Public Interest Litigation:
The Good, the Bad and the Ugly

Though Public Interest Litigation (PIL) most commonly referred to as FR cases or Fundamental Rights applications have been frequently heard in Sri Lankan courts, it was only in 2007 and 2008 that there was a watershed in such actions as a result of, the Supreme Court issuing judgements on several controversial privatisations, ruling on grade 1 admission criteria, issuing standards relating to useage of polythene bags, sand mining, noise pollution , electricity, fuel and telecom tariff setting, oil hedging etc
These judgements have not been without controversy and there has been many that have lauded the courts for their intervention, whilst others have strongly voiced protest against the perceived (or not) judicial activism.
Though there has not been much public debate on this issue, I was fortunate enough to attend the recent CEO forum organised by Lanka Business Online on the topic of ‘Economic Impact of Public Interest Litigation”. At this forum several eminent speakers including senior lawyers discussed the recent PIL judgements and also attempted to analyse whether or not the current system for entertaining and hearing PIL cases were robust enough given the complexity of some of the matters under review.
The forum would have been more enlightening if some of the proponents of recent PIL cases were also part of the panel. I subsequently learnt that Nihal Amarasekere had been invited to this panel but had declined the invitation for this high profile public forum.
The forum proceedings and debate was a good eye opener for people like myself who thought most of the recent PIL cases were all literally ‘open and shut cases’.
However, it seems that there was lot of matters that did not meet the eye. This in turn prompted me to delve into this phenomenon of public interest litigation to understand if the Sri Lankan experience had yielded the public the desired results and justice prevailed or whether the principles of natural justice had fallen by the wayside in our haste to mete out justice.

What is Public Interest Litigation (PIL)?
PIL can be broadly defined as a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have an interest by which their rights are affected. The emergence of PIL has been a welcome development whereby the public has now been afforded the opportunity seeks redress in court in instances where their fundamental rights have been violated.

Abuse of PIL process and credibility of petitioners
In Sri Lanka as well as in India, it has been found that the genuine cases of public interest have been relegated to the backburner whilst, some PIL activists misuse the PIL process to agitate for private grievances in the garb of public interest and seek cheap publicity rather than espousing public causes.
Such opportunistic PIL activists have also realised that the PIL process is an effective and handy tool of harassment, whereby frivolous cases could be filed against a party without high legal costs as may be required in private civil litigation and thereafter deals struck with victims of such PIL processes.
Given that, PIL has become a mode of action for persons with ulterior motives who use the process for vindication, publicity, undue harassment etc, the Supreme Court of India has over the years developed a PIL jurisprudence to defeat such frivolous PIL applications to court.
For instance, a petitioner in a PIL is entitled to approach the Indian Supreme Court only if he is able to clearly establish and satisfy the courts of the following three tests.
1. the credentials of the petitioner
2. the prima facie nature or accuracy of the information given by petitioner
3. the information not being vague and indefinite
Are we in Sri Lanka exposed to the same level of scrutiny when taking up a fundamental rights or PIL application?
In addition to the above tests, the Indian Supreme Court has also dealt extensively on sources and nature of information on which PIL could be based upon. The Indian Courts have frowned on the practice of attaching official documents without any indication of how the person allegedly acting in public interest came into possession of such documents. By way of an example, the court cited an instance where no explanation was offered in the petition on the manner in which the petitioner came into possession of the documents. When queried by court, the petitioner had said that he had found copies of the official documents lying in a packet on the road!
The Indian courts have also taken it upon themselves to unveil the real intention behind a PIL petition and also expose the real parties behind it.
It is interesting to note that a private member’s bill titled ‘ Public Interest Litigation (Regulation) Bill 1996, was in fact tabled in the Indian Rajya Sabha. This Bill attempted to prevent misuse of the PIL process by suggesting that in the event a PIL petition failed or was shown to be mala fide, the petitioner should be ‘put in bars and pay the damages’. Though this Bill lapsed, the debate in the
Indian Parliament revealed some of the criticism and suspicion that PIL had begun to attract.
In order to stem the abuse of PIL in India, the Indian courts in several judgements have expressed their concern and also possible remedial action.
*In Sachidanand Pandey v State of Bengal it was stated that “ If courts do not restrict the free flow of such cases in the name of public interest litigation, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions”.
*Observations in Raunaq International Ltd v I.V.R. Construction Ltd stated that “ When a petition is filed for public litigation… the court must satisfy itself that the party which has brought the litigation is litigating bona fide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition…Even when a public interest litigation is entertained, the court must be careful to weigh conflicting public interests before intervening.
Intervention by the court may ultimately result in the delay in the execution of the project.”
*In Malik Brothers v Narendra Dadhich 1999, the Courts observed that “ The directions and commands issued by the Courts of law in a public interest litigation are for the betterment of the society at large and not or benefiting any individual. But if the Court finds that in the garb of public interest litigation actually an individual’s interest is sought to be carried out or protected it would be the bounden duty of the Court not to entertain such petition as otherwise, the very purpose of innovation of public interest litigation will be frustrated.”
In a recent article in Halsbury’s Law by Soli Sorabji, the former Attorney General of India whilst applauding the liberalisation of locus standi by the Supreme Court, has also suggested that spurious PILs should be thrown out by the courts at the threshold itself with exemplary costs. He also states that in the case where important projects or socio-economic regulations are challenged after gross delay such petitions should be thrown out at the very outset on ground of latches or the time bar.
In Sri Lanka as well as in India, many of the PIL cases that are brought before the Supreme Court are of a highly technical nature, involving complex financial transactions, questions of policy making etc. The recent PIL cases involving the telecom and electricity tariff setting, privatization of SLIC and LMS, oil hedging etc are some of these transactions.
A question that is being asked in many quarters is whether the judiciary has the relevant expertise and knowledge to unravel the complexities involved in suchtransactions through a PIL process which is done through oral and written submissions only. There is no cross examination of witnesses, verification of documentation, expert opinions sought in such a process.
In the case of India, Courts on occasion have resorted to the appointment of fact finding commissions in cases involving public interest, where such commissions report back to court on their findings. Court will thereafter determine the future course of action based on the commission findings.

The Sri Lankan experience
In recent times, the PIL judgements relating to Lanka Marine Services and Sri Lanka Insurance Corporation (SLIC) have been two judgements on which much discussion has taken place. A common denominator in both these cases has been the fact that the Petitioner was Vasudeva Nanayakkara with Nihal Amarasekere conveniently listed as a respondent in his personal capacity and not as former Chairman PERC. The fact that these two individuals were working hand in glove was an open secret known to many.
In the case of Vasudeva Nanayakkara, everyone understands that as a ‘diehard’ Marxist he always had an ideological difference of opinion on the need to privatise state owned enterprises and as such, was an outspoken critic of the privatisation process. No one can fault him for his idealogical standing on such matters. What is worrying however is the fact that, in the guise of his idealogical standing he has been willing to effectively be a front for many parties that were content to stay in the shadows to fund and support the two court actions. This has been admitted by Nanayakkara himself in a recent interview with the Lakbima newspaper.
If this is the case, can it be argued that his intervention in the LMS and SLIC was not merely the action of a public spirited individual and instead action taken on behalf of shadowy vested business interests ?
Nihal Sri Amarasekere on the other hand should not have an idealogical mis match as he was involved as a consultant with the Ministry of Finance and later as PERC Chairman promoting and managing privatisations. In light of the recent expose made in the Sunday Leader regarding . Amarasekere’s tainted involvement in the Hilton court case settlement, checking the credentials and motives of such an individual should have been done at the outset by Court, even if he was putting . Vasudeva Nanayakkara in front as the petitioner and working behind the scenes.
Unlike in the Indian legal system, the Sri Lankan courts have rarely queried or attempted to verify the creditionals of petitioners, the reliability of information being submitted, and also assessed whether such information was vague and indefinite. In the recent PIL cases before the Sri Lankan Courts, all petitions were entertained by court at face value without any such queries being made.
The courts have also made no attempt to assess the accuracy and completeness of the documents submitted to Court which has enabled the Vasudeva /Amarasekere duo to conveniently and deliberately suppress certain key documentation, in their attempts to mislead Court. I have also heard that the courts were so accommodating towards . Amarasekere, that they even accepted documents tendered to them across the court floor without any supporting affidavits!
In the Sri Lankan context, scant regard has been made by the courts to establish how the petitioner . Vasudeva Nanayakkara and . Nihal Amarasekere gained access to certain official government documents such as cabinet memorandums, board minutes etc. Instead, the courts have taken the surprising step of actually praising the manner in which Nihal Amarasekere was instrumental in supporting the Petition and in supplying documents, by stating in the LMS judgement “It is clear that the bundles of documents produced in the case would not have surfaced if not for the probing scrutiny of Amarasekere”.
In this context, one would surely wonder how Amarasekere was so diligent in finding the so called ‘bundles of documents’ referred to by court. From the time Amarasekere was appointed as Chairman PERC in May 2004 by the then President until his sudden resignation in November 2005, Amarasekere was totally preoccupied in gathering information on each and every privatization transaction handled by PERC.
This may not have been an attempt by him to understand the various transactions but merely a ploy to extract key documents from confidential PERC files either by photocopying or by simply removing any crucial documents from the files.
Most of Vasudeva Nanayakkara’s and Nihal Amarasekere’s submissions in SLIC and LMS cases are based on various documents Amarasekere has extracted from the PERC files using privileged and confidential information that was available to him in his official capacity as the PERC Chairman. If every public official operated in this manner and used privileged information for private gain we are bound to have total anarchy.
Despite the so called ‘bundles of documents’ being submitted to court, the Vasudeva Nanayakkara and Amarasekere have also attempted to mislead Court by suppressing certain key documentation, agreements and facts from Court.
Both the SLIC and LMS PIL cases, dealt with fairly complex financial matters such as, understanding the difference between an asset valuation and business or discounted cash flow valuation, principles of actuarial valuation etc.
Despite the complexity of these issues, it was surprising to see court brushing aside the explanations of reputed and experienced investment banks, and international accounting firms etc and instead rely entirely on the flawed interpretations given to court by Amarasekere whose understanding on such matters is extremely questionable.
Should not have the courts sought an opinion from an independent panel of experts proficient in such matters to provide guidance to Court instead of having blind faith in an individual such as Amarasekere who does not carry any institutional responsibility for his statements and actions.?

PIL process- What next ?
In the Sri Lankan context, the PIL process needs a long hard look. The issues highlighted above are only a few of the issues that trouble a person if one were to review the recent PIL cases in detail. Has there been a violation of the principles of natural justice? Your guess is as good as mine. To quote from on of the speakers in the recent CEO forum, ‘if fraud unravels all, should not the injustice of a decision also unravel all?’
The need of the hour is to prevent the rampant misuse and abuse of the PIL process. Most of the recent PIL cases before the Supreme Court have been brought up not by persons with a genuine interest in the matter but by some busy body or meddlesome interloper that does so for private gain and with mala fide intentions.
Let’s not fool ourselves. The Toms, Dicks and Nihals of this world are not in this ‘game’ to remedy an injustice in public interest nor are they public spirited individuals. They are simply unscrupulous elements exploiting a loop hole in our legal system to gain monetary benefits and bring misery to others through their actions.
PIL is not inherently a bad process. It has been found to be an invaluable innovative judicial remedy. As with many innovations it takes time for it to be perfected. The PIL process in Sri Lanka however needs serious rethinking and restructuring as the overuse and abuse of PIL is bound to make it ineffective. In this regard our Courts have a responsibility to practice self restraint in entertaining
PIL cases and also devise proper systems and procedures to ensure that this rampant misuse of the PIL process is curtailed.