422, 433 (per Fazlul Karim J). 52. 55 (2003) DLR (HCD) 69; see respectively pp 73 and 79, per A. B. M. Khairul Haque J, who drew on the constitutional promises of a rule-of-law-based society and of a welfare state. 53. Khushi Kabir v Bangladesh and Others, WP No 3091/2000. 54. BELA v Bangladesh and Others, WP No 4685/2002. 55. BELA v Bangladesh, WP No 2911/2003. Also seeking to protect the surrounding marine and land environment. 56. This rights-expanding interpretation that began with FAP 20 was later developed in many cases; see op cit, Ref 23, per Chowdhury J. See, for example, Dr Mohiuddin Farooque v Bangladesh 48 (1996) DLR 438, 442: ‘the right to life … includes the enjoyment of pollution free water and air, improvement of public health … and ensuring quality of life consistent with human dignity’. 57. 19 (1999) BLD (HCD) 488. 58. The Constitution (Article 32) prohibited breach of the right to life and liberty except ‘in accordance with law’, a ‘due process’-equivalent safeguard that the court seemed to establish in this and other cases. See Kalam v Bangladesh 21 (2001) BLD (HCD) 446; and Aleya Begum v Bangladesh 53 (2001) DLR (HCD) 63. 59. Bangladesh Society for Enforcement of Human Rights v Bangladesh, 53 (2001) DLR (HCD) 1, per M. Fazlul Karim. 60. Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180. Negatively enforcing the rights of the socially marginalised people by preventing the executive from depriving them of their existing rights rather than obliging it to provide them with basic needs. 61. Kalam v Bangladesh, op cit, Ref 58, p 448. Haque J, op cit, p 448, addressed the following humanising words to the government: ‘After all, the slum dwellers …are also citizens of this country … with equal rights. Their fundamental rights may not be fully honoured because of the limitations of the state, but they should not be treated … as slaves … [T]hey have a right to be treated fairly and with dignity, otherwise all [constitutional] commitments … shall prove to be mere mockery.’ 62. Salma Sobhan v Bangladesh (unreported, WP No 2678/1995). Although this case was not later prosecuted, an interim remedy unchained a prisoner from ‘danda bery’ put on his legs for 33 months. Ordering the removal of handcuffs from a juvenile detainee and directing the lower court to grant him bail, see also ASK v Bangladesh WP No 3176/2000, in which the Court ordered the removal of handcuffs from a juvenile detainee and directed the lower court to grant him bail. 63. Faustina Pereira v The State & Others 53 DLR (2001) (HCD) 414. This case was initiated through a letter by a lawyer to the Chief Justice. 64. BLAST v Bangladesh 57 DLR (2005) (HCD) 11. 65. Faustina Pereira, op cit, Ref 63. The court ordered the release of those foreign prisoners and directed the authority to take steps for the release of other similar foreign prisoners and to report back the progress, making several suggestions for smooth handling of similar situations in the future. A similar PIL relating to Bangladeshi nationals is ASK v Bangladesh, WP No 1987/2005. 66. See BLAST & Others v Bangladesh, unreported, WP No 2192/2004. The HCD on 29 September 2004 issued an injunction against the blanket mass arrests ahead of an opposition party's conference under section 86 of the Dhaka Metropolitan Police Ordinance 1986. Despite this case, there was a similar mass arrest drive in February 2005, and the rights groups again promptly activated the Court. 67. For example, freeing a boy from a 12-year-long illegal imprisonment, see State v Deputy Commissioner, Satkhira 45 DLR (1993) 643; and separating under-trial child prisoners from adult prisoners, see State v Inspector General of Prison, suo motu Rule No 248/2003. For details, see Ridwanul Hoque, ‘Suo motu jurisdiction as a tool of activist judging: a survey of relevant issues and constructing a sensible defence’, Chittagong University Journal of Law, Vol VIII, 2003, pp 1 – 31. 68. For a classical exposition of the emerging right to democratic governance, see Thomas M. Frank, ‘The emerging right to democratic governance’, American Journal of International Law, Vol 86, 1992, pp 46 – 91. See also G.H. Fox and B.R. Roth, Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000); Richard Burchill, ‘The developing international law of democracy’, Modern Law Review, Vol 64, No 1, 2001, pp 123 – 134; and Jude I. Ibegbu, Right to Democratic Governance in International Law (Lewiston: Edwin Mellen Press, 2003). 69. There is now a large body of literature on this. See, among others, Saladin Al-Jurf, ‘Good governance and transparency: their impact on development’, Journal of Transnational Law and Contemporary Problems, Vol 9, 1999, pp 193 – 212; Amartya Sen, Development as Freedom (New York: Anchor Books, 2000), pp 147 – 148; H.O. Sano and G. Alfredson, Human Rights and Good Governance: Building Bridges (The Hague: Martinus Nijhoff, 2002); and Philip Alston and Mary Robinson (eds), Human Rights and Development: Towards Mutual Reinforcement (Oxford & New York: Oxford University Press, 2005). 70. There are accusations that even the most forthright academic vanguard of Indian PIL, Upendra Baxi, opposed PIL's extension (as his label ‘social action litigation’ suggests) from the causes of merely the disadvantaged and deprived into a more general legal tool for all public interest issues; see Ahuja, op cit, Ref 2, p 4. In a recent interview with the author in London on 19 October 2005, Baxi expressed his change of mind as to PIL's ambit and was willing to see its role in controlling the government. In fact, Indian PIL began to transcend this self-imposed limitation soon after its birth; see Dhavan, op cit, Ref 1, p 310. 71. Menski, op cit, Ref 1, p 120. 72. For example, Indian judges realised earlier that ‘the starvation deaths’ in some Indian states were the products of ‘utter negligence and callousness of the administration’; see Kishen Pattanayak v State of Orissa (1989) Supp 1 SCC 258, per Dutt J. Or, the judges realised that these faminies were the products of lack of good governance rather than availability of food; see Peoples Union for Civil Liberties v Union of India (2001) 7 SCALE 484. 73. On this see Michael Anderson, Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs (Sussex: Institute of Development Studies, IDS Working Paper No 178, 2003), and sources cited therein. 74. Sen, op cit, Ref 69. 75. See Refs 127 – 129 below, and the accompanying text. 76. Shami Chakrabarty, Julia Stephens and Caoilfhionn Gallagher, ‘Whose cost the public interest?’, Public Law, Winter 2003, pp 697 – 715 at p 712. 77. Apart from these, there were three class action lawsuits prosecuting personal interests of the members of the affected group but involving substantial public interest. In these (class action PIL) cases, too, the court showed commendable public interest/constitutional activism. Involving constitutional principles of judicial independence, see Secretary, Ministry of Finance v Md. Masdar Hossain 52 (2000) DLR (AD) 82; involving eviction from government property, see Aleya Begum v Bangladesh, op cit, Ref 58; and involving striking down an administrative order that discriminated against women ward commissioners of a City Council, see Shamima Sultana Seema & Others v Bangladesh 57 (2005) DLR (HCD) 201. 78. The two PILs by individuals were Faustina Pereira (‘epistolary’), op cit, Ref 63; and M Saleem Ullah, op cit, Ref 42. 79. This phrase, and also the idea, used in an early Dhaka case, is often used in US judicial decisions; see A. K. M. Fazlul Quader Chowdhury v Govt. of Pakistan 9 (1957) DLR (Dacca) 139. See David M. Driesen, ‘Standing for nothing: the paradox of demanding concrete context for formalist adjudication’, Cornell Law Review, Vol 89, No 4, 2004, pp 808 – 891. 80. BLAST & Others v Bangladesh 23 BLD (2003) (HCD) 115 (now pending in the AD). In this watermark decision, the HCD established a right to be informed, and a right to consult a lawyer after arrest, and issued some directions with a view to controlling police excesses and installing ‘due process’ in the country's criminal jurisprudence. It made various policy suggestions as to how to bring the existing system of unbridled arresting power and unguided discretion of the magistrates to remand arrestees to police custody (under sections 54 and 167 of the Code of Criminal Procedure, 1898) in conformity with the Constitution. 81. BLAST v Bangladesh, WP No 4502/2003, unreported. The HCD declared the Village Government Act 2003 unconstitutional for not providing for election to the village governments. Also notable is Farida Akhter and Others v Bangladesh, WP No 3262/2004, an unsuccessful (on the merits) PIL of the same genre, which challenged the 14th constitutional amendment providing for reserved seats for women in Parliament. 82. BLAST v Bangladesh, WP No 8283/2005 (pending in the HCD). Challenging section 6(2) of the Suppression of Violence against Women and Children (Special Provisions) Act 1995—the Act, although repealed, saved the legality of pending and concluded trials. 83. Z.I. Khan Panna v Bangladesh, WP No 8621/2005, filed 30 November. PIL by the head of the human rights cell of the Bangladesh Bar Council. 84. M. Idrisur Rahman v Shahiduddin Ahmed 19 (1999) BLD (HCD) 291. This was later confirmed by the AD; see 19 (1999) BLD (AD) 203. Here, a lawyer successfully challenged the constitutionality of the appointment of the Chief Metropolitan Magistrate of Dhaka without consulting the Supreme Court as mandated by the Constitution. Interestingly, this was not claimed to be a PIL probably because of the then unfavourable juridical environment; nor was it necessary to brand it so, because under the Constitution ‘any person’ could seek a quo warranto writ (to challenge the legality of any person's holding of a public office). However, public interest mottos clearly informed both the litigator and the Court. 85. Dr Shahdeen Malik v Secretary, Ministry of Law, Justice and Parliamentary Affairs, WP No 2088/2005. The HCD issued a rule nisi on 2 April 2005. 86. Khairul Alam Pipul v Bangladesh, WP No 1171/2006. See the HCD's orders of 13 and 27 February 2006; the disputed judge has recently resigned. 87. Abdul Momen Chowdhury and Ors v Bangladesh, WP No 2561/2005 (Order of 24 May 2005). This was followed by another PIL brought by five conscious citizens seeking to compel the Election Commission to frame necessary rules to implement the earlier court directives; see Prof. Muzaffer Ahmad v Election Commission, WP No 5069/2005. 88. 22 (2002) BLD (AD), 163. This confirmed the HCD's decision in Chowdhury M. Hasan v Bangladesh 22 (2002) BLD (HCD) 459. 89. 23 (2003) BLD (HCD) 80, per S. A. N. Mominur Rahman J. 90. 54 (2002) DLR (AD) 130, p 140. 91. Ibid, p 144. 92. 23 (2003) BLD (HCD) 80, 99. 93. SAS Bangladesh Ltd v Engr. Mahmud-ul Islam 24 (2004) BLD (AD) 92, p 112. 94. For an excellent account of traditionalist and activist approaches to public interest standing to challenge the constitutionality of legislation, see Chuks Okpaluba, ‘Justiciability and standing to challenge legislation in the Commonwealth: a tale of traditionalist and judicial activist approaches’, Comparative and International Law Journal of the Southern Africa, Vol 36, 2003, pp 25 – 64; see further Mauro Cappelletti, ‘Governmental and private advocates for the public interest in civil litigation: a comparative study’, Michigan Law Review, Vol 73, 1975, pp 694 – 684. In the Bangladeshi context, an argument for open constitutional standing is M.S. Hoque, ‘Violation of the Constitution: Locus standi not material to protest’, DLR, Vol 53, 2001, Journal Section, pp 25 – 26. 95. Bhagwati in S. P. Gupta v Union of India AIR 1982 SC 149; cited in Jain, op cit, Ref 8, p 98. 96. Per L. Rahman J in FAP 20, op cit, Ref 23, p 59. 97. De-effectuating the rule of specific legal injury when ‘an injury to public interest’ is caused, or ‘outstanding’ constitutional issues are involved. 98. Menski, op cit, Ref 1, p 125. 99. Dhavan, op cit, Ref 1, p 310. 100. Menski, op cit, Ref 1, p 125. 101. This was famously displayed by the Pakistani case of Benazir Bhutto v Federation of Pakistan PLD (1988) SC 416. 102. Michael Anderson and Sumit Guha (eds), Changing Concepts of Rights and Justice in South Asia (New Delhi: Oxford University Press, 2000). 103. Michael Anderson and Sumit Guha, ‘Introduction’, in Michael Anderson and Sumit Guha (eds), ibid, pp 1 – 13. 104. Menski has argued that this duty-based perspective of South Asian PIL has a stronger and solid legal foundation than merely the rights-based American concept of PIL; see Menski, op cit, Ref 1, pp 114 – 116. 105. Ahmed, op cit, Ref 9. 106. As seen above, the only epistolary PIL was initiated by a Supreme Court lawyer associated with a rights organisation, ASK, as its director. 107. For an insight into the multiplicity of reasons for which action groups litigate, see Jayanth K. Krishnan, ‘Public interest litigation in a comparative context’, Buffalo Public Interest Law Journal, Vol 20, 2002, pp 19 – 100. 108. On this, a useful reference is T. Brown-Nagine, ‘Elites, social movement and the law: the case of affirmative action’, Columbia Law Review, Vol 105, 2005, pp 1436 – 1528. This pessimistically questions the workability of social movements' use of litigation as a tool of social change. 109. This is one of the characteristic features of Bangladeshi PIL. See op cit, Ref 48. 110. In a notable exception, a magistrate's court awarded costs to the accusers in a criminal case (claimed as a PIL) brought to stop lotteries in trades because they fought the case ‘on behalf of the whole country’; see K. M. Zabir v Amanullah, unreported CR Case No 1097A1/1988 of the Chief Metropolitan Magistrate's Court, Dhaka. It is notable that the Indian Supreme Court awarded costs in a much earlier PIL; see Ram Kumar Misra v State of Bihar AIR (1984) SC 357. 111. 18 (1998) BLD (HCD) 361. This is a decision by a third judge, M. Rahman, agreeing with H. Ameen who earlier refused standing. The other judge, M.M. Hoque, took a liberal stance and beautifully rebutted objections to the petitioner's public interest standing, allowing her to seek relief on behalf of ‘those poor, neglected, wretched, unfortunate, downtrodden, hated, homeless and helpless’. 112. Article 102(1): ‘The High Court Division on
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