- Such orders can help the judiciary deliver true justice
By: Akhtar Aly Kureshy
A fascinating civilized society may be attractive to everybody but it identifies through the writ of law (supremacy of law) and values of humanity. The governments which compromised on executing their policy, law and discipline usually failed to deliver and were involved in corruption, nepotism, meritless and non-transparent policies which resulted in the evaporation of justice. There is no secret that legislation, policymaking and its execution is sole responsibility of the government and its departments and if there is lawlessness, fear, insecurity and distrust, then it is not a popular civilized society as generally we seen in the societies of the Europe.
Once ZA Bhutto said that our Courts are becoming the third House to legislate the law through its novel interpretations. There is no argument that the Court are playing a vital role to create a peaceful civilized society. Recently two powerful regimes of Supreme Court suo motu actions repaired a number of lacunae and shortfalls of government, and Present Chief Justice of akistan, Mr Justice Gulzar Ahmad, also taken up a few matters through suo motu, but compared to the problems of our society, the ratio of suo motu are very less, because a huge question of capacity building of governments is apparent. However, once a suo motu action taken by the Surpeme Court, then government functionaries instantly busy themselves to resolve only that issue, so we can easily say that suo motu actions are blessings for this nation.
Naturally the public looks towards the leaders and government functionaries to give them a better system. if governments failed, or cannot, then our Superior Courts come forward to support the government and rescue the public by following the doctrine of Continuing Mandamus to give relief to the general public, especially the poor. The scope of Continuing Mandamus is wide and ablessing for our society, and all superior court judges should follow Mr Justice Sheikh in creatingg more milestones towards prosperity and wellbeing
Recently the Lahore High Court’s Mr Justice Tariq Saleem Sheikh passed a judgment (PLD 2020 Lahore page 534 Muhammad Sulman Vs SHO and others), which escaped media attention, in which the doctrine of Continuing Mandamus was introduced to pave the way of government and its departments. Continuing Mandamus is a relief given by a court of law through a series of ongoing orders over a long period of time, directing an authority to do its duty or fulfill an obligation in the general public interest, as and when a need arises over the duration a case lies with the court, with the court choosing not to dispose the case off in finality. This happens in a situation which cannot be remedied instantaneously but requires a solution over a long time, at times going on for years. With this procedural innovation of the writ of mandamus a mandatory order, the court monitors compliance of its orders, seeking periodic reports from authorities on the progress in implementing them.
The Court may enlist senior advocates to assist it as amici curiae, or as court commissioners in the field, and subject experts or expert bodies to report back to it on the facts and ground realities of the case. It may appoint a court committee or a court commission, independent from the executive, as its oversight or monitoring agency. It may require the subject-matter covered by the case be taught in schools and universities, as part of textbooks and syllabi, or be given wide publicity through the media. It may use contempt against people in positions of power or authority as a remedy in case of non-compliance or poor implementation of its orders. It may recommend that the legislature frame a policy for the future.
Mr Justice Tariq converted that application into a constitutional petition of public interest litigation as it consisted of the wider question of enforcement of fundamental rights of a downtrodden section of society and implementation of a number of laws including Bonded Labor System, Child labor at brick kilns which may be employed to produce the relief or remedy or social effect which would be most advantageous or result in the greatest good of the public as a whole or a significant section of it.
Social justice in the preamble of our Constitution has been given pride of place, and for good reason since it is perhaps the most important and significant form of justice. The doctrine of Continuing Mandamus serves several functions, especially where the Executive does not carry out its function effectively and either does not implement a statutory function or duty or does not exercise its discretion wisely. The judiciary has been seen as an effective tool by the citizens to enforce the law and uphold justice when the executive has not done that. The remedy is often considered useful especially in children’s rights where the executive has continuously failed to implement. Thus the only remedy left is for the court to use its power under continuing mandamus to address the issue.
Our superior courts are highly regarded by legal community, public at large and media, precisely for their social and instant justice function when the country suffers a crisis and the Supreme Court takes suo motu action. There is no reason why the Court should deviate from that path when a number of public issues are seeking the Court’s indulgence and government cannot resolve these issues.
Now there is an urgent need for our poor society to follow the doctrine of Continuing Mandamus where governments and its departments have miserably failed to fulfill the basic requirements of the citizens. Our leader and politicians are making money and involved in corruption to destabilize the government which has already failed to deliver anything. Every department of government including, police, revenue, executive, labor, anti-corruption ( the most corrupt department) health, education, agriculture, fisheries, tax etc. are corrupt and champions neglecting legal obligations.
Naturally the public looks towards the leaders and government functionaries to give them a better system. if governments failed, or cannot, then our Superior Courts come forward to support the government and rescue the public by following the doctrine of Continuing Mandamus to give relief to the general public, especially the poor. The scope of Continuing Mandamus is wide and ablessing for our society, and all superior court judges should follow Mr Justice Sheikh in creatingg more milestones towards prosperity and wellbeing.
The writer is an Advocate of Supreme Court of Pakistan, Law Professor, member International Bar Association and former Assistant Attorney General for Pakistan.
