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Issues

   
 

   A brief moment with Nihal Sri Ameresekere


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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