Public interest litigation - used or abused?

Sarath Wijesinghe

This concept was originated in India and the USA as litigation to protect public interest and group rights in the United States. Litigation for Group Rights is rare in Sri Lanka, though it is abundant in India, USA and UK. It was Justice J.N. Bhagwati and V.R. Krishna Iyer who initiated the trend in India which gave a ripple effect in Sri Lanka. Deatmtiows on “Taking Stats to Courts” led to the threat of contempt of court, and today PIL is no longer the fashion in India seeking remedies by “Public” when the public interest is at stake.

Norris case on Homosexuality in the UK and emergency rule in India promoted the development of this concept and the strategy to help the poor, needy, downtrodden and suppressed by power. Article 21 of the Indian Constitution speaks of right to life, environment without pollution and water as a right. The concept in India is honourably and carefully implemented.

The concept

The golden era on Public Interest Litigation (PIL) in Sri Lanka was in 1980s when the then Bar Association and Legal Aid Commission initiated activism when late Neelan Thiruchelvam with the assistance of former Chief Justice of India, Ford Foundation, professionals in Sri Lanka mooted the concept with the help of legal professionals.

The Legal Aid Commission has been active against violation of fundamental rights and Public Interest litigation, carefully selecting the genuine cases of public interest. The celebrated case of Kusumawathie of Trincomalee was forced to take back to the East again whilst she was taking shelter in Hambantota. This writer initiated the proceedings of her right to freedom of movement on behalf of the members of the group and other citizens. Since then the jurisprudence is developed immensely.

Martin Luther King once said “injustice anywhere is a threat to justice everywhere”. How does one seek justice? It should be through courts established according to law and according to “due process and rule of law” in a legal system accessible to everybody in the delivery of justice and administration of justice. The Chief Justice last week addressing judicial officers in Anuradhapura made a chilling but a firm and decisive speech on the need of the Bar Association.

The Justice Ministry and the civil society have to be vigilant and to be a partner in the process of promotion of justice and fairplay to avoid citizens taking law into their hands. Citizens will take law into their hands when the confidence on the judicial system is lost.

Then the Law of the Jungle and survival of the fittest will come into force again. Breakdown of the law today, though isolated incidents, are worrying and the situation needs immediate attention to revive the system of justice and judicial process.

He spoke of judges who sit on the Bench only a few hours of the day and delays when some cases drag for decades. “Justice delayed is justice denied.”

If the citizen is to wait for decades to resolve a dispute in a system of justice where the judges are well paid and looked after and protected within the iron wall of contempt of court, which is still unregulated where the judiciary has been given unlimited powers, there is something wrong somewhere.

The Angulana and IT student’s matters are worrying and definitely not the order of the day. Efforts to combat underworld should be assisted and encouraged, yet the bad eggs in the service should be identified and severely dealt with. Do not blame an individual or an institution. It is a collective responsibility of all parties to come out of the danger which is imminent.

Litigation of the protection of public interest such as pollution, terror, road safety, construction hazards come within the preview of this concept and aimed at the common well-being. Public Interest Litigation and Legal Aid are interconnected.

This is a process which another party or a group takes over litigation on behalf of an aggrieved party.

In 1980s only the aggrieved parities could knock at the door of justice. Expanding the “Locus Standi,” enabling the entry of a third party that has an interest to litigate, opened the floodgates leading to a misuse.

A human right

Legal Aid is not a favour. It is a “human right” without which the citizen tends to lose faith in the system. Complexity, delay and the cost of litigation are common to all jurisdictions worldwide.

The United Kingdom spends two billion Euros on community legal aid via Legal Aid Board and 29 percent population directly benefited from the process where a citizen has access even to the best QC in the country through the legal aid system. Legal Aid Commission in Sri Lanka receives around Rs 40 million and efforts taken by the Institution in delivery of free legal aid is commendable.

Unfortunately, the Legal Aid Foundation managed by the Bar Association is on the verge of collapse and we are informed that the main part of the premises is given to an NGO to conduct an IT class. Bar Association should use maximum efforts in the area of delivery of justice through the Legal Aid Foundation which was once a leading and powerful body. We must work hard to regain the confidence on the system of justice to maintain a proper balance in due process and the rule of law.

Currently, Public Interest Litigation in Sri Lanka is implemented via Article 14 of the Constitution which defines fundamental rights and Article 126 deals with fundamental rights, jurisprudence and exercise. The Supreme Court has enormous and unlimited powers.

Even the Executive or the citizen have no power to control or criticize it freely. Judicial activism is the innovativeness and creativity of the court in expanding the mandate entrusted by the citizen via Parliament in matters considered to be of public interest. It is fair for elected government to lie in the hands of judges. Expanding the Fundamental Rights Doctrine and using it as a ‘Panacea’ is a dangerous trend when the jurisdiction is exercised by the highest court in which the decision supposed to be final and subject to correction only in very special circumstance with greatest difficulties.

Impartial and independent

It is conciliatory that the Judiciary today is headed and managed by a balanced and a kind Chief Justice. The Judiciary supposed to be completely impartial and independent.

They should not dabble in politics, takes the cover of religion and act with ulterior and future political ambitions.

The duty of the Judiciary is to interpret the state in the name of a Sovereign State. Judicial review is the ‘Doctrine’ on democratic theory under which the Legislative and Executive actions are subject to invalidate by the Judiciary.

The process was implemented well in the UK, India, Commonwealth Jurisdictions and in Sri Lanka as well. Judges in the United Kingdom Judiciary are extremely careful not to have confrontations with the Executive during the process of judicial review, despite enormous powers vested in the Judiciary under the unwritten Constitution.

Should the unelected Judiciary branch has the legitimate grounds to overrule policy choices of duly elected representatives as the duty the court is to uphold exiting status and interpretation has been the theme of the lecture by R.K.W Gunasekara at the Law Library recently.

The lawyers, professionals and the civil society is concerned with the intrusion of the Judiciary on administrative matters.

The pronouncements of political nature by the members of the Highest Judiciary too have to be restrained as the public or the Executive have no remedy to counter the pronouncements of the Bench.

Learning a series of cases on Public Interest Litigation indicates that it used to promote rich and powerful NGO fat cats to show their masters abroad of their activism with only a fraction of enormous funds received in billions of pounds.

Not a single Fat cat NGO has taken any step to help legal aid or consumerism in Sri Lanka which is limping for want of cash.

During the LTTE misrule, the North and East had 2,000 active NGOs which received billions by way of funds.

It is sad but true that in Sri Lanka this great concept initiated with good intentions has been ‘hijacked’ by a few interested parties, NGOs, politicians and persons with ego and not love for the citizens. Cases are filed by persons with vested interests, NGOs for publicity and mainly by politicians as a platform.

It is time to control and outline strict guidelines to prevent misuse and misrule by all parties.

It is a matter that the civil society should agitate to change the fundamental rights jurisdiction to Court of Appeal thereby an appeal to the Supreme Court and the Supreme Court could supervise the proper implementation, which of course needs constitutional changes.

The writer is Solicitor in England and Wales- Chairman for Justice and Equality and former Secretary of Bar Association of Sri Lanka