By Chandra Jayaratne –

Chandra Jayaratne

The 15 things citizens mostly ‘wish away with’ in the present environment; but ‘do nothing and hope that a problem will disappear’ are:

1. The pandemic, especially the impact aggravated by unwise actions of those in charge;

2. Ever increasing cost of living, driven by product shortages and excessive money printing;

3. Gas explosions, due to unauthorized changes in gas composition and mismanagement;

4. Having to stay in long queues to collect gas, milk powder, rice, sugar, kerosene;

5. Lack of fertilizer and agro chemicals, by pursuing organic agriculture goals, leading to crop failures and possible food shortages;

6. Inability to attend schools and universities and the lack of e-learning tools and internet facilities;

7. Unauthorized and illegal land grabbing, deforestation, sand/gem mining and human elephant conflict;

8. Unannounced power cuts, due to lack of petroleum and malfunctioning power plants;

9. Failing to uphold the rule of law and justice systems, suppressing democratic rights, and inconsistent policy and administration, with several gazettes and frequent revocations;

10. Extremely high levels of perceived corruption, wastage, money laundering, nepotism and cronyism;

11. Sale of national assets and grant of long term concessions, without best practice valuations;

12. Misallocation of scarce national resources, lack of fiscal discipline, pursuing egoistic/high commissions linked projects ignoring the priority needs of the poor and vulnerable segments;

13. Mismanagement of the external sector, unprofessional external debt management sans debt restructure, channeling short term high cost borrowed funds to pay long term external debt, overvalued rupee, export sector being distressed by disincentives:

14. Unwise and ineffective foreign relations, failing to optimize networking options with international agencies, especially IMF and UNHRC;

15. Politicization and ineffectiveness of key independent public institutions, law and good governance accountability empowered ministries and departments;

all of which appear to originate due to unprofessional, arrogant, egoistic, childish and rent seeking governance by the regime in control of the Executive; and will deter value adding FDI flows, low growth, high twin deficits, rating downgrades and possibly excessive stress on citizens of a country heading towards a failed state.

With the Voice of Advocacy of the caring professionals and civil society mostly dulled, the business chambers placing all blame on the pandemic and saying the governance action could not have been any better, the executive and leadership in governance promising to fulfill all remaining actions leading to splendor and prosperity over the next three years, the legislative opposition overshadowed by the two third majority of the party in power, activists and social media harassed and the traditional media divided, with the few who correctly report and bring to surface bad governance, breakdown in law and order, corruption and engaging in investigative journalism pressurized; all eyes , ears and attention with hope is to the Judiciary, as the only saviours of democracy, rule of law and good governance.

The fundamental rights chapter of the Constitution excludes socio-economic rights and Sri Lanka is not a state party to the International Covenant on Economic, Social and Cultural Rights. In the above context “Suo Moto” epistles are an essential need in the current governance environment?

“A Suo Moto cognizance is a Latin term which means ‘an action taken by a government agency, court or other central authority on their own apprehension’. A court takes a Suo Moto Cognizance of a legal matter, when it receives information about the violation of rights or breach of duty through media or a third party’s notification. In India,  the Constitution  lays down the provisions for filing Public Interest Litigation in the Supreme Court and High Courts respectively. This has given rise to the court’s’ power to initiate legal action on their cognizance of a matter. Suo Moto’s actions by Indian courts are a reflection of activism by the judiciary and captivated the general public with the speedy delivery of justice by the courts. Suo Moto cases in India are generally taken up by the Supreme Court. The Indian Judiciary has been undoubtedly holding the baton for democracy for the past few years. In numerous instances, different High Courts and the Supreme Court have risen to the occasion by taking cognizance of a legal issue on their own and provided swift justice. Various courts in India have initiated legal proceedings on their own based on media reports, telegrams and letters received by aggrieved people, taking a Suo Moto cognizance of the issue.”[1]. The Supreme Court of India has during 1990-2021 taken up 46 cases ‘suo moto’ without any petition being filed, or interest being brought before them[2].

The best recent example of the judiciary entering in to protect and promote the interests of the citizens also comes from India; where “The Supreme Court of India slammed the Centre and state governments for their inability to present a crystal-clear way forward to combat the menace of air pollution in the national capital. A bench headed by Chief Justice N.V. Ramana and comprising Justices D.Y. Chandrachud and Surya Kant, after hearing submissions of counsel of the Delhi government and Central government, said it needs clear answers on steps to curb air pollution in the capital, which has become a yearly phenomenon for the past several years. Justice Kant told Delhi government counsel, that nobody understands the plight of farmers and under what circumstances they are forced to burn stubble. “People sitting in 5-star and 7-star facilities in Delhi keep accusing the farmers (contribute four per cent and 30 or 40 per cent to pollution). If you have a scientific alternative (a resolution)…let us look at it, rather than blaming farmers…”, said Justice Kant. The Chief Justice pointed out that according to an IIT Kanpur study stubble burning and firecrackers are not main contributors for pollution. The bench pulled up the government and bureaucracy for not doing enough to curb air pollution. The bench said the bureaucracy has gone into inertia and they don’t want to do anything. “Bureaucracy developed paralysis…all these things we have to say — how to use sprinklers, how to stop vehicles…they do not want to take any decision”, said the bench slamming the attitude of bureaucracy. The bench emphasized that somebody has to take responsibility and everything cannot be done through judicial order. It pointed out that firecrackers were burnt in Delhi despite a ban[3].

Citizens and civil society believe that the Bar Association of Sri Lanka (BASL), currently under a forward looking, courageous leadership, demonstrating by its advocacy that it cares for common citizens and is ready to step in to protect citizens impacted by bad governance, must now seek strategic ways and means of promoting “Epistolary Jurisdiction”[4] which involves “Invoking writ jurisdiction by a court itself on the basis of any letter or information or any news published in news paper “which ‟ can ensure enjoyment of some the very basic fundamental rights by the poor and lay man such as: right to protection of law, enforcement of fundamental rights and equality before law. On this point, this jurisdiction is pro-bono publico in nature. On the other hand, some critics think that it may invite judicial activism in the administration of justice, which should not be in strict sense. Some think that judicial activism should not lead the judges to transgress the limits of judicial functions nor attract them to intervene into executive policy decisions unless any act of the executive is violative of any provision of law or the Constitution”[5].

BASL must actively pursue options for getting the judiciary to follow some good practices adopted in yester years by judges like Justices Mark Fernando and Ranjit Amerasinghe, in showing the way with ‘suo moto judgements” and engaging in judicial activism.

[1] https://www.google.co.uk/amp/s/www.myadvo.in/blog/suo-motu-cognizance-by-the-indian-judiciary/amp/

[2] https://www.scobserver.in/journal/46-suo-moto-cases-in-the-supreme-court-from-1990-2021/

[3] https://www.business-standard.com/article/current-affairs/bureaucratic-inertia-blaming-farmers-sc-seeks-steps-to-curb-air-pollution-121111700633_1.html

[4] Google search

[5] Public Interest Litigations: Epistolary Jurisdictions May Be A Great Help For Upholding Fundamental Rights of   The Poor   Of Bangladesh.