Locus Standing is a complex legal doctrine, but basically, it is a way to protect the House of Justice from loiterers, or those who wish to waste the court’s time or diminish its credibility by bringing frivolous claims.

Many explain that the social fabric of Pakistan is so unique that it requires judges to dispose of procedural requirements like standing, in order to protect the rights of a poverty-stricken people. However, as of late, a lack of procedural requirements has sidetracked the Pakistani Supreme Court into deciding cases irregularly. While the judiciary can take credit for many of Pakistan’s advancements, without a systematic approach to decide who has proper standing to bring a case, their credibility may be at stake.

Standing is a bar set by the Court that all people must pass before they can bring a case before the judges. Plaintiffs in the US must prove three things before the Court entertains their substantive arguments:

1. The Plaintiff suffered an actual or imminent injury,
2. The defendant caused the injury, and
3. The Court has power to remedy the injury.

In the United Kingdom, the Court requires that an individual prove “direct and individual harm,” or a sufficient interest in a case before they begin.

The Judiciary is tasked with remedying violations of rights, and if there isn’t a violation of those rights, they have the power to ignore such claims. Partly, this legal standard was created to address the overwhelming case-load of most courts. With a limited amount of judges and available court hours, standing requirements ensure that only people whose rights may have been violated are heard by the Court.

The Supreme Court of Pakistan has not pressed petitioners to prove they possess standing in recent cases, which has led some to question the credibility and equality of the apex court. In recent months, the Supreme Court accepted a case which was based on the standing of a private citizen to challenge the Prime Minister’s potential firing of the Chief of Army Staff. In the Memogate controversy, the Court accepted the standing of the political opposition, and indirectly, the military, against a sitting democratically elected government.

However, the practice of accepting cases despite deficiencies in standing is long-established in Pakistan. The Benazir Bhutto v. Federation of Pakistan case allowed for an individual to bring a case on behalf of a group, even if his/her own rights hadn’t been violated. Chief Justice Haleem explained,

“The rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in
which only the person wronged can initiate proceedings of a judicial nature for
redress against the wrong-doer…The rationale of this procedure is to limit it to
the parties concerned and to make the rule of law selective, to give protection to
the affluent, or to serve in aid for maintaining the status quo of the vested
interests.”

This critique of standing is commonly raised by proponents of a powerful judiciary in Pakistan, and was affirmed by the Lahore High Court in their State v. M.D. Wasa case. The Court disregarded the petitioner’s lack of standing, and explained such a circumvention of procedure was necessary, “in developing countries like Pakistan and India [due to] the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the general inefficiency and corruption at various levels.”

When read collectively the arguments from the Bhutto and Wasa case contradict one another. The Bhutto judgment explains that the procedural limits used by American courts deny justice for poor people and serves the interest of the elite. However, the Court in Wasa seems to argue that the US is simply more “equal” than Pakistan, which is why Pakistanis should not have similar procedural barriers for citizens to invoke the court’s power.

Justice Kennedy, of the US Supreme Court, explained the importance of standing requirements:

“An independent judiciary is held to account through its open proceedings and its reasoned judgments. In this process it is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injury / [standing] requirement helps assure that there can be an answer to these questions; and, as the Court’s opinion is careful to show, that is part of the constitutional design.”

As such, while judiciary in Pakistan disregards procedural hurdles so that they can address the catastrophic challenges to citizens’ rights, it is important to note that equality is often born out of procedure. As Justice Kennedy explained, an independent judiciary hinges upon its credibility amongst the public, if the public views the courts as equally administering justice, they will give greater respect to the court’s decision.

Pakistan’s Supreme Court must balance the words of Justice Haleem and Kennedy. Chief Justice Haleem stated in the Bhutto case, “The interpretive approach should not be ceremonious observance of the rules or usages of interpretation…After all the law is not a closed shop.” Justice Kennedy stated that standing “is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual… stake in the outcome, and that “the legal questions presented … will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.”

Certainly, if one looks to the frenzied decisions delivered lately by the Supreme Court, an image of a “debating society” appears rather than a court exercising a “realistic appreciation of consequences of judicial action.”

One cannot ignore the fact that Pakistani citizens face a far greater threat to their rights than their American or English counterparts, and thus, they deserve a court that isn’t concerned with the satisfaction of procedural formalities. However, these same formalities helped to establish the stable democratic systems that are able to protect citizens’ rights in the US and UK. Therefore, without a systematic approach and a legal standard created to establish standing in Pakistan’s courts, the unequal administration of justice will threaten the court’s credibility.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.