Public interest litigation: a species of direct democracy and good governance

Rajiv Goonetilleke

doi:10.4038/sljda.v4i0.7116

Abstract

In the ancient Greek city states people have participated in decision making known as direct democracy. The expansion of population over time made this mode of direct decision making impossible and so representative democracy was born. It evolved to have the separation of powers; legislative, executive and judicial. The separation of powers of the State enables the judiciary keeps the executive and administrative functions in check. The courts however, have restricted the right to intervene to those persons whose interests were directly affected rather than allow busy bodies wanting fame and fan fare waste the time of court. Thus while decisions of the executive and measures taken by the administration affect the rights of individuals on matters such as land acquisition, licensing, issuing of permits, taxation, and the nationalization of industries, only those affected and not the public could petition court. The present Constitution is a step in facilitating direct democracy. The gradual willingness of the judiciary to allow the public to intervene in matters that they would traditionally have been shut out of, have enabled both the courts and the public to affect the decision making process and its implementation. The Eppawala Phosphate mining case, the Southern Expressway case, the Waters Edge case, cancellation of privatization of Sri Lanka Insurance Corporation, the cancellation of sale of Lanka Marine Service to John Keels Holdings and de-merging of North and East Provincial Councils are among notable instances of public interest litigation. This paper will analyze the expansion of public interest litigation, the principles of good governance propounded by court including the public trust doctrine, and the impact it has had on administrative and policy decision making. DOI: http://dx.doi.org/10.4038/sljda.v4i0.7116 Sri Lanka Journal of Development Administration, Vol. 4, pp. 83-96, 2014

Highlights

Since the introduction of the second Republican Constitution of Sri Lanka in 1978, there has been a gradual increase in the awareness of fundamental rights and the exercise of these rights through the jurisdiction of the Supreme Court by various persons and interest groups
As a tool of activism on the part of interested persons, fundamental rights cases have lead to the Supreme Court issuing orders and making pronouncements on matters which hitherto were in the policy making sphere: School admission criteria, promotion criteria in the public service, gas, electricity and fuel prices, privatization of State institutions, land acquisition and environmental pollution to name a few
Citizens or groups of interested persons using the mechanism of fundamental rights are holding policy makers and administrators accountable for their decisions but are though their Applications to court, directly participating in the decision making and administrative process

Summary

Introduction

Since the introduction of the second Republican Constitution of Sri Lanka in 1978, there has been a gradual increase in the awareness of fundamental rights and the exercise of these rights through the jurisdiction of the Supreme Court by various persons and interest groups. Citizens or groups of interested persons using the mechanism of fundamental rights are holding policy makers and administrators accountable for their decisions but are though their Applications to court, directly participating in the decision making and administrative process. The progress of this species of direct democracy and its limits will be examined below together with the desirability of this course of action

Democracy and Governance

The Liberalization and Expansion of Standing

Taking Stock of Reality

Conclusion

Legal Authorities