Focus on Rights

Litigation in the public interest
That the Organisation of Professi-onal Associations (OPA) should consider it opportune to select the subject of 'Public Interest Litigation in the Sri Lankan Polity' as the theme of study at its 2003 annual sessions this week, awakens in one a curious mix of both anger and sadness.

This unsettling combination of responses is due to a variety of factors. On the one hand, discussions at the sessions may well have been spirited as to what litigation in the public interest means to us. In that sense, the OPA is well suited to initiate these debates, given that public interest litigation (PIL) only underscores the basic truth that the law does not belong to judges or lawyers but instead serves the people.

However, what imparts a bitter-sweet taste to the whole is that we are still struggling with the translation of PIL into living law while combating larger and far more serious concerns regarding the basic independence and integrity of the judiciary in whose forums such litigation is initiated.

In contrast, it is now some thirty or so years since the Indian people enthusiastically embraced this concept notwithstanding gargantuan social, institutional and legal problems faced by that country.

Since the seventies, activists, journalists and academics along with lawyers in India had been agitating the courts in areas as diverse as law and order, environment and resources, consumer issues, education, politics and elections, public policy and administration, judges, courts and lawyers and injustices specific to women and children. In all these instances, their interventions were not as a result of an individual grievance but rather on the behalf of the wider public.

While their successes should not be over estimated, there is no doubt that as a result, the aridity of the Indian legal landscape has been transformed into a vibrant kaleidoscope of colour. In so doing, the vitality of the democratic spirit in India has been strengthened.

We, on the other hand, are far more comfortable discussing what PIL amounts to, in lecture halls rather than putting it into actual practice. Constitutional ame-ndments to incorporate the spirit of PIL are now discarded, to all intents and purposes, caught up as they were in the endless political bickering and tit for tat that passes for governance in this country.

At one point however, it seemed tantalizingly that things might have been different. Notwithstanding the need for constitutional reform, PIL was manifested in the past years, rather in the manner of tentatively putting out feelers to test the legal pulse. While the Court had been alive on many occasions to contain executive or legislative over-reaching in normal fundamental rights cases, one of the more dramatic instances when it responded to a call by the citizenry was in the "imminent infringement" case in 1999 relating to the right to vote. In this case, five voters appealed to court to make public all steps taken by the Commissioner of Elections and the IGP to ensure that a recurrence of the "Wayamba" election violence would not take place at the upcoming April elections to five other Provincial Councils.

A Bench presided over by MDH Fernando J. directed that the circulars and instructions be made public and examined their sufficiency. The Court cautioned notably regarding the need for swift and appropriate action to be taken against any police officer found to be in intentional dereliction of his duties, the lack of adequate provision to ensure the safety of voters and election staff and particularly, the use of state resources for political activities connected with elections. (SC No265/99, SCM 23.3.99)

Judicial activism in the eighties and nineties, as exemplified in this case, has now given way to an overall despondency and it appears that the swing of the pendulum cannot go further to the negative. Thus, the discussion of the relevance of PIL at this day and age is palpably ironic. And Sri Lankans are doing what they do best; expounding in theory what cannot be manifested in practice.

But what would it mean if PIL is actually practiced in all its vigour and abundance of spirit in Sri Lanka's legal system today? Its capacity with regard to questions of a legal and political nature that are of profound importance to the nation, was recognised in unequivocal terms by one of the country's most respected lawyers, HL de Silva, speaking as the Chief Guest at the OPA annual sessions.

Mr de Silva's identification of several PIL issues include the monumental changes that Sri Lanka is presently contemplating in regard to her basic constitutional structures. Key to these concerns is, of course, the promised Interim Administr-ation for the North and East. Then again, under the guise of foreign economic aid and assistance, there is the impending threat of a new wave of colonialism and the attempted exploitation of our untapped resources and natural wealth.

The whole became all the more imperative, he thought, in the backdrop of the "convoluted pronouncements and tortuous circumlocutions of Government spokespersons, ami-dst many prevarications and tendentious statements (which) conceal more than what they reveal."

Thus, political decisions would be supplemented and refined through the admixture of judicial opinions on questions of legality. They would be likely to acquire a greater degree of legitimacy and acceptability and would be less likely to be arbitrary or decidedly biased or partisan. The People would then be able to make informed decisions at a Referendum or a General Election.

From another perspective, public exposure, (or 'whistleblowing'), relating to corruption and other forms of malpractice should be encouraged as a preventive as well as a remedial measure. For such activism, as he himself put it, it is necessary, above all, that the Court be composed of men (and women) of the highest caliber in learning, wisdom and moral integrity.

In retrospect, the OPA sessions only serve to point us to the unpleasant truth that the law itself and those who administer it and expound it, (with significant exceptions though), could not be more far removed from what PIL actually stands for, than at any other point in our history. While we should be reworking the legal system to deliver unified responses to common problems, what we have, in actual fact, is the active stirring of more virulent prejudices based on caste, creed and religion.

But then, these are concerns of little interest to the legal community in their every day pursuit of lucre and/or self interest. It had been aptly commented once that war is too important a task to be left to the generals. It seems now that justice is assuredly too vital an imperative to be left to the lawyers, perhaps even the judges.

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