Wednesday, June 5, 2013

Regional moot on judicial activism launched

A two-day India-Pakistan regional workshop on ‘Judicial Activism, Public Interest Litigation and Human Rights’ was launched on Tuesday with sharing views by judiciary activists, retired judges and renowned lawyers from both the countries on the status of public interest litigations.

The conference, jointly organised by the Pakistan Institute of Labour Education and Research (Piler) and the Hamdard University School of Law in collaboration with the Human Rights Law Network (HRLN) India at a hotel, was attended by lawyers, civil society activists, retired judges and the media.

Indian senior lawyer Colin Gonsalves, Mukul Sinha Advocate, Nijhari Sinha Advocate, Justice (retd) Nasir Aslam Zahid, Faisal Siddiqui, Piler’s Karamat Ali, Pakistan Fisherfolk Forum (PFF) Chairman Muhammad Ali Shah and others spoke on the occasion.

Justice (retd) AK Ganguly from India and Justice (retd) Rashid A Razvi from Pakistan gave detailed overviews of the constitutional and judicial systems in their respective countries and discussed the status of public interest litigation and constraints at judicial level.

Ganguly gave examples of revolutionary changes brought in public interest cases in different countries of South Asia, while Razvi gave examples of prominent judgments and amendments in the Pakistan judiciary to understand the public interest activism within judiciary and impacts of increasing religion extremism.

He criticised military adventurism, which badly affected the judicial system. He lauded the role of lawyers and other civil society activists in Pakistan for restoration of the judiciary.

He said that after restoration of the judiciary in 2009, the country witnessed that the 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.

Talking about the India-Pakistan Judicial Committee on Prisoners, Justice (retd) Nasir Aslam Zahid said the judicial committee has helped the prisoners on both sides by visiting their jails.

He said that there were 437 Indian prisoners in Malir Jail Karachi, of which 284 are those who have completed their sentences, but they were still in jails because of bureaucratic hurdles. It is a violation of the constitutions of both India and Pakistan, he added.

He said that when he visited Indian prisons to meet Pakistani prisoners to confirm their nationality, it took a few minutes, but because of bureaucracy, they had been languishing in jails for years. He urged the judiciary members to play their role and make the process easy.

The lawyer couple Mukul Sinha Advocate and his wife Nijhari Sinha Advocate gave a joint presentation on judicial intervention in cases of communal conflicts in India.

They said that if any party wanted to get votes of minority, the counter political parties use majority votes and in this way communal conflict rises.

In this situation, it depends on the active judiciary how it plays its role to avoid communal conflicts and resolve the issue of minority, they added.

Colin Gonsalves from India said that revolutionary changes in laws and public interest cases were being taken. According to him, developed countries, even Europe and the US, could not understand the public interest cases, but the situation was different in developing countries.

He said: “In India, 40 percent people earn below PKR 100 a day. Due to this, there is malnutrition and poverty. A court could give orders, but it could not implement it. It is the responsibility of the state to implement the orders. Tracing history, there is a tradition that prisoners used to write letters to the courts, and the judges would turn those letters into petitions for hearing to provide relief to the victims.”

The World Trade Organisation (WTO), World Bank (WB) and multinational companies force the governments to breach their own laws just to safeguard the interests of their organisations, he added.

He said that apart from this, the private sector was being promoted in the education, health and water sectors. “In this situation, how can poor people survive, as their children are even victims of malnourishment?” he asked. He also opposed public-private partnership, terming it a dangerous trend for the marginalised people.

Piler’s Karamat Ali said that since 1971, the situation of the people living in Pakistan and India had been adverse, especially the fishermen who were being victimised by the neighbouring governments to keep their political rivalry intact.

He said that in Pakistan, there was no voice of the common people. “Those associated with trade unions do not have stronger voice to protect their rights. There were issues facing the minority and the women in the society. If we all want to end terrorism and extremism, we should come forward and fight together,” he added.

Talking about the public interest litigation (PIL) situation in Pakistan, Faisal Siddiqi Advocate said the people were tired of filing petitions to resolve their issues. He said seeds of PIL were sown in 1972. “The Darshan Masih case was the first PIL case in Pakistan,” he added.

Talking about judicial activism, he said that when martial law was imposed in 1977, the entire judiciary kept silent till 1988; similarly, in 1999, when Musharraf took over, the judiciary was divided.

“But the citizens’ mobilisation came to surface in 2007. There was massive growth of the media after 2007. Gradually, the change came to surface in public interest litigations,” he added.

He said the law might be a part of the solution of the people’s basic problems. Pro-labour judges were described as anti-industry judges, he added.

He said judges could not implement their judgments because it was the responsibility of the state to implement the orders. For example, in the Karachi violence case and the Balochistan case, the judiciary passed the order, but the state did not implement it, he added.

Trade unionist Nasir Mansoor, Javed Qazi Advocate, Pakistan People’s Party leader Taj Haider, human rights activist Zulfiqar Halepoto and others also took part in the discussion during the question-answer session.

Prashant Bhushan Advocate from India said the culture of suo motu in India was rare. He said that there was a need to make systematic changes to protect the rights of the citizens.

He said that it was observed that the police were pressurised by political ministers, using them for their interests, instead of allowing the police to safeguard the rights of the people.

When the government failed to formulate legislation, the courts gave judgments; but for the past seven years, their orders are yet to be enforced, he added.

PFF Chairman Muhammad Ali Shah gave a presentation on prisoners’ issue, saying that the issue of detaining fishermen in Pakistan and India started surfacing in 1965.

But later in 1985, both the countries exchanged fishermen under a mutual agreement and those released travelled to their countries via their fishing vessels, he added.

He said that later, the issue became further complicated for the fishermen due to restrictions. “The colour of the sea is the same. There is no clear demarcation of sea border. Fishing boats sometimes cross mistakenly and as a result, the crew are caught and put in jails, he added.

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