Law comes into conflict with Constitution on nature of PIL

Article 7 Section 23 of the Constitution states that every Bhutanese shall have the right to file a Public Interest Litigation (PIL) if it fulfills the criteria required by the court but according to an eminent judicial expert from the Thimphu district court there are no specific legal provisions relating to PIL under the Bhutanese law

PIL is a legal means to protect the fundamental rights of the poor, ignorant or people in socially/economically disadvantaged positions.

“Public Interest Litigation is also called the class action”, said a former Drangpon, Shera Lhundup.

However, despite the constitutional clause stating that an individual can file a PIL, Section 149 of the Civil and Criminal Procedure Code states that “a class action suit may be brought by or against large numbers of individuals whose interests are closely related”.

Opposition MP Damchoe Dorji says that PIL in Bhutan is still considered “anti-government” since most of these cases have to be filed against a government action or inaction.

He also added that people will take some more time to resort to PILs as interested individuals are not supported by NGOs or other civil societies.

The eminent judicial expert from the district court said that there has not been a case of PIL filed till now.

But some legal experts like Shera Lhundup consider the tax Case registered with the SC on 3 Dec, 2010  by the Opposition party against the government a “classic” example of PIL.

The Courts did not consider it as PIL though because of the Opposition party’s involvement and on grounds that the case was filed in pursuance of their duties under Article 18 of the Constitution.

The High Court (HC) did not consider the case as PIL because it felt that the case was filed by the Opposition party . Some legal experts feel this is is not true,  because the case was in fact filed by the Opposition Leader (OL) and not by the Opposition party.

“Public Interest Standing” was the petition up held by the Opposition Leader.

The Office of Attorney General (OAG) also did not consider the tax case as a PIL on grounds that the OL was not a member of the affected party . A legal expert however said that paying taxes involves the public and OL is also a member of the public.

Thus, considering article 7 section 23 of the Constitution, the tax case fulfilled an element of a PIL.

In addition, the tax case was first filed with the HC and the constitutional bench of HC rendered its judgment on18 Nov, 2010 which was later forwarded to the Supreme Court ( SC).

Filing of a case directly to the HC matches the element of a PIL which cannot be filed in the lower courts.

Similarly, a spokesperson from Respect, Educate, Nurture and Empower Women (RENEW), said that there are a number of class action cases filed by Non Government Organizations (NGO).

“We have our own attorneys (Jabmi), who go and file cases for our clients”, she said, adding that the cases they file are all social cases.

However, another eminent judicial expert from the SC said that cases filed by such NGOs cannot be considered class action suits as a person who files a  PIL should be a member of the public who has sufficient interest from a public wrong or injury.

“But the jabmis in NGOs are not members of the affected group of clients.”

The Registrar General of the High Court Tshering Dorji also said that cases filed by NGOs like RENEW are not PIL because those cases are filed for a personal gain which do not benefit the general public .Damchoe Dorji said that in many cases NGOs render financial support to people who file PILs,  but not in Bhutan.

PIL was developed in recent years, marking a significant departure from the traditional judicial proceedings where only a person whose rights are directly affected can approach the court of law.

It is of two types: in one, a member of the society/public gets the court moving while the other one is ‘Suo Moto’ where the court moves on its own.

The former entails filing of a case by a person for public benefit, while writing letters to a court concerning violation of human rights or environmental degradation is a ‘Suo Moto’.

The latter generally happens in countries like India.

PIL is not an ordinary litigation where a private person files a case against another private person to fight for his/her personal rights; a private person can file a PIL but the basis should be ‘public interest’. However, the person should also be a member of the public who is interested in getting redressal for a public wrong or injury. Before filing a class action suit, the general outlines of a group should be recognized at the outset of the litigation; all the class members should have common questions of law or fact.

In addition to the above, the representatives should be members of the class, capable of representing the interests of the absent class members.

“Such action is not for any personal gain; rather it is based on benefiting the public. So, one cannot make a frivolous litigation,” said Damchoe Dorji.

According to Shera Lhundup, a PIL may be filed in the manner of a writ petition but presence of public interest is mandatory.

A class action can be filed in any court of competent jurisdiction but all most all the cases are filed with the HC and SC as constitutional petition can be initiated in the two courts.

There are no jurisdictions stating that PIL cases can be filed in the district courts, said Tshering Dorji.

The expenses of filing of a PIL depend on the nature of the remedy that is being sought.

“Whether PIL is expensive or not can be determined by the nature of issues involved and who represents the case,” said an eminent judicial expert from the SC.

Shera Lhundup says that it may often take away decision making rights/authority of a community while the case is being adjourned.

“It may even affect the group adversely if the court decides otherwise,” he said, “it may divert the attention of the community away from the real issues, often politicizing the issue.”

However, Courts endeavor to minimize the procedure as well as the costs by giving PILs priority as a writ. Before filing a PIL, legal notices should be issued to the concerned parties or authorities.

“If the case is filed against the government, legal notices should be issued to the concerned officer or department at least two months before filing of a PIL”, said Damchoe Dorji.

He said it is not necessary as per the courts’ jurisdiction that the person who is the victim of the violation of his or her right should personally approach the court.

Usually lawyers and other interest groups lead the way in protection of public interests through PIL.

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