Litigating to Change: Public Interest Litigation and Sri Lanka

Litigating to Change: Public Interest Litigation and Sri Lanka

Litigating to Change the Public Interest Litigation and Sri Lanka

Mario Gomez

1. The Myths About Public Interest Litigation

There are two myths about Public Interest Litigation (PIL) in this country. The first is that PIL is not possible under our legal framework. The second is that PIL does not take place. Both these statements are wrong and reflect an incomplete understanding about PIL in this country.

PIL can and does take place in a limited manner in this country. Recent jurisprudence by our courts indicate that judges are becoming increasingly receptive to public interest claims.

This paper will deal with two areas of the law where PIL does take place: Fundamental Rights and the writ jurisdiction. PIL does take place in the District Court and in the Magistrates’ Courts, but this will be left for another occasion.

2. Fundamental Rights

In terms of Article 126 of the Constitution:

… he may himself or by an Attorney at Law on his behalf… in accordance with the rules of court as may be in force apply to the Supreme Court praying for relief or redress …

There have been a number of cases where an Attorney at Law has filed action on behalf of the victim. See for example:

Sunil Rodrigo (On behalf of Sirisena Cooray) v Chandrananda de Silva2 Nalika Kumudini (On behalf of Malsha Kumari) v Nihal Mahinda 3

There have been other cases where the Supreme Court has taken a sympathetic view of standing allowing claims even where the petitioner shares the interest with others, or the public at large. The following are some examples:

Article 126, the Constitution ‘[1997] 3 Sri. L.R. 265 ‘[1997] 3 Sri. Lit 331

Ansalin Fernando v Sarath Perera 4

Somawathie v Weerasinghe 5

Visuvalingam v Liyanage 6

Fernando v SLBC 7

Sunil Kumara Rodrigo v de Silva 8

Nalika Kumudini (On behalf of Malsha Kumari) v Nihal Mahinda 9

Karunathilaka v Dissanayake, Commissioner of Elections (Case No 1)

Karunathilaka v Dissanayake, Commissioner of Elections (Case No 2)

Lalanath de Silva v Nandimithra Ekanayake12

Ranawaka v The IGP13

Bulankulama v Secretary, Ministry of Industrial Development1

Sunila Abeysekera vAriya Rubasinghe15

Jayantha Adikari Egodawele v Dissanayake, Commissioner of Elections

The case ofBulankulama v Secretary, Ministry of Industrial Development is a significant one. Here a Government decision to enter into an agreement with Freeport MacMoran to mine a substantial deposit of rock phosphate in Eppawela in the North Central Province of Sri Lanka was challenged by the petitioners. They claimed that there was an imminent Infringement of their rights to equality and. equal protection, their right to freedom of movement, and their right to engage in any occupation, profession, trade, business or enterprise as a result of this Government decision.

One of the objections of the respondents was that the application was in the nature of public interest litigation and should be dismissed since the Constitution does not permit this sort of litigation. The Supreme Court rejected this argument. The Court noted that the petitioners were not disqualified from litigating the matter merely

‘[1992] 1 Sri. LR. 411

‘ [1990] 2 Sri. LR. 121 (Dissenting judgment of Kulatunge J)

‘[1984] 2 Sri. LR. 123

7 [1996] 1 Sri. LR. 157

8 [1997] 3 Sri. LR. 265

9 (1997] 3 Sri. LR. 331

10 [1999] 1 Sri. LR. 157

11[1999] 1 Sri. LR. 183

Supreme Court Minutes of November 2nd 1999

” Supreme Court F/RNo. 574/99

14[2000] 3 Sri. LR. 243

15 2000] 1 Sri. LR. 314

16Supreme Court Minutes of April 3rd 2001

because it dealt with the collective rights of the Sri Lankan public, and the rights they claimed were shared with many others.

In Bulankulama the Supreme Court observed:

On the question of standing, in my view, the petitioners, as individual citizens, have a Constitutional right given by Article 17 read with Articles 12 and 4 and Article 126 to be before this Court. They are not disqualified because it so happens that their rights are linked to the collective rights of the citizenry of Sri Lanka – rights they share with the people of Sri Lanka. Moreover, in the circumstances of the instant case, such collective rights provide the context in which the alleged infringement or imminent infringement of the petitioners’ Fundamental Rights ought to be considered. It is in that connection that the confident expectation (trust) that the Executive will act in accordance with the law and accountably, in the best interests of the people of Sri Lanka, including the petitioners, and future generations of Sri Lankans, becomes relevant.17

In Jayantha Adikari Egodawele v Dayananda Dissdnayake, Commissioner of Elections, the Supreme Court observed:

The citizen’s right to vote includes the right to freely choose his representatives through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has the right to a genuine ejection guaranteeing the free expression of the will of the entire electorate to which he belongs. …

… the freedom of expression, of like-minded voters, when exercised through the electoral process is a collective one, although they may not be members of any group or association.

This is by no means unique. A scrutiny of Article 14 reveals that many Fundamental Rights have both an individual and a collective aspect. 18 (emphasis added)

The petitioners in this case did not complain that their right to vote was infringed. Rather their complaint was that the rights of ‘others’ to vote were infringed. They were given standing to maintain their application because as the Court argued the infringement of another’s right to vote affects us all.

In Kottabadu Durage Sriyani Silva v Chandka Iddamalgoda19 standing was given under Article 126 to the wife of the deceased. In its first order dealing with two preliminary

” Bulankulama v Minuter of Industrial Development, [2000] 3 Sri. LR. 243 at p.258

Jayantha Adikari Egodawele v Dayananda Dissanayake, Commissioner of Elections, Supreme Court Minutes of April 3rd 2001 at p.26

objections, the Supreme Court held that ‘every right must have a remedy.’ It would be absurd to contend that a right ceased and became ineffective due to death. The Court observed that a literal interpretation of the Constitution must be avoided if it were to produce such an ‘absurd result.’20

In its final order in the same case the Court held that the right to life was impliedly recognised in the Constitution, especially in Article 13(4). Where an infringement of the right to life was concerned the Court must interpret the word ‘person’ contained in Article 126 (2) broadly, so as to include an heir or dependent of the person who had been put to death.21

This judgement was followed in Lama Hewage Lal v Officer in Charge, Minor Offences, Seeduwa Police Station.22 In this case Justice Bandaranayake observed:

A careful reading of Article 13(4) of the Constitution clearly reveals that no person should be punished with death or imprisonment except by an order of a competent Court. Accordingly if there is no order … no person should be punished with death and unless and otherwise such an order is made by a competent Court, any person has a right to live. … Article 13(4) should be interpreted broadly to mean that the said Article recognises the right to life impliedly and that by reading Article 13(4) with Article 126(2) of the Constitution which (sic) would include the lawful heirs and/or dependents to be able to bring an action in a situation where death had occurred as a result of a violation of Article 11.23

Although the Sri Lankan legal system does not currently permit judicial review of legislation, it does allow for judicial review of bills. At this stage ‘any citizen’ may challenge the constitutionality of a bill, thus recognising at this level the concept of a public interest action. This jurisdiction has been invoked by citizens and groups on several occasions.

3. Writs

In the area of the writs judges are now increasingly receptive to PIL claims. Here there is no legal or constitutional provision that acts as an obstacle and the Ceurt of Appeal has grown increasingly receptive over the years to claims in the nature of PIL.

Kottabadu Durage Sriyani Silva v Chanaka Iddamatgoda, Supreme Court Minutes of December 10th 2002 and Supreme Court Minutes of August 8* 2003

Supreme Court Minutes of December 10* 2002, at p.7 per Justice Bandaranayake.

Supreme Court Minutes of August 8 2003 per Justice Fernando

Lama Hewage Lai v Officer in Charge, Minor Offences, Seeduwa Police Station, Supreme Court Minutes of July 26* 2004

“Ibid, ppl7 and 19

That attitudes to standing are changing in the writ jurisdiction is exhibited by the following three statements of the Court of Appeal:

The tendency in the past seems to have been to limit locus standi to persons who had a particular interest or grievance of his own over and above the rest of the community. But in more recent years, there is in England a veering away from that view and the concept of locus standi seems to have been progressively widened to extend standing, if I may use the words of Lord Denning, to almost ‘anyone coming to court to get the law declared and enforced’. …

… I take it that the Rule of Law means that no one is above the law and a necessary corollary of that proposition is that no one can flout the law with impunity. Prerogative writs, certiorari in particular, are the means whereby, illegalities such as issuing licenses contrary to and in disregard of the provisions of the law, can be brought to light in order to get the unlawful conduct stopped and so vindicate the rule of law. The certainty that irregularities or illegalities will be exposed and removed I think, is the most effective way of making public authorities or servants conscious of their duty to act in obedience to the law and so uphold the Rule of Law.

* I strongly feel that … denying locus standi to an applicant for judicial review for no better reason than that his interest or grievance is shared by many others in common with the applicant is as illogical and irrational as refusing to treat any one (sic) member of the public for a disease which has assumed epidemic proportions and has afflicted virtually the entire community.”

* … quo warranto is a remedy available to call upon a person to show by what authority he claims to hold such office. Therefore the basic purpose of the writ is to determine whether the holder of a public office is legally entitled to that office. … it would appear that any person can challenge the validity of an appointment to a public office irrespective of whether any fundamental or other legal right of that person is infringed or not. But the court must be satisfied that the person so applying is bonafide …. Even though the applicant may not be an aspirant to the office, nor he has (sic) any interest in the appointment, he can still apply as an ordinary citizen.26 (emphasis added) .

24 Fortes and Walker Tea Broken v Maligaspe, (Court of Appeal), [1998] 2 Sri. L.R. 378 at 407 and 409

21 Merit v Dayananda Silva. (Court of Appeal), [2001] 3 Sri. LR. 11 at 41 – 42, citing the Forbes Case. See also Gomez, Mario., “The Modern Benchmarks of Sri Lankan Public Law”, (2001) 118 South African Law Journal 581

” Dilan Perera v Ranjitha Senaratne, (Court of Appeal), [2000] 2 Sri. LR. 79 at 100-101

In a number of previous cases too the Court of Appeal has allowed petitioners to maintain PIL claims. The following are some examples:

Wijesiri v Siriwardene 27

Kithsiri Gunaratne v Kotakadeniya

EFL v Land Commissioner

Keangnam v Abeysinghe

Bandaranaike v de Alwis 31

Coder v Commissioner of Mosques 32

EFL v Wickremanayake ( Ahungalla Zoo case)33

Maginona v Commissioner for National Housing

Centre for Policy Alternatives v Dissanayake, Commissioner of Elections

National Olympic Committee Case3

Article 140 of the Constitution grants the Court of the Appeal the power to issue writs. In some circumstances Parliament may specify that the writ jurisdiction of the Court of Appeal be exercised by the Supreme Court.39 Article 154P of the Constitution gives the Provincial High Courts the power to issue writs in limited circumstances.

Article 140 has been the subject of judicial interpretation and the Supreme Court has recently given a broad meaning to Article 140 by holding that the power of the

” [1912) 1 Sri, UL171

“[1990] 2 Sri. LR. 14

” [19941 1 South Asian Environmental Law Reporter 53

10 [1994] 2 Sri. LR. 271

” [1982] 2 Sri. UR. 664

” 66 NLR 16

“[1997] 2 Sri. LR. 306

M [1998] 2 Sri. LR. 378

” [1997] 3 Sri. LR. 131 at 135

* [2000] 2 Sri. LR. 79 at 100 – 101

Supreme Court Minutes of May 27 2003

“CA Application No. 1312/2004

See the proviso to Article 140 of the Constitution. Article 140 provides that as a general rule the Court of Appeal will have the power to issue writs. However, Parliament may specify that in some circumstances the Supreme Court shall exercise that jurisdiction and not the Court of Appeal. In the case of findings made by Special Presidential Commissions or Inquiry, jurisdiction under Article 140 is exercised by the Supreme Court and not the Court of Appeal. See, Special Presidential Commissions of Inquiry Law No. 7 of 1978, as amended by Acts No. 4 of 1978 and No. 38 of 1986.

Supreme Court and the Court of Appeal to issue writs under this section is ‘unfettered.’ See for example:

Peter Atappattu v People’s Bank 40

Sirisena Cooray v Tissa Dias Bandaranayake

Wijayapala Mendis v P.R.P Perera42

This reasoning has important consequences. It means that in the future, the Superior Courts will not be hampered by the provisions of the Interpretation Ordinance in the granting of writs.

4. Standing

It is the relaxation of the rules relating to standing that has given PIL its most salient characteristic. Traditionally, common law courts have insisted that the petitioner should be personally affected before he or she is permitted to bring a matter before the court. It was only persons ‘personally aggrieved’ or those who could establish some nexus with the cause of dispute who were given standing to sue by the court.

Globally, courts are departing from this position and allowing others to bring claims on behalf of the victims. In cases of PIL a person or group of persons who can show that they are acting bonafide will be given standing to sue, even if that person or group has no connection with the dispute. Accordingly, environmental groups, children’s groups, women’s groups, university professors and journalists, were permitted to bring petitions seeking to enforce the rights of the larger public or a segment of the public A PIL petitioner would argue that we all, as citizens, have an interest in having the law enforced.

This new approach of the courts reflects a shift in perspective: from the person bringing the claim to a focus on the injustice at issue. If one takes the stance, as the courts have previously done, that only certain categories of persons can sue, and if they do not sue, then the injustice does not get redressed. Courts in many parts of the world have changed their stance and held that it is better to address the injustice even though the application may be launched by someone who is not directly affected.

Sri Lankan law has picked up on global trends and begun to focus more on the alleged injustice and less on the person who brings the application. Standing has often been used by courts to dismiss applications which they did not want to consider on the merits. Now courts all over the world are more sympathetic to third party applications and Public Interest Litigation.

40[1997] 1 Sri. L.R. 208

41 [1999] 1 Sri. LR. 1

41 [1999] 2 Sri. LR.110

There are a variety of reasons why third party applications should be allowed:

* The victim may not always be best placed to argue the case. Third parties may have better expertise and resources to present to the Court all the relevant material and facilitate a ‘better’ judgment.

* It does not matter who invokes the jurisdiction of the court. Some victims may not have the capacity to approach the courts and thus a third party should be allowed to petition on their behalf.

* It is better to deal with an alleged injustice than to allow it to go unchecked because there is no petitioner.

Standing in public law can be approached from the following perspectives:

1. Anyone and everyone may have standing. No link with the dispute or grievance needs to be established. So long as the applicant comes before the court in good faith, standing will be allowed.” The focus here is on the issue or injustice canvassed, not on the interest of the applicant.

2. The applicant has a special link or expertise in relation to the subject matter of the dispute. Thus the Environmental Foundation Ltd. may be given standing in matters relating to the environment because of its special expertise in the area. Similarly the World Development Movement may be given standing where the matter relates to the provision of British foreign aid.45

3. An association appears on behalf of its members. An association or group seeks to represent some or all of its members.46

4. Certain categories of persons are given standing to appear on behalf of the aggrieved person. Thus a mother or father may appear on behalf of a child or a wife or husband on behalf of her or his spouse.48 Article 126 of

i.e. Public Interest Litigation in India and the Administrative Justice Act of Barbados,

” i.e. EFL v Wickremanayake, (Akungalk Zoo Case), [1997] 2 Sri. LR. 306

i.e. Pergau Dam Case, repotted as R v Secretary of State for Foreign Affairs ex p World Development Movement, [1995] 1 All ER 611

46 Liverpool Taxi Association Case, [1972] 2 QB 299

” Ansalin Fernando v Sarath Perera, [1992] 1 Sri. LR. 41

Justice Kulatunge dissenting in Somawathie v Weerasinghe, 1990 2 Sri. LR. 12

the Constitution allows a lawyer to appear on behalf of an aggrieved person. 49

5. Personal standing – where the aggrieved person is the petitioner. There is a direct connection between the grievance and the applicant.

Some cases may cut across one or more of the above categories. In the Filipino case of Juan Antonio. Oposa v Fulgencio Factoran 50 some of the applicants appeared on behalf of themselves and on behalf of ‘generations unborn.’

A number of cases with regard to both the writs and Fundamental Rights show that the Sri Lankan courts are taking an increasingly broad approach to questions of standing. At least in this one area of public law, there is a broad consensus. The idea that a citizen with no other interest, apart from an interest in seeing that the law is observed, can initiate an action, is gaining wide acceptance. There is also an increasing awareness that the victim may not always be the best person to litigate a matter. Certain types of cases may be best litigated by a group with the necessary resources and expertise and not . necessarily by the victim.

Justice O’Regan of the South African Constitutional Court captured the correct approach to standing when she observed in Ferreira v Levin51:

This expanded approach to standing is quite appropriate for constitutional litigation. Existing common law rules of standing have often developed in the context of private litigation. As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a set of past events. Such litigation will generally not directly affect people who are not parties to the litigation. In such cases, the plaintiff is both the victim of the harm and the beneficiary of the relief. In litigation of a public character, however, that nexus is rarely so intimate. The relief sought is generally forward looking and general in its application, so that it may directly affect a wide range of people. In addition, the harm alleged may often be quite diffuse or amorphous. Of course, these categories are ideal types: no bright line can be drawn between private litigation and litigation of a public or constitutional nature. Not all non-constitutional litigation is private m nature. Nor can it be said that all constitutional challenges involve litigation of a purely public character: a challenge to a particular administrative act or decision may be of a private rather than a public character. But it is clear that in litigation of a public character, different considerations may be appropriate to determine who should have standing to launch litigation.

* Sunil Kumara Rodrigo v de Silva, [1997] 3 Sri. L.R. 265

50 Juan Antonia Oposa v Fulgencio Factoran, [1994] 1 SAELR113

51 Ferreira v Levin, [1996] 1 Buttenworths Constitutional Law Reports 1 at 119

5. Third Party Intervention

Where there is disagreement among lawyers, judges and scholars is on the role of third parties when they seek to intervene in litigation as amicus curiae. The Constitution gives the Supreme Court the discretion to allow a third party to intervene in litigation before the court.’ However, legal groups in Sri Lanka seldom seek to intervene in important cases and it is very rarely that the court appoints an amicus curiae on its own to help the court.”

As we noted above the victim may not always be the most competent person to argue the case. It follows that in those cases where the victim initiates an application, there may be a strong case to allow a third party to intervene or for the court to appoint an amicus curiae to assist the court.

6. The Emergence of Public Interest Litigation in India

Beginning around the mid 1970s, there emerged in some Indian courts a new kind of litigation. It became possible for any person, even if he or she was not personally affected, to initiate litigation by merely addressing a letter to a judge of that court. In this manner a number of public interest issues affecting groups such as prisoners, workers, women and children were brought to the notice of the courts. Four features came to characterise this litigation:

1. An expansion in the doctrine of standing {locus standi) which permitted any bonafide petitioner to bring matters of public interest before the court. The petitioner was not required to show that he or she was personally affected.

. 2. Formal court procedures were dispensed with. Thus actions could be initiated by writing a letter to the court that would then be converted into a formal petition and notice issued on the respondent.

3. The use of novel methods to gather facts. Often the court appointed a socio-legal commission of inquiry to investigate the disputed facts and submit a report to the court.

4. A creative interpretation of some of the Fundamental Rights provisions of the Indian Constitution. For example, the right to life clause in the Indian Constitution was broadly interpreted to include a right to livelihood, a right to ‘speedy access’ to justice and the right to a clean and healthy environment. In interpreting the constitution the courts have made frequent use of the non-enforceable Directive Principles of State Policy in Part IV of the Constitution (Article 36 – 50) and international Human Rights norms.

Article 134 (3), the Constitution

The Court sought the assistance of an amicus curiae in Natalie Abeysurtdtra v Christopher Abeysundtra, [1998] 1 Sri. LR. 185

This litigation has been referred to as Public Interest Litigation or Social Action Litigation (SAL).* In developing this litigation the Supreme Court of India has argued that Court procedures must be de-formalised to enable all segments of society to have access to the courts. Most disadvantaged and economically underprivileged groups lack the capacity to approach the courts on their own. Thus the Court should permit Non-Governmental Organisations (NGOs) and other public interest groups to litigate on their behalf The developments in India have had an impact on other South Asian jurisdictions including Sri Lanka, Bangladesh and Pakistan.

Public interest litigation has flourished, because it has provided a way for civil society to become actively involved in questioning public decision-making, including decisions on economic and social policy. It provided a way to challenge and change major public policy decisions and campaign for social, economic and political reform through the judicial process.

In India its emergence was due largely to a sympathetic Supreme Court and through an expansive interpretation of some provisions of the Indian Constitution, justice Krishna Iyer and former Chief Justice Bhagwati played key roles. Apart from the judiciary, the Indian academia, the press and its non-governmental groups also played significant roles.

Upendra Baxi – in his classic piece on the subject, Taking Suffering Seriously – argues that the Indian experience with social action litigation is different from the American experience with PIL. He therefore argues for different terminology (Social Action Litigation) when referring to the Indian experience. However, it is the phrase public interest litigation (PIL) that has become the more commonly used term.

In the Asian Games Case55 (reported as People’s Union for Democratic Rights v Union of India) Justice Bhagwati noted that PIL was:

… intended to promote and vindicate (the) public interest which demands that violations of (the) constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed or unredressed.

And then in the Judges’ Case56 he observed that PIL was undertaken for the:

… purpose of redressing public injury, enforcing public duty, protecting social, collective, diffused rights and interests or vindicating (the) public interest.

See Baxi, Upendra., “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India” (revised version), Law and Poverty: Critical Essays, Bombay, Tripathi, 1988

“People’s Union for Democratic Rights v Union of India, AIR 1982 SC 1473 at 1477

56 Gupta v Union of India, AIR 1982 SC 149 ar 192

PIL in India has resulted in several socio-economic issues being canvassed before the courts. In the Asian Games Case the issue before the court pertained to the violation of labour laws in relation to workmen employed at the Asian Games project sites. In Bandhua Mukthi Morcha v Union of India* the matter related to the ‘inhuman and intolerable conditions’ under which quarry workers were employed. It was also alleged that several of these workers were bonded labourers. The Court issued several directions, including directions relating to the provision of drinking water and basic sanitation facilities for those working on the construction sites. Other cases have dealt with education and the rights of pavement hawkers to hawk their products on the streets of Bombay.

7. Bangladesh

In Bangladesh too the courts have broadened the concept of standing and allowed public interest petitioners to maintain actions. In Dr Mohiuddin Farooque v Bangladesh and Ors59 the court permitted the Secretary General of the Bangladesh Environmental Lawyers Association (BELA) to maintain a public interest petition. Dr. Farooque had filed a writ petition under Articles 102(1) and (2) (a) of the Bangladesh Constitution, challenging a controversial flood control plan. BELA alleged that the project would have adverse environmental consequences and its implementation would, inter alia, violate the Fundamental Right to life, property and profession (Articles 31 and 32) of hundreds of thousands of people within and outside the project area. BELA’s petition was refused at first instance on the ground that BELA was not a ‘person aggrieved’ and did not, therefore, have standing to bring the action.

Adopting a similar process of reasoning as in Bulankulama, the Appellate Division of the High Court Division allowed the appeal, holding that standing will be granted to a person who raises a question of grave constitutional importance or a question posing a threat to his or her Fundamental Rights which pervade and extend to the entire territory of the country. The court held that if a Fundamental Right is involved the matter need not affect a purely personal right of the applicant touching him or her alone. It could be shared in common with others.

8. Filling Gaps Through Interpretation

Public interest litigation in India has been accompanied by an expansive interpretation of the Fundamental Rights provisions of the Indian Constitution, principally Article 21. Article 21 – which states that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law* – has been interpreted so as to

* Bandhua Mukti Morcha v Union of India, AIR 1984 S C 802

” See, Mohini jain v State ofRamataka, [1992] 3 SCC 666

” [2000] 1 LRC 1

include the right to education, the right to a clean and healthy environment, the right to legal aid and the right to a ‘speedy’ trial.60

In Mohini Jain v State of Karnataka61 the Supreme Court raised the right to education found in the Directive Principles of State Policy to the status of a Fundamental Right. The court argued that the right to education is part of the right to life protected by Article 21 of the Indian Constitution. The court argued that the right to life and the dignity of the individual could not be assured unless the right to education was also guaranteed. Fundamental Rights have to be interpreted in the context of the Directive Principles of State Policy.

In a subsequent judgement, a larger bench of the Supreme Court qualified this. In Unni Krishnan v State of Andhra Pradesh,62 the court held that the Indian Constitution does recognise a right to education. That right was part of the right to life and entitles everyone to free education till the age of fourteen only. After that point the right was circumscribed by the economic capacity of the State. Article 21 had to be interpreted taking into consideration the Directive Principle that required the State to provide free education till the age of 14 within 10 years of independence. *

In Tellis v Bombay Municipal Corporation the Supreme Court held that the right to life extended to protect the right to livelihood of pavement dwellers in Bombay. The Directive Principles were equally fundamental in understanding and interpreting the meaning and content of Fundamental Rights observed the Court. In Hussainara Khatoon v State of Bihar the Court stated that although the right to a ‘speedy trial’ was not explicitly laid down in the constitution, it was ‘implicit in the broad sweep and content of Article 21.”

In Paschim Banga Khet Mazdoor Samity v State of West Bengal a man fell off a train and suffered serious head injuries late one evening. He was first taken to a primary health centre. Since the facilities were poor he was referred to another hospital. After taking a few x-rays and examining him the medical officer recommended admission, but he could not be admitted as the emergency and regular wards were full. He was taken to four other hospitals, but was not admitted because they were full. He was finally admitted to a private hospital and incurred an expenditure of 17,000 Indian Rupees.

See also Muralidhar, S., “Justiciability of ESC Rights – the Indian Experience”, Circle of Rights: Economic, Social and Cultural Rights Activism – A Training Resource, International Human Rights Internship Program and Asian Forum for Human Rights and Development, 2000, p.435 – 444

61 Mohini Jain v State of Karnataka, (1992] 3 SCC 666

62 Unni Krishnan v State of Andhra Pradesh, [1993] 1 SCC 645, [1993] 4 Law Reports of the Commonwealth 234

Article 45, the Constitution of India

64 Tellis v Bombay Municipal Corporation, [1987] LRC (Const) 351

“Hussaindra Khatem v State of Bihar, AIR 1979 SC 1360 at 1365

66 Paschim Banga Khet Mazdoor Samity v State of West Bengal, AIR 1996 SC 2426

The Supreme Court held that the right to life was violated. Here was an emergency that required immediate treatment. The State is obliged to preserve the rights of every person. Failure of a Government hospital to provide ‘timely’ medical treatment to a person in need of such treatment violates the right to life. The Court also made recommendations to hospitals on the need for an effective system to cope with emergencies. Unlike the South African Constitutional Court though, the Indian Supreme Court did not appoint a monitoring body to follow through on its recommendations for ’emergencies.’ This is where many PIL cases have failed. While the courts have shown the capacity to carve out new types of remedies, in many cases these remedies have remained on paper because of the lack of an effective supervisory mechanism.

The right to life has also been interpreted to embrace several environmental rights. In Mehta v Union of India68 the court stated that the right to a clean and healthy environment was part of the right to life. In Subhash Kumar v State of Bihar69 the court found that the right to clean water and air was part of the right to life.

Perhaps the most brazen form of judicial activism came in the Vishaka Case , which has become a landmark for the women’s movement in India and in many parts of the developing world. In Vishaka v State of Rajasthan a public interest case was initiated after the gang rape of a social worker in Rajasthan. One of the requests of the petitioner was that the Indian Supreme Court make a pronouncement on sexual harassment since there was no Indian legislation on the subject. This request was not contested by the Solicitor-General of India, who appeared for the respondents. The Supreme Court held that in the absence of legislation dealing with sexual harassment the Court would lay down the law till such time as Parliament legislates. A violation of the Court order would amount to contempt of court. The court drew widely from international women’s rights, including the General Recommendations of the CEDAW Committee, and Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in holding that employers must establish mechanisms to respond to complaints of sexual harassment at places of work. Vishaka also illustrates the broader role of litigation.

In Apparel Export Promotion Council v A.K. Chopra the Indian Supreme Court referred to Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and CEDAW in upholding a woman’s right not to be sexually harassed.71

In South Africa the Constitutional Court of, requested the Human Rights Commission to monitor the Order of the Court, See, The Government of the Republic of South Africa v Grootboom, decision of October 4th 2000

64 Mehta v Union of India, AIR 1987 SC 965

” Subhash Kumar V State of Bihar, [1991] 1 SCC598

70 Vishaka v State of Rajasthan, AIR 1997 SC 3011

71 Apparel Export Promotion Council v A.K. Chopra, AIR 1999 SC 625 and (1999) 1 Supreme Court Cases 759. Article 7 of the International Covenant on Economic, Social and Cultural Rights recognises among other things, the right of everyone to the enjoyment of just and favourable conditions of work, including the right of women to conditions of work not inferior to chose enjoyed by men

The Court held that Article 7 of the ICESCR recognised a woman’s right to fair conditions of work and reflects the view that a woman should not be subjected to sexual harassment at her place of work since it would Vitiate* her working environment. The court, reiterated that each incident of sexual harassment violates the right to equality, liberty and right to life provisions of the Constitution, and expanded the constitutional guarantees of the right to life and liberty to include within their ambit the right against sexual harassment.

Sri Lankan courts are also increasingly resorting to international norms to interpret the Constitution. In Bulankulama v Secretary, Ministry of Industrial Development the Court referred extensively to international law and concepts on sustainable development. The Court referred to the Stockholm Declaration of 1972 and the Rio De Janeiro Declaration of 1992 and stated that the proposed agreement must be governed by the principles set out in these two documents.

According to Article 27(15) of the Sri Lankan Constitution the State shall endeavour to foster respect for international law and treaty obligations in dealings among nations. This article is meant to guide Parliament, the President and the Cabinet of Ministers and is not enforceable in court.”

In Weerawansa v Attorney General41 the Supreme Court referred to this Article stating that the State must respect international law and Treaty obligations in its dealings with its own citizens, especially where their liberty is involved. The Court referred to the International Covenant on Civil and Political Rights (ICCPR) and noted that Sri Lankan was a party to both the Covenant and the First Optional Protocol.

The Supreme Court held that the State must afford the benefits of international law to its citizens. A person deprived of personal liberty must have a right of access to the judiciary and this right is internationally entrenched to the extent that a person deprived of this right can complain to the Human Rights Committee under the First Optional Protocol, noted the Court. The Supreme Court observed:

Should this Court have regard to the provisions of the Covenant (International Covenant on Civil and Political Rights)? I think it must. Article 27(15) (of the Constitution) requires the State to ‘endeavour to foster respect for international law and treaty obligations in dealings among nations.’ That implies that the State must likewise respect international law and Treaty obligations in its dealings with its own citizens, particularly when their liberty

71 Article 27(15), the Constitution

“See Article 27(1) and Article 29 of the Constitution

74 [2000] 1 Sri. LR. 387

is involved. The State must afford to them the benefit of the safeguards which international law recognises.75

A related issue on which the Court has yet to state a view is whether the right to equal protection of the law guaranteed by Article 12 of the Constitution, includes the protection guaranteed by international law.

In the of Centre for Policy Alternatives (CPA) v Dayananda Dissanayake, Commissioner of Elections7 the Supreme Court adopted an interpretation of a Statute (the Provincial Councils Elections Act) which it said was ‘wholly consistent’ with Article 25 of the International Covenant on Civil and Political Rights which recognises that every citizen shall have the right and the opportunity to take pan in the conduct of public affairs, directly or through freely chosen representatives.

The Supreme Court referred to the European Convention on Human Rights and some jurisprudence from the European Court of Human Rights in Sunil Kumara Rodrigo v Chandrananda de Silva.77 .

In its determination on proposed amendments to the Universities Act, the Supreme Court made a reference to two declarations on academic freedom in concluding that the proposed legislation violated the Constitution.78

Sri Lankan courts have also used the Directive Principles to interpret the Constitution. The Directive Principles of State Policy contained in the Sri Lankan Constitution are not legally enforceable, but are meant to guide the President, Parliament and the Cabinet of Ministers.80 In Seneviratne v University Grants Commission the Supreme Court was influenced by the Directive Principles in upholding the State’s university admissions policy.81

Ibid, p.409

Supreme Court Minutes of May 27 2003

77 [1997] 3 Sri. L.R. 265

Supreme Court Determination of May 11th 1999. Reported in the Law and Society Trust Review, Vol. 9, Issue 139 (May 1999)

79 See, In re the Thirteenth Amendment to the Constitution and the Provincial Councils’ Bill [1987] 2 Sri L R 312

See Articles 27 and 29 of the Constitution.

“[1978-79-80] 1 Sri. LR. 182

In the case of Centre for Policy Alternatives (CPA) v Dayananda Dissanayake, Commissioner of Elections Justice Mark Fernando held that where two possible interpretations are possible, the Court should adopt the one that has democratic consequences. Here too he sought support in the Directive Principles of State Policy. He observed:

When constitutional or statutory provisions have to be interpreted, and it is found that there are two possible interpretations, a Court is not justified in adopting that interpretation which has undemocratic consequences in preference to an alternative more consistent with democratic principles, simply because there are other provisions, whether in the Constitution or in another statute, which appear to be undemocratic. … The Judiciary is part of the ‘State’, and as such is pledged to play its pan in establishing a democratic socialist society, the objectives of which include the full realisation of the fundamental rights and freedoms of all people

9. Participatory Justice

Despite formal democracy and elections, South Asian societies are still administered largely by elites. Few processes exist that enable the larger public to participate in the Government of their country. Elections are often insufficient to ensure Governmental accountability and to check abuses of power. Public policy is formulated and decisions taken with very little participation from the people affected by such policy and actions. This is true not only of South Asia but also of much of the developing world.

PIL provides a means of enabling the public to challenge Government decisions and policy. Even though the petitioner may not be personally affected he or she may be allowed to challenge a Government decision, for example, to alienate State land, or to compel the observance of minimum working conditions in a factory. Litigation consequentially acquires a participatory and democratic flavour. It is not conditional upon the existence of an individual’s link with a particular grievance.

The common law model of litigation requires a high degree of assertiveness on the part of the petitioner. The players in the litigation game need to have a high level of legal capacity to access the courts and to see litigation through to its conclusion. PIL allows those who have this capacity to appear on behalf of those who lack this capacity. It is not always the victims who have the capacity to sustain litigation. Rarely also are victims best placed to ensure that all relevant material is before the court. This is especially true, when, domestic analogies and precedents are few, and international and comparative material may be of particular significance. Thus participatory models of litigation such as PIL, not only increase access to courts, but also enhance the capacity of the court to deal with complex

82 Centre for Policy Alternatives v Dayananda Dissanayake, Commissioner of Elections, Supreme Court Minutes of May 27th 2003, p.10

issues. This applies especially with regard to the rights of the economically and socially underprivileged. The participatory nature of litigation would be enhanced if counsel were to allow the groups they represent, to play an important role in the processes of decision-making.

The Indian experience shows how creative judicial interpretations can create a regime of rights even where these rights are not explicitly entrenched. It also shows that despite this litigation the real impact on the lives of the poor and disadvantages has been marginal. The process of translating the legal rhetoric into genuine and real change has not occurred.

10. Law and Change

PIL needs to be viewed as one part of a broader political strategy. There may be cases where litigation may be of limited value and others where litigation would have an impact. We should be able to decide when we want to go to court, and when we would use some other strategy.

PIL raises several questions about the capacity of law and litigation to bring about change. PIL has functioned on the assumption that the law has a capacity to bring about change. It has tried to use law, with its connotations of equality and non-violence, to change social structures that are unequal and discriminatory. There is also the assumption underlying PIL that the more widely accessible law and legal resources becomes, the more positive will be the change. Many of the groups that resort to PIL share a common vision of law as a vehicle for effecting change. Law is seen as one facet of a larger political struggle for realising economic, political and social reform.

Whether litigation can succeed in bringing about change depends on a complex set of factors. The impact of litigation would depend on, the attitude of the judiciary, the commitment and orientation of the implementing agencies like the police and the Attorney General’s Department, and the capacity and the assertiveness of civil society groups. It would also depend on the ‘political space’ that exists, the vigour of the media and the intensity of public opinion.

Yet litigation has other benefits. Litigation has the potential to provide individual relief, to enhance our understanding of difficult concepts, to develop public awareness around rights, to provide benchmarks and standards regarding the conduct of Government and the private sector, to allow people to participate in the creation of standards and rights, and to create a greater public interest in the issue.

One of the great benefits of litigation is that it increases the level of transparency surrounding crucial decisions that affect significant parts of the population. It forces the bureaucracy to rationalise its decisions and to engage in a dialogue, through the courts, with the recipients of those policies and those who feel victimised by the effects of those policies. It forces decision-makers to closely consider alternatives and adopt decisions that are rational and sincere.

11. A Public Interest Litigation Agenda for Sri Lanka

If civil society and professional organisations are going to use PIL regularly there are certain capacities we would need to develop:

11.1 Monitoring Court Orders

Civil society would need to develop the capacity to monitor court orders. In many PIL claims the orders are of such a nature that they require constant supervision. PIL groups would then need to develop a capacity to supervise these orders and ensure that the respective agencies enforce them. The Fischer Case on the issue of Sri Lankan married to foreign males is an example.

It is in relation to the monitoring of court orders that the Indian experience with PIL failed. In South Africa, in the Grootboom Case83 , the Constitutional Court asked the Human Rights Commission of South Africa to monitor one of its orders in relation to housing for the disadvantaged. The use of other institutions like the Human Rights Commission, the Central Environmental Authority, and the National Child Protection Authority, is an avenue that needs to be explored.

In Lalanath de Silva v Nandimithra Ekanayake84, the respondent Minister agreed to specify and gazette the Ambient Air Quality Standards as asked for by the petitioner, by a specified date. The Supreme Court made an order in accordance with this undertaking. However, the court refused to address the question of the implementation of the standards after they were gazetted.

11.2 Persistence

Civil society would need to develop the capacity to persist and to ‘keep trying.’ This will also entail developing a culture of ‘case criticism which is based on coherent and rational principles and not on personalities.

11.3 Creativity

Perhaps the greatest challenge facing the public interest law movement in this country is the task of developing new, bold and imaginative legal arguments. This is where the Indian experience has much to offer. The Indian experience shows us how changes could be brought about through creative legal argument and judicial interpretation. This would also entail looking at different forms of remedies and a variety of forums in

Republic of South Africa v Grootboom, judgement of the Constitutional Court, October 4 2000. The High Court decision in the same case is reported as Grootboom v Oostenterg Municipality, [2000] 3 Butterworths Constitutional Law Reports 277

Supreme Court Minutes of November 2″‘ 1999

which to present public interest claims. It also means developing creative ways of applying both Fundamental Rights and public law standards to private actors.

11.4 Amicus Briefs

PIL would also involve intervening as an amicus curiae and convincing courts that they should allow third party interventions in appropriate cases.

11.5 Engagement with Judges and Lawyers

Academics and activists are now having frequent interaction with judges and lawyers in all parts of the world. There are an increasing number of workshops and colloquial at which academics and activists engage with members of the judiciary and the Bar. There are also at the same time, workshops and colloquial for ‘judges only’ where members of the judiciary (regionally or globally) ‘converse’ and share judgements, ideas and experiences. The internet has facilitated the sharing of judgements instantly across countries and regions. The public interest movement in this country needs to consider how these engagements could be fostered and nourished.

11.6 Wider Use of Comparative and International Law.

Judges all over the world are increasingly resorting to international law to interpret constitutions, statutes and to develop the common law. As we have seen Sri Lankan judges are also beginning to endorse this global trend. A question that Sri Lankan courts will have deal with is whether the equal protection of the law guarantee in the constitution extends to the ‘protection’ given by international law.

The public interest law movement may also want to look at judicial interpretation in some of the ‘new democracies’, especially in Africa. The reasoning in these judgements are based on current social realities and may be more relevant to our social context.

12. Constitutional and Legal Reform

On Constitutional and Legal Reform there are three issues which should engage our attention:

12.1 An explicit recognition of PIL

An explicit recognition of PIL in the Constitution would be of great value, although its absence should not act as an obstacle. The formulation in the South African Constitution is elegant and precise and is one possible model. However, the lack of

explicit Constitutional recognition should not prevent a public interest law culture from taking root in this country.

Section 38 of the Constitution of South Africa (1996) states that:

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened …. The persons who may approach a court are –

(a) anyone acting in their own interest

(b) anyone acting on behalf of another person who cannot act in their own name

(c) anyone acting as a member of, or in the interest of, a group or class of persons

(d) anyone acting in the public interest

(e) an association acting in the interest of its members.

12.2 A Right to Administrative Justice

The legal system should also consider entrenching a Fundamental Right to administrative justice in the Constitution, to be supported by an ‘Administrative Justice Law.’

Section 6(1) of the South African Promotion of Administrative Justice Act85 states that:

Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

12.3 The Applicability of Fundamental Rights and Public Law Norms to the Private Sector

‘Government’ is now being re-defined and the State is withdrawing from many areas of public life. Public enterprise reform and the divestiture of State Owned Enterprises (SOE) are key elements of the new economic policy. It is likely that the State will withdraw even further and private institutions will take on even more functions. Public enterprise reform is also likely to create entities in which Government and the private sector will be joint stakeholders.

Private entities, or entities which are owned by both public and private stakeholders, can exercise power in a way which can have harsh consequences for members of the public. This is especially the case where those entities enjoy a monopoly or enjoy a near monopoly

South African Promotion of Administrative Justice Act, No. 3 of 2000

of strategic importance to the consumer. The supply of gas, telephones, health care services and educational services are some examples of such strategic services.

Sri Lankan courts need to rethink the situations in which they will apply the standards of public law and Fundamental Rights. Public law needs to be re-conceptualised so that its standards will apply whenever public power is exercised, whether by a public or private entity. Public law is concerned with the way power is exercised. Where the exercise of power intersects with an important public interest then there is a strong case for imposing public law concepts to review the way that power is exercised, even where that power is exercised by a private entity.

Natural justice has for long been applied to non State bodies.86 However, the issue is whether the courts would be willing to apply other standards of public law like unreasonableness, proportionality, legality, legitimate expectation and the right to receive reasons to private entities. Similarly will courts require private bodies to conform to the standards contained in the chapter on Fundamental Rights? Public law, including Fundamental Rights, will need to look at public power not just from the perspective of the source of that power, but from the perspective of the consequences of such power.

In the context of the writs the Court of Appeal observed recently:

I feel this is a suitable context in which to consider whether the issue arising on this application concerns a public law issue. The answer to the question on the issue … depends on either of the two matters, or on both viz: (i) source of power of the authority making the decision

Even a private organisation might well be considered to be exercising powers which affect the public and thus be subject to public law”.

In Floor Care Cleaning Services v University of Ruhuna88 a compensation order was made in a Fundamental Rights claim, against a private company. The order was made on the basis that the private company, a respondant in the case, had been ‘unjustly enriched’ and the petitioner deprived of a similar ‘profit’

“See Justice Fernando’s judgement in Dissanayake v Kaleel, [1993] Sri. L.R. 135

“Meril v Dayananda Silva, [2001] 2 Sri. L.R. 11 at 32 and 36

” Supreme Court Minutes of May 9* 2002