Public Interest Litigation free essay sample

Public interest litigation involves the institution of actions by private citizens in courts to seek redress against public wrongs committed by government or public bodies. It is an adjudication of disputes between private individuals and the state initiated to promote the public good in terms of serving a collective societal interest. In  George John v Goh Eng Wah Bros Filem Sdn Bhd 2 Ors,  Lim Beng Choon J traced the origin of public interest litigation and its justification as follows: â€Å"The concept of â€Å"public interest litigation† was said to have first been mooted by the Indian Supreme Court in  Fertilizer Corporation Kamgar Union v Union of India  AIR 1981 SC 344. The judgment of Krishna Iyer J (ibid  at 350) had no doubt influenced greatly the Indian judicial thinking on the concept of public interest litigation. In justifying this concept, Krishna Iyer J said at p 354: â€Å"Law, as I conceive it, is social auditor and this audit function can be put into action when someone with real  public interest  ignites the jurisdiction. We will write a custom essay sample on Public Interest Litigation or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page † Therefore, the rights which an individual seeks to assert do not flow from his capacity as an individual with aggrieved interests but are public rights, with the individual seeking to vindicate the public interest. His motivation stems not from personal interest,  as in the case of enforcing private rights such as enforcing a breach of contract or vindicating a tortious breach of duty causing personal loss or property damage, but from a sense of public-spiritedness and ontological inclinations. The view of the public interest litigant is that there are rights or collective interests which must be safeguarded to avoid government lawlessness which harms the social interest. These public rights are in nature diffuse, societal and fragmented. The rights to clean air, water and environment, for example, are not just matters of individual concern but affect broad sectors of the larger community. Public interest litigation is thus distinguishable from applications for the judicial review of administrative action. The latter directly affects the individual, for example, his dismissal and subsequent non-observance of the rules of natural justice by an employment tribunal. It is also not public law litigation which is essentially constitutional law litigation  involving,  inter alia, referring questions on the effect of any provision of the Constitution to the court for determination. This should not also be confused with actions filed as a result of infringement of constitutional rights by the executive . The characteristics of public interest litigation are best reflected in the first reported public interest litigation case in Malaysia of  Lim Cho Hock v Government of the State of Perak, Menteri Besar, State of Perak and President, Municipality of Ipoh. In this case, a Member of Parliament and State Assemblyman sought declarations that the Chief Minister could not hold the office of the President of the Ipoh Municipal Council at the same time and that the appointment of the Chief Minister as President of the Municipal Council was inoperative and null and void. Even though he was unsuccessful in obtaining the declarations, this public interest litigant was apparently instituting this action on behalf of the community in that area. Public Interest litigation, itself says that this is a litigation for any public interest. In the words of some learned people we can say that public interest litigation in a litigation which can be file in any court of law by any public spirited person for the protection of â€Å"public interest. † Now a question comes in the mind that â€Å"what in public interest? † so answer is ‘any act for the benefit of public is public interest. and those act are such as pollution, Terrorism, Road safety, constructional hazards etc. in all these activities we can clearly see the public interest. As it is said that this petition can file any public spirited person so its mean that there should not be interest of only himself. There in word only says that in can be possible that in that act for what he is filing a PIL there in a small part of his benefit also hide But its not mean that he cannot file. If the is interest of public then he can file public interest litigation. (b) discuss the desirability of public interest litigation in a system based on Rule of Law Access to justice is critical for the rule of law. There is no point having the law if members of the community are not able to approach the courts to obtain remedies to enforce it. It is an affront to the rule of law to leave anyone – especially the government – free to break the law because no one can afford to challenge them. We need legislation to facilitate public interest litigation. Such legislation would enable litigants who were seeking a remedy for motives other than profit to approach the courts for a preliminary determination as to whether the litigation was in the public interest. If the courts held that it was in the public interest for the case to be determined, then certain consequences would flow: †¢ In the ordinary ourse, the party bringing the proceeding in the public interest would not be liable for costs, no matter what the outcome; †¢ In the ordinary course, the party bringing the proceeding would be excused from the obligation to give an undertaking as to damages when seeking an injunction. They obviously fervently believed that a citizen action or the general approach of actio popularis is necessary to keep public authorities within their powers in order to uphold the rule of law and achieve social justice for communal good. The state should not, therefore, transgress the rights of the citizens which belong to the community. After all, the source of all law-making power is the people. (c) what is the position regarding public litigation in Malaysia Explain locus standi Amendment of ISA in 1998 limits the right of the people to challenge. Art 121 in 1998 excludes references to the vesting of judicial powers in the courts. PP v Yap Peng. S418A of CPC held to be unconstitutional as it infringed Art 121(1) Where judges have undertaken review of executive action they were often not with punitive or retaliatory measures. Obvious example includes the transfer of individual judges who issued rulings unfavourable to the Executive. Mohamed Ismail v Tan Sri Othman Saat (First category of PIL, member of that class of people) UEM v Lim Kit Siang 3:2 George John v Goh Eng Wah Bros Film S/B 2000: O53, Rule Of High Court 1980: Rule 2(4) 2006: QSR Brands v Suruhanjaya Seleuriti 2012: Rule of Court 2012 We are still very under-develop in Malaysia. Need to comment in India: Article 226 + cases English cases: 1995 World Development Movement Pegal Dam case : 1994 Green Piece No. 2 (challenge government decision to discharge the radioactive waste, court give them locus standi as they are professional NGO, if they do not have the locus standi, then no one else will have it)