Public interest litigation can be brought as a civil case or as a private prosecution under criminal law. A first step is to examine which parties may have the right to bring legal action in either case.
Before taking a case to court, it is important to establish that you have the right to do so – or, to use the legal term, you need to ascertain that you have “standing” to sue (also known as “locus standi”). If the court finds you don’t have standing, it will reject your case on formal grounds, and no decision will be taken on the merits (the substance) of your claim.
Usually, only a legally recognised “person” or “entity” can have standing, and not an informal grouping or an abstract concept. A person might include an individual “Mr. Rajid Tan”, a company “Sustainable Forests Pty”, a registered NGO “the Dewale Wildlife Trust” but not, for example, “the Gonzales family” or “Rokavango Village” or “Green Side Natural Park”.
However, rarely, a national law gives standing to an abstract concept such as “Pacha Mama” (the environment) under Bolivian law or “future generations” under Philippine law.
Each legal system has its own law of standing, and whether you have standing may depend not just on who you are, but also on the type of case or the remedy you are asking for.
A common requirement is that you must be able to show a “special interest” or a “direct and personal interest” in the outcome of the case you are bringing in order to have standing.
Standing to bring Public Interest Litigation (PIL)
A requirement to show a special, direct, or individual interest can be an obstacle if you are planning to bring Public Interest Litigation (PIL), because by definition, PIL is directed at the wider public interest.
In some countries, NGOs are entitled to bring claims in the interest of their members or their statutory goals. For example, if a factory is causing pollution in an area where a few thousand people live, it may be that one person does not have standing to bring a case, because s/he is not affected in a very individual or particular way. However, an association set up by victims of the pollution with the stated goal of defending their collective interests against the factory may have standing, particularly if it has a sufficient number of members to be representative.
In other countries, persons who bring PIL may be able to take advantage of more relaxed rules specifically for PIL. Individuals and groups may be granted standing even though they do not have a concrete and personal interest in the matter.
Unfortunately, finding out whether you have standing to bring a PIL case can sometimes be complicated and you may need assistance from a lawyer. The conditions you need to meet might be found in different places.
a) A judicial decision – some examples:
The case was resolved in 2009 through mediation and the defendant was required to correct its environmental violations. This was the first PIL successfully brought in China.
b) An article in a law or in the Constitution
Sometimes a law or the Constitution gives a right to bring PIL. This may be a general right or it may be restricted to certain topics. Some examples:
Citizens or civil society groups can approach law enforcement authorities with strong and reliable evidence that an offence has been or is being committed.
In theory, this can form the basis of an investigation and may, depending on the strength of the evidence, lead to the initiation of a case.
In the real world, however, public prosecutors enjoy broad discretion in deciding which criminal cases to pursue, and sometimes they will decide not to take up a case, despite being presented with credible evidence.
In some countries, the law allows a person who disagrees with this decision to challenge the prosecutor in court. In other countries, an individual or NGO may be able to take the criminal case to court itself; this is called a “private prosecution”.
Private prosecution is the right for a private party to file a criminal case directly with the court. Upon receiving the complaint, the court is obliged to proceed with the case unless the facts in question do not constitute an indictable offence.
Who can bring a private prosecution depends very much on local law. The following are categories that have standing to bring a private prosecution in some countries.
a) Legally authorised public interest groups:
Some jurisdictions allow registered groups to bring criminal charges in relation to matters affecting public interests.
In most cases, the group can take action even when it does not itself suffer harm from the offence. Its right to do so stems simply from the general right to bring a private prosecution. Some examples:
In some countries, the right to private prosecution is limited to the victim of the offence. Some examples:
In November 2010, the French courts ruled that TIF had the required standing to pursue the case.
b) Private prosecution by good faith litigations
In some countries, private prosecutions can be brought by anyone, in relation to any offence, if the aim is to enforce the law rather than seeking compensation. The petitioner is entitled to act without having to prove that s/he personally suffered any damage from the actions in question.
In common law jurisdictions (which include the UK and many former parts of the British Empire, such as Australia, India, Hong Kong and Singapore), every citizen generally has exactly the same right to institute proceedings as the prosecuting authority. Any person may therefore institute private prosecution in respect of any indictable offence.
However, in practice only a minuscule portion of prosecutions is actually brought by private parties. This is not surprising because a private party does not enjoy the same powers of investigation as law enforcement authorities and bringing a case requires sufficient funds and expertise. Private prosecutions are further discouraged by the fact that: