Right of Effective Access to Justice
Thursday, February 7, 2019
One of the more significant developments that has occurred in the area of public law has been with regard to standing- locus standi. The Courts have begun to question some of the assumptions underlying the requirement of standing. In some parts of the world, notably India, the changes have been quite dramatic and there has been an increasing concern with widening access to the courts and increasing the availability of remedies. Sri Lanka is no exception.
Traditional rules of court and other doctrines have been suppressed, as judges have sought to facilitate public access to the courts and to justice. The desire to provide access to large groups of economically underprivileged people and the desire to curb the growing power of the State, have contributed largely to the way access to justice are being perceived. This concern with access to justice and remedies is matched in other parts of the world too as securing good governance and public accountability become important concerns.
The Traditional Approach
Traditional Anglo-Saxion jurisprudence had tended to take a restrictive view of the concept of standing. In terms of traditional view, standing was given only to those whose legal interests were violated or threatened violation. It was a view that gained currency when private law dominated litigation and most cases involved the rights or interests of only two parties.
However, with the growth of public law and the recognition of broad and amorphous rights which attached not just to a single person, but to whole groups and communities, this notion of standing was found inappropriate. The Indian Courts Jettisoned the traditional concept of standing, opting instead for a much wider notion. Social action groups and the members of the public were permitted to bring actions on behalf of those whose rights or interests had been violated or threatened violation and who were unable to approach the Court for a variety of reasons. This desire to widen court access to the disadvantaged and poorer sections of Indian society, coupled with a growing recognition of the legal process as an effective instrument of social reform have provided the pivots on which Public Interest Litigation (PIL), has been constructed. It was in the Judges case that the Indian Supreme Court for the first time articulated a coherent ideology with regard to PIL- an ideology which had at its focal point the expansion in the doctrine of standing.
The purpose of Standing Rules
Standing determines whether a person can maintain an application before a court or not. It looks for the nexus between the petitioner and the complainant. Should the person who has brought an application, be permitted to go ahead with it? This question has usually been answered at the preliminary stage. The function of standing rules is to serve as a filter in cases of judicial review.
Several reasons have been given for restricting access. One reason is to protect public bodies from vexatious litigants who have no real interest in the outcome of the case but are merely intent on making ever exist in real life and observes that even if they do the requirement to apply for leave should suffer to deal with them. Other reasons have been offered for restricting access; to prevent state business from being unduly hampered by litigation; to reduce the risk that public servants will be over cautious when dealing with citizens because they fear litigation if things go wrong; to ration scarce judicial resources, to ensure that people do not meddle in the affairs of others; and to ensure that the applicant has a personal interest in the issue not just an ideological concern.
Sri Lanka
Under the current constitutional and legal framework, judicial review of administrative action takes place in broadly two ways. First by way of a writ application either in the Court of Appeal or in the Provincial High Courts. Judicial review of administrative action can also take place by means of a fundamental rights application under Article 126 of the Constitution before the Supreme Court. Here the petitioner would have to show that a fundamental right contained in Chapter III of the Constitution has been violated. In developing the Sri Lankan fundamental rights jurisprudence the Supreme Court has not been reluctant to ‘borrow’ from the area of administrative law.
A case where the court took a broad view of standing was Visuvalingam v Liyanage. The case involved a publication ban on the ‘Saturday Review’, an English weekly published in Jaffna in the North of Sri Lanka. The newspaper was banned under emergency regulations issued by the President acting under the Public Security Ordinance. The petitioners in this case were two readers of the newspaper and a regular contributor to the weekly. The petitioners brought an application under Article 126 of the Constitution challenging the sealing of the newspaper under Emergency Regulations which were in force at that time. They alleged that their fundamental right of equality with other newspaper readers guaranteed under Article 12(1) had been violated. They also alleged that the fundamental right of free speech and expression protected under Article 14(1) (a) had also been infringed by the action of the State.
The respondents in the application argued that the order prohibiting the printing and publishing of the newspaper was directed at the printer, publishers and distributors of the newspaper. Thus if any person could complain it was the printer, publishers and distributors and not the readers. It was argued by the respondents that if the frontiers of standing were extended it would open the ‘flood gates’ and even newspaper vendors would challenge the sealing of a newspaper. Counsel for the petitioners, argued that the freedom of speech and expression is inextricably linked with the right of the recipient to information.
On this reasoning, the Court held that the petitioner did have standing, readers of the newspaper, to challenge the sealing of the press. The Court held that the right to the free expression of views includes the right of the recipient to receive information.
In Wijesiri v Siriwardene, fifty three persons were selected on the basis of a competitive examination to fill vacancies in the public service. They were not issued their letters of appointment by the respondent, the Secretary to the Ministry of Public Administration. The petitioner – a Member of the Opposition in Parliament sought to invoke the writ jurisdiction of the Court of Appeal, and asked a writ of Mandamus to compel the respondent to issue their letters of appointment. The Court of Appeal dismissed the application and the petitioner appealed to the Supreme Court. The Supreme Court was called upon to address several issues, among them the question whether the petitioner had locus standi, and also the question whether an ‘ouster clause’ in the 1978 Constitution. (Article 55), precluded judicial review. The Supreme Court – reversing the Court of Appeal on this issue – held that the petitioner did have standing to maintain the action. The Court noted that mandamus should be available to a person ‘genuinely concerned’, or to any public spirited citizen who has no other interest than a due regard for the observance of the law.
Boosa Applications
The broader approach to standing is evident in other areas of public law too. An expansive approach was adopted in what has come to be referred to as the Boosa Applications. In November 1989 the Chief Justice received a letter allegedly signed by approximately 1,000 persons detained at the Boosa Detention Camp in the South of the country. The letter alleged that these persons were illegally detained and prayed that they be brought to trial or released. Political violence and disappearances reached new levels during the years 1988 and 1989 when the State had to combat an armed uprising. The Court subsequently directed the Secretary of the Ministry of Defence to provide facilities to the detainees to enable them to prepare affidavits and other documents and to place them before the Court. The Court responded to this letter despite the absence of specific legal provisions and devised procedures to deal with letters of this nature.
The Supreme Court adopted two broad approaches to the question of relief. If pre trial adjustment was possible, and without adjudication as such, the Court ordered several types of relief. This included unconditional release; short term rehabilitation followed by release; long term rehabilitation followed by release’ or the institution of criminal proceedings in a criminal court (with the consequence that in some cases the detainee became entitled to bail or release if not sentenced to imprisonment). Where pre trial adjustment was not possible the matter was dealt with as a regular fundamental rights application. If it could be established that the detention was prima facie unconstitutional, then leave to proceed would be granted, followed by an inquiry after the state had filed objections. If after due inquiry the Supreme Court found that the petitioner’s fundamental rights had been infringed, relief in the form of compensation or release, or both would be ordered. In certain cases involving police officers directions were issued to the Inspector General of Police to investigate the conduct of the police officer and report to the Court on the action taken.
This activism on the part of the Court had other consequences as well. It enabled many of the detainees to have access to lawyers and as a result several regular fundamental rights applications were filed. It also resulted in the executive arm of the state reviewing the detention of other persons and relief was offered in numerous cases without the intervention of the Court.
New Supreme Court rules
These procedures have later been incorporated in the new Supreme Court Rules formulated by the Supreme Court under Article 136 of the Constitution. These procedures, on the face of it, seem to permit public interest type cases to be brought in situations dealing with an infringement of a constitutionally guaranteed fundamental rights.
According to the new rules where any alleged infringement or imminent infringement, of any fundamental right or language right by executive or administration action is brought to the notice of the Supreme Court, or any Judge thereof, in writing, such matter may be referred by the Chief Justice, in accordance with such directions as may be given by him from time to time, to a single Judge sitting in Chambers. If it appears to such Judge that such complaint discloses, prima facie, an infringement, or imminent infringement, of a fundamental right or language right of any person, whether such person be the complainant or not, he may, in his discretion, direct that such complaint be treated as a petition in writing under and in terms of Article 126(2), notwithstanding non-compliance with any of the foregoing provisions of this rule, if he is satisfied that
(i). such person does not, or may not, have the means to pursue such complaint in accordance with the foregoing provisions of this rule, and
(ii). such person has suffered, or may suffer, substantial prejudice by reason of such infringement, or imminent infringement.
And may further direct the Registrar of the Court to refer such complaint to the Legal Aid Commission, or to any Attorney-at-Law who is a member of any panel or organisation established for such purpose, for the purpose of enabling the preparation and submission of an amended petition, affidavits, documents, written submissions, and other material in clarification and support of such complaint. Such complaint shall thereupon be deemed to be a petition filed in the Supreme Court on the date on which such complaint was received, and shall be dealt with under and in terms of rule 45, in like manner as other applications under and in terms of Article 126 (2) of the Constitution.
This approach of the Court, must be contrasted with the position adopted in a previous decision where the court took an extremely narrow view. In Somawathie v Weerasinghe the Supreme Court rejected an application by the wife complaining that her husband, who was in detention, was subject to torture, inhuman and degrading treatment on the basis that the petitioner (wife) had no locus standi in terms of Article 126 (2) of the Constitution. Justice Kulatunge issues a strong dissenting judgement and contented that if fundamental rights were to have any meaning, then the Supreme Court had a duty to interpret Constitutional provisions purposively and not liberally in order to meet the ‘justice of the situation’.
PIL and Locus Standi
PIL has been based on the idea that when there has been a ‘public injury’ or an injury to a large indeterminate group of people, the courts should provide redress, irrespective of who brings the petition before the court. The idea that litigation can enhance participatory rights and provide citizens and other groups the opportunity to express views on major planning decisions is also part of this process.
The turning point in public interest litigation in fundamental rights applications was Environmental Foundation Ltd v Urban Development Authority and Others (also known as Galleface Green case). In this case His Lordship Sarath N Silva CJ., upheld the locus standi of Environmental Foundation Ltd. which had acted in public interest in the matter of protecting the environment holding that the refusal of the UDA to disclose the information constituted an infringement of Article 14(1)(a) of the Constitution, even prior to the recent amendment of the 19th Amendment to the Constitution recognizing the right to access to information as an enforceable fundamental right.
The rules in relation to standing need to be considered in the light of the objectives of judicial review
Are we aspiring to merely protect individual rights; or is judicial review concerned with the larger issue of checking the abuse of governmental power and ensuring public accountability. If the latter objective is also one of the legitimate concerns of judicial review, and it is submitted that it is, then it does not matter who presents the alleged illegality before the court. Anyone should be entitled to do so and the role of the judge in such cases should be to find out whether there is in fact an illegality.
Relaxing the requirements for accessing the courts has been one method of trying to restore a balance, between the State and civil society. Restrictive rules of standing are an anti-thesis to a healthy system of administrative law. Effective access to justice is a basic human requirement of a system which purport to guarantee legal rights of the people.
(The writer is Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney –at – Law with Ph.D. in Law as well).
Traditional rules of court and other doctrines have been suppressed, as judges have sought to facilitate public access to the courts and to justice. The desire to provide access to large groups of economically underprivileged people and the desire to curb the growing power of the State, have contributed largely to the way access to justice are being perceived. This concern with access to justice and remedies is matched in other parts of the world too as securing good governance and public accountability become important concerns.The Traditional Approach
Traditional Anglo-Saxion jurisprudence had tended to take a restrictive view of the concept of standing. In terms of traditional view, standing was given only to those whose legal interests were violated or threatened violation. It was a view that gained currency when private law dominated litigation and most cases involved the rights or interests of only two parties.
However, with the growth of public law and the recognition of broad and amorphous rights which attached not just to a single person, but to whole groups and communities, this notion of standing was found inappropriate. The Indian Courts Jettisoned the traditional concept of standing, opting instead for a much wider notion. Social action groups and the members of the public were permitted to bring actions on behalf of those whose rights or interests had been violated or threatened violation and who were unable to approach the Court for a variety of reasons. This desire to widen court access to the disadvantaged and poorer sections of Indian society, coupled with a growing recognition of the legal process as an effective instrument of social reform have provided the pivots on which Public Interest Litigation (PIL), has been constructed. It was in the Judges case that the Indian Supreme Court for the first time articulated a coherent ideology with regard to PIL- an ideology which had at its focal point the expansion in the doctrine of standing.
The purpose of Standing Rules
Standing determines whether a person can maintain an application before a court or not. It looks for the nexus between the petitioner and the complainant. Should the person who has brought an application, be permitted to go ahead with it? This question has usually been answered at the preliminary stage. The function of standing rules is to serve as a filter in cases of judicial review.
Several reasons have been given for restricting access. One reason is to protect public bodies from vexatious litigants who have no real interest in the outcome of the case but are merely intent on making ever exist in real life and observes that even if they do the requirement to apply for leave should suffer to deal with them. Other reasons have been offered for restricting access; to prevent state business from being unduly hampered by litigation; to reduce the risk that public servants will be over cautious when dealing with citizens because they fear litigation if things go wrong; to ration scarce judicial resources, to ensure that people do not meddle in the affairs of others; and to ensure that the applicant has a personal interest in the issue not just an ideological concern.
Sri Lanka
Under the current constitutional and legal framework, judicial review of administrative action takes place in broadly two ways. First by way of a writ application either in the Court of Appeal or in the Provincial High Courts. Judicial review of administrative action can also take place by means of a fundamental rights application under Article 126 of the Constitution before the Supreme Court. Here the petitioner would have to show that a fundamental right contained in Chapter III of the Constitution has been violated. In developing the Sri Lankan fundamental rights jurisprudence the Supreme Court has not been reluctant to ‘borrow’ from the area of administrative law.
A case where the court took a broad view of standing was Visuvalingam v Liyanage. The case involved a publication ban on the ‘Saturday Review’, an English weekly published in Jaffna in the North of Sri Lanka. The newspaper was banned under emergency regulations issued by the President acting under the Public Security Ordinance. The petitioners in this case were two readers of the newspaper and a regular contributor to the weekly. The petitioners brought an application under Article 126 of the Constitution challenging the sealing of the newspaper under Emergency Regulations which were in force at that time. They alleged that their fundamental right of equality with other newspaper readers guaranteed under Article 12(1) had been violated. They also alleged that the fundamental right of free speech and expression protected under Article 14(1) (a) had also been infringed by the action of the State.
The respondents in the application argued that the order prohibiting the printing and publishing of the newspaper was directed at the printer, publishers and distributors of the newspaper. Thus if any person could complain it was the printer, publishers and distributors and not the readers. It was argued by the respondents that if the frontiers of standing were extended it would open the ‘flood gates’ and even newspaper vendors would challenge the sealing of a newspaper. Counsel for the petitioners, argued that the freedom of speech and expression is inextricably linked with the right of the recipient to information.
On this reasoning, the Court held that the petitioner did have standing, readers of the newspaper, to challenge the sealing of the press. The Court held that the right to the free expression of views includes the right of the recipient to receive information.
In Wijesiri v Siriwardene, fifty three persons were selected on the basis of a competitive examination to fill vacancies in the public service. They were not issued their letters of appointment by the respondent, the Secretary to the Ministry of Public Administration. The petitioner – a Member of the Opposition in Parliament sought to invoke the writ jurisdiction of the Court of Appeal, and asked a writ of Mandamus to compel the respondent to issue their letters of appointment. The Court of Appeal dismissed the application and the petitioner appealed to the Supreme Court. The Supreme Court was called upon to address several issues, among them the question whether the petitioner had locus standi, and also the question whether an ‘ouster clause’ in the 1978 Constitution. (Article 55), precluded judicial review. The Supreme Court – reversing the Court of Appeal on this issue – held that the petitioner did have standing to maintain the action. The Court noted that mandamus should be available to a person ‘genuinely concerned’, or to any public spirited citizen who has no other interest than a due regard for the observance of the law.
Boosa Applications
The broader approach to standing is evident in other areas of public law too. An expansive approach was adopted in what has come to be referred to as the Boosa Applications. In November 1989 the Chief Justice received a letter allegedly signed by approximately 1,000 persons detained at the Boosa Detention Camp in the South of the country. The letter alleged that these persons were illegally detained and prayed that they be brought to trial or released. Political violence and disappearances reached new levels during the years 1988 and 1989 when the State had to combat an armed uprising. The Court subsequently directed the Secretary of the Ministry of Defence to provide facilities to the detainees to enable them to prepare affidavits and other documents and to place them before the Court. The Court responded to this letter despite the absence of specific legal provisions and devised procedures to deal with letters of this nature.
The Supreme Court adopted two broad approaches to the question of relief. If pre trial adjustment was possible, and without adjudication as such, the Court ordered several types of relief. This included unconditional release; short term rehabilitation followed by release; long term rehabilitation followed by release’ or the institution of criminal proceedings in a criminal court (with the consequence that in some cases the detainee became entitled to bail or release if not sentenced to imprisonment). Where pre trial adjustment was not possible the matter was dealt with as a regular fundamental rights application. If it could be established that the detention was prima facie unconstitutional, then leave to proceed would be granted, followed by an inquiry after the state had filed objections. If after due inquiry the Supreme Court found that the petitioner’s fundamental rights had been infringed, relief in the form of compensation or release, or both would be ordered. In certain cases involving police officers directions were issued to the Inspector General of Police to investigate the conduct of the police officer and report to the Court on the action taken.
This activism on the part of the Court had other consequences as well. It enabled many of the detainees to have access to lawyers and as a result several regular fundamental rights applications were filed. It also resulted in the executive arm of the state reviewing the detention of other persons and relief was offered in numerous cases without the intervention of the Court.
New Supreme Court rules
These procedures have later been incorporated in the new Supreme Court Rules formulated by the Supreme Court under Article 136 of the Constitution. These procedures, on the face of it, seem to permit public interest type cases to be brought in situations dealing with an infringement of a constitutionally guaranteed fundamental rights.
According to the new rules where any alleged infringement or imminent infringement, of any fundamental right or language right by executive or administration action is brought to the notice of the Supreme Court, or any Judge thereof, in writing, such matter may be referred by the Chief Justice, in accordance with such directions as may be given by him from time to time, to a single Judge sitting in Chambers. If it appears to such Judge that such complaint discloses, prima facie, an infringement, or imminent infringement, of a fundamental right or language right of any person, whether such person be the complainant or not, he may, in his discretion, direct that such complaint be treated as a petition in writing under and in terms of Article 126(2), notwithstanding non-compliance with any of the foregoing provisions of this rule, if he is satisfied that
(i). such person does not, or may not, have the means to pursue such complaint in accordance with the foregoing provisions of this rule, and
(ii). such person has suffered, or may suffer, substantial prejudice by reason of such infringement, or imminent infringement.
And may further direct the Registrar of the Court to refer such complaint to the Legal Aid Commission, or to any Attorney-at-Law who is a member of any panel or organisation established for such purpose, for the purpose of enabling the preparation and submission of an amended petition, affidavits, documents, written submissions, and other material in clarification and support of such complaint. Such complaint shall thereupon be deemed to be a petition filed in the Supreme Court on the date on which such complaint was received, and shall be dealt with under and in terms of rule 45, in like manner as other applications under and in terms of Article 126 (2) of the Constitution.
This approach of the Court, must be contrasted with the position adopted in a previous decision where the court took an extremely narrow view. In Somawathie v Weerasinghe the Supreme Court rejected an application by the wife complaining that her husband, who was in detention, was subject to torture, inhuman and degrading treatment on the basis that the petitioner (wife) had no locus standi in terms of Article 126 (2) of the Constitution. Justice Kulatunge issues a strong dissenting judgement and contented that if fundamental rights were to have any meaning, then the Supreme Court had a duty to interpret Constitutional provisions purposively and not liberally in order to meet the ‘justice of the situation’.
PIL and Locus Standi
PIL has been based on the idea that when there has been a ‘public injury’ or an injury to a large indeterminate group of people, the courts should provide redress, irrespective of who brings the petition before the court. The idea that litigation can enhance participatory rights and provide citizens and other groups the opportunity to express views on major planning decisions is also part of this process.
The turning point in public interest litigation in fundamental rights applications was Environmental Foundation Ltd v Urban Development Authority and Others (also known as Galleface Green case). In this case His Lordship Sarath N Silva CJ., upheld the locus standi of Environmental Foundation Ltd. which had acted in public interest in the matter of protecting the environment holding that the refusal of the UDA to disclose the information constituted an infringement of Article 14(1)(a) of the Constitution, even prior to the recent amendment of the 19th Amendment to the Constitution recognizing the right to access to information as an enforceable fundamental right.
The rules in relation to standing need to be considered in the light of the objectives of judicial review
Are we aspiring to merely protect individual rights; or is judicial review concerned with the larger issue of checking the abuse of governmental power and ensuring public accountability. If the latter objective is also one of the legitimate concerns of judicial review, and it is submitted that it is, then it does not matter who presents the alleged illegality before the court. Anyone should be entitled to do so and the role of the judge in such cases should be to find out whether there is in fact an illegality.
Relaxing the requirements for accessing the courts has been one method of trying to restore a balance, between the State and civil society. Restrictive rules of standing are an anti-thesis to a healthy system of administrative law. Effective access to justice is a basic human requirement of a system which purport to guarantee legal rights of the people.
(The writer is Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney –at – Law with Ph.D. in Law as well).
