Jan 23

The Citizens’ Movement for Good Governance (CIMOGG) learns that the explanation given by the Colombo Municipal Council (CMC) for the difficulty it has in removing rotting garbage from the streets and disposing of it properly is that the matter is Asub iudice meaning that the dispute the CMC has with one of its garbage disposal contractors is the subject of a court case.  This kind of excuse is unacceptable as far as the ratepayers are concerned because there is a statutory obligation imposed on the CMC and other local bodies to collect and dispose of all garbage in an environmentally acceptable manner.  It is not for the ratepayers to show the CMC how this may be done.  If the CMC has appointed an incompetent, bankrupt or crooked garbage disposal contractor and the latter has defaulted on his obligations, or if the CMC itself has breached the relevant contract, it is up to the CMC to make alternative emergency arrangements to fulfill its inescapable duty towards its ratepayers.  There can be no excuse for inaction.  The failure by the CMC to collect and dispose of the City’s garbage in a timely and safe manner is, however, referred to here solely as an example of the type of failure that affects the public interest and, therefore, one needs to look at the subject from a broader perspective to find out how the present laws should be changed so that members of the public could initiate legal action in this type of situation without having to shoulder the entire burden of doing so.

Citizens can, in theory, seek legal remedies from the courts to have arbitrary or unconstitutional actions by the organs of State or private parties remedied.  Notwithstanding this notional freedom to act, little can be achieved in practice because litigation in Sri Lanka is both very costly and likely to run into years of delays, which the ordinary citizen has neither the knowledge nor the resources to undertake.  In the present context, some socially-responsible and well-financed third party could help to place the issue before the Courts for a remedy but such guardian angels are not to be found for the asking.  Moreover, as the law stands in Sri Lanka, the courts generally tend to reject a third party’s intrusion into these troubled waters, on the grounds that the third party is not the injured party, who alone would have the specific right to file plaint.

The first steps towards safeguarding the public interest by novel legal approaches were taken in the United States several decades ago.  These steps included permitting the intermediation of third parties or taking note of direct communications addressed to the Chief Justice of the US Supreme Court.  It is only about 25 years since the Supreme Court in India (SCI) also took some giant strides to free public interest litigation from being stymied by petty technicalities and procedural mumbo-jumbo.  This was when the Chief Justice of the SCI took it upon himself to allow anyone to write to him with a complaint about a matter of public interest, even though the complainant was not necessarily an injured party.  This was justified by the SCI on the grounds that a violation of constitutional safeguards and subordinate laws, particularly by state organisations and public bodies, was a matter for the SCI to look into as part of its obligation to safeguard the rights of citizens vis-a-vis the organs of State or powerful private parties.

The Sri Lanka Organisation of Professional Associations (OPA) devoted almost the entirety of its 16th Annual Sessions, in November 2003, to PUBLIC INTEREST LITIGATION.  The 131-page record of the Proceedings ends with three pages of RECOMMENDATIONS.  Drawing from these, CIMOGG calls upon Parliament to pass legislation and the Supreme Court to simplify its practices and rules so as to -

a.        Empower the Supreme Court and the Court of Appeal to take cognisance of any representation made in the public interest even if it be only by letter;

b.        Oblige the Supreme Court to direct the Attorney-General or specially appointed socio-legal Committees of Inquiry to investigate and report on the facts pertaining to such representation;

c.        Amend Articles 17, 121, 122, 124, 126 of the Constitution and the Civil Procedure Code so as remove the present restrictions and potential inconsistencies;

d.       Reduce the volume of documentation to be furnished by the original complainant, subject to the Courts being satisfied that there is a prima facie case for investigation, evaluation and determination.

Jan 06

The President, the Speaker, the Prime Minister, the Leader of the Opposition, Members of Parliament, Judges of the Supreme Court and countless lesser mortals in public service have, as a pre-condition to assuming and functioning in their respective offices, sworn or affirmed that they would uphold and defend the Constitution of Sri Lanka, and faithfully perform the duties and discharge the functions of their said offices in accordance with the Constitution.

Now, the appointment of the members of the Constitutional Council and the Independent Commissions is a mandatory constitutional function effectively entrusted to the President, the Speaker, the Prime Minister and the Leader of the Opposition.  Upon the passing of the 17th Amendment on 3 October 2001, they did appoint a Constitutional Council; and the Council, in turn, did its duty by the Constitution in recommending persons for appointment to the various Independent Commissions.  However, the former President failed, for her own reasons, to fulfill her duty to appoint the Election Commission and also delayed for several years the proper constitution of the Permanent Commission to Investigate Allegations of Bribery or Corruption.

On account of the laxity of all the parties on whom the duty of appointing suitable persons to the Constitutional Council devolves, not only has the Council itself ceased to exist but so have the Public Service Commission and the Police Commission.  It will not be very long before the Human Rights Commission also breathes its last.  To compound this dereliction of their sacred duty, some of the parties concerned are trying to justify their failure to act by (a) blaming each other, and/or (b) arguing that this dilly-dallying has become necessary because the 17th Amendment needs improvement.

Long before our legislators found it convenient to pick holes in the 17th Amendment, CIMOGG, the OPA and others have pointed out the need to improve it.  This task is being looked into energetically by the OPA, with CIMOGG’s active participation, and whatever improvements are eventually recommended could, in due course, be looked into by the legislature, voted upon, and implemented.  However, the exercise of working out the changes required to be made to the 17th Amendment does not provide any justification whatever for the President, the Prime Minister, the Speaker and the Leader of the Opposition to continue with their present violation of the Constitution.

An ancillary point, with profound ramifications, needs to be considered in this context. If these important personages, who together represent well over 80% of the population of Sri Lanka, are going to treat our Constitution with such scant regard, would anyone believe that they would conform to any of the subsidiary laws of this country or honour any international or other treaties or agreements they enter into?

CIMOGG, therefore, calls upon these august personages to implement the current provisions of the 17th Amendment, as its stands, so that this gross violation of the Constitution is not prolonged any further.  Any proposed impovements to the 17th Amendment may be considered thereafter.