PUBLIC INTEREST LITIGATION (PIL)

1. Definition

1.1 Relevance and significance of PIL/SAL in a contemporary modern democracy in the face and onslaught of intense globalization and privatization agenda of the MNCs

2. Locus standi requirement: The Indian and South African practices

2.1 Primary objective and theme of this discourse

Focus on the enforcement of the fundamental rights in the Bill of Rights Chapter in the national (written) Constitution

3. Position in Malaysia

3.1 The law

3.1.1 Para 1, CJA 1964

3.1.2 Order 53, rule 2(4), Rules of Court 2012

3.1.3 Constitutional dilemmas!

3.2 How the Malaysian courts handled PIL cases over the years?

3.2.1 Position before the UEM 2 case

Lim Cho Hock cases, T S Othman Saat, and UEM 1.

3.2.2 UEM 2 till today (MTUC’s case)

3.2.2.1 The practice in Malaysia

3.2.2.2 Constitutional cul de sac!

3.2.3 The way forward for Malaysia in the face of AEC

4. Position in India

4.1 Art. 226 and 32 of the Indian Constitution: The constitutional habitat for PIL

4.2 The writ petition

a) Epistolary jurisdiction of the courts. Mukthi Mocha’s case

b) The ‘writ petition’ is a mere fiction! No actual writ is needed. No complaint is needed from the victim(s) of injustice(s). No court fee is needed to be paid into court in order to move the process of the court.

4.2.1 The active participation of the public-spirited individuals and NGOs

4.2.2 The Social Justice Bench of the Indian Supreme Court

Bench set up in Dec 2014. Friday afternoon.

4.3 PIL in Indian since the 1980s: A survey of the Indian PIL cases

(a) Protecting the independence of the judiciary

SP Gupta, AIR 1982 SC 149. Art. 21, UDHR: Right to democracy (choose a government).

(b) Protecting public health

George Mampilly, AIR 1985 Kerala 24: Sale of liquor in polythene bags. Banned.

Janamohan Das v State of Orissa, AIR 1993 Orissa 157- Order to

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re-open an enquiry. Illicit liquor disaster case.

(c) Protecting the ecology and environment

Vellore Citizens’ Welfare Forum, AIR 1996 SC 2715. Court order to close those factories. MC Metha - Ganga Water Pollution case, (1987) 4 SCC 463.

R.L & E Kendra AIR 1985 SC 652– limestone quarry case.

(d) Criminal justice

Hussainara (I), AIR 1979 SC 1360. Undertrials. Overstay in jail. Hussainara (II), AIR 1979 SC 1360. Legal aid.

(e) Protecting the rights of women

Sheela Barse, AIR 1983 SC 378. Women. (sheela fights for the right of women and children like education.) Sheela Barse, AIR 1987 SC 657. Children. (india has upgraded to sexual harassment act) Sheela Barse, AIR 1986 SC 1773. Sheela Barse, AIR 1988 SC 2211.

Vishaka v State of Rajasthan, AIR 1997 SC 3011. Sexual harassment.

(f) Right to medical treatment and healthcare

Paschim Banga KMS v State of W Bengal (1996) 4 SCC 37.

(g) Fighting corrupt practices of the ruling government

Chaitanya Kumar, AIR 1986 SC 825.

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Ram Jethmalani and Others v Union of India and Others (2011-2013) The black money case. (still pending)

Coal Blocks case [2014, ISC: [Manohar Lal Sharma v. Principal Secretary (2014) 9 SCC 516.] (24 licencse were nullified and

retendetered to the highest bidder- classic case)

(h) Protection of poor labour from exploitation The Asiad Games Village case, AIR 1982 SC 1473.

(People’s Union for Democratic Rights v India, AIR 1982 SC 1473.)

Salal Hydro-electric Dam’s case, AIR 1984 SC 177. Rattan Lal v State of Haryana (1985) 4 SCC 43. Bandhua Mukti Morcha (The Bonded Labour), AIR 1984 SC 802.

(held as captives, the court after hearing from reliable sources about it, order the police to take the ppl to the court and order immediate release. Even more powerful than the PM. The petition is just a sheer fiction, u x need to write, jst hear. )

(i) ‘Consequential courts’ and ‘Legisprudence’: Lessons from Indian Supreme Court and the Indian public law jurisprudence

5. Position in South Africa

5.1 S 38 of the South African Constitution: Enforcement of Bill of Rights

5.2 The Constitutional Court of South Africa: Ss 167-172 of the Constitution

5.3 The Rules of the South African Constitutional Court 2003

5.4 A glimpse of the SCC cases

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Grootboom’s case: S 26 of the Constitution

TAC 2’s case: S 27 of the Constitution

Fourie’s case: S 9 (equality) and S 10 (dignity) of the Constitution; Marriage Act 1961 needed amendment.

6. Position in UK

The Pergau Dam’s case: Ex p World Development Movement [1995] 1 All ER 611.

7. The way forward for ALL democratic countries: Lessons from India and South Africa

7.1 Bills of rights Chapter in the Constitution: South African Approach

7.2 Is there a need for a Constitutional Court?

7.3 Indian fictional writ petitions or the South Africans Rules of the Constitutional Court?

7.4 Class actions

7.5 All antiquated procedure of enforcement like ‘relator action’ must be abolished! UEM 2 case

8. ASEAN Economic Community Law from 31-12-2015

8.1 Learning from the EU? Will ASEAN take the EU pathway?

Adversely affected test of locus standi.

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9. Conclusion

The integrated approach sourced from the Indian and South African practices.

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