The Access Initiative

Menu

Topics: Access to Justice

Best Practices- Access to Justice

Published: 2008
Agenda for Public Interest Law Reform

 

This is a memorandum authored by Professor John E. Bonine. The best practices regarding access to justice include removal or modification of two major barriers: (1) restrictions on “standing to sue” and (2) the high costs of going to court. The first of these is a legal barrier. It determines which persons or organizations are allowed to file lawsuits in the courts against public authorities (governmental bodies). The second barrier can be either a legal barrier or a practical one. Lawyers and lawsuits can be expensive. Citizens and their organizations usually lack the resources to bring such cases to court.

Barriers to access to justice can be imposed by either national legislation (or in just one country by a national constitution) or court interpretations and practices. They can be overcome by national constitutions, legislation, and court interpretations.

Standing to sue

In countries with the most restrictive policies on “standing to sue,” a person cannot file a lawsuit unless he or she can demonstrate that a “legal interest” or “legal right” will be affected by the action of a public authority. This is sometimes phrased as requiring that a person show a “direct and individual concern,” that he or she is part of the public that is legally “concerned,” or even that he or she must be able to prove an “injury” that is satisfactory to the courts. All of these formulations of standing requirements impose definite barriers to access to justice.

In many countries, which have better practices, the “standing to sue” requirement has been softened by requiring only that a “sufficient interest” be shown. A similar softening occurs in countries that allow any person to start a court case to defend a “diffuse interest” or the “public interest.” These types of progress have taken place in countries in Latin America, Asia, Africa, and Europe. In several countries, particularly in Europe and nearby regions, registered nongovernmental organizations (NGOs) with a concern for protection of the environment are granted standing to sue without need to show either a legal or “sufficient” interest.

The best practice, however, is to abolish entirely the requirement for “standing to sue.” In such countries or jurisdictions, the courts do not look at who is bringing a lawsuit, but only at whether a public authority has violated its constitutional or statutory duties. This “open standing” (or actio popularis) can be granted by legislation or a national constitution. It can be granted explicitly or through judicial interpretation in court decisions. Such open standing has been recognized in parts of Asia, the Americas, and Europe.

Economic barriers

The most obvious economic or financial barriers to access to justice involve the high cost of lawyers and the high costs imposed by courts as a condition of filing lawsuits. These costs obviously consist of paying a person’s own lawyer. But in some countries a party who loses a lawsuit must also pay the costs of the opponent’s lawyers and experts, which can dramatically increase costs and raise barriers even higher.

With regard to a person or NGO having to pay lawyers to bring a case, the best practice is for government programs to provide steady funding for individuals or NGOs that are dedicated to the protection of the environment. Funding from private charitable foundations is crucial as bridge funding, until such time as governments recognize the value of public interest litigation and their obligation to support it. Relying on the voluntary efforts of private lawyers is necessary in many countries at the present time, but it is sporadic and uncertain. This results in unequal justice because business interests have the resources to pay for their own lawyers and the pressure of threatened lawsuits coming from only one side can lead government officials to lean in their direction.

With regard to being ordered by a court to pay the costs of the lawyers and experts on the other side of a case, when the individual or NGO brings a case but is not successful, countries that have such a “loser-pays’ policy have erected a particularly high barrier to justice. The best practice is to eliminate such a policy entirely. This can occur through either legislation or court decisions rejecting this policy. Such court decisions can be based on constitutional, human rights, or pragmatic grounds. A good practice is at least to create an exception for public interest cases, or for all cases in which a public authority is on the other side of the case.

In the process of abolishing the loser-pays requirement as it is applied against individuals and NGOs, some countries provide for courts to award costs to individuals and NGOs when they win. Such “one-way attorney costs” is a best practice, giving citizen enforcers of environmental law the best of both worlds.

Formación de Capacidades en Acceso: El caso ecuatoriano

Published: 2008

Este video muestra el proceso de fortalecimiento de capacidades que inició el Centro Ecuatoriano de Derecho Ambiental en el 2005, como resultado de la evaluación realizada por la Iniciativa de Acceso, donde se detectó que uno de los grandes vacíos existentes era justamente la falta capacidades en la ciudadanía y en los funcionarios gubernamentales respecto de los derechos de acceso.

Nuestro proceso de formación de capacidades aplica metodologías participativas apoyadas de materiales desarrollados con enfoque pedagógico, así como también con actividades de difusión y discusión de los temas de acceso en la agenda publica.

More Transparent Than Glass

By Lalanath de Silva (Posted: February 17, 2009)

This is a video story about how the Environmental Foundation Ltd. (EFL), a public interest environmental law organization in Sri Lanka activated the Supreme Court of Sri Lanka and saved the only open ocean waterfront in the capital city of Colombo. The court also affirmed the right of the public to have access to information. If you cannot view the video from the video frame below you can do so by clicking here

The Galle Face Green had been dedicated to the public by an order of the colonial British Government in 1856. Since that time the Green had been used by the city’s public as a recreational area. The Urban Development Authority (UDA) had decided to hand over the public space to a private company to develop it as a built up amusement park. Although admission to the park would have been free, the amusements themselves would have to be paid for by the public.

The UDA had run an advertisement in a widely circulating national newspaper that the project was “More Transparent than Glass”. But when EFL asked the UDA for a copy of the agreement it had signed with the private company, it refused to give it a copy. EFL filed a human rights violation case in the Supreme Court. EFL argued that the freedom of speech and expression guaranteed in the Sri Lankan constitution included the right to seek and receive information from the Government. Ms. Ruana Rajapakse, legal counsel who represented EFL shares her thoughts on this video.

The private company filed a copy of the agreement in court. The court decision affirmed the right of the public to have access to information. The court inferred that right from the freedom of speech and expression guaranteed in the Constitution of Sri Lanka. It ruled that the freedom of expression included the right to seek and receive information from the Government in certain situations. The court also annulled the agreement saying that the UDA did not have the power to hand over the Green which had been dedicated to the public. Subsequently, the new Minister for Urban Development and Sacred Area development, the Hon. Dinesh Gunawardene (also featured on this video) decided to establish a national steering committee to examine transparency, accountability and inclusiveness in the urban sector and to introduce public participation into local government budgeting and decision-making processes.

UNEP Governing Council to Decide Future of Access Principles in Nairobi

By David Heller (Posted: February 6, 2009) 

At the upcoming United Nations Environmental Program (UNEP) Governing Council meeting in Nairobi, Kenya, delegates will have the unprecedented opportunity to extend the adoption of important principles – a peoples’ right to access information, participate in their government’s decision making process, and seek redress in matters affecting the environment – to states around the world. But in preliminary negotiations, not all delegations were sanguine about committing to spread the codification of these principles globally.

In 2008, a select group of high-level external experts and judges, in consultation with the UNEP secretariat, was formed to draft principled guidelines that direct developing countries in the creation of national legislation protecting these access rights.

But alone, these guidelines can not compel state action. So the UNEP secretariat also drafted a complementary resolution, on how the Council should act upon the principles and work to ensure states reflect them in new law.

As it’s currently written, the draft resolution is that the Council:

Decides to adopt the guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters as set out in the [guidelines]… [Emphasis added]

Adoption of the guidelines by the Council would be a very positive, symbolic step for UNEP and the spread of the access principles. But, this language is not immune from alteration, and indeed, has already been compromised.

During preliminary discussions, several delegations, allegedly including the American contingent, expressed interest in replacing “adopt” with “take note of,”a subtle proposal with profound implications for the strength of UNEP’s commitment.

It is imperative that this change not occur.

If the Council were to merely “take note of” the guidelines, then they would be sending the wrong message to member countries: that it would be sufficient for all to do the same. While “adoption” implies an unequivocal recognition that the guidelines are desirable and binding, “taking note of” is pleasantly ambiguous and leaves far too much room for them to be ignored. The Council, by “taking note” of the guidelines, would simply be recognizing that they exist; a far cry from guaranteeing that the guidelines serve their namesake’s purpose and direct future action: a small but far from trivial distinction.

This proposed change will not go unopposed. The Access Initiative (TAI) has been working hard to leverage its influence and keep the language unmolested. Attending the meeting in Nairobi and advocating on TAI’s behalf will be Mr. Augustine Njamnshi, TAI coordinator in Cameroon, and part of the official UNEP Cameroonian delegation.

TAI has also harnessed support from its allies in the Irish and Argentine delegations, who share its concern over the dilution of the original language and will be advocating for the Council to remain committed to adoption, as the initial draft explicitly recommends.

The American delegation’s alleged complicity to the proposed change was particularly alarming. Given the Obama administration’s newfound commitment to promoting transparency and public participation in its own government, it appears as though the sea change in U.S. politics has not yet filtered down to affect the composition nor stance of its Nairobi delegation. But surely they must have been briefed on their new boss’s priorities. It’s baffling as to why the State Department Officials, representing the new administration, might be willing to water down stronger language when they arrive at the negotiating table.

Not only would U.S. support of weak language be inconsistent with its existing commitments, the U.S. delegation should consider its snowballing effects. Other nations, particularly China, will be emboldened by any U.S. disapprobation of the existing recommendations, making efforts to spread access principles beyond parties to the Aarhus Convention that much more challenging.

If any change is to be made to the initial draft of the proposed action document, it should include language that commits delegates towards creating a proper convention in the future – similar to the existing Aarhus Convention, but global in scope. Because the Aarhus parties are strictly European and Central Asian in origin, creating a similar scheme in Nairobi, where both developed and developing countries will have a presence, would be a step towards globalizing access principles. And that is an ideal that all delegations ought to be striving towards.

Video: Changing Channels: Ukraine’s Chance to Save the Danube Delta

By Joseph Foti (Posted: February 9, 2009)

The Danube Delta is Europe’s largest wetland, but it is threatened. The Government of Ukraine wants to put a large canal, including a dam through the core area of the Danube Delta Biosphere Reserve. This video tells the story of the fight to save the Delta, and how access rights-access to information, public participation, and access to justice are critical to preserving a global treasure.

Changing Channels: Ukraine’s Chance to Save the Danube Delta from Joe Foti on Vimeo.

Change in the Environmental Law -TAI Macedonia

By Kiril Ristovski (Posted: January 13, 2009)

In the last period one of the cases which was subject of research in Macedonia was the case of the big polluter Refinery OKTA. One of the recommendations of the TAI report related to the legal legislator was the change in the Environmental law Article 212 i.e. increasing the minimal fines to 100 000 euros for the legal and natural persons who cause pollution or harm the environment.

The changes in the environmental regulations should be credited to the citizens. In Skopje massive strikes and blocades were organized for more than ten days. We at Florozon reacted heavily in the media and by influencing the media managed to influence the central government. What is important is that we call on our work i.e. the conducted research in the case of OKTA. Florozon lit the fire against the polluters when we published several TAI stories in the daily newspaper Dnevnik. In December, our organization carried out events, TV programs, and interviews in order to change things for better.

The first recommendation in the TAI Report in Macedonia has been implemented. Massive protests organized by the local inhabitants and Florozon’s lobbying influence brought the issue media attention. Through increased media attention and meetings with the government on the basis of the data from the TAI Research changes were achieved in the legal environmental regulation.

On 19th December the changes were implemented in the Environmental law. In the Environmental law in Article 212 bullet 1 the amount from 8000 -10 000 euros was changed with the amount from 70 000 100 000 euros. Also, the Government obliged to set up several stations for measurements in order to measure the pollution coming from Refinery OKTA.

We are pleased with this decision and the improvement that was made concerning the Environment in Macedonia.

THE INDIGENOUS PEOPLES AND SMALL FISHERS OF SOUTHERN PALAWAN: A CASE OF LOCAL COMMUNITIES’ EXCLUSION FROM THE MANAGEMENT AND UTILIZATION OF MUNICIPAL FISHERIES AND AQUATIC RESOURCES

Published: 2008

Locked up, hungry and confused, the two young men from the Molboc Tribe were finally released. They do not regret what they did. They will likely do it again if they have a chance to do so… just to put food on the table, as how their ancestors, as native fisherfolk in Balabac, Palawan, had done before.

For over two decades, members of the Molboc tribe, as well as local communities in the southern Palawan of town of Balabac, have had to endure harassment and ill-treatment from the security forces of a pearl farm corporation, which was prohibiting them, unjustly, and without any legal basis, from fishing in their traditional fishing grounds.

Calls for the local government unit (LGU) to mediate and facilitate a system for the peaceful co-existence of the pearl farm and the fisherfolks were ignored. Instead, in early 2005, the Municipality of Balabac enacted an ordinance declaring the entire municipal waters as a “Protected Eco-Region”, where fishing activities are prohibited but pearl farming is allowed.

The Ordinance came to pass notwithstanding the constitutional mandate of substantive and procedural due process, and the various legal provisions of guaranteeing citizen’s right to informed and meaningful participation in the formulation of policies concerning the management and conservation of their community’s natural resources.

In 2005, TAI – Philippines conducted a case study following the TAI Methodology that focused on (a) public access to information on the grounds for the Subject Policy, and (b) the opportunities for participation extended to the public in the enactment of the Subject Municipal Ordinance. Primarily, the actions of two government agencies – the LGU of Balabac and the Sangguniang Panlalawigan (Provincial Board) of Palawan, which reviewed and approved the Subject Municipal Ordinance – were evaluated. A total of 43 indicators (20 for access to information and 23 for opportunities for participation) were examined.

TAI – Philippines also conducted a re-assessment of the case focusing on access to justice as one of the pilot case using the Poverty Tool Kit. It was written from the point of view of the poor groups, small fishers and indigenous peoples in the Balabac case.

The importance of access to information and opportunities for participation cannot be overemphasized in this case. Given the affected communities’ history of disenfranchisement and repression, any environmental measure that would have the effect of depriving them of their traditional fishing grounds, or restricting their use of the same, requires intensive social preparation.

Widespread information dissemination and extensive community consultations must be undertaken not only to ensure that the proposed policy will be understood and well received by the individuals and communities affected, but also to make sure that substantive rights are not run over rough shod, and equity in access is ensured.

In this case, not only did the Municipality of Balabac fail to observe the foregoing processes, it also adopted a policy, purportedly for environmental protection purposes, that goes against international principles, Philippine statutory provision and established coastal resource management practices (i.e., it allowed pearl farming in a core or strict protection zone). The confluence of these circumstances has given rise to a public perception, whether rightly or wrongly, that the Subject Policy was adopted solely to accommodate Jewelmer’s Co. (the pearl farm) interests and to legitimize the prohibition that it has, for many years, foisted upon the affected communities without the sanction of law.

As things stand, it appears that the court case is the affected communities’ last remaining legal remedy. However, given the existing realities, resort to judicial action has not proven to be a speedy and adequate remedy. To date, the case remains pending, almost one year since its inception, and the Affected Communities continue to languish in poverty as they await its resolution.

It may be concluded that this predicament can be attributed to two main factors, namely: (a) gaps in existing laws; and (b) the failure of political will, the lack of a deep-seated orientation on, and capacity to implement, principles on access to information and opportunities for participation, on the part of the concerned government agencies.

It is hoped that policy reforms, enforcement actions and capability building measures, if implemented, will not only provide the affected communities with means for immediate relief, but will also prevent other IPs and fishing communities from being placed in a predicament similar to theirs, and render the processes involved less susceptible to manipulation to favor vested interests.

TAI – Philippines Case Study Writer: Atty. Jose Florante Pamfilo

See: TAI – Philippines Poverty Case Report
TAI – Philippines Case Study attached.

Assessing Access in Yunnan, China

Posted by Monika Kerdeman

The Yunnan coalition started their TAI assessment process during a training workshop from Jan 13-15, 2008, led byTAI core team partner Thailand Environment Institute. The coalition of civil society groups includes Eco-Watch, Yunnan Academy of Social Science (YASS), Yunnan Institute of Environmental Science (YIES), Yunnan Environmental Science Society (YESS) and Centre for Mountain Ecosystem Studies ICRAF-China, the coalition’s lead organization.

At the workshop, coalition members were trained on the TAI Assessment Toolkit. Since the training, the Yunnan TAI coalition translated the indicators in the TAI Assessment toolkit into Chinese, and gathered information and relevant documentation, laws, regulations and guidelines for review.

As part of their research, Yunnan coalition members met with the Provincial Water Bureau, Yunnan Provincial Environment Protection Bureau, Agricultural Bureau, Yunnan Provincial Forestry Department, Vegetative Protection Station, Air Quality Monitoring Station, local agricultural stations, environmental protection stations and other related sectors to acquire more information. Interviewees included experts, villagers, and consumers as well as local authority staff.

The Assessment in Yunnan examines eight case studies on access to information. These studies are on various environmental issues including; the state of environment report of Yunnan Province, air quality monitoring in Kunming city, accidental explosion at a sulfur depot and vitriol factory of the Sanhuan chemical company, noise quality monitoring in Kunming city, environmental information of Yuntianhua International Chemical Company in Yunnan, monitoring of drinking water quality in Songhuaba reservoir in Kunming, GMO information monitoring in Yunnan, and paraquat herbicide accidents in Yunnan.

Five case studies on public participation are: public participation in environment protection decisions in eco-tourism policy in Diqing prefecture, public participation in the urban agglomeration development plan in south of Yunnan, public participation in the extension project of the 2nd hospital of Kunming, public participation in the water saving regulatory of Kunming city, public participation in decision-making of Provincial Forestry Development Strategy and public participation in the environmental impact assessment of the construction of Honghe Steel Factory..

The research also looks at access to justice. The access to justice case studies are on pesticide residue information in food – claimed by people to the people’s congress, public’s claim on the dam building on Salween River, local residents’ collective claim on old trees felled by a company in Baiyu Village, Xishan District of Kunming, and the claim on the pollution accident of Longma Phosphorous Chemical Company in Xundian, Yunnan.

Tribals Fight for Access Rights in North East India

By Ritwick Dutta (August 16, 2008) 

There are reasons to smile for the members of the Idu Mishmi community in the North Eastern State of Arunachal Pradesh located in the Himalayan Mountain Ranges: The Government on 13-08-08 has cancelled the proposed Public Hearing for the proposed 3000 MW Hydel Power Dam to be located in Dibang District of Arunachal Pradesh.

For more than a year, local tribal communities have been protesting against the dam touted to be among the highest in the Country on the ground that it woud devastate the fragile ecology and destroy the culture and livelihood of the Idu Mishmi Community numbering only 8000 Individuals.

The Dibang Dam is a classic instance of a fight of a local community for access to Information and Participation and a partial victory of the community. When the first Public Hearing was announced, local tribal community sent a legal notice through Legal Initiative for Forest and Environment (LIFE) requesting for postponement of the hearing in view of the fact that the Environment Impact Assessment Report was not available at designated places and only an electronic version was made available in a state where people hardly had access to Internet. The Government relented and directed that no Public Hearing be conducted till the required EIA Reports are made available at the designated places for access to the community. The Public Hearing was planned over two phases. The first Public Hearing saw large scale protests by community members.

As the Public Hearing process was underway, in a shocking development aimed clearly at undermining the Public consultation process, the Prime Minister of India, Dr Manmohan Singh decided to lay the foundation stone for the project at Itanagar, the State Capital located more than 500 Km from the project site ! This was met with stiff opposition both locally and nationally.

Finally, the date for the second Public Hearing was fixed on 20-8-2008. However, the community was shocked to learn that the place for conducting the Public Hearing was more than 100 Km from the affected villages and project site. The Environment Impact Assessment Notification, 2006 provides for conducting the Public Hearing in or in proximity to the project site. In the North Eastern Part of the country characterized by undulating terrain and heavy rainfall travelling 100 Km could very well take even upto a day’s journey.

The Community members with the support of Neeraj Vagholikar of NGO Kalpavriksh contacted Rahul Choudhary, Environmental lawyer and member of TAI Himalayan Coalition who immediately shot off a legal notice during the first week of August, 2008 citing violation of Principles of Natural Justice and provisions of the EIA procedure by conducting the Public Hearing at such a distant place which would make it difficult for the affected community to participate and thereby defeating the whole purpose of Public Hearing.

See also A Public Hearing without the ‘real’ public: Notes from TAI Himalayas

On 13th August, Community members were pleasantly surprised to know that the proposed Public Hearing has been cancelled. Even more important was the fact that the Chief Minister of the State has called for a meeting with all the concerned organizations who have been raising the issue with respect to the Dam to be held on 20-8-2008.

The happenings in the far eastern State of Arunachal has important lessons for the rest of the Country. The community is convinced that there is no use of Public Consultation unless it is based on adequate and proper information about the dam and its impact and the fact that people should be able to participate effectively in the Public Hearing. Easy access to the place where the Public Hearing is conducted is as important as access to information. In the absence of these pre conditions, the Public Hearing process becomes a mere formality and procedure to be accomplished in the EIA process. For the Idu Mishmi Community, it is their first step in securing their access rights.

Ritwick Dutta Ritwick (ritwickdutta@gmail.com) is the leader of the TAI Himalayan Coalition and the founder of Legal Initiative for Forest and Environment (LIFE) and is based in New Delhi

The Grass is Going to be Greener This Year!

Posted By Ritwick Dutta (July 20, 2008) 

The benefit of Right to Information and citizens’ participation in environmental issues is not just limited to NGO’s and citizens. It can also be of great help to government officers, especially to those trying to implement the law and Judgments of Court but who face resistance from other departments.

The recent instance in the famous tea-growing Darjeeling Hills in India provides an interesting example. As the example of Darjeeling shows, the petitioner got the relief even before the case was heard by the Supreme Court special committee on Forests, in view of the strong evidence obtained through the Right to information Act, 2005.

The issue relates to an ecologically fragile part of the Himalayas located in Darjeeling viz the Senchal Wildlife Sanctuary which is home to several endangered species. A part of the Sanctuary comprising grasslands was used for dumping old vehicles by the local government, namely the Darjeeling Gorkha Hill Council. The dumping encroached upon 20 acres of land of the Protected Area. This was done in violation of the provisions of the Wildlife (Protection) Act, 1972 and even the orders of the Supreme Court.

The dumping of vehicles continued until April 2008. The forest officer in charge of the Sanctuary, Ms Sumita Ghatak, directed the Hill Council to remove the vehicles. The Hill Council resisted, and continued to dump its old vehicles thereby polluting and destroying the fragile ecology. The orders from the Forest Department not only met with strict resistance but also led to the Hill Council making a formal complaint before the government for strict action against the Forest Officer for harassment and undermining the authority of the Council.

It was at this moment that conservation groups and concerned citizens got together. Using the Right to Information Act (RTI), 2005, local citizens obtained all interdepartmental correspondence which revealed a shocking level of arrogance of the Hill Council to the provisions of law and to the orders of the Supreme Court. It was clearly seen that the manner in which the Hill Council responded to the direction of the Forest Officer, prima facie constituted contempt of the Court. The Hill Council sought to overlook the provisions of all conservation laws.

Using the various information obtained under RTI, a petition was filed by Wildlife Trust of India, a national level NGO, before the Central Empowered Committee (CEC) of the Supreme Court asking for initiation of contempt proceedings against the Principal Secretary of the Hill Council. As is required by the Court procedure, a copy of the petition was sent to the Hill Council.

Surprisingly, within three days of receiving the copy of the petition and without even the case coming up for hearing, the Hill Council wrote to the Forest officer that in view of the petition filed in the CEC, the Hill Council would like to surrender the entire 29 acres immediately and also take away all the vehicles dumped by it!

Within days (first week of May 2008), the vehicles were removed. The land is now back with the wildlife and Forest Department.

Is this a case of effective judicial remedy, or the benefits of RTI, or responsive civil society intervention? Well, it is a mix of all and the beneficiary is obviously the wildlife of Darjeeling hills which will get to munch in an extra 29 acres of grassland free of rusting vehicles!

Contributed by Ritwick Dutta (with inputs from Vyom Raghuvanshi, WTI) Ritwick (ritwickdutta@gmail.com) leads the TAI Himalayan Coalition and filed the above mentioned petition on behalf of Wildlife Trust of India.