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Heart of the Matter by Fathima Razik Cader

In the public interest, the salient points enunciated by some eminent professionals who addressed the Technical Sessions of the Organisation of Professional Associations (OPA) 16th annual sessions will prove interesting and educative.

K. Kanag Iswaran, PC, one of the most senior members of the Sri Lanka Bar, started his presentation by explaining why Public Interest Litigation (PIL) has attracted such a big fuss and buzz. 'One must understand that litigation traditionally was looked upon as a judicial proceeding for the vindication or the enforcement of a right", he averred. That definition has subsumed certain basic concepts and such concepts have got to be understood in order to appreciate why PIL has assumed such importance at this point in time.

Litigation is a means by which one can have access to justice. And access to justice means that one can seek access to Courts for the purpose of a remedy. The question then arises as to who can seek remedies. The answer is - 'Only a person who has a right can seek a remedy'. But there is another question - 'What is right that the law recognises'?

That right is a right that the law recognises as being given to a person by the law. And that gave birth to the Anglo saxon concept of private rights - that one must have a standing to go to Court to seek relief.

Consequently, it came to be recognised that only persons could vindicate private rights. Presidents Counsel, Kanag Iswaran, went onto explain - "If you want to go into a conference, you must produce your invitation. That is your locus standi to seek admission. Otherwise, you can be denied entry". Rights therefore meant private rights.

Litigation in the traditional sense is limited to assertion of one's private rights and not public rights. PIL though called litigation, is an entry into the judicial process by entirely different means. It therefore espouses the idea of a third party - a third party canvassing the rights of persons or groups whose rights have been infringed and who may not be aware of their rights nor have the resources to contest. Citing PIL in India, Kanag Iswaran, PC went on to state that the Supreme Court in India devised mechanism to get over the Anglo Saxon jurisprudential hangover of grieved persons and locus standi and made a breakthrough to liberate the rigours of the rules of locus standi.

Interestingly, in English litigation, the use of Latin is not permitted other than 'inter alia'. That is another aspect of access to justice - to speak the language that people can understand. And a person or a group acting bona fide (Latin again) and not for personal gains or with vested interests, can initiate litigation for the purpose of redressing public injury, enforcing public duty, protect social and environmental causes and other such similar rights. This then is what public interest litigation means.

Dr. Mario Gomez, visiting Lecturer on Law, University of Colombo and Hong Kong, Consultant, Law and Society Trust has in his papers on the subject, an agenda for PIL in Sri Lanka. He however was not present at the Technical Sessions had his papers presented by Anton Fernando, Attorney-at-Law. He began by pointing out the difference between Private Interest Litigation and the Adversarial System.

Currently action filed in the District Courts goes through a protracted trial with much paper work preceding it and along with it. This exercise is not only time consuming but is also costly. Referring to India, he said that the High Courts in India have parallel jurisdiction. And the Indian Supreme Court interpreted Article 32 of the Indian Constitution stating that the Supreme Court is the guarantor of all rights and adopted certain strategies to give justice to the people.

Dr. Mario Gomez has also referred to Section 38 of the South African Constitution which specifically provides for Public Interest Litigation by stating that anyone listed in this section has the right to approach a Competent Court alleging their right in the Bill of Rights has been infringed or threatened. 'Anyone' in this respect could be (a) anyone acting in their own interest; (b) any one acting on behalf of another person who cannot act in his/her own name; (c) anyone acting as a member of or in the interest of a group of class or persons; (d) anyone acting in the public interest and an association acting in the interest of its members.

The impact of public interest litigation has not been felt in Sri Lanka. When it does, it will revolutionise the awareness of people, the right so people and give equal justice to all. The Indian Supreme Court called this type of relief "affirmative action". So did the American Courts.

The special advantage of PIL is that while it provides access and brings relief to a group of persons or a class of persons, it is also a form of legal aid and it is hoped that in any new Constitution, provision will be made to recognise in no uncertain terms, the need for Public Interest Litigation. Dr. Gomez is of the view that everyone (without exception) should be accountable - otherwise one cannot have justice in the country and thereby can never have peace because justice always precedes peace.

In addition, PIL also brings about good governance and the Court would shape human conduct and set guidelines for governmental action and prevent abuse of power. Dr. Gomez's presentation concluded quoting a written opinion by the International Court of Justice (ICJ) - "The right to equality and non-discrimination is the norm of international customary human rights law."

Ms. Sunila Abeysekera, an activist and a scholar, made her presentation, on "Enforcement of Rights of Women Through Public Interest Litigation". She said her fundamental premise is that women constitute perhaps the largest proportion of human population that is consistently, continuously and systematically discriminated against in various sectors - be it legal, social, cultural, economic or political.

She said the law defines women as being weak and in need of care and protection, when in fact, women are people whose rights are violated and who have equal rights and equal dignity to speak up for themselves. A later discourse on women and law is based on the liberated principle of equality and the rights of the individual. This perspective focuses on eliminating statutory provisions and language that explicitly discriminates on the basis of sex and of sex based stereotypes.

"The use of PIL or litigation as a strategy to advance women's rights is something that many different women's groups across the globe have explored in many different ways", stated Ms. Abeysekera. In Sri Lanka, though, what might prove interesting is the fact that there has been almost no litigation on the count of discrimination that has been raised by individual women or women's organisation. The cases raised have been largely due to violence, sexual harassment, abuse, incest, and rape amongst other issues.

PIL can play an important role because in the case of violence against women in particular, it can create an environment in which many women who are silenced by not only fear of the social stigma that is attached is such a situation but also because women are reluctant to come out in the open as there may be many implications on their future. It also impacts negatively on children.

In the case of sexual abuse, there are many shortcomings in the law as it now stands.

It is therefore important that public interest litigation be promoted as absolutely essential in a legal system in order to enable groups of marginalised people and communities to raise their voices and advance their claims for rights. Ms. Abeysekera stressed the point that PIL also has its limitations especially for members of the legal profession, in respect of ethics. And that must be borne in mind, she emphasised.

The question on every interested persons lips would be - "When will PIL be a reality"? There are so many issues that are important for Sri Lanka's progress but are yet to see the light of day! Notwithstanding the enthusiasm and concerted effort of the OPA, many professionals and rights' groups, will PIL also be put on the back burner? For in the eyes or minds of the authorities, there may be more important issues to resolve. But at the risk of being accused of repetition, it might be prudent to conclude by stating that 'justice always precedes peace".

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