Every citizen has a constitutional right to seek justice. They can approach courts on human rights issues, sanctity of the Constitution and rule of law by filing a petition under article 184 (3) of the Constitution which states that “Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said article.”
Some citizens, however, take it to be a ‘God-ordained’ duty and are found on court premises around the country almost daily. They have filed ‘thousands’ of petitions that, they believe, are in the public interest.
Perennial petitioners
The most recognisable among habitual petitioners are Shahid Orakzai, who identifies himself as a freelance journalist, Maulvi Iqbal Haider, whose entry was banned by the Supreme Court for unnecessarily confronting the judges, Syed Akhtar Mahmood Naqvi, a Karachi-based businessman, Tariq Assad, a Supreme Court lawyer and author of a book on the Lal Masjid operation, and Barrister Zafarullah Khan, president of Watan Party Pakistan.
Some amongst them claim they have filed ‘thousands’ of petitions, to the point they don’t have a record anymore.
For Dr Osama Siddique, a professor of law at the Lahore University of Management Sciences, habitual petitioners or ‘court birds’ pose a “big problem, especially because the country’s courts are already clogged.”
Other lawyers and their clients complained that these petitioners succeeded in getting considerable time of the court, and forcing genuine litigants to wait for their turn.
Guardians or nuisance
So are these court birds genuine representatives of people of Pakistan?
“No,” said Abdul Hafeez Pirzada, a prominent jurist and one of the architects of the 1973 Constitution.
The highest forum of the country is being misused by such irrelevant litigations, he added.
Pirzada said he will soon write a letter to Chief Justice Iftikhar Muhammad Chaudhry on the matter, citing certain constitutional provisions under which such petitioners can be restricted.
It’s not just lawyers and their clients who are irked by habitual petitioners, judges are also not big fans.
Chief Justice Iftikhar Muhammad Chaudhry once asked a regular petitioner, Akhtar Mahmood Naqvi, who sent him to the court with such petitions.
“Allah,” Naqvi replied.
Justice Chaudhry has asked Naqvi several times not to waste the court’s precious time, and has also hinted at banning his entry into court premises.
These petitioners are not just a nuisance, though.
Naqvi was amongst those who filed petitions against dual-nationality holding parliamentarians, which eventually led to a court verdict, sending all dual national lawmakers packing home. Naqvi’s main target, however, was not the legal loophole, but Interior Minister Rehman Malik. Malik has publicly complained about what he calls is a “petition mafia” out to cause rifts between the executive and the judiciary.
Naqvi had also asked the court to initiate contempt of court proceedings against Malik, but the court declined to do so.
How to deal with this?
The apex court’s Registrar Office has raised objections on several such petitions but they still manage to get a regular hearing in the court.
When someone files a petition, there is a mechanism to scrutinise it, said Dr Faqir Hussain, Registrar Supreme Court of Pakistan.
But since everyone has right of appeal against the Registrar office’s objections, cases are fixed before the court nonetheless, he added.
In other countries, however, courts employ several mechanisms to keep out frivolous petitions, said Dr Siddique while talking to The Express Tribune
They do this through, for instance, the strict enforcement of the requirements of locus standi that is, the legal standing of the petitioner before the court, the mootness and/or ripeness of the case, and pre-trial disclosures to gauge the merits of the case, he said.
The courts regularly ask petitioners to furnish documents in order to scrutinise the plea before admitting it, or impose a penalty on the lawyer if it’s subsequently found to be frivolous during hearings, he added.
Since these mechanisms are rarely, if ever, stringently applied in Pakistan, courts are flooded regularly with frivolous petitions, Dr Siddique added.
Mahmood Sheikh, the Advocate on Record (AOR) appointed by the court to scrutinise petitions initially, said a petition is scrutinised on three grounds - its contents should not be contemptuous; there should be no illegality involved; and the AOR examines the required procedure of filing the petition.
But, he said, to decide the question of maintainability of any petition is the sole domain of the court.
‘Serving humanity’
What do perennial petitioners have to say, though?
Barrister Zafarullah Khan, one of the prominent regular petitioners, said he files petitions on extremely important issues of public interest only. He said there is a need to define public interest litigation.
Public interest is an evolving concept in India and Pakistan but there is a need to discourage habitual petitioners on the grounds of locus standi, Khan said.
Petitioner Shahid Orakzai said he is “following the examples of prophets to serve humanity” and that his financer, whom he did not name, is backing him to accomplish this task.
Orakzai said he left his established business in Saudi Arabia to come back to Pakistan.
He added that he is the only person who deposited a huge amount in the national exchequer as a court fee against his thousands of petitions. Orakzai did concede that some regular petitioners are sent to the court by “some forces.”
Vested interests
There may be vested interests behind such petitions but at times, the court’s own vested interests act as a signal to such petitioners, Dr Siddique said when asked about motives behind specific petitions targeted at the government.
High-profile constitutional petitions also give a chance to otherwise obscure lawyers to gain limelight, he added.
This phenomenon has been particularly visible and ascendant post lawyers’ movement, when the judiciary started perceiving itself as the public’s ‘savior’ and as a ‘people’s court,’ he said.
“One undesirable and increasingly criticised outcome of the resulting unrestrained and unaccountable judicial activism on part of the appellate courts is the consequent neglect of their ordinary everyday work,” Dr Siddique said.
“The other, of course, is the highly problematic escalating intrusion into matters political or involving public policy which are rightly regarded as unsuitable for judicial intervention,” he added.
Published in The Express Tribune, November 5th, 2012.
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