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Is Public Interest Litigation for me?

 

Contents

  1. How Public Interest Litigation Can Help You
  2. Potential Disadvantages of Public Interest Litigation

Public interest litigation (PIL) can be an excellent way to secure justice if you have suffered loss or harm in circumstances which raise questions of public interest. However, sometimes PIL may not be the best way to achieve the outcome you need. Here we explain briefly some of the factors that may help you to make this assessment.

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1. How Public Interest Litigation Can Help You

There are many advantages to using PIL as a tool to secure justice. If you feel PIL could help in your circumstances, it could be worth pursuing further.

Access to justice

In ordinary litigation brought by a victim against a wrongdoer, the cost and resources involved in bringing the legal action are sometimes unaffordable or disproportionate. Because PIL can extend the benefits of a favourable court order to a large number of affected, resources can be pooled and cost can be shared across the large group. And when the case is in the public interest, there are often a range of organisations that are willing to offer resources and support. This meansPIL can be an accessible and effective tool in the hands of the very people who need it most. In the African Commission on Human and People’s Rights, a grouping of local community groups and international organisations successfully challenged the Kenyan governments practice of evicting indigenous communities from their land.If you want to secure justice for your community, but need support in doing do, PIL could still be the right tool for you.Back to top

For further information, see “What Remedy Should I Seek?”

In a single ruling, compensation and the right for thousands of indigenous peoples to return to their lands was secured. A result which was made possible by the pooling of resources and expertise across different organisations.[1]

Example PIL can be a vital strategy in securing justice for large numbers of people affected by a common problem. A single court case can secure remedies that benefit all victims, whether or not they have been directly involved in the court process. This can be in the form of compensation, or an order to prevent someone harming you and your community. This can be particularly useful where poor and marginalised groups suffer a common hardship.

Promoting citizen voice and accountable government

From this platform, PIL can prove an effective tool to hold governments to account for failures to protect the people they serve.

Example:In the process of challenging the Nigerian government’s human rights abuses and complicity in environmental destruction in the Niger Delta, a diverse group of communities came together to exercise their voice and hold the government accountable before the African Commission on Human and People’s Rights. The case succeeded on putting the governments abuses on record, upholding the rights of affected communities, and forcing the government to cease its violent practices, conduct investigations and undertake an environmental clean-up in the region.[2]

This combination of citizen engagement with a practical strategy to limit abuse of power makes it a powerful tool for human rights activists to achieve justice across society.

Example: In the East African Court of Justice, a group of activists, who had been wrongfully imprisoned before a military court in Uganda, succeeded in challenging their imprisonment on the grounds it violated the rule of law. The judgement upheld the independence of courts and prevented future practices of the government taking the law into their own hands.[3]

Beyond achieving justice for affected communities, the accountability PIL can foster benefitsall of societyby confirming the importance of the rule of law in regulating government actions, and in upholding domestic and international standards of human rights.

Example: By providing an avenue for marginalised groups to challenge unjust action, PIL has the potential to empower oppressed peoples. It can unite citizens and civil society groups with diverse interests and backgrounds, provide a forum for them to be heard, and build a common platform to push for change.

Law and policy reform

A PIL case can challenge an unjust policy, law or procedure and can lead to systemic legal change from which all citizens may benefit. In this sense, PIL does not just react to unjust practices, but is proactive, helping to create pressure to make a fairer system for all.

Example: In Nepal, following a successful case brought by victims’ families, the Supreme Court ordered the government to change its policy of refusing to investigatepast practices of enforced disappearances and provide remedies to victims, while obliging them to establish a truth commission.[4]ExampleIn this way, PIL can be invaluable tool in strengthening human rights protections in society more generally.Back to top

Example: Facing restrictions on free speech and the imprisonment of government critics, the Ugandan Supreme Court upheld the constitutional right to freedom of expression. The court set out wide protections for the right to freedom of expression, preventing government from making further restrictions in the future, and ordered them to stop criminal prosecutions of political speech.[5]

In addition, PIL can obtain a legal interpretation on an untested legal issue and challenge how a particular law or policy is implemented. In this way, PIL can establish a point of principle which governments and corporations are required to follow. Such an outcome can provide clarity for future conduct and define the legal obligations of public or private individuals and organisations.

PIL can achieve meaningful reforms of policies and laws which breach human rights or constitutional provisions.

Transparency

If you believe the government or a corporation are withholding vital information from the public, PIL can be a powerful tool in uncovering such information. This can then be used to hold government/corporations accountable in the public domain or through the legal process.

Example: Illustrating the potential of PIL to provide transparency, after hearing a claim brought by a Chilean environmental organisation, the Inter-American Court on Human Rights ruled the right to access information was itself a human right which the State was obligated to provide in all but exceptional cases.[6]

Even if unsuccessful, a PIL case can shed light on information previously kept secret and enable truth to be heard. PIL court procedures often involve the compulsory disclosure by each party of relevant documents. This can mean that relevant evidence that is in the public interest can come to light. This can powerfully promote transparency, for example by facilitating access and public attention to information that may be vital to addressing a human rights concern or promoting social change.

Raising awareness and promoting debate

Example: Following Rana Plaza tragedy, where a textile manufacturing complex burned down, killing over 1000 Bangladeshi workers, several cases have been brought against large clothing companies for their neglect for their workers’ health and safety. While many cases have failed due to complex subcontracting arrangements that big companies hide behind, the publicity and outrage created by the cases have led some companies to adjust their manufacturing practices.[7]

Beyond providing legal redress for specific cases, PIL can raise public awareness on a particular issue. If combined with an effective media strategy, PIL can focus public scrutiny on a problem and allow for debate. In the digital age, high-profile coverage of a PIL case can have as much, if not more, influence on achieving change than the courtroom process itself.

PIL has benefited various civil society organisations that have relied on it to bolster some of their campaigns by drawing the attention of courts and the general public to the issues framed in the PIL cases. At the Centre for Human Rights and Development (CEHURD), the respondents highlighted the example of their campaign on promoting health rights which greatly benefited from the case of CEHURD & 4 others vs. Nakaseke District Local Administration High Court Civil Suit No. 111 of 2012. [at https://www.escr-net.org/sites/default/files/full_text_of_the_judgment.pdf] Thus besides being litigation, PIL also has an advocacy component which is equally effective.

If your objective is to secure lasting change in your community, it is not only the outcome of the individual court case that is important, but it is often the wider campaign for justice in the PIL process that will be effective. You should therefore consider carefully how best to brief the media at the outset of any PIL case, and how best to maintain their continued interest and involvement as the case progresses.

 

 

[1] For further information, see https://www.hrw.org/news/2010/02/04/kenya-landmark-ruling-indigenous-land-rights.

[2] For further information, see https://www.escr-net.org/caselaw/2006/social-and-economic-rights-action-center-center-economic-and-social-rights-v-nigeria.

[3] For further information, see https://www.opensocietyfoundations.org/sites/default/files/east-african-court-digest-june-2013-20130726.pdf.

[4] For further information, see https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/5EAB6202E55A6FF3C125753F003A5722.

[5] For further information, see https://globalfreedomofexpression.columbia.edu/cases/mwenda-v-attorney-general/.

[6] For further information, see http://www.right2info.org/cases/r2i-claude-reyes-et-al.-v-chile.

[7] For further information, see https://business-humanrights.org/en/auchan-lawsuit-re-garment-factories-in-bangladesh.

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2. Potential Disadvantages of Using Public Interest Litigation

While PIL can be extremely effective in securing justice for marginalised communities, there are circumstances in which bring a PIL case may not be appropriate or capable of meeting your needs.

In deciding whether to bring a PIL case, it is first important to consider the following factors.

Addressing the Causes

If you want to address the underlying causes behind an issue, litigation focusing on an isolated event may be inappropriate. Even if you succeed in getting a judgement in your favour, this may be unable to prevent issues in the future.

It may be that your issue requires political solutions or development strategies to be resolved.

Consider the following examples;

  • Situations of widespread poverty often require a coordinated development program and significant international assistance, rather than successful litigation.
  • Historical neglect of a certain group may require fundamental political change, beyond the scope of litigation.
  • Widespread abuses/corruption in an industry may require a broad campaign, rather than litigation against single companies.

In these situations, alternatives to PIL, such as campaigning outside the courtroom may be more effective in bringing about change, raising the awareness needed for international assistance or political change to occur.

For further information, see “Alternatives to PIL: Campaigning”

On the other hand;

  • PIL can be a useful tool for marginalised communities, neglected by politicians, to assert their rights and bring about political change.
  • PIL can result in the initiation of development measures, and ensure they respect the rights of poor and marginalised communities.

Example: Indigenous communities have long been neglected by government development programs, even being removed from their land for the development of others. In Paraguay, the Inter-American Court has ordered the government to return lands to indigenous communities, pay compensation, and create a development fund for their future well-being.[1]

This is especially the case when PIL is understood to involve not only national court cases, but actions in other international and national bodies (see “Where Can I Take Legal Action?”).

PIL Can Be Incredibly Time Consuming

Litigation often takes many months or years, particularly if the courts of more than one country are involved. Therefore, bring a PIL case may not be appropriate for you if you need a quick solution to an immediate problem.

Example: Despite occurring over 30 years ago, legal actions are still being pursued against Union Carbide for toxic gas leaks in India caused by their negligence. While some compensation has been awarded, this has been a long and exhausting process for victims.[2]

Example The campaign for justice against Shell for its exploitation and abuse in the Niger Delta has span over 20 years, involving cases being brought before Nigerian, US, British and Dutch courts, as well as the African Commission on Human and People’s Rights. While this campaign has secured justice for thousands of victims, it has been a long, protracted process.[3]

Jjuuko Adrian v Attorney General, Const. Petition No.1 of 2009 [visit http://hrapf.org/laws/]. This petition which challenged the constitutionality of Section 15(6)(e) of the Equal Opportunities Act, 2007 was filed in 2009 and was not decide by the Constitutional Court until 10th November, 2016. After the Constitutional Court finally delivered its ruling, Jjuuko Adrian commented: ‘It has been an eight-year journey fraught with clashes with the judiciary over the delay, but I am glad the case is finally decided and that we have won; the positive ruling removes the only legal impediment that had stopped minority groups from accessing the EOC.In some quarters delay is attributed to what is termed as “the politics of the day” alluding to the possibility that certain PIL cases concerning legislations and actions where the state has an adverse interest are deliberately slowed down by court staff on instructions from “above”. Case in point is Human Rights Network (HURINET) and others

[1] For further information, see https://www.escr-net.org/caselaw/2013/case-sawhoyamaxa-indigenous-community-v-paraguay.

[2] For further information, see https://business-humanrights.org/en/union-carbidedow-lawsuit-re-bhopal.

[3]For further information, see https://www.amnesty.org/en/latest/campaigns/2015/11/shell-clean-up-oil-pollution-niger-delta/.

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