KARACHI, June 4: Retired judges, lawyers and rights activists of Pakistan and India on Tuesday said judicial activism was a ‘double-edged sword’, which, if used carefully, could do wonders; if not, it could adversely affect the people.They said this at a two-day India-Pakistan regional workshop on ‘Judicial activism, public interest litigation and human rights’ here in a hotel on Tuesday.
The programme, jointly organised by the Pakistan Institute of Labour Education and Research (Piler), Hamdard University School of Law in collaboration with the Human Rights Law Network of India, was well attended by lawyers, civil society activists, retired judges and media persons.
“Public interest litigation (PIL) is a double-edged sword, which could even be used by the judges against the poor, as has happened in India where a number of slum dwellers were evicted on the order of judges though there was no such order by the government,” said Colin Gonsalves, an eminent Indian lawyer, who pursues legal avenues to establish economic and social rights in favour of poor and marginalised groups.
He said he was overawed by Pakistan’s lawyers’ movement, which brought the chief justice back to office, which he said was difficult in India, as “we don’t have a tradition to take to the streets and fight, which is very common in Pakistan.”
He praised Nepal’s lawyers for their role in turning a kingdom into a republic; and was overwhelmed by the Bangladeshi Supreme Court’s decision to declare the country a secular state. However, he was not happy with the role of the Sri Lankan judiciary after the Tamil resistance was crushed in the South Asian island.
Mr Gansalves said public litigation had given startling results. He was critical of the Western judicial system, which preferred individual rights to collective rights; while the developing countries moved in the reverse direction.
“Judges of the West do not show interest in PIL, while in the developing world, judges intervene in case after case as a balancing act to their government’s inability to deliver,” he said.
He said judges in India had to intervene to give justice to those who could not fight for their own rights.
“In our country, 40 per cent people earn just 35 Pakistani rupees a day, while 80 per cent earn not more than 100 Pakistani rupees. India is the hunger capital of the world and we have more hungry people than anywhere in the world. Such facts prompt judges not to stay idle,” he said.
He said the judiciary in South America had given revolutionary judgments unlike the ‘European pessimism’.
Tracing the history, he said there was a tradition that prisoners wrote to courts, and judges turned the same letters into petitions for hearing to provide relief to the victims. He said the World Trade Organisation, World Bank and multinational companies forced governments to breach their own laws just to safeguard the interests of such world organisations.
Retired Justice Ashok Kumar Ganguly of the Indian Supreme Court and retired Justice Rashid A. Razvi gave a detailed overview of the constitutional and judicial systems in their respective countries and discussed the status of public interest litigation and constraints at the judicial level.
Mr Ganguly in his speech gave examples of revolutionary changes brought about through public interest cases in different countries of South Asia.
Mr Razvi gave examples of prominent judgments and amendments in the Pakistan judiciary to understand the public interest activism within the judiciary and impacts of increasing religious extremism.
He also criticised military adventurism, which badly affected the judicial system. He lauded the role of lawyers and other civil society activists in Pakistan for the restoration of the judiciary.
After the restoration of the judiciary in 2009, he said, the country witnessed that cases of missing persons and bonded labour were taken up by the judiciary, which provided an important forum to the citizens, especially the marginalised people.
Retired Justice Nasir Aslam Zahid, talking about the India-Pakistan judicial committee on prisoners, said the committee had helped the prisoners from both sides by visiting jails in both countries.
“There are 437 Indian prisoners in the Malir jail, of whom 284 are those who have completed their terms. They are still in prison because of bureaucratic hurdles. The same is happening across the border, which is a violation of the constitutions of India and Pakistan,” he said.
He said when he visited Indian prisons to meet Pakistani prisoners to confirm their nationality, it took a few minutes, yet bureaucracy had put them in jails for years on one pretext or another. He urged judiciary members to play their role and make the process easy in public interest.
Indian lawyer couple Mukul Sinha and Nijhari Sinha gave a joint presentation on ‘Judicial intervention in cases of communal conflicts’ in India.
They said the minority problem in Pakistan had been swept under the carpet, but it was a ‘big issue’ in India. In fact, it was a political issue there.
Talking about the communal riots in Gujarat in 2002, they said the Indian Supreme Court quashed the verdicts of the Gujarat high court and lower courts, which had exonerated the culprits, and transferred the case to the high court in Maharashtra, where over 100 people were awarded life sentences for the Godhra and subsequent anti-Muslim riots.
They said the minorities had the key in many Indian states to decide for the parties to rule.
“If any party wants to get votes of the minorities, the counter political parties use majority votes and in this way communal conflict rises,” said Mukul Sinha, adding that in this situation it depended on an active judiciary that how it should play its role to prevent communal conflicts and resolve issues of a minority.
Advocate Prashant Bhushan from India said judges were discouraged from taking cognizance of PIL related cases. “The culture of suo motu in India is rare”.
Pakistan Fisherfolk Forum chairperson Mohammed Ali Shah gave a presentation on prisoners' issues and said the issue of detaining fishermen in Pakistan and India arose in 1965.
Advocate Faisal Siddiqi said when martial law was imposed in 1977 the entire judiciary kept silent till 1988. Similarly, in 1999 when Pervez Musharraf took over, the judiciary was divided. But the citizens’ mobilisation came to surface in 2007.
Earlier, Karamat Ali of Piler welcomed the guests.