scholarly journals THE NEO-JURISPRUDENCE OF PIL IN SUPERIOR COURTS OF PAKISTAN: A COMPARATIVE ANALYSIS OF PRE AND POST LAWYERS’ MOVEMENT WORKING OF SUPERIOR COURTS

2021 ◽  
Vol 60 (1) ◽  
pp. 33-44
Author(s):  
Hatim Aziz Solangi
Keyword(s):  
Comparative Analysis ◽  
Public Interest ◽  
Judicial Review ◽  
State Legislature ◽  
Fundamental Rights ◽  
Public Interest Litigation ◽  
Legislative Action ◽  
Proactive Approach ◽  
The People ◽  
Before And After

The dynamics of the superior judiciary in Pakistan have undergone a drastic transformation in its approach and working in post 2007 emergency followed by a landmark movement of civil and legal fraternity for restoration of constitutional supremacy. The neo-jurisprudence is being applauded and criticized at the same time.  The excessive use of Suo-motto and public interest litigation at one hand and frequent judicial review of executive and legislative action on other have been the main source of contention between judiciary and other two pillars of state, legislature and executive. The Superior Court is being recognized as the ultimate savior of fundamental rights and guardian of the constitution as well as rights of the people. At the other extreme, the criticism like activist judiciary; disrespect for popular will and making rather interpreting law are most commonly attributed to Superior Judiciary. The study is qualitative in nature and presents a comparative analysis of trends in Superior Court before and after Lawyers’ movement. The study also aims in justifying the proactive approach especially in providing social justice on failure of state organs to respond to the exigency of time.

scholarly journals Public Interest Litigation: Economic Implications (A Critical Appraisal of Reko DIQ Case)

2020 ◽  
Vol 1 (4) ◽  
pp. 63-71
Author(s):  
Dr. Barkat Ali ◽  
Dr. Hafiz Aziz-ur-Rehman
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Economic Policies ◽  
Islamic Republic ◽  
Public Interest Litigation ◽  
Economic Implications ◽  
Judicial Intervention ◽  
The Supreme Court ◽  
The Government

Public Interest Litigation (PIL), a discretionary constitutional jurisdiction is, indeed, a constitutional mandate for preserving socio-economic and legal justice in the Islamic Republic of Pakistan (Pakistan). Such PIL objectives are focused  through the protection of fundamental rights of public importance under provisions of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973(Constitution, 1973). Though the Supreme Court of Pakistan (SC) has been vigilant while exercising judicial review powers as modus operendi for PIL, sometimes it is engaged, however, in the disguise of protection of fundamental rights, in the domain of other branches of the government. Even, such involvement has been extended to the matters of economic policies, which as a general principle of judicial review jurisprudence should be retrenched from judicial review jurisdiction. This trend has not only distorted the PIL objectives, it has influenced the socio-economic development which eventually affects the fundamental rights. Economic policies being of technical nature needs to be decided and supervised by the bodies concerned instead of the judicial intervention which is not appropriate. Judicial overlook of this fact may cause serious economic implications as it has occurred in the Reko Diq matter as decided in the case of Maulana v. Government (2013). The appraisal of exercising of PIL jurisdiction in this case demonstrates that 'judicial capital' is of no use, in the economic matters, and expanding its political capital in such matters eventually influences public interest. So, it is concluded that the matter relating to economic policies should be considered non-justiciable, and be denied from taking judicial cognizance.

scholarly journals Inkonstitusionalitas Sistem Unbundling dalam Usaha Penyediaan Listrik

2018 ◽  
Vol 15 (1) ◽  
pp. 185
Author(s):  
Jefri Porkonanta Tarigan
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
The State ◽  
Constitutional Court ◽  
The Public ◽  
The People

Fungsi negara tidak hanya sebagai regulator (pengatur) dan umpire (wasit), namun juga berfungsi sebagai provider (penyedia) dan entrepreneur (pengusaha). Oleh karena itu, sudah seharusnya negara terlibat langsung dalam usaha penyediaan listrik untuk kepentingan umum bagi sebesar-besarnya kemakmuran rakyat sebagaimana amanat Pasal 33 UUD 1945. Usaha penyediaan listrik untuk kepentingan umum dengan unbundling system yaitu terpisahnya antara usaha pembangkitan, transmisi, distribusi, dan penjualan listrik, telah dinyatakan inkonstitusional oleh Mahkamah Konstitusi dalam Putusan Nomor 001-021-022/PUU-I/2003, bertanggal 15 Desember 2004. Namun kemudian adanya putusan Mahkamah Konstitusi Nomor 149/PUU-VII/2009, bertanggal 30 Desember 2010, justru dipandang sebagai peluang dibolehkannya kembali sistem unbundling dalam usaha penyediaan listrik sebagaimana ketentuan Pasal 10 ayat (2) Undang-Undang Nomor 30 Tahun 2009 tentang Ketenagalistirkan. Hal tersebut kemudian mendorong diajukannya kembali permohonan pengujian terhadap ketentuan Pasal 10 ayat (2) Undang-Undang Nomor 30 Tahun 2009. Melalui Putusan Nomor 111/PUU-XIII/2015, bertanggal 14 Desember 2016, Mahkamah Konstitusi pun menegaskan bahwa unbundling dalam usaha penyediaan tenaga listrik adalah tidak sesuai dengan konstitusi.The function of the state is not only as a regulator and referee, but also serves as provider and entrepreneur. Therefore, the state should be directly involved in the business of electric providing for the public interest to the greatest prosperity of the people as mandated by Article 33 of the 1945 Constitution. The unbundling system in electric providing for the public interest is the separation between the business of generation, transmission, distribution, and sales. The unbundling system has been declared unconstitutional by the Constitutional Court in Decision Number 001-021-022/PUU-I/2003 dated December 15, 2004. However, the decision of the Constitutional Court Number 149/PUU-VII/2009 dated 30 December 2010, is judged as an opportunity to re-enable the unbundling system in the business of electric providing as stipulated in Article 10 paragraph (2) of Law Number 30 Year 2009 about Electricity. It then encourages the re-submission of the petition for judicial review of the provisions of Article 10 paragraph (2) of Law Number 30 Year 2009. Then, through Decision Number 111/PUU-XIII/2015, dated December 14, 2016, the Constitutional Court confirm that unbundling in the business of providing power electricity for public interest is inconstitutional.

scholarly journals Inkonstitusionalitas Pasal 19 Perma Nomor 2 Tahun 2016 dan Implikasinya terhadap Akses Keadilan Warga Negara

2016 ◽  
Vol 13 (4) ◽  
pp. 700
Author(s):  
Yogi Zul Fadhli
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Judicial Review ◽  
Development Project ◽  
Land Grabbing ◽  
The Public ◽  
Location Determination ◽  
The People ◽  
Human Rights Violation ◽  
Proportionality Principle

Judicial review as an extraordinary legal effort has constitutionally regulated by Indonesian law. However, in the administrative court, related with the dispute of location determination for the public interest, judicial review is dispensed by the Article 19 of Supreme Court Regulation No. 2 of 2016. Those article is unconstitutional because theoretically contrary with the Constitution of Indonesia and disharmonious in the types, hierarchy and substantive of the proportionality principle. Thus, human rights violation is rising especially for the people that being victims of land grabbing of development project for the public interest and disorganize of the system procedures in administrative court.

scholarly journals Evolution and Exercise of the Power of Judicial Review of Executive Actions in Pakistan

2020 ◽  
Vol 3 (1) ◽  
pp. 1-10
Author(s):  
Rao Imran Habib
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Good Governance ◽  
Research Work ◽  
Fundamental Rights ◽  
State Institutions ◽  
The People ◽  
Political Interests ◽  
The Supreme Court ◽  
One Step

In the modern democracies the protection of fundamental rights has gained immense importance. The fundamental rights are guaranteed by the constitutions of democratic states. The courts are empowered through the power of judicial review to protect fundamental rights against any violations of these. The concept of judicial review of executive actions emerged from the concept that the powerful executive can jeopardize the rights of the people for their political interests and there should be an independent forum to check the abuses of the human rights by the executive. In the modern era the power of judicial review has proceeded one step further as, in addition to the violation of fundamental rights, it has started examining the issues of good governance and disputes between state organs. Pakistan inherited the idea of judicial review of executive actions from the supervisory jurisdiction of English Courts to issue prerogative writs. Subsequently, Pakistan specifically incorporated the judicial review powers in the 1962 Constitution. The provincial high courts and the Supreme Court are entrusted with the power of judicial review; however, the Supreme Court can adjudicate upon matters of fundamental rights if they involve public importance. This research work examines the importance of judicial review of executive actions for the protections of fundamental rights. Then the evolution and exercise of judicial review of executive actions by the higher courts in Pakistan is analysed. This study finds that the superior courts in Pakistan have actively used this power to protect fundamental rights but in their drive to protect fundamental rights sometimes they have encroached into the jurisdiction of the other state institutions.

scholarly journals China's Evolution from Socialist Legality: The Expansion in the Role of Judges and the Redress of Grievances

2021 ◽  
Vol 15 (1) ◽  
pp. 52
Author(s):  
Zia Akhtar
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Interest Litigation ◽  
Administrative Reforms ◽  
Independent Judiciary ◽  
Judicial Administration ◽  
New Framework

The Chinese state implemented a conscious transfer to a market economy after 1977 when the Four Modernisations were inaugurated and the new Constitution promulgated in 1982 raised the possibility for the separation of powers. The new framework introduced judicial review into the structure of the legal system that was to provide redress of grievances from mal administration. The transition to a new leadership in 2011 allowed the National Peoples Congress to enact administrative reforms, and further amendments to the Chinese Constitution in 2018 have promulgated the Judges Law. The judicial reforms promote the values of an independent judiciary and there is an effective machinery of justice which promotes judicial review. This paper argues that the centralisation of power by the Communist Party does not preclude the functioning of judicial administration that conforms to rule of law and an emerging trend of public interest litigation and participatory justice.

scholarly journals DEATH OF LOCUS STANDI AND THE REBIRTH OF PUBLIC INTEREST LITIGATION IN THE ENFORCEMENT OF HUMAN RIGHTS IN NIGERIA: FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 IN FOCUS

2015 ◽  
Vol 23 (1) ◽  
Author(s):  
Raheem Kolawole Salman ◽  
F.J Oniekoro
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Fundamental Rights ◽  
Critical Examination ◽  
Public Interest Litigation ◽  
Human Rights Abuses ◽  
X Ray ◽  
The Past ◽  
Locus Standi ◽  
Phase Out

One of the various mechanisms put in place in order to address human rights abuses in Nigeria is the Fundamental Rights (Enforcement Procedure) Rules 1979. However, the Rules were punctuated with different challenges and defects ranging from the problems of locus standi to unacceptability of public interest litigation. In an attempt to address this problem, the Fundamental Rights (Enforcement Procedure) Rules 2009 was enacted. This article engages in a critical assessment of the 2009 Rules with a view to ascertaining the extent to which the Rules have come to cure the 1979 Rules. The article begins with a critical examination of defects inherent in the 1979 Rules. It goes further to x-ray the developments brought by the 2009 Rules. The article posits that the 2009 Rules have come as a leverage to problems which have, in the past, denied many litigants the opportunity to enforce their rights and claim compensation. It concludes that if properly implemented, the 2009 Rules will phase out the identified defects and strengthen public interest litigation in the areas of human rights enforcement.

scholarly journals Public Interest Litigation: A Conceptual Framework

2010 ◽  
pp. 85-89
Author(s):  
Manas Ranjan Samantaray ◽  
Mritunjay Sharma
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Special Role ◽  
Public Interest Litigation ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Government

Public interest litigation (PIL) has a vital role in the civil justice system in that it could achieve those objectives which could hardly be achieved through conventional private litigation.PIL, for instance, offers a ladder to justice to disadvantaged sections of society, provides an avenue to enforce diffused or collective rights, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable. This article will show, with reference to the Indian experience, that PIL could achieve these important objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfil private interests, settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-today basis or enter the legitimate domain of the executive and legislature. The challenge for states, therefore, is to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this balance could be to build in economic (dis)incentives in PIL and also confine it primarily to those cases where access to justice is undermined by some kind of disability. Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Court’s directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

Assessment of Designated Managers of Public Marinas From the Viewpoint of User’s Convenience

2009 ◽  
Author(s):  
Yoshiyuki Katayama ◽  
Takeo Kondo ◽  
Kazukiyo Yamamoto ◽  
Shuta Watanabe ◽  
Bungo Okuzawa ◽  
...  
Keyword(s):  
Comparative Analysis ◽  
Private Sector ◽  
Public Interest ◽  
Local Governments ◽  
The State ◽  
Local Autonomy ◽  
Coastal Regions ◽  
Public Facilities ◽  
Conventional Management ◽  
Before And After

Coastal spaces (including land areas and sea areas) in Japan are managed by the state or local governments, and their private use by individuals was not allowed unless contribution to public interest was ensured. Since the Designated Manager System for public facilities was established in 2003, management of an increasing number of public facilities based on the Local Autonomy Laws has been consigned to private sectors (called “designated managers”) nominated through the decisions of the local councils, rather than to public bodies based on the conventional “Management Commission System.” Regarding marinas including land areas and sea areas, we conducted a comparative analysis of their convenience, comfort, serviceability, and so forth before and after introduction of the Designated Manager System from the viewpoint of marina users to discuss how the private sector should manage coastal regions.

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