Fundamental rights based litigation goes by the name of class action lawsuits in some other jurisdictions. Roughly, it means that people in a certain category or class should be treated alike, and that there cannot be discrimination between persons in the same class or category, hence the term class action.
However, these class action suits or fundamental rights petitions as introduced in our 1978 Constitution mandate that those who apply for redress under these Constitutional provisions adhere to a strict time line. There is a one month time bar for Fundamental Rights (FR) applications, and this is Constitutionally mandated. It is a severe restriction that, as things currently stand, impedes to a great extent the effectiveness of these types of lawsuits.
On the average class action suit time-bars are around three to four years in the United States. These time-bars set by various Statutes of Limitations vary from State to State in the U.S., but it is quite clear that the average time bar is not as short as a month as it is in Sri Lanka. In the U.S., the class action suits are more like breach of duty of care lawsuits (tort cases) except that these suits effect people who come to court as a certain group as opposed to coming to court as individuals (hence “class action”).
This gives such legislation a distinct common-cause character, meaning that this type of litigation is filed for the public good. In Sri Lanka, most Fundamental Rights applications are filed on an individual basis, even though there may be certain instances in which applications are entertained on the basis of Public Interest.
SEVERELY
If, however, people go to Court in the service of a public cause or in the public interest, it bears mention that a one month time-bar for applications is woefully inadequate. In the U.S., class actions are much wider in scope and very much public interest centred in character. Moreover, there are no stifling time-bars, which has resulted in some very successful public interest litigation applications coming under the rubric of class action suits in the U.S. These include successful litigation against the tobacco companies and against water pollution in Hinkley, California, for example.
This is not to say that there have been no Fundamental Rights (FR) litigation success stories in this country, but the fact remains that the scope for successfully suing against mass-scale violations by private companies, is severely limited, as FR legislation is against Executive and Administrative action only. It is time then that legislation that governs large scale violations in particular is reconsidered. Not just that, FR legislation should be reconsidered for extension of time-bar in particular, irrespective of whether the applicants are public interest litigants or not. If mass scale violations of rights occur, what recourse does Sri Lankans have in the light of the foregoing?
Not that much, would be the answer. So, for example, if a water supply system that caters to an entire town in Sri Lanka is affected, what recourse is there for the aggrieved parties?
In Hinkley, the State of California in the U.S., recourse was available and people made use of it with a vengeance. Though the private companies that were responsible for the contamination of the water supply did their best to suppress the fight against their organisation by affected citizens, people were able to band together and effectively mount a class action suit. To cut a long story short, millions in damages were paid out by the offending Company.
This means that the people have more power in countries such as the U.S. This fact, however, may be derided by some who would argue that the power of the individual or the community of individuals was severely truncated recently when the U.S. Supreme Court returned a judgment that federal District Courts cannot legally stop Executive policy initiatives in the entire country. It means that any adverse judgment on any of the President’s policy initiatives would apply only to the specific district or area in which the litigants reside, broadly put.
To explain that in locally applicable terms, this is akin to a District Court in Matara deciding that a schoolboy who hit his head on the ground while practising for a school drill be compensated at State expense because the schoolboy was injured while pursuing an extra-curricular activity. Such a decision, to draw a parallel, would only be applicable to the specific school district in Matara and will not be applicable elsewhere, if an analogy is made to the recent decisions in the U.S Supreme Court.
If there is national policy that schoolchildren injured pursing extra-curricular activities will not be compensated by the State if they are injured in the process (all this being strictly hypothetical, of course), the Matara D.C. judgment will not apply to other jurisdictions in the country, in which the aforementioned National policy will prevail.
In the first place, a District Court in Sri Lanka will not be able to decide that any National policy is unlawful. Only the Supreme Court would be able to decide on that.
Even the Supreme Court will not be able to decide on that, if a law is already passed in Parliament.
challenged
No law that is duly passed in this country’s legislature can be challenged in a Court of law and the Supreme Court can only decide that any pending legislation is unlawful or unconstitutional during the judicial review period in which legislation is reviewed by the apex Court for Constitutionality.
However, it can be argued that the President of this country cannot make Executive Orders. In the U.S., the President passes Executive Orders if he feels that a law already in force is not applied properly. Such Executive Orders are law, and do not have to be approved by the U. S. Houses of Congress which comprises the Legislature in that country.
The tug of war between Executive action and judicial intervention or judicial restraint is a fact of life in any country. On the one hand, it can be argued that the people need to be protected from Executive overreach and that the Courts of law are the last resort when that happens.
However, there can be no exercise of Executive power by default by a Judiciary. It is argued that if the Judiciary — which is unelected — stops Executive decisions at the drop of a hat, it would make a travesty of the mandate given by the people to the elected Executive.
This, among other reasons, was adduced by the U. S. Supreme Court when the Judges decided that the District Courts cannot pass injunctions against Executive Orders that would effectively prevent these Orders from being implemented in the rest of the country, other than the immediate jurisdiction in which the Executive Orders were deemed illegal or unconstitutional.
In Sri Lanka, there seems to be a dearth of judicial empowerment at certain levels. As explained above, class action suits, especially in the public interest, are not easily litigated against powerful entities and people have little recourse, especially considering the fact that there is a one month time bar to file FR actions. Sometimes, laws have been passed, in the time of Parliaments past, in which the Supreme Court stipulations to make a law fall in line with the Constitution were barely followed with various thinly veiled shenanigans taking place during the so-called Committee stages to smuggle in undesirable provisions into laws, in flagrant violation of the Supreme Court’s opinion on the draft law.
In this backdrop, FR legislation in general and other matters such as the process of passage of laws in Parliament have to be gone into, so that the Constitution or the relevant Standing Orders may be suitably amended to ensure that the law prevails as protection of people’s rights. In the meantime, of course, if there is judicial overreach as alleged in the U.S., that is a subject that should be considered separately.
