Three-pronged strategy

The judiciary is having to step up and do the job of the executive and the parliament because they are not performing.

A three-pronged approach is necessary to reform Pakistan’s political system: using the parliament’s democratic forum, leading people’s power on the streets and taking the assistance of public interest litigation (PIL). The latter is a new prong I have started in the face of injustice. It is ironical that I cannot rely on the institution I belong to, to deliver justice. So I have to take the support of another institution — judiciary. This is a reality which I cannot deny.

In the struggle for fixing the system, PIL is a tool which is not new. It is, in essence, litigation for the protection of public interest. It is litigation introduced not necessarily by the aggrieved party but by the public at large to protect fundamental rights. PIL is the right given to a ‘socially conscious member’ to fight for a public cause by seeking judicial redressal. Normally, it is because of a breach of public duty or a violation of the constitution. And the litigation seeks enforcement of this duty or right. The process of PIL is, in fact, a hauling up of the executive when it is not following the law. Perhaps it’s a combination of all three prongs that can produce the best overhaul effect.

Whilst PIL has an empowering element so that correct judicial remedies can be sought through it, there are some downsides which one should be aware of. Litigation can be time-consuming, expensive and can take the decision-making power away from the communities it is trying to give justice to. Therefore, the right choice of forum in terms of court jurisdiction, the right legal counsel for the job and the right facts are critical for the success of the cause. I have only been to court twice and both times these are considerations I have had. The objective has been to strengthen the rule of law.

There is a tendency for an increasing number of cases of PIL to lead to judicial activism, increased suo motu notices and allegations of judiciary interfering in the domain of the executive or parliament. A balance is possible only when each institution does its job and doesn’t leave its job undone, expecting others to fill in the gaps. This is currently the state of Pakistan’s trio. The judiciary is having to step up and do the job of the other two institutions because, perhaps, the other two are not performing to their optimal, or even basic, levels.

To bring the three prongs together, a coherent strategy is required. A list of all the causes one would fight for which are most endangered and threatened needs to be drawn up based on ground realities — in effect, based on which rights are being most brutally torched. In the quest for a just, moderate and developed Pakistan, the most fundamental freedom is being violated — the freedom to live with dignity.

The offensive has to be coherent and not disjointed. It has to deploy experts. The volume of litigation has to be balanced primarily with the efforts in parliament. Litigation should obviously be the last resort. Only when parliament fails, should the final prong be used. The teams which will need to be built to launch the public litigation attack are perhaps the most specialised. A coherent strategy is in progress and it will require assistance from talented PIL litigators.

Published in The Express Tribune, December 22^nd, 2010.