Bangladesh Enters into a New Era of Public Interest Litigation

At last Supreme Court extends writ Jurisdiction through which voluntary societies, representative organisations, trade unions and constitutional activists and individuals having no personal interest in the cause would be able to test the validity of a law or an action of a public official affecting the general public by making the power of judicial review of the Supreme Court on their own standing. In judgement Dr. Mohiuddin Farooque Vs Bangladesh (Civil Appeal No. 24 of 1995), the Appellate Division of the Supreme Court of Bangladesh takes a farm stand on the modern liberal trend of Public Interest Litigation leaving aside the traditional view of locus standi. It (the Supreme Court) decides to interpret the term ‘a person aggrieved’ in a liberal mood and with a progressive attitude and thus widens the writ Jurisdiction of the High Court conferred on it by Article 102 of the Constitution of the People’s Republic of Bangladesh. The leading judgment was delivered by Mr. Justice Mustafa Kamal with whom concurred the Chief Justice Mr. Justice ATM Afjal and Mr. Justice Mohammad Abdur Rouf, Mr. Justice Latifur Rahman and Mr. Justice Binalendu Bikash Roy Chowdhury delivered separate judgments fully agreeing with Mr. Mostafa Kamal. The judgment was delivered on July 25, 1996 but the full text of it was made public a few days ago. Following is the abridged version of the judgment of Mr. Justice Mustafa Kamal. 

The leading judgment was delivered by Mr. Justice Mustafa Kamal with whom concurred the Chief Justice Mr. Justice ATM Afjal and Mr. Justice Mohammad Abdur Rouf, Mr. Justice Latifur Rahman and Mr. Justice Bimalendu Bikash Roy Chowdhury delivered separate judgments fully agreeing with Mr. Mostafa Kamal. The judgment was delivered on July 25, 1996 but the full text of it was made public a few days ago. Following is the abridged version of the judgment of Mr. Justice Mustofa Kamal. 

The Burning issue of locus standi which has become a focal point of attention for South Asian Superior Courts in the dying decades of the twentieth century in preparation for the twenty-first is the only question that has been raised and is to be resolved in this appeal by leave by the petitioner- appellant whose Writ Petition No. 998 of 1994 was summarily rejected by a Division Bench of the High Court Division by its judgment and order dated 18-8-1994 on the ground that the appellant is not “any person aggrieved” within the meaning of Article 102 of the Constitution, basing its reasonings upon a decision of this Court in the case of Bangladesh Sangbadpatra Parishad, represented by its Secretary General vs Government of the People’s Republic of Bangladesh, 43DLR (AD) 126, hereinafter referred to as Sangbadpatra Parishad Case. 

Dr. Mohiuddin Farooque, Secretary General, Bangladesh Environmental Lawyers Association, shortly BELA filed the writ petition both under Article 102 (1) and Article 102(2)(a) of the Constitution praying for issuance of a Rule Nisi upon the respondents to show cause as to why all the activities and implementation of FAP-20 undertaken in the District of Tangail should not be declared to have been taken without lawful authority and to be of no legal effect. 

The cause which the appellant espoused in the writ petition is the apprehended environmental ill-effect of a Flood Control Plan affecting the life, property, livelihood, vocation and environmental security of more than a million people in the district of Tangail. 

As to the locus standi of the petitioner-appellant it was stated that the appellant is the Secretary-General of Bangladesh Environmental Lawyers Association, shortly BELA, an Association registered under the Societies Registration Act, 1860. He has been authorised by a resolution of the Executive Committee of BELA dated 16-6-1994 to represent the Association and move the High Court Division under Article 102 of the Constitution and to do all other acts and things in connection therewith. BELA has been active since 1991 as one of the leading organisations in the field of environment, ecology and relevant matters of public interest. It has studied policies, surveyed and examined legal quasi-legal issues; institutional aspects and traditional issues on environment and ecology and actively participated in many government, non-government and independent national and regional/international activities and has gained widespread recognition both at home and abroad. BELA being an Association of Lawyers has been raising the legality of the FAP activities on all available occasions, specially as an invited panel speaker in the Second Conference on the Flood Action Plan held at Dhaka in March, 1992. BELA’s questioning of the legality of FAP and FPCO evoked derogatory remarks from certain quarters. BELA also received written complaints from a number of aggrieved people from Tangail District seeking legal assistance and other supports after having been frustrated in pursuing their own remedies with the FAP-20 authorities, human rights organisations etc. The media has also repeatedly published the adverse environmental and ecological impact of FAP-20. As an environmentally concerned and active organisation BELA responded to the complaints of the local people and conducted investigations at various times in 1992-93 in the FAP-20 areas. During the local inspection it was found that a significant number of people of the project area was against the project.

They alleged that they had no participation in the project and that they were not willing to be the subject of an experiment risking their lives and livelihood. The petitioner-appellant annexed copies of evidence of local complaints as Annexure- F series. 

Dr. Mohiuddin Farooque, learned Advocate appearing with the leave of the Court, has himself argued the appeal on behalf of the petitioner-appellant. He submits that the words “any person aggrieved” occurring in Article 102 of the Constitution have to be read in the context of the entire Constitution, not isolatedly. Article 102 is an institutional vehicle for ventilating the rights and duties under the Constitution and not a mere procedural device, Article 38 of the Constitution confers on every citizen the right to form association and BELA has been registered as an association under the Societies Registration Act, 1860 with the aims and objects inter alia to organise legal measures to protect environmentally sensitive and fragile ecosystems. BELA devoted its time, energy and resources in studying the FAP project ever since its inception, meeting local people, listening to their grievances and carrying a lot of research on their behalf to find out the legal and constitutional infraction that FAP-20 has committed. In view of its dedicated commitment to prevent environmental degradation it has acquired a standing in its own right to represent the legal issues involved in the project in the writ jurisdiction. It can claim a legal relationship with the Court in pursuance of its declared aims and objects as the right to form an association also embraces the right to pursue the association’s lawful objects as well. Dr. Farooque then referred to Article 21(1) of the Constitution which is as follows: 

“21.(1) It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline to perform public duties and to protect public property.” 

He submits that if one has to require to do a thing, that is standing. He has to have an opportunity to do so. An association of lawyers dedicated to the protection of a healthy environment has a concern when it perceives and studies an environmental hazard which calls for prevention or rectification. As a concerned group it is very much a “person aggrieved” and it must have an opportunity to put its concern at rest by approaching the Court for redress. 

The denial of locus standi to such a group will be not only an unconstitutional bar to the performance of public duty but also a judicial condemnation of the association’s dedicated efforts to perform its public duty. Besides, the Preamble of the Constitution, which is a pledge taken by the people of Bangladesh, declares that it shall be a fundamental aim of the State to realise a society in which amongst others “the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”. Dr. Farooque quotes from the Bar Council Rules of Professional Etiquette for Lawyers and submits that the lawyers in general and the present association of lawyers in particular are committed to realise the rule of law in the country through Law Courts. The Preamble gives the association a standing. The Preamble and Article 8 also proclaim “the principles of absolute trust and faith in the Almighty Allah” as a fundamental principle of the Constitution and as a Fundamental Principle of State Policy. Absolute trust and faith in the Almighty Allah necessarily mean the duty to protect His creation and environment. The appellant is aggrieved, because Allah’s creations and environment are in mortal danger of extinction and degradation. He then refers to Article 102 (4) of the Constitution which provides that the High Court Division will not grant an interim order until it is satisfied, upon hearing the Attorney General, that the interim order is not likely to have the effect of being otherwise harmful to the “public interest”. Under Article 106 of the Constitution, the President may refer a question of “public importance” for the opinion of the Appellate Division. If the President, the Appellate Division, the High Court Division and the Attorney General can refer, assist, consider and decide issues of “public interest” and “public importance”, then there is no reason why conversely an association of lawyers cannot feel aggrieved on an issue of public interest and why they cannot agitate the same before the Court. The Constitution cannot be so interpreted as to bestow the concern of “public interest” and “public importance” upon only the executive and judicial organs of the State. The vast multitude outside have also a say on matters of public interest and public importance. He further submits that the words “any person” in Article 102 should be read distinctively from the word “aggrieved”. If so read the appellant is “any person”, because in Law Lexicon, “any means all each, every, some amongst many”. The Constitution uses the words “any person aggrieved” both in Articles 102(1) and 102(2)(a), but the Bangla version of Article 102(1) is “ ............”. whereas the Bangla version of Article 102(2)(a) is “……….”. Under the proviso to Article 153(3), the Bangla version will prevail over the English version and the omission of the word “....” in Article 102(1) is not without significance. It means in effect that those whose fundamental rights are being violated need not themselves invoke the jurisdiction under Article 102(1). Provided the persons aggrieved do not object, others espousing their cause can also invoke the jurisdiction under Article 102(1). The appellant is espousing the cause of violation of Fundamental Rights of a large segment of the population in respect of their right to life, property and vocation.  Dr. Farooque also submits that the beneficiaries of this writ petition are not the members of BELA but the people including the generation yet to be born for whom the present generation holds the environment as an inter generational trust. BELA therefore represents not only the present generation but also the generation yet unborn. Every generation has a responsibility to the next to preserve that rhythm and harmony that their inherited environment bequeathed to them. BELA’s performance of their obligation is therefore for ensurance of the protection of that right for the generation to come. 

In reply Mr. A W Bhuiyan learned Additional Attorney General appearing on behalf of Government respondent Nos. 1, 5 and 6 dourly maintains his submission that the appellant is not a person aggrieved. His submission echoes the traditional view of locus standi which found the first classical exposition in the hands of James. L.J in Ex parte Side-botham (1880)14Ch. D 458 defining “person aggrieved” as one “who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongly refused him something or wrongly affected his title to something”, a definition which was approved by Lord Esher, MR in Re Reed Bowen and Co (1887) 19QBD174, and repeated in numerous cases thereafter including the case of Durayappah vs. Fernando. (1967) 2AC337. He found in our own case of Md. Giasuddin Bhuiyan vs Bangladesh, 1 (1981) BCR (AD)81 a proper reflection of the traditional view and he relies upon the previously cited Sangbadpatra Parishad Case as well as upon the case of RV Secretary of State for the Environment, ex parte Rose Theatre Trust Co (QBD) [1990] 1A11ER754 and Muntizma Committee vs. Director Katchi Ahadies, Sindh, PLD1992 (Karachi) 54. BELA as a registered Association, he submits, has the right to pursure its aims and objects through seminars, discussions etc., but it cannot maintain a writ petition unless its own interests are affected. The writ petition does not disclose that the appellant as an association has suffered any injury by FAP-20 activities. The words “any person aggrieved”, if interpreted in the manner urged by the appellant, will be nothing short of legislation and an impermissible re-writing of the Constitution by the Court, he submits. 

Mr. Tofailur Rahman, learned Advocate appearing for respondent Nos. 2-4 adopts the arguments of the learned Additional Attorney General and submits additionally that a liberalization of locus standi will open the floodgates to litigation which is least desirable. 

In Bangladesh an unnoticed but quiet revolution took place on the question of locus standi after the introduction of the Constitution of the People’s Republic of Bangladesh in 1973 in the case of Kazi Mukhlesur Rahman vs Bangladesh, 26DLR(SC)44, decided on September 3, 1974 and hereinafter referred to as Kazi Mukhlesur Rahman’s Case. The appellant challenged the Delhi Treaty signed on the 16th May, 1974 by the Prime Ministers of the government of Bangladesh and the Republic of India providing therein inter alia that India will retain the southern half of south Berubari Union No. 12 and the adjacent enclaves and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves. The ground of challenge was that the agreement involved cession of Bangladesh territory and was entered into without lawful authority by the executive head of government. The High Court Division summarily dismissed the writ petition holding that the appellant had no locus standi. At the hearing of the certificated appeal before the Appellate Division it was urged by the appellant that since the remedies available under Article 102(2) of our Constitution are discretionary, the words “any person aggrieved” should be construed liberally and given a wide meaning, although in the facts and circumstances of a particular case the Court may regard the personal interest pleaded by a petitioner as being slight or too remote. 

This Court, therefore, settled seven general principles in Kazi Mukhlesur Rahman’s case Viz. (1) the High Court Division close not suffer from any lack of jurisdiction under Article 102 to hear a person. (2) The High Court Division will grant locus standi to a person who agitates a question affecting a constitutional issue of grave impotence, posing a threat to his fundamental rights which pervade and extend to the entire territory of Bangladesh. (3) If a fundamental right is involved, the impugned matter need not affect a purely personal right of the applicant touching him alone. It is enough if he shares that right in common with others. (4) In  interpreting the words “any person aggrieved”, consideration of “Fundamental Rights” in Part III of the Constitution is a relevant one. (5) It is the competency of the person to claim a hearing which is at the heart of the interpretation of the words “any person aggrieved”. (6) It is a question of exercise of discretion by the High Court Division as to whether it will treat that person as a person aggrieved or not. (7) The High Court Division will exercise that jurisdiction upon due consideration of the facts and circumstances of each case. 

The Sangbadpatra Parishad Case was no authority for the proposition that an environmental lawyers association is not a person aggrieved when it     espouses the causes of a large number of people on an environmental issue. The High Court Division’s reliance on this decision was misplaced, to say the least, because the ratio decidendi of the said case was that an association of newspaper owners and news organisations, espousing not the causes of the downtrodden and the poor who have no access to justice, but the cause of its members who are opulent enough to seek redress on their own, can not in a representative capacity be a person aggrieved, when the association’s own interests are not in issue. That case was not an authority even for the proposition that an association can never be a person aggrieved if it espouses the causes of its members in a representative capacity. The Sangbandptra Parishad Case as decided on the facts of that case and that is how it should be read. 

We now proceed to say how we interpret Article 102 as a whole. We do not give much importance to the dictionary meaning or punctuation of the words “any person aggrieved” Article 102 of our Constitution is not an isolated island standing above or beyond the sea-level of the other provisions of the Constitution. It is a part of the over-all scheme, objectives and purposes of the Constitution. And its interpretation is inextricably linked with the (i) emergence of Bangladesh and framing of its Constitution, (ii) the Preamble and Article 7, (iii) Fundamental Principles of State Policy (iv) Fundamental Rights and (v) the other provisions of the Constitution. 

As to (i) above, it is wrong to view our Constitution as just a replica with local adaptations of a Constitution of the Westminister model among the Commonwealth countries of Anglo-Sazon legal tradition. This Constitution of ours is not the outcome to a negotiated settlement with a former colonial power. It was not drawn upon the consent, concurrence of approval of any external sovereign power. Nor is it the last of an oft-replaced and oftsubstituted Constitution after several Constitutions were tried and failed, although as many as 13 amendments have so far been made to it. It is the fruit of a historic war of independence, achieved with the lives and sacrifice of a telling number of people for a common cause making it a class part from other Constitutions of comparable description. It is a Constitution in which the people features as the dominant actor. It was the people of Bangladesh who in exercise of their own self-proclaimed native power made a clean break from the past unshackling the bondage of a past statehood and adopted a Constitution of its own choosing. The Constitution historically and in real terms is a manifestation of what is called “the People’s Power”, The people of Bangladesh, therefore, are central, as opposed to ornamental to the framing of the Constitution. 

As for (ii) the Preamble and Article 7, the Preamble of our Constitution stands on a different footing from that of other Constitutions by the very fact of the essence of its birth which is different from others. It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given to themselves by the people not by way of a presentation from skilful draftsmen, but as reflecting the ethos of their historic war of independence. Among other pledges the high ideals of absolute trust and faith in the Almightily Allah, a pleage to secure for all citizens a society in which the rule of law, fundamental human rights and the affirmation of the sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh are salutary in indicating the course or path that the people wish to tread in the days to come. Article 7 of the Constitution bestows the powers of the Republic with the people shall be effected only under and by the authority of, the Constitution. Article 7 does not contain empty phrases. It means that all the legislative, executive and judicial powers conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the powers of the people themselves and the various functionaries and institutions created by the Constitution exercise not their own indigenous and native powers but the powers of the people on terms expressed by the Constitution. The people, again, is the repository of all power under Article 7. 

As for (iii) in Part II of the Constitution, containing Fundamental Principles of State Policy. Article 8(2) provides that the principles set out in this Part “shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh.” It is constitutionally impermissible to leave out of consideration Part II of our Constitution when an interpretation of Article 102 needs a guidance. 

As for (iv), Part III of the Constitution bestows Fundamental Rights on the citizens and other residents of Bangladesh. Article 44(1) guarantees the right to move the High Court Division in accordance with Article 102(1) for the enforcement of these rights. Article 102(1) is therefore a mechanism for the enforcement of Fundamental Rights which can be enjoyed by an individual alone in so far as his individual in common with others when the rights pervade and extend to the entire population and territory. Article 102(1) especially cannot be divorced from Part III of the Constitution. 

As for (v) the other provisions of the Constitution which will vary from case to case may also come to play a role in interpreting Article 102 of the Constitution. 

Article 102 therefore is an instrumentality and a mechanism, containing both substantives and procedural provisions, by means of which the people as a collective personality, and not merely as a conglomerate or individuals, have devised for themselves a method and manner to realize the objectives, purposes, policies, rights and duties which they have set out for themselves and which they have strewn over the fabric of the Constitution. 

With the power of the people looming large behind the constitutional horizon it is difficult to conceive of article 102 as a vehicle or mechanism for realizing exclusively individual rights upon individual complaints. The Supreme Court being a vehicle,  a medium or mechanism devised by the Constitution for the exercise of the judicial power of the people on behalf of the people, the people will always remain the focal point of concern of the Supreme Court while disposing of justice or propounding any judicial theory or interpreting any provision of the Constitution. Viewed in this context interpreting the words “any person aggrieved” meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be island taken against the Constitution. There is no question of enlarging locus standi or legislation by court. 

It is therefore, the cause that the citizen –applicant or the indigenous and native association espouses which will determined whether the applicant has the competency to claim a hearing or not. If he espouses a purely individual cause, he is a person aggrieved if he is own interest are affected. If he espouses a public cause involving public wrong or public injury, he need not be personally affected. The public wrong or injury is very much a primary concern of the Supreme Court which in the scheme of our Constitution is a constitutional vehicle for exercising the judicial power of the people. 

The High Court Division will exercise some rules of caution in each case. It will see that the applicant is in fact espousing a public cause, that his interest in the subjectmatter is real and not in the interest of generating some publicity for himself or to create mere public sensation, that he is acting bona fide, that he is not a busybody or an interloper, that it is in the public interest to grant him standing and that he is not acting for a collateral purpose to achieve a dubious goal, including serving a foreign interest. 

As to the apprehension of floodgate, the people as a whole is no doubt a flood and the Constitution is the sluice-gate through which the people controls its own entry. Our Courts will be prudent enough to recognize the people when the people appears through an applicant as also those who masquerade, under the name of the people. Taking up the people’s causes at the expense of his own is a rare phenomenon, not a common place occurrence. 

We hold therefore that the association appellant was wrongly held by the High Court Division not to be a “person aggrieved” in the facts and circumstances of the case and we hold further that the appellant is “any person aggrieved’ within the meaning of both Article 102 (10) and Article 102(2)(a) of the Constitution.