Public interest litigation: Used or misused

by Sarath WIJESINGHE

The concept of public interest litigation was originated in India and USA as litigation for the protection of public interest, and group rights in the United States.

Litigation for Group Rights is rare in Sri Lanka, though in abundance in India, USA and the UK. It was Justice J.N. Bagwathie and V.R.Kshrina Ayar 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 PC 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 poor, needy downtrodden suppressed by Power. Article 21 of the Indian Constitution speaks of the right to life, environment without pollution, water as a right and implemented under article 32. The concept in India is honourably and carefully implemented.

Whether it is used properly or misused in Sri Lanka is a moot question.

Golden Era on Public Interest Litigation in Sri Lanka was in the 1980s when the then Bar Association and Legal Aid Commission initiated activism when Late Neelan Thiruchelvam with the assistance of the former Chief Justice of India, Ford Foundation, professionals, in Sri Lanka mooted the concept with the help of the then legal professionals. Legal Aid Commission has been active on violation of fundamental rights and Public Interest litigation carefully selecting the genuine and cases of real public interest. The celebrated case of Kusumawathie of Trincomalee was forced to be taken back to the East again whilst taking shelter in from Tigers and the IPKF in Hambantota . This writer initiated the proceedings for her right for freedom of movement on behalf of the members of the group and other citizens concluded with Dr Colvin R de Silva with the pronouncement that in Sri Lanka on freedom of movement. Since then the jurisprudence is developed immensely and currently unstoppable, used and misused.

Martin Luuther 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 new Chief Justice last week while addressing judicial officers in Anuradhapura made a chilling but firm and decisive speech on the need of the Bar Association, Ministry of Justice and the Civil Society to be careful vigilant and to be a partner in the process of the promotion of Justice and fairplay in order to avoid the citizen taking the law into his hands. The citizen will take the law into his own hands when the confidence on the judicial system is lost. Then the Law of the jungle and the survival of the fittest will come into force again. The breakdown of the law today though in isolated incidents is worrying and the situation needs immediate attention to gain dependence on the system of justice and judicial process.

The New Chief Justice is taking immense effects to put it right which indeed is a difficult task, and it is the duty of the parties concerned and the civil society to be more active and vigilant in the interest of the rest of the citizens. He has spoken on judges who sit on the Bench only a few hours of the day and laws delays where some cases run into a few decades for the resolution of the life and future of the citizen.

Justice delayed

“Justice Delayed is Justice denied.” If the citizen is to wait for decades for the resolution of the 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. 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 to all parties concerned to come out of the danger which is imminent. It is time the new Chief Justice take measures to train judges and change the recruitment process as the situation is far from satisfactory.

It is good news that he has already taken certain measures on this issue. We are informed that World Bank funds given on these areas have been diverted to other areas and we urge the CJ to initiate investigations on this crucial issue and put the record straight as it is a matter the public is concerned and interested.

Litigation of the protection of public interest such as pollution, terror, road safety and construction hazards come within the preview of this concept aimed at common well-being and general welfare. Public Interest Litigation and Legal aid is interconnected. This is a process where another party or a group takes over the litigation on behalf of an aggrieved party.

In the 1980s, only the aggrieved parties could knock at the door of justice.

Expanding the “Locus Standi” ability to a third party who has an interest to litigate opened the floodgates which has led to misuse this great concept has virtually brought Indian PIL system initiate by eminent personalities such as Justice Bagwathie to a grinding halt today.

Legal aid is not a favour. It is a “Human Right” without which the citizen tend to lose faith in the system due to the complexity, delay and cost of litigation which is common to all jurisdictions worldwide. United Kingdom spends two billion Euros for community legal aid via Legal Aid Board and 29% 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 the efforts taken by the Institution for delivery of free Legal Aid is commendable.

Verge of collapse

Unfortunately the Legal Aid Foundation managed by the Bar Association is in the verge of collapse and we are informed that the main part of the premises is given to an NGO to run an IT technology class to the public! This writer managed the Legal Aid System in Sri Lanka with Rs 150,000 in 1986 during which period the foundation was laid on the expansion of the fundamental rights jurisprudence to be as it is today. The Bar Association should use maximum efforts in the area of delivery of justice through the Legal Aid foundation once a leading and powerful body which is ailing today. We must work hard to regain the confidence on the system of justice in order to maintain a proper balance in due process and rule of law.

Unlimited powers

Currently Public Interest Litigation in Sri Lanka is implemented via Article 14 of the Constitution which defines fundamental rights and article 126 which deals with fundamental rights jurisprudence and exercise. Supreme Court has enormous and unlimited powers which even the Executive or the citizen has no power to control or criticize 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.

Is it fair and lest legal to the fate of an elected government to lie in the hands of judges. Expanding the Fundamental Right Doctrine and use it as a “Panacea” has been 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 circumstances with greatest difficulties and the cost and power of leading and expensive lawyers.

It is conciliatory that the Judiciary today is headed and managed by a balanced and kind Chief Justice. But what if the situation changes! The Judiciary is supposed to be completely impartial and independent. They should not dabble in politics, take the cover of religion and act with ulterior and future political ambitions.

The duty of the Judiciary is to interpret the statue in the name of the sovereign state. Judicial review is the “Doctrine” on democratic theory under which the Legislative and Executive actions are subject to invalidation by the judiciary, and the process was implemented beautifully in the UK, India Commonwealth Jurisdictions and in Sri Lanka as well.

Judges in the United Kingdom Judiciary is 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, which has not been the case here in the past with the strained relationship with the Executive.

Has the un-elected Judiciary branch, the legitimate grounds to overrule policy choices of duly elected representatives as the duty of the court is to uphold existing statutes and interpretation has been the theme of the lecture by R.K.W. Gunasekara at the Law Library recently as the lawyers, professionals and the civil society is concerned with the intrusion of the Judiciary on administrative matters of employment formulating of formulas and how and what times the security forces should conduct as the judiciary is not a body to establish social reforms and direct the Executive. The pronouncements of political nature by the members of the highest Judiciary too has to be restrained as the public or the Executive has no remedy to counter the pronouncements on the Bench.

Turning back to the series of cases on public interest litigation indicates that it was 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 steps to help legal aid or consumerism in Sri Lanka which is limping for want of cash which NGO’s possess in abundance.

During the LTTE misrule in the North and East had 2000 active NGO’s 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 an ego and not love for the citizens. Cases are filed by Buddhist monks with vested interests, NGO’s for publicity and mainly by politicians as a platform. It is time to have control and give strict guidelines to prevent misuse and misrule by all parties interested results of which is nearly irreparable.

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

This writer is confident and aware that the government, the Opposition and the Judiciary will definitely in favour for obvious reasons and it is time the Bar Association and the Law Commission which is somewhat quiet to consider this appeal on behalf of the citizen who is suppressed and needs assistance in the resolution of disputes which decides the day to day life, employment, family, and the future of the Nation.

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