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PUBLIC INTEREST LITIGATION (PIL)

1.

Definition

1.1 Relevance and significance of PIL/SAL in


a contemporary
modern democracy in the face and
onslaught of intense
globalization and privatization agenda of
the MNCs
2. Locus standi requirement: The Indian and
South African practices
2.1 Primary objective and theme of this
discourse
Focus on the enforcement of the
fundamental rights in the
Bill of Rights Chapter in the national
(written) Constitution
3.

Position in Malaysia
3.1

The law
3.1.1

Para 1, CJA 1964

3.1.2

Order 53, rule 2(4), Rules of Court

2012
3.1.3

Constitutional dilemmas!

3.2 How the Malaysian courts handled PIL


cases over the years?

3.2.1

Position before the UEM 2 case


Lim Cho Hock cases, T S Othman

Saat, and UEM 1.


3.2.2

UEM 2 till today (MTUCs case)


3.2.2.1

The practice in Malaysia

3.2.2.2

Constitutional cul de

sac!
3.2.3
the face of AEC
4.

The way forward for Malaysia in

Position in India

4.1 Art. 226 and 32 of the Indian


Constitution: The
constitutional habitat for PIL
4.2 The writ petition
a) Epistolary jurisdiction of the courts.
Mukthi Mochas case
b) The writ petition is a mere fiction!
No actual writ is needed.
No complaint is needed from the
victim(s) of injustice(s).
No court fee is needed to be paid into
court in order to
move the process of the court.
4.2.1 The active participation of the
public-spirited
individuals and NGOs
2

4.2.2 The Social Justice Bench of the


Indian Supreme Court
Bench set up in Dec 2014. Friday
afternoon.
4.3 PIL in Indian since the 1980s: A survey of
the Indian PIL cases
(a) Protecting the independence of the
judiciary
SP Gupta, AIR 1982 SC 149.
Art. 21, UDHR: Right to democracy (choose a
government).

(b) Protecting public health


George Mampilly, AIR 1985 Kerala 24: Sale of
liquor in polythene
bags. Banned.
Janamohan Das v State of Orissa, AIR 1993 Orissa 157Order to
re-open an enquiry. Illicit liquor disaster case.

(c) Protecting the ecology and


environment
Vellore Citizens Welfare Forum, AIR 1996
SC 2715. Court order to close those factories.
MC Metha - Ganga Water Pollution case,
(1987) 4 SCC 463.
R.L & E Kendra AIR 1985 SC 652 limestone
quarry case.
3

(d) Criminal justice


Hussainara (I), AIR 1979 SC 1360.
Undertrials. Overstay in jail.
Hussainara (II), AIR 1979 SC 1360. Legal aid.

(e) Protecting the rights of women


Sheela Barse, AIR 1983 SC 378. Women.
(sheela fights for the right of women and children like
education.)
Sheela Barse, AIR 1987 SC 657. Children.
(india has upgraded to sexual harassment act)
Sheela Barse, AIR 1986 SC 1773.
Sheela Barse, AIR 1988 SC 2211.
Vishaka v State of Rajasthan, AIR 1997 SC
3011. Sexual
harassment.

(f)
healthcare

Right to medical treatment and


Paschim Banga KMS v State of W Bengal

(1996) 4 SCC 37.

(g) Fighting corrupt practices of the


ruling government
Chaitanya Kumar, AIR 1986 SC 825.
Ram Jethmalani and Others v Union of India and
Others (2011-2013) The black money case. (still pending)

Coal Blocks case [2014, ISC: [Manohar Lal Sharma v.


Principal
Secretary (2014) 9 SCC 516.] (24 licencse were nullified and
retendetered to the highest bidder- classic case)

(h) Protection of poor labour from


exploitation
The Asiad Games Village case, AIR 1982
SC 1473.
(Peoples Union for Democratic Rights v India,
AIR 1982 SC
1473.)
Salal Hydro-electric Dams case, AIR 1984 SC
177.
Rattan Lal v State of Haryana (1985) 4 SCC
43.
Bandhua Mukti Morcha (The Bonded Labour),
AIR 1984 SC 802. (held as captives, the court after hearing
from reliable sources about it, order the police to take the
ppl to the court and order immediate release. Even more
powerful than the PM. The petition is just a sheer fiction, u
x need to write, jst hear. )

(i) Consequential courts and


Legisprudence: Lessons
from Indian Supreme Court and the
Indian public law
jurisprudence
5.

Position in South Africa

5.1 S 38 of the South African Constitution:


Enforcement of Bill
of Rights

5.2 The Constitutional Court of South Africa:


Ss 167-172 of the
Constitution
5.3 The Rules of the South African
Constitutional Court 2003
5.4 A glimpse of the SCC cases
Grootbooms case: S 26 of the
Constitution
TAC 2s case: S 27 of the Constitution
Fouries case: S 9 (equality) and S 10
(dignity) of the
Constitution; Marriage Act 1961 needed
amendment.
6. Position in UK
The Pergau Dams case: Ex p World
Development Movement
[1995] 1 All ER 611.
7. The way forward for ALL democratic
countries: Lessons from India and South Africa
7.1 Bills of rights Chapter in the Constitution:
South African
Approach
7.2 Is there a need for a Constitutional Court?

7.3 Indian fictional writ petitions or the South


Africans Rules of
the Constitutional Court?
7.4 Class actions
7.5 All antiquated procedure of
enforcement like relator
action must be abolished! UEM 2 case
8. ASEAN Economic Community Law from 3112-2015
8.1 Learning from the EU? Will ASEAN take
the EU pathway?
Adversely affected test of locus standi.
9.

Conclusion

The integrated approach sourced from the


Indian and South
African practices.
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