Exercise of judicial power of the people: Litigation in the public interest

Exercise of judicial power of the people

Litigation in the public interest

By Nihal Sri Ameresekere

As a person actively and committedly involved in litigation in the public interest for quite sometime, even though I am not a professional lawyer, nor purporting to be one, I cannot be a silent dumbhead or spectator to the concepts propounded and opinions expressed by Deshamanya Dr. R.K.W. Goonesekere, in his recent oration at the Colombo Law Faculty (excerpts of which were published in last week’s issue of The Morning Leader), admittedly in the background of the recent judgments of the Supreme Court, which he, himself, has admitted to be ‘popular’ in a recent media interview.

Inherent in such admission of popularity of such judgments is that the people have received satisfaction, consequent to the exercise of their judicial power, which is their inalienable constitutional right.

I refer to the final paragraph of the questionably timed oration, which solely and exclusively hinges on Article 11 of the Constitution, which guarantees, freedom from torture, cruelty, inhuman or degrading treatment or punishment. If governance of a country is to be solely and exclusively depended on such ‘dicta’ of in Article 11 and it alone, then how can there be space and room, for punishment for offences under the Penal Code and several other statutes, or the ongoing offensive against terrorism?

Basic tenets of development of civilised societies, have been on the foundation, that good conduct of those who conform to expectations of society are recognised and rewarded, whilst those who do wrong or act in bad conduct antithetic to the expectations of society are reprimanded and punished, naturally causing pain of mind and humiliation for such acts, that society deems to be unacceptable.

Protect public property

The exercise and enjoyment of rights and freedoms stipulated in Article 11 and other Articles, is inseparable from the performance of duties and obligations, as stipulated in Article 28 of the Constitution, which, inter-alia, include the obligation on every person to protect public property and to combat misuse and waste thereof.

Hence, would not the rights and freedoms in Article 11 of the Constitution be prohibited from being enjoyed by those who pillage and plunder public resources in blatant violation of the duties and obligations on their part to be performed under Article 28 of the Constitution, which in such circumstances, imposes an injunction prohibiting such persons from enjoying such freedoms? On the other hand, having blatantly and knowingly violated an obligation imposed by one Article of the Constitution, can one seek refuge under another Article of the Constitution ?

The gravamen of the complaint in the said last paragraph of the oration of causing mental pain, suffering, humiliation and affront to dignity, clearly and evidently is in relation to the several recent public interest litigation cases, heard by the Supreme Court and judgments delivered, which are cited just preceding such pathetic complaint.

How is it that such complaint, arises only in relation to those of upper echelons of society, socio-politically powerful and influential, whilst no such complaint , even of a whimper arises, in the case of the many hapless poor people, who are hauled up before courts of law for wrong-doings antithetic to the ‘rule of law,’ sometimes for robbery due to sheer desperate economic compulsions, whilst the rich do so out of sheer ‘greed.’

Plundering of public property

The pillage and plunder of public resources by those socio-politically powerful and influential, abusing power and position, further impoverishing the poverty stricken people, causes not mere mental pain, suffering, humiliating treatment and affront to dignity, but causes them unbearable pangs of hunger and desperation, even leading to suicide; with the denial of their right to basic food, clothing, shelter, health care, education, et al. It would appear that such traumatic pangs of pain of the drown trodden poor, is of no concern whatsoever, but what is of prime and only concern is the mental pain, suffering, humiliating treatment and affront to dignity, caused to those who are taken to task for the pillage and plunder of public resources, which rightfully belong to the poor people of the country, further aggravating their misery.

King can do no wrong

Such medieval ‘phenomena’ was the case during times of disgraceful and despicable ‘slavery’, where ‘slaves’ had no rights, whatsoever, and for them no mental pain, no suffering, no humiliating treatment, and no affront to dignity, which only the masters of the ‘slaves’ supposedly had, on the principle that the ‘king can do no wrong’!

One is reminded of the marquis, whose horse carriage ran over and killed a child of a peasant, and he just threw a few coins, as and by way of compensation for loss of life of the child. There was no ‘rule of law’ enforced, presumably due to the affront to the dignity of the marquis! Such concepts are simply out of time and out of place in contemporary civilised society.

Pillage and plunder of public resources, which rightfully belong to the people, and which are managed on their behalf in trust by governments in power elected by the people, cannot be condoned, whereas on the contrary, such pillage and plunder necessarily have to be condemned, regardless of causing mental pain, suffering, humiliating treatment and affront to the dignity of those who pillage and plunder public resources to unjustly enrich themselves, or those who act in cahoots with them.

Are not those who surreptitiously rob public property in crafty and sophisticated shady deals akin to those who might put their hands and rob the ‘tills’ of poor beggars on the streets?

Economic terrorism

The foregoing is the ‘phenomenon’ of ‘economic terrorism’, impoverishing the livelihoods of the down trodden poor hapless masses, which results in social injustice, social alienation, precipitating misery and desperate conditions, leading to social unrest, insurrection, and now even armed struggle and terrorism. Has not armed terrorism been given birth to by such ‘economic terrorism’, arising from consequential social injustice; whilst armed terrorists take the lives of the people, economic terrorists pillage and plunder the resources of the people?

Article 28 of the Constitution also, inter-alia, mandates, among other obligations, that every person would uphold and defend the Constitution, and protect public property, and combat, misuse and waste of public property. All ‘elected’ and ‘selected’ public officers have made affirmation or oath, under and in terms of the Constitution to solemnly uphold and defend the Constitution. To act otherwise, would it not make a ‘mockery’ of such the affirmation or oath made under the Constitution?

‘Elected’ and ‘selected’ public office is entered upon by persons, only and only upon the making of such affirmation or oath, without which they cannot enter upon such office. Hence, would not the knowing and blatant breach thereof disentitle such holders of ‘elected’ and ‘selected’ public office from continuing to be in such public office? In this context, would it not be sheer tommyrot to rely on ‘terms of employment’ in the contract of employment, since such contract of employment, simply cannot transcend the constitutional mandates?

People supreme

The 1978 Constitution made the people supreme, not merely the elitist rich and socio-politically powerful and influential intellectuals, academics and professionals, but also all the people of this country, yes, the downtrodden masses and minions. It is the sovereignty of all the people, including such masses and minions, that is exercised by the president, parliament and judiciary, acting in trust on behalf of the people.

It is the judicial power of the people that is exercised by the judiciary, including the Supreme Court. The determinations by a Seven-Judge Bench of the Supreme Court on the aborted 18th and 19th Amendments to the Constitution have lucidly dealt with the sovereign rights and powers of the people, being exercised in trust by the executive, legislature and judiciary, and the ‘rule of law’ being the basic premise of the Constitution as cited below:

• "Therefore the statement in Article 3 that sovereignty is in the People and is "inalienable", being an essential element which pertains to the sovereignty of the people should necessarily be read into each of the sub paragraphs in Article 4. The relevant sub paragraphs would then read as follows:

(i) the legislative power of the people is inalienable and shall be exercised by parliament;

(ii) the executive power of the people is inalienable and shall be exercised by the president; and

(iii) the judicial power of the people is inalienable and shall be exercised by parliament through courts."

• "These powers of government continue to be reposed in the people and they are separated and attributed to the three organs of government; the executive, the legislature and the judiciary, being the custodians who exercise such powers in trust for the people."

• "The powers attributed to the respective organs of government include powers that operate as checks in relation to other organs that have been put in place to maintain and sustain the balance of power that has been struck in the Constitution, which power should be exercised only in trust for the people."

• "If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law and thereby making the Rule of Law meaningful and effective" (Cited from Indian Judgment)

Hence, when the peoples’ property is being pillaged and plundered, wrongfully, unlawfully, illegally and fraudulently, by those in power and the elitist rich and socio-politically powerful and influential, have not the people a right, to cause the exercise of their judicial power, to protect their property, which is being pillaged and plundered ? How could mental pain, suffering, humiliating treatment and affront to dignity of those persons, who have acted in a perverse manner, be estoppels to prevent the judiciary, more specifically the Supreme Court, from being caused to exercise the judicial power of the people? Would not the alternative be riots, insurrection, insurgency, et al ?