The Access Initiative

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.

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.

Demanding Access to Justice and Right to Natural Resources: The Plight of the Molboc Tribe

Posted by lgatlabayan (Posted: December 3, 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

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.

India: District Court Intervenes To Stop Faulty Public Hearing

By Ritwick Dutta (Posted: October 9, 2008)

In a rare instance, the District Court of Raigarh on 17-9-2008, in the Central Indian State of Chhattisgarh, stayed the proposed Public Hearing for seven projects which included thermal power plants and steel plant expansion projects on the ground of non compliance with the procedure stipulated under the Environment Impact Assessment Notification.

Local resident and activist Ramesh Agrawal of local civil society group: Jan Chetna had objected to the manner in which public hearings are being conducted by Chhattisgarh Environment Conservation Board (CECB). A complaint was filed before the Chief Judicial Magistrate’s Court Raigarh to halt the seven public hearings on the following grounds:

• CECB failed to hold public hearings within stipulated time of 45 days from receipt of request from project proponent and hence not empowered to hold public hearings. • The public were not provided information with respect to the proposed project, this restricts active and effective participation in the decision making process. • Raigarh District is facing sever pollution caused by industries and it is of utmost importance to know people’s concern for upcoming projects since it will affect their Right to Life guaranteed under Article 21 of the Constitution.

Judge A.Toppo expressed his strong concern by citing Supreme Court’s verdict and held that ‘Permission to Establish of industries must only be granted only after assurance that proposed industry will make every effort for conservation of environment. Development is must in this era and equally important is conservation of environment for existence of human life and other living beings. We should maintain balance between Development and Conservation of Environment.’ Court stayed three public hearings.

The District Courts used to be major avenues for redressal of grievances for the public prior to the advent of Public Interest Litigation which is centered in the High Court and the Supreme Court under Article 226 and Article 32 of the Constitution respectively. Today despite the increase in number of civil society groups and increasing recourse to judicial remedy, District Courts are rarely relied on by environmental activists. The liberal relaxation of locus standi and the activists approach of the judges in the mid 80’s and 90’s prompted aggrieved citizens and groups to approach the Supreme Court and High Courts directly circumventing the District Courts. This led to several landmark decision of the higher Courts which are cited by judicial bodies throughout the world. However, over the past few years, the higher courts have increasingly adopted the approach of ‘judicial restraint’ and non interference in the ‘economic and policy’ affairs of the State. Unfortunately, many of the environmental issues get clubbed under this broad category leading and this has led to increased frustration among those who relied on higher Courts to seek relief and fight state policies. The initiative of Jan Chetna is therefore landmark, they chose to approach the judicial forum which is closest to the affected people i.e District Court and got relief. At a time when justice from the Higher Courts eludes struggle groups, the District Courts decision is commendable and also worth replicating in other parts of the country.

Ritwick (ritwickdutta@gmail.com) is an environmental lawyer with Legal Initiative for Forest and Environment (LIFE) and heads the TAI Himalayan Coalition.

India’s First “Referendum” on an Industrial Project?

Posted by Ritwick Dutta (October 8, 2008) 

In a very first in terms of public participation in environmental decision making, the State/Provincial Government of the western Indian State of Maharashtra organized on 22nd of September 2008 a Referendum in District Raigad for deciding the fate of the new Special Economic Zone. As per reports, farmers are said to lose over 3400 Hectares if the project is allowed to come up and have been opposing the project not only in terms of the displacement and loss of land but also the impact on the ecology of the area characterized by agricultural holdings, dense forests and mangroves and coasts offering varied livlihoood options.
The referendum was held in stages and as per reports in the media, the project has been opposed by an overwhelming majority of villagers. The proponent of the Special Economic zone, Indian Industrial giant : Reliance Industries claimed that the referendum reflected the view of ‘so called farmers’ and not the ‘landowners’.

As per the existing practice only a Public Hearing is conducted under the provisions of the Environment Impact Assessment Notification, 2006 for eliciting the views of the affected public. However, the outcome of the Public hearing is rarely give weight in the decision making process. Organizing a Referendum thus is an interesting development and offers hope for communities opposed to socially and ecologically destructive projects.

Earlier, the affected farmers under the banner of Shetkari Samiti had filed an Appeal before the National Environmental Appellate Authority with assistance from Legal Initiative for Forest and Environment (LIFE) against the approval granted to the 4000 MW Thermal power Plant at Raigad on the grounds of: • The project been approved only on the basis of a Rapid Environment Impact Assessment report based on two months data despite the need for a comprehensive one year data; • The outcome of the Public Hearing not been considered (in fact the Ministry of Environment and Forest been totally unaware of the Public Hearing process) by the decision making body; • The thermal power project is located in highly ecologically sensitive estuary and coastal zone and also a designated Green Zone where such activity is prohibited

The outcome of the Referendum is clear so far as the opposition of the farmers are concerned. However, seeing the views of the people, the government seems to have turned turtle. While the Referendum was announced and conducted by the District Collector (the highest government officer of a District), the Chief Minister (the head of the State Government) has stated that what was held was not a ‘referendum’ at all.

Like most struggles in India, this too had landed in the Court with Reliance Industries filing an Petition in the Bombay High Court. Whatever its outcome, the events in Maharashtra marks an important landmark in the struggle for greater voice for the affected communities on decisions which affect their lives and environment.

Ritwick (ritwickdutta@gmail.com) is an environmental lawyer and leader of the TAI Himalayan Coalition

Let Justice Flow – A TAI Success Story

Posted By Lalanath de Silva (October 2, 2008) 

This is a story about how community leaders activated the Supreme Court of Sri Lanka to intervene and save a river the Deduru Oya. If you cannot view the video from the video frame below you can do so by clicking here

The Deduru Oya river bed had been mined for years for sand. Sand is used in buildings and road construction. Over exploitation of the river had lead to major environmental damage river bank erosion, lowering of the water table, salt water intrusion, poor water quality and habitat destruction.

The Supreme Court acted on a human rights case brought by community leaders. Led by Chief Justice Sarath N. Silva, the Court banned sand mining in the river and ordered the Geological Survey and Mines Bureau to stop issuing mining permits. The Court galvanized the Police to arrest and prosecutes illegal miners. The issue received wide publicity in the press.

Mining operations have been stopped for about two years now. As a result natural recovery has begun. Additionally the community leaders have been able to obtain funds through the UNDP and commence rehabilitation of the river bank in two critical areas.

The case was made possible through financial and legal aid given to community leaders by the Green Movement of Sri Lanka. The green Movement is part of The Access Initiative Coalition of Sri Lanka.