Countries such as Guyana face great challenges in assuring economic and social justice to their people. Having emerged out of a colonial experience – and in Guyana’s case also out of cold war rivalries, they must strive for nation-building while tackling poverty, dealing with their ethnic make-up, and having to navigate in the turbulent waters of globalisation and an international economic system that favours the strong and is unkind to the weak. The problems are many while the resources are scarce – whichever government is in power.
In such a situation the country has to be ever scrutinizing itself, asking itself the question : how can it better meet the needs of its people using the resources it has it its disposal? How can it help to prevent and reduce injustices? How can it be fair to the different parts of its population? The South African Constitutional Court, in a series of cases, has had to pronounce on the content of fairness in a society with strong constitutional guarantees but also widespread poverty.
In the Grootboom case (2001), which concerned the lack of housing for 900 homeless adults, the Court stated: “A society must seek to ensure that the basic necessities of life are provided for all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is in most peril must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution required that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.”
This principle of reasonableness, of fairness towards the poor and the needy is at the heart of the concept of Public Interest Litigation (PIL), sometimes also referred to as social action litigation, whose traces may be found in jurisdictions such as the USA but which has seen pronounced expression in India. In this essay we raise for consideration whether the Courts of Guyana should embark on a course towards public interest litigation and thereby make a new contribution to the cause of justice of Guyana’s needy people.
First, let us touch on the issue whether the Courts of Guyana can take this initiative on their own. There is no doubt that they can. Judges of the Indian Supreme Court first admitted the public interest litigation three decades on their own initiative ago because they felt that the Courts must be in a position to respond to the plight of the poorest and most disadvantaged sectors of the Indian population. The Guyana Court of Appeal, our highest national court, has, since its establishment, clearly laid down the principle that it would develop a jurisprudence tailored to the circumstances of Guyana, drawing upon the historic Commonwealth jurisprudence as well as upon international and comparative jurisprudence. We documented this in our book on the Guyana Court of Appeal. (Cavendish, 2002).
In the case of Mustapha Ally v. Hand in Hand Insurance (LRG, 1967), the Court of Appeal made an important pronouncement on its inherent jurisdiction. It held that it had an inherent jurisdiction to control its own procedure and, in a proper case, where no rules have been made, the court will itself make rules necessary for dealing with matters within its jurisdiction. There is no doubt in our mind that our Courts can develop public interest jurisprudence in favour of the poor and the disadvantaged in our midst. What it needs is a Bhagwati or a Denning. The late Chancellor Haynes was such a figure. (See Guyana Court of Appeal, p. 102).
When this author was admitted to practice at the Bar of Guyana in 1969, the late Lloyd Luckhoo QC, who presented him, and the admitting judge, the late Justice van Sertima, both made the case, in their statements on that occasion, for Guyana to develop a jurisprudence tailored to its circumstances. Mr Justice van Sertima, three years after independence, cited the example of the need for a jurisprudence to protect children born out of wedlock, a common occurrence in Guyana. Guyana, he said, had to depart from the common law on this issue.
In a report on legal aid in 1971, Indian Supreme Court Justice Bhagwati observed that ‘even while retaining the adversarial system, some changes may be effected whereby the judge is given greater participatory role in the trial so as to place the poor, as far as possible, on a footing of equality with the rich in the administration of justice.’ The concept of public interest would be initiated by this and another great Indian judge Justice Krishna Iyer. Its full scope was elaborated by Bhagwati J in S.P. Gupta vs. Union of India, 1982.
Public interest litigation is an exception to the traditional rule of locus standi, according to which only those directly affected could approach the court. In a case known as the Judges case, the Supreme Court of India declared:
“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons is by reasons of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court…and in case of breach of any fundamental right of such person or class of persons, in this Court…seeking judicial redress for the legal wrong or injury caused to such persons or determinate class of persons.
“In such case the Court will allow any member of the public acting in a bona fide manner to espouse the causes of such person or class of persons. Representative non-political, non-profit, and voluntary organizations who have a sufficient interest can maintain an action for judicial redress for public injury arising out of breach of public duty or violation of some provision of the Constitution. Lawyers, medical practitioners, and journalists have brought such representative actions.”
According to the guidelines of the Indian Supreme Court, any member of the public having sufficient interest may maintain an action or petition by way of PIL if:
There is a personal injury or injury to a disadvantaged section of the population for whom access to the legal justice system is difficult.
The person bringing the action has sufficient interest to maintain an action of public injury.
The injury must have arisen because of breach of public duty or violation of the Constitution or of the law.
The petition must seek enforcement of such public duty and observance of constitutional law or legal provisions.
Similar to the position of the US Supreme Court in Gideon v. Wainwright, where a postcard from a prisoner was treated as a petition, the Indian Supreme Court, held in the Judges case that a public-spirited person could move the Court by writing a letter. The Court has accepted letters and telegrams as petitions. A dedicated office of the Court, the PIL Cell, processes such letters and petitions. When the jurisdiction of the Court is invoked, it is the jurisdiction of the entire court. Which judge or judges will hear the case is a matter concerning the internal regulation of the business of the Court.
On 1 December 1988 the Supreme Court issued a notification on what matters could be entertained as PIL. Under this notification, letter petitions falling under certain categories would be ordinarily entertained. These included matters concerning bonded labour, neglected children, petitions from prisoners, petitions against the police, petitions against atrocities on women, children, and scheduled castes and scheduled tribes. Petitions pertaining to environmental matters, adulteration of drugs and food, maintenance of heritage and culture, and other matters of public importance could also be entertained. Matters that ordinarily would not be entertained included landlord-tenant disputes, service matters, admission to educational institutions. The notification also laid down the procedure: the petition would be first screened in the PIL Cell and thereafter it would be placed before a judge to be nominated by the Chief Justice of India for directions.
PIL has become a process for the enforcement of public duties enjoined by law for amelioration of the downtrodden and helpless victims. The judiciary could take cognizance of a simple letter or newspaper article as a petition. It is invoked when access to reasonable life – to live with dignity – is threatened. Public interest litigation has proved to be an instrument of social justice.
PIL has been used to order minimum wages for poor workers, abolish bonded labour and child labour, ensure proper working conditions for labourers, uphold the right to education and to proper health and sanitary services, protect the rights of prisoners, pavement and slum dwellers, order inspection of hospitals, mines, prisons, women and children homes, stop harassments and exploitation, punished those found guilty of dowry deaths and police excesses, control environmental pollution and labour from hazardous occupation and arrange for proper compensation. In the Asiad workers case, Justice Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labour commissioner and lower courts.
Different sections of people such as the dalits, tribals, landless labourers and others, who have suffered from economic exploitation and different sorts of social indignities, have been the beneficiaries of PIL. The Supreme Court has called up certain States of the Union for their failure to prepare lists of families below the poverty line, who were to be given food at lower rates, and for their indifference to stop deaths due to hunger.
Where needed, the Court initiates fact-finding by its own instrumentalities. One method by which the Court gathers facts is by the appointment of commissioners. The Court has appointed district judges, journalists, lawyers, mental health professionals, civil servants, and expert bodies as commissioners. The use of commissions has enabled the Court to check the facts alleged by the petitioner as well as the State after a proper scrutiny without affecting its role as an adjudicator. The Courts have, in PIL cases, sought the assistance of lawyers as amicus curiae. Senior advocates of the Supreme Court have assisted it as amicus curiae in several cases.
It can be seen from the above that dramatic opportunities for expanding justice for Guyana’s poor and disadvantaged can be tapped by our courts. In order to set such a process in motion our legal practitioners could bring appropriate cases before the courts. Or the courts themselves, taking notice of materials in the press and the media, could open cases, initiate inquiries, and make orders for the rendering of justice to our needy people. This would open a new chapter in nation-building in Guyana and in making our country one of modern justice.
Let us take an issue out of the realm of politics : violence against women. Reports exist of beatings, rapes, trafficking, incest (UN Special Rapporteur on Violence against Women) and deprivations. It would serve Guyana well for the Chancellor of the Judiciary or the Chief Justice to initiate a judicial inquiry into justice for women in Guyana. They could call upon the Guyana Bar Association, women’s and human rights organizations, the police, and others to help in such a judicial inquiry. The aim would be to identify gaps in protection of the constitutional rights of women and to make judicial orders to strengthen such protection. Why can this not be done? I believe a Chancellor Haynes would have responded positively. I respectfully call on our Chancellor and the Chief Justice: ‘Please rise and stand up for Guyana’.
