Litigating in the name of the people: Stresses and strains of the development of public interest litigation in Bangladesh by Naim Ahmed Thesis submitted for the Degree of Doctor of Philosophy Department of Law School of Oriental and African Studies University of London February 1998 ProQuest Number: 10672798 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10672798 Published by ProQuest LLC(2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 Abstract This thesis examines the development of public interest litigation (PIL) in Bangladesh from a constitutional perspective. PIL seeks to ensure accountability on the part of those in power, and socio-economic and collective justice for the general public, by giving priority of public interest over individual or special interests. Considering the socio-economic realities of Bangladesh, there is a huge potential for PIL to aid the poor, the deprived and the un-represented. In Bangladesh, the development of PIL began to accelerate after the fall of the last autocratic regime in 1990. The Supreme Court has gradually re­ interpreted the Constitution in favour of PIL. Socio-economic and collective justice principles of the Constitution, it has been declared, not only inspire but mandate a PIL approach. However, the development of PIL in Bangladesh has not been a justice-focused grass-root movement. The thesis argues that the use of PIL in Bangladesh has been dominated by an elite whose main concern continues to be the re-distribution of power in the aftermath of the autocratic rule. We analyse the use of PIL by the elite from several perspectives. First, the conceptual and constitutional basis of PIL, as expounded by the Bangladeshi courts, emphasises people's power rather than social justice. Second, the gradual progress of PIL cases demonstrates how it has been influenced by its close connection with recent constitutional and democratic developments. Third, the development of the rules of public interest standing illustrates the negative effects of the use of PIL by the elite for their own purposes. Fourth, analysis of relevant constitutional provisions demonstrates the extent of success of the attempts by constitutional activists to re-define power-relations through PIL, raising the question whether such attempts actually benefited the general public. The present thesis analyses the process of recognition of PIL as an integrated feature of the Bangladeshi law and argues that the use of the techniques of PIL by the elite to participate in the power-relations debate has actually undennined the much-needed focus on social and economic justice for the poor and the deprived. 3 Acknowledgements Continuous support and co-operation of many individuals and institutions have enabled me to conduct research in a rapidly developing area of Bangladeshi law. Financially, this thesis was made possible by a scholarship awarded by the Commonwealth Scholarship Commission and administered by the British Council. I am thankful to these organisations. I am deeply indebted to my supervisor, Dr WF Menski, for his inspirational support. Simple words of thanks can not express my gratitude. I am grateful to many lawyers, judges and academics for their valuable suggestions and assistance in the collection of materials. Advocate Saifur Rashid has been a source of continuous support as he kept me in touch with the latest Bangladeshi developments. Co-operation from late Dr Mohiuddin Farooque and Advocate Rizwana Hasan of Bangladesh Environmental Lawyer's Association has been valuable. Mr Nazrul Islam has been supportive throughout the writing of the thesis and has made valuable suggestions. I am also grateful to Dr Borhan Uddin Khan for his support in the earlier stages of the research. I would like to express my sincere thanks to Mr Abdul Malique and his family for making my stay in London an enjoyable and memorable one. My heartiest gratitude goes to my father, Advocate Syed Ahmed, for his continuous support and encouragement. I take this opportunity to remember my late mother - this work is a result of her dreams rather than mine. 4 Table of contents Abstract 2 Acknowledgements 3 Table of contents 4 Abbreviations 8 Chapter 1 Introduction 10 Chapter 2 Conceptual issues and constitutional basis of PIL 23 2.1 PEL in the USA and other western jurisdictions: Some 24 relevant ideas and theories 2.2 The conceptual and constitutional basis of PIL according 32 to Indian judges and writers 2.2.1 Indian social justice approach 32 2.2.2 Constitutional provisions supporting social justice in India 42 2.3 The conceptual and constitutional basis of PEL in Pakistan 50 and the Islamic approach 2.4 Conceptual and constitutional basis of PIL in Bangladesh 61 2.4.1 Social and collective justice provisions in the Constitution 62 of Bangladesh 2.4.2 Inter-relation between principles and rights 68 2.4.3 Gradual decline of the extent of social justice bias in the 74 Constitution 2.4.4 The place of Islam in the Constitution and its influence on 79 social justice issues 2.4.5 Spirit of an autochthonous Constitution: Development of 83 the guiding principle for PIL in Bangladesh 2.4.6 Appellate Division's interpretation in FAP 20 88 5 Chapter 3 Development of cases, issues and activities relating to 95 PIL in Bangladesh 3.1 The first few years and the Berubari case (1972-74) 96 3.2 The barren period (1975-1986) 100 3.3 Beginning of public interest cases (1987-1990) 103 3.4 Misconceived attempts (1991) 107 3.5 Heightening of the consciousness of PIL (1992) 110 3.6 Fighting the threshold problem: Limited success through 114 technical innovations (1993) 3.7 New wave of PIL attempts: Gaining more grounds (1994) 118 3.7.1 Political issues as PIL cases 118 3.7.2 Environmental and consumer issues 122 3.8 The Supreme Court dragged into politics (1995) 124 3.9 Full recognition of PIL (1996 onwards) 130 Chapter 4 Locus standi of the PEL petitioner: The Supreme Court 137 in search of a new set of rules 4.1 Judicial remedies in the nature of writs and the law of 139 standing in England 4.1.1 Background of the writ jurisdiction 139 4.1.2 Development of the rules of standing in the English courts 142 4.2 Remedies in the nature of writs in India and Pakistan and147 the rules of standing 4.2.1 Law of standing under the Indian constitutional provisions150 4.2.2 Law of standing under the Pakistani constitutional 153 provisions 4.3 Remedies in the nature of writs in the Bangladesh 156 Constitution 4.4 Standing rules in Bangladesh with respectcertiorari to , 158 prohibition andmandamus 4.4.1 ‘Person aggrieved': Pre-PIL development in Bangladesh 159 4.4.1.1 Representative standing 161 6 4.4.1.2 Public interest standing 162 4.4.2 Initial PIL cases refusing public interest standing 165 4.4.2.1 Sangbadpatra 166 4.4.2.2 Other cases 169 4.4.3 Examining the arguments in favour of public interest 171 standing 4.4.4 Development of new rules of public interest standing: 175 Cases in the High Court Division before FAP 20 4.4.4.1 Liberalising representative public interest standing: 176 Welfare Association 4.4.4.2 Recognising citizen standing; Parliament Boycott 179 4.4.4.3 Application of the Berubari principle relating to 181 'constitutional issue of grave importance': The case of Justice Shahabuddin 4.4.5 Formulation of the rules for public interest standing in 183 FAP 20 4.5 Standing rules in Bangladesh with respect habeasto 189 corpus cases 4.5.1 Habeas corpus under the Constitution of Bangladesh 189 4.5.2 Impact of PIL on standing inhabeas corpus 192 4.6 Standing rules in Bangladesh with respect quoto warranto 195 cases Chapter 5 Use of PIL in re-defining power-relations and the limits 199 of judicial power 5.1 Stance of the Bangladeshi courts on the doctrines of 201 'separation of powers' and 'political questions' 5.2 PIL and the jurisdictional boundaries between the 215 legislature and the judiciary 5.2.1 Judicial review of statutes and the Constitution 215 5.2.2 Parliamentary privileges and internal proceedings 225 5.3 PIL and the jurisdictional boundaries between the 232 executive and the judiciary 7 5.3.1 Definition of the 'State' and other relevant tenns 232 5.3.1.1 Components of'State' 234 5.3.1.2 'Statutory public authority' and 'local authority' 239 5.3.2 Impact of PIL on judicial independence: Problems of 247 appointment, tenure and retirement of judges 5.3.2.1 Consultation relating to the judges of the Supreme Court 249 5.3.2.2 Consultation relating to lower court judges 252 5.3.2.3 Re-appointment of retired judges: Whether constitutional 255 posts are in the 'service of the Republic' 5.3.2.4 Re-appointment of retired judges: Prohibition of Article 99 263 5.3.3 Judiciary doing the work of the executive: Certain aspects 269 of implementation of PIL decisions Chapter 6 Concluding analysis 274 Table of cases 304 List of statutes 315 Bibliography 318 Abbreviations AC Appeal Cases AD Appellate Division AIR All India Reporter All Allahabad All ER All England Law Reports AP Andhra Pradesh BCR Bangladesh Case Reports BELA Bangladesh Environmental