Supreme Court and Public Interest Litigation

by Sarath WIJESINGHE

Supreme Court set up under Article 105(1) of the Sri Lankan Constitution is the highest court and the institution established for the administration of justice in the country which protects vindicates, and enforces the rights of the people. Source of the supreme law is the Parliament and the Supreme Court interprets and administers justice “According to the Law” in the implementation of the “Due process”.

Court is the last hope and resort to a citizen for his life and property, and it is the duty of the Government in power to facilitate a viable mode of delivery of legal aid for access to justice which is not a favour and an absolute right for justice and fair play and “Due process” without which there is a possibility for the common man to take law into his own hands. Public Interest Litigation and Legal Aid is interconnected. In most liberal democracies consider it necessary to provide some level of legal aid for persons otherwise unable to officer legal representation.

This system is developed in the United Kingdom to the extent that any aggrieved citizen eligible for legal aid is provided by the Legal Services Commission funded by the State. In India and many Commonwealth countries Legal aid is given priority by the State. State must provide Legal Aid to an affordable Price at a reasonable time as “Delay in Justice is Denial of Justice”. Judicial acts should be strictly based on the following principle in Dhammapada which states as follows:

“Not by passing arbitrary judgements does a man becomes, a wise man. Is he who investigates both right and wrong. He who does not judge others arbitrarily according to the truth, that sagacious man is a guardian of law and is called just. One is not wise because one speaks much. He who is peaceful, friendly and fearless is called wise. A man is not versed in Dhamma because he speaks much. He who, after hearing a little Dhamma, realizes its truth directly and is not heedless of it is truly versed in Dhamma. One is called noble because he is harmless towards all living beings” The Just - Dhammapada

Public Interest Litigation

Public Interest Litigation is litigation for the protection of the public interest which is a double edged sword which is to be used and enforced carefully. It is the power given to the public by courts through judicial activism. Judicial activism is a critical term used to describe a judicial ruling that is viewed as “personal biased interpretation” by a given court of what law means as opposed to what a neutral unbiased naturally interpret the law to be. The pioneers of the concept are Justice P.N. Bagwathy, one time Chief Justice of India and V.R. Krishnan, one time Supreme Court Judge of India whose activism influenced “some Sri Lankan” judges. Same concept prevails in the UK and Commonwealth jurisdictions as group actions in the interest of “Groups”.

It was difficult to put into practice under the 1970 constitution. Article 126 of the constitution which empowers a citizen or a group to invoke the jurisdiction of the Supreme Court relating to the infringement of an executive or administrative action of any fundamental right or language right made a “window” - which today has become a main door wide open to be used and misused by the public - for the enlargement of the jurisdiction of the concept by judicial activism. 1980s this writer in the official and personal capacity took steps carefully with the association and directions by Justice Bagawathy who had a close rapport with late Neelan Tiruchelvam, a dedicated and a celebrated lawyer and an academic on the process which has influenced the current developments in Sri Lanka.

Public interest litigation was misused in India which has caused drastic rifts between the Judiciary and the Executive. This principle is now outdated and sparingly and carefully used in India. School admissions, and security arrangements and managing vast sums of funds of NGOs. It is not within their purview and jurisdictions and it is time in Sri Lanka too to be self regulated and frame rules to this effect. Judiciary in the United Kingdom has absolute freedom in the absence of a written constitution, yet it is a self regulatory mechanism and maintains the concept of separation of powers to the last word which is exemplary.

Public Interest is a concept which derives from genuine public spirited citizen with no hidden agenda motives - political, religious or otherwise. It should not be used as a vehicle to propagate hidden agendas, political or personal ideologies however the issues appear to be genuine. The other danger is the deviation of the procedure in the interest of public interest which is unsafe and leads to miscarriage of justice, which gives ammunition to ambush and take advantage of the situation to satisfy the ego and personal agendas. What is the remedy to the ordinary citizen in the absence of an act on the procedure on contempt of law as in UK, USA, India and many commonwealth jurisdictions and developed countries.

Tragedy without Remedy

Then what is the remedy if the judgments are arbitrary, hasty, unfair and personal as stated in Dhammapada. Judges are no God or Super Man. They are liable to make mistakes especially when they are in haste, angry, agitated and engulfed with personal family problems and public and religious issues.

What if they make genuine mistakes or misdirected themselves as knowledge is fast developing and growing. The principle of finality should be a balanced and a reasonable concept. In small states the parties are known and some judges who happened to be vindictive may vindicate the litigants who are helpless and no remedy on various reasons. There should be a remedy according to the gravity of the situation.

It is a tragedy if there is no remedy in the Temple of Justice.

Public Trust

Doctrine of Public Trust is that certain resources are preserved for public use and that government is required to maintain it for public’s reasonable use. Public Interest is common well-being or general welfare central to policy depends, politics and democracy. Mahinda Chintana is clear on this point. It is in the preamble of the Mahinda Chintana as follows, “This earth and its vegetation is yours. But they should be protected not only for your benefit but also for the benefit of future generation. A ruler is only a temporary trustee and not an owner of your children’s heritage,” (Mahinda Chintana).

Therefore public property and enterprises are given to the ruler on trust and it is his duty to be careful and diligent to preserve and manage the State treasures in the best interest and for the benefit of the people who has given the power and treasures on Trust. Basic basis of many judgments since the application of this article 126 are these principles and procedures which has relaxed and stretched on the basis of judicial activism though not necessary and strictly within the rules. There is nobody to question deadlines, procedures, time limits as even the head of the Executive or the Executive have no power to intervene or look onto the legality of procedural regulatory.

Declare your interests

It is a cardinal practice for great judges to declare any interest before adjudication of issues of citizens entrusted the future life and property rights to the Temple of Justice. In the United Kingdom a Judge who came to know of a minor share of a company to his wife immediately withdrew from the case and there are number of matters worldwide on this issue which has direct relevance to our Jurisdiction, where politics, religious, social activism is intermingled in the Society above principles Public Trust and Public Duty. Judges should not be dabbled in public, political, social or religious discussions, environmental or any form of NGOs in public and should not be in the “Public Eye” and controversial. “Justice should not only be done but seem to be done” is the most famous and accepted adage without which the citizen litigant will lose trust on the Judiciary which will lead to the “Law of the Jungle” and “survival of the fittest”.

Future of the Nation

Future of the Nation depends on the behaviours of the Executive, Legislature and the Judiciary in the next few days. We have a charismatic leader - President Mahinda Rajapaksa- who can be relied on and depended on based on past performances, who has liberated the citizen from the terror and terrorism that nation went through for 30 long years, in a short span of period of three years. We need a balanced and trustworthy Judiciary for the fair adjudication with checks and balances. It is an accepted fact that nobody is above law, including the President with all mighty powers who had at one stage to say that his powers are even not as powerful as the powers of a magistrate. Then who has the power to supervise the Supreme Court which is not above law.

In theory it can summon any citizen and deal with on matters based on inherent powers and the new found practices based on Public Interest Litigation. Until constitutional arrangements are made the Supreme Court itself could have self regulatory procedure by implementing the good practices of decisions of higher benches which is in practice by great jurists and Judges, taking into consideration that this is the final Court in the final Temple of Justice.

Many litigants have been successful in winning cases against Sri Lanka in the Committee of Human Rights in Geneva and the number of applications has risen during the tenure of the former Chief Justice. We see a beam of ray of hopes of a Judiciary accepted and loved by the nation in time to come under the leader of the new Chief Justice who needs some time patience, and hard work to put the matters in the right order.