Human rights cases become prominent part of Pakistan’s apex court activism

SC

By Waqar Hussain

 

ISLAMABAD: Amid the impressions of bad governance and injustice with people in government departments the trend of filing applications in Human Rights Cell of Supreme Court of Pakistan, urging the apex court to take suo motu notices on their issues, is on the rise for the past many years making Public Interest Litigation a prominent feature on the landscape of Pakistani jurisprudence.

New Chief Justice of Pakistan (CJP) Supreme Court of Pakistan Saqib Nisar is the first after former CJP Iftikhar Muhammad Ch, who has accelerated the pace of taking human rights cases through suo motu notices strengthening Public Interest Litigation (PIL), legal fraternity viewed.

In the beginning of 2017, following his oath, the new CJP Justice Nisar, has taken four suo-motu notices and taken up more than a dozen human rights cases in the past four months, an SC official said. While, the number of human rights cases taken up as suo motu cases by the CJP were 17 in total in 2016, according to the SC data.

What is a suo-motu notice?

The suo-motu notice is constitutional power of the CJP which he takes up on its own through news and own understanding or picks from the applications filed by people seeking justice through the human rights cell of the court. The SC is given power under Section 184/3 of constitution of Pakistan which reads; “The Supreme Court shall, if it considers, that a question of public importance with reference to the enforcement of any of the fundamental rights have the power to make an order of the nature mentioned in the said Article.” The HR Cell reviews all applications and submits important one before CJP and if the chief justice desires they are taken up or converted into suo-motu notice.

The history of taking up human rights cases in SC goes back in 1980s when former Prime Minister Benazir Bhutto petitioned to the Supreme Court against military dictator Gen Ziaul Haq’s decision to hold elections on non-party basis. This case in 1988 extended the scope of fundamental rights. The Benazir Bhutto case evolved a “tool” for entertaining complaints of individual rights reflecting a general trend, which led to the establishment of first human rights cell in the SC. It was conceived with the aims to stand by constitutional promises, provide easy and inexpensive access to justice especially to the down trodden, the under privileged and weaker segments of society by making public functionaries accountable, ensuring speedy redress and enforcing the rule of law.

The HRC, in attaining its objectives has instilled public confidence in the use of judicial institutions to attend the neglected public interests and basic human rights ranging from basic health care to environmental issues.csc

“Many other state institutions are also working to achieve the goal but still there is so much that needs to be done in the areas including but not limited to clean water, food, housing, health facilities, respect for minorities, vulnerability of women, children and down trodden, arbitrary and unlawful detentions, high handedness of law enforcement agencies and fair trial, annual report 2016 of SC reads.

Most of the complaints before the SC are on administrative inaction, corruption, nepotism, favourtism and slackness, police despotism, environmental  pollutions and threats, tyrannies by so called powerful class, threats to minorities and marginalized sections, women rights and illegal detentions.

Disposal of HR applications over the years

On average the HRC receives 2,500 applications per month, the SC official said. For the past few years, there is rise in disposal of human rights applications. According to annual report of the SC, the number of HR applications disposed of from June 2015 to May 2016 were 2095 in June 2015, 1956 in July, 2934 in August, 2311 in September, 3054 in October, 3380 in November, 2523 in December, 2282 in January 2016, 2372 in February, 2418 in March,  3044 in April and 3160 in May. The total number of HR application between the financial year 2015-16 was 31,740, the documents read.

There were 3,095 cases disposed in 2009, 51,756 in 2010, 47,024 in 2011, 45,334 in 2012, 21,025 in 2013, 38,908 in 2014, 28,806 in 2015 and 13,207 till first half of 2016. The number of HR application filed before SC from January to May 2017 has also gone up to 11,500, the SC official said.

 


The ratio of filing applications in the SC’s human rights cell was on peak during the period of Iftikhar Ch after his restoration in March 2009. Former CJ expanded human rights cell under the supervision of a director general.  According to the Supreme Court’s annual report for 2010-11, the cell used to receive 250 applications on a daily basis against different government departments. However, it is receiving nearly 100 per day, which is also a big number.

What the experts say

“If government does not take action against injustice in its departments and public redress, the SC take action for the enforcement of fundamental rights,” Syed Ali Zafar, former president Supreme Court Bar Association of Pakistan (SCBA) said.

He viewed no doubt the speed of SC in taking up cases has accelerated and present CJ seems more interested in taking up such matters than his predecessor.

“When you will have bad governance, people will turn their face towards courts for justice,” he mentioned, adding, the constitution has given them power for this too. He said to recognize fundamental rights and enabling people to exercise such rights courts take up such cases. In developing countries there is gap in enforcement of these fundamental rights which is widening where it is not perceived to be in priorities of the government, he viewed, while quoting SC reports.

SC in its last annual report of 2016 read:”Executive branches enjoy extensive governing privileges and manifestly tend to misuse their authority and abuse their powers. The legal mechanism cannot alone by fiat alone abolish prejudices, liberate the oppressed and check the autocracies of public functionaries. In this backdrop the courts had play a role pro-actively. Walking on and around the line of judicial activism on one hand and the judicial restraint on the other, the SC during about last three decades has developed many a principles necessitated by time. Many exceptions have been identified and established.”

“Human rights violations have become a phenomenon in Pakistan and judiciary being the custodian and guardian of the law cannot ignore these violations,” Muhammad Waqar Rana, additional attorney general of Pakistani government viewed, adding, “because of gaps in governance matters at the time when country is facing different crises, court have to take up these cases as fire extinguisher.” He said along with the neglect of government departments and machinery, human rights violations are also committed by individuals that further motivates to do this judicial criticism to resolve the matters.

“Failure of government system motivates public to move SC for their rights. Former CJ Iftikhar Ch accelerated this pace of judicial activism for resolution of issues in his tenure and now after a gap new chief justice seems motivated in taking up human rights matters with serious note,” Nasir Iqbal, senior reporter of Supreme Court further observed.

Human rights violations in Pakistan have also gone upward during the last few years, according to Human Rights Wing of Ministry of Law, Justice and Human Rights of the country. These human rights violation include acid burning, domestic violence, murder, rape, kidnapping, sexual assault, harassment, missing persons, torture, target killing, extra judicial killing and killing in police custody.