Sarath Wijesinghe – former Secretary of the Bar Association and former Administer of the Legal Aid Commission

Litigation is expensive anywhere in the world

Litigation is expensive anywhere in the world due to complexity and want of definitions, targets, and to be within rules not familiar with the citizen expected to know the law with adage that” Ignorance of Law is no excuse/defence”. In the west legal education and legal aid is given priority to avoid the citizen rising against the establishment on law, law enforcement laws delays impartiality of the judicial system and judges in resolving their criminal and civil disputes in the society. Sri Lanka It appears that in Sri Lankan the citizen has lost trust and faith in the legal system with the tendency to take law into their own hands when proper Justice is not provided by the governance. The rate of crime is increasing day by day with killings, robbery, and criminal acts taking all over with political patronage or the goons of politicians a fact known to the public who are reluctant to resort to litigation due to fear or loss of trust. Civil Law is complicated with a muddle of Roman Dutch, English, and Personal laws with old and archaic civil and criminal procedure imported in 1800 s complied in a foreign language known to only 4% of the population. Most lawyers are alleged to be incompetent and not living up to the standard of proper professional standards in the absence of continuing legal education and disciplinary inquires by the only professional body Bar Association where every lawyer is an ipso – facto member of the Association.

Legal Aid and Public interest Litigation

Legal Aid and Public interest litigation has emerged to rescue the citizen from being undefended and to face powerful opponents in the Temple of Justice” expected to be impartial. Public and group cases are matters canvassed on behalf others for the public good. Legal Aid is assistance from the government or public spiritual groups to the needy litigants either free or subject to a contribution based on income and having gone through a merit test whether the litigant deserved to be assisted. UK spends billions of pounds when Sri Lanka spends few millions of rupees with foreign aid, on legal aid mainly with government funding. USA and India is famous in canvassing the public interest through group cases sponsored by groups of lawyers and public spirited citizens. Bopal” Tragedy and the group case files with solution to the affected victims of the industrial disaster in Bopal” which is a famous test case in the legal domain. Legal Aid is not a favour. It is a right of the citizen inherent from the governance for access to law” with less complication and at a reasonable or free depending on the capacity for payment of the citizen who are entitled to be represented in the court of law set up for them with no hindrance due to lack of recourses. Public interest litigation is exercising power of people through courts by others other than the aggrieved parties for themselves. Indian courts have developed this concept by extending the facility to entertain selected applications from aggrieved needs litigants or groups with less complicated procedure. There were instances where merely the latter has invoked the jurisdiction of the Supreme Court in deserving cases. Justice Bagwathie”, Justice Krisha”, Justice Malhotra” are some judges in the forefront loved by the citizens and professionals. United Kingdom spends 2.6 billion per year which is huge in the budget and sri Lanka spends Rs 27400000 in addition to grants received from UN US Aid and many other resources to manage the legal aid schemes in Colombo and outstations in reasonable good order manned by well paid staff with all modern facilities headed by a retired supreme Court Judge, but the quality and magnitude of the services are not known to the public as before where there were weekly Legal Aid pages from the legal aid commission and consumer pages form the Consumer Affairs Authority were published on the performances. We dp not hear of any test cases on public interest litigation or group cases most probably due to the over cautious attitude towards the administrative decisions however unjust they are. NGO’s and civic organizations are silent on this are due to their political and human right litigations which brings dollars and pounds in large numbers by periodic press conferences. Currently there is a group case filed regarding a 24 story building built in Etul Kotta”.!

Locus Standi” – Who could bell the Cat

It is not everybody who could initiate litigation. It must be the aggrieved party or a party who has interest on the issue, which has made more clear in Article 14 and Article 126 of Sri Lankan constitution and Article 39A of the Indian constitution which deals with Fundamental Right jurisdiction and the procedure tested from 1978 by celebrated cases with a battery of decided cases linked to international jurisprudence. Water’s Edge Case, Insurance Case case in Sri Lanka ,’ Kapil ‘s case dealing with 40,000 prisoners in India, and ‘Bopal’ blast of industrial giant in India have been landmark cases on” locus standi” ( who has the authority to institute) and other procedural landmark findings which is respectfully followed as guide lines in other courts.

Is it being properly used or misused?

This is an issue mostly raised in India and United States where this concept Is largely implemented with the tacit approval of the judiciary sympatric on the cases promoting the causes of others for the benefit of many in the society in mattes connected to the governance in the areas of development, environment, road winding, health hazards on negative an positive demands for and against, administrative decisions on large scale projects and breach of human rights. The accusation mainly emerges in India being a large number of activist lawyers groups in action with India friendly national minded NGO’s unlike in Sri Lanka, accusing it is a nuisance and prevents development schemes and smooth running of the governance.

Legal Profession and Public Interest

Legal profession is a Nobel profession traditionally and historically conducted by nobles as a service without any remuneration indicating the pockets in the black attire to voluntarily pay at the discretion of the litigant, giving service the priority and money secondary. In the United Kingdom the profession is disciplined and the Law Society and Bar Association are very strict on errant, dishonest lawyers who are promptly prosecuted unlike in Sri Lanka which is not heard of except in criminal proceedings against dishonest lawyers. Sri Lanka follows the British model and the litigant seeking legal aid is limited and it is necessary the citizen to pass the merits and income test to get the

services of an average lawyer at the will of the Commission, unlike in the UK even a QC will be nominated for deserving cases and competent professionals for the clients in need of assistance.

Way Forward

Laws delays, and lack of proper and quick access to justice, denial of due process, cost and complexity of litigation, Language barriers, are common issues confronted by the citizen in litigation with the complex legal structure of a mixture Roman Dutch, English, Personal Laws with complex judicial process of court structure of 40 year old judicature act to be patched ,and the criminal and civil procedure structures imported in 1800 s and litigation mainly conducted in English which is known to only 5% of the population reminds us of the case of Sinude in Walasmulla during colonial administration, narrated in” Lenard Woolf’s” true story of injustice, and no remarkable improvements have been made since then ,indicates the strong need for a vibrant genuine legal aid scheme of quality to prevent uprising of the citizen sandwiched with economic and many other social deficiencies with deprivation on employments, nature and manmade disasters such as environmental destruction with increase of crime drug menace and complicated social inadequacies. Therefor time has come for the governance to take immediate remedial steps to improve the legal aid scheme as a matter of an urgent matter with the legal profession to work hand in hand at least by undertaking one case per year of the 18,000 lawyers and being professional in issuing receipts, clients rights in the first letter, provide a quality service with the Legal Aid Commission and rallying round genuine Sri Lankan friendly public interest groups. Martin Luther King said injustice anywhere will be a threat to justice everywhere”, which is the ideal situation when the citizen has no access to justice freely at a price and justice will be meted before competent judges in an impartial and balanced court of law established in a just society. Public interest litigation, and a strong and an effective legal aid scheme is an integral part of a just state with less crimes and mass scale unjust litigation which will have an direct impact on the economy and peaceful co-existence of the citizen

(Reading materials- Public Interest Litigation Observer 25/8/2009- Supreme Court Public Interest Litigation Guardian 5 July 2001- all by the author, the former Ambassador to UAE and Israel who could be contacted on sarath7@hotmail.co.uk)