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A
brief moment with Nihal Sri Ameresekere
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Nihal Sri Ameresekere |
Litigating in the public interest
By Faraz Shauketaly
Whilst
others litigate on matters of environment, health,
education et al, Nihal Sri Ameresekere, 62, is focused
on public finance — resources of the people, which
includes the poor and hapless. The people’s resources
and public property, are required to be managed in trust
on their behalf, by governments.
The
1978 Constitution in Chapter VI stipulates extensively
the obligations of the state in managing the country and
the people, which constitutes a social contract, with
legitimate expectations.
Says,
Ameresekere: “Article 28 of the Constitution lucidly
stipulates, that the exercise and enjoyment of rights
and freedoms are inseparable from the performance of
fundamental duties and obligations, and accordingly,
that it is the duty of every person in Sri Lanka (not
only a citizen) to, inter-alia, vide — Article 28(d) ‘to
preserve and protect public property, and to combat
misuse and waste of public property.’ The right to
litigate to combat the misuse and waste of public
property was expressly upheld in the SLIC Judgment.”
Judicial power of the people
Surely, passage of time would not confer any rightful
and lawful ownership of misappropriated public property,
with a bar to the right to act in the public interest,
since, public officers have colluded in such frauds, and
law enforcement authorities have failed to act.
Would
not such constitutional mandate as enshrined in Article
28 to perform fundamental duties and obligations, inter-alia,
to combat the misuse and waste of public property, read
together with Articles 3 and 4 of the Constitution,
wherein the sovereignty is in the people, enable the
judicial power of the people to be exercised, through
courts of law, in such combat? The interpretation of
Articles 3 and 4 of the Constitution, and the duty and
obligation cast on the judiciary, have been exhaustively
determined by a seven member bench of the Supreme Court,
on the aborted 19th Amendment to the Constitution.
Conversely, would not the non-performance of the
fundamental duties and obligations in terms of Article
28(d) i.e. preserving and protecting public property and
combating the misuse and waste of public property,
disentitle such person from exercising and enjoying the
fundamental rights and freedoms in Chapter III of the
Constitution, which Article 28 stipulates are
inseparable from the performance of fundamental duties
and obligations?
Protect public property
On the
heels of 1978 Constitution, parliament enacted into law
— Offences Against Public Property Act No. 12 of 1982
to preserve and protect public property, and to combat
the misuse and waste of public property.
Act No
12 of 1982 stipulates that any person, whether public
officer or otherwise, is liable for the offences of
mischief / theft / robbery / misappropriation / criminal
breach of trust of public property; cheating, forgery or
falsification in relation to public property; and/or
attempting to commit any of these offences.
Punishment for any of these offences is a fine up to
three times (i.e. 300%) of the value of the public
property, in respect of which such offence was committed
and imprisonment not exceeding 20 years, thereby
disentitling such persons from enjoying the fundamental
rights and freedoms in Chapter III of the Constitution.
Citations
“There
would be a grave lacuna in our system of public law if a
pressure group, like the Federation of even a single
public spirited tax-payer, were prevented by out-dated
technical rules of locus standi from bringing the matter
to the attention of the court to vindicate the rule of
law and get unlawful conduct stopped” — Lord Diplock in
the House of Lords, UK:
Re-evolution of the law to make the law fit “the felt
necessities of the time” — US Justice Oliver Wendell
Holmes Jr.
“… if
public authorities transgress any law or constitutional
directive, then any public-spirited citizen, even if he
has no greater interest than a person having regard for
the due observation of the law, may move the courts and
the courts may grant him the appropriate legal remedy in
its discretion …..in a government so firmly founded on
the principles of justice and the rule of law, the
judiciary cannot idly stand as a silent and stony pillar
of democracy. The court, in its role as a public watch
dog, is not expected to turn a deaf ear to the
prevailing public outcry against corruption and abuse of
administrative powers by authorities or their officials,
however high in rank” — Justice Wan Yahya, Malaysia.
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