Kath Noble

Defending the public interest

Posted in The Island by kathnoble on October 22, 2008

How the Supreme Court is exceeding its mandate.

The Supreme Court has been awfully busy of late. Hardly a week goes by without a major judgement confirming the ability of the legal bosses of this country to trump all other powers that be. It’s exciting. An independent and proactive judiciary is necessary for effective governance. But it isn’t sufficient. The Supreme Court must also demonstrate that its members have a good understanding of what actually constitutes the public interest.

Everybody is celebrating the successes of a number of recent decisions aimed at putting a stop to the abuse of power by elected representatives and public officials. And quite rightly so.

The Battaramulla land case ruling was truly a joy to behold. I have only set foot in Water’s Edge once, but I found it a thoroughly depressing experience to see all that beautiful land so close to the heart of Colombo taken over and blocked off to all but the elite class – I certainly wouldn’t be able to afford more than a small glass of fruit juice once a year.

The issue was much bigger, of course. Filling up wetlands is potentially dangerous in a rapidly urbanising area, and Colombo is known to be prone to floods. And it is the city’s poor majority who suffer the most when the rains come, for they are most likely to stay alongside waterways and their houses are usually less robustly built. They also tend to have fewer means of cleaning up and replacing damaged property. Preserving wetlands is a vital service for all residents, but particularly for the only too easily forgotten poor majority of Colombo. The Supreme Court judgement was therefore a real victory for the public interest.

It was also clearly important for the warning it sent to those at the top of the Government. Transgressors will eventually be held to account, and nobody is beyond scrutiny any more. That Chandrika Kumaratunga has to pay a fine is entirely appropriate, if obviously still a little disappointing when it comes all these years after the misdemeanour in question was committed.

The Lanka Marine Services Ltd. privatisation verdict was another groundbreaking achievement in defence of the public interest. The Government lost a nicely profitable venture there, not to mention prime land, vital tax revenue and so on. The Ceylon Petroleum Corporation has an impressive debt burden that can only have grown as a result of the bad deal, and this is one of the reasons fuel prices are not being cut in response to the downturn on the international market.

It also set an example that may now be followed to rectify the losses to the State from other doubtful sell offs. Privatisation is known everywhere in the world to be dogged by corruption, and this country is no exception. There is already a case pending on the divestiture of the Sri Lanka Insurance Corporation, but other fields deserve investigation too.

So there are plenty of reasons to feel happy. The Supreme Court has shown itself to be truly capable of fulfiling its role of keeping a check on the executive and legislative branches of the State. Judicial oversight has also intervened to prevent a Presidential term being extended arbitrarily, Tamils being sent out of Colombo for lack of a sufficiently good explanation for their presence, and so many other important things. It is even starting to push for action on the long-awaited nominations to the Constitutional Council.

All of these are grounds for celebration. And it is particularly glorious at a time when a lot of people are worried about the disintegration of the rule of law in this country. The Supreme Court gives them real cause for hope.

But something is amiss. The Supreme Court has also demonstrated a tendency to want to see executive and legislative power replaced with or indeed crushed by judicial might. Government decisions that appear to be questions of policy rather than constitutional law are being challenged. It doesn’t seem right. This might not be such a worrying prospect if the Supreme Court were reliably seen to be acting in the public interest, for elected representatives and public officials aren’t known for their meticulous record on that score. But a number of other recent decisions have appeared a little unconvincing.

I first started to wonder about this on hearing of the Supreme Court ruling on the electricity tariff structure. According to reports, the Consumers Association filed a petition against the charges being levied for domestic consumption on the basis that the fundamental right to equality of those people who use more electricity had been violated – the Ceylon Electricity Board is billing them at a higher rate per unit than those people who use less. And the Supreme Court agreed. The Ceylon Electricity Board was instructed to revise the electricity tariff structure, and the new version is to be submitted for approval tomorrow.

The public interest doesn’t look as if it is being served here. The electricity tariff structure clearly has its flaws, but it seems rather odd to suggest that charging people who have microwave ovens, deep freezers, washing machines, widescreen televisions and air conditioning units at a higher rate for their electricity is somehow an infringement of their fundamental rights. If there is any worry about equality here, it must surely be in favour of those who can’t afford to buy such luxuries. People who own a lot of electrical appliances are by definition richer than those whose houses contain no more than a few lightbulbs and a refrigerator, and there is every reason to make them pay more for their electricity. How much is an open question.

The Ceylon Electricity Board had a go at drafting a new schema last month, based on the instructions given. But it didn’t meet with the approval of the Supreme Court. The Government must provide a subsidy or transfer the expenses to commercial users, for increases in rates for domestic consumers have been ruled out. An order was issued to restrain the Treasury from making due payments to the Ceylon Electricity Board until it comes up with something acceptable to the Supreme Court. Serious measures are being employed to force compliance.

The Government really ought to be making these choices. The Ceylon Electricity Board is already losing money, and increasing subsidies isn’t likely to be an option – funds would have to be diverted from somewhere.

Industry bosses might file the next petition in the Supreme Court, arguing that they have a fundamental right not to shoulder the burden for rich consumers. And maybe they will convince the judges. Businesses would in any case use tariff increases as an excuse to up the prices of their goods and services, and this would affect people who aren’t even connected to the grid. This group is doomed anyway, of course – the rate at which electrification takes place and the connection fee that has to be paid depends to a great extent on how fast the losses of the Ceylon Electricity Board can be stemmed. And these are the only people we can be sure won’t ever find their way to the Supreme Court to argue their case.

Reading the letters pages of this newspaper, it would be easy to think that the majority of people in the country were affected by this problem. But it is not the case.

The Supreme Court really began to worry me when it announced the result of the petition against charging for shopping bags. I’m not sure who took it upon themselves to challenge this, but it hardly matters. The Central Environment Authority launched the initiative in order to discourage the overuse of plastic, and they had managed to get the cooperation of five leading supermarket chains – Keells Super, Cargills Food City, Magna, Laugfs and Arpico Supercentre.

It was a good example of the State acting in the public interest. Everybody knows that plastic takes an awfully long time to degrade, and garbage is known to be a significant problem in the city. The fewer shopping bags people use, the less money is spent on clearing them up and the better for their environment. It is blindingly obvious that this is good for everybody, above all for those who are most likely to have a rubbish dump for a neighbour. Aesthetics is only one element of it, for there are health issues to be considered too. Again, this is much less of a problem for the rich. I don’t think the poor majority of this country do their shopping at these places in any case – nobody I see in the Rajagiriya branch of Cargills Food City looks as if they would struggle to pay Rs. 5 for a large shopping bag. And if they did find it too much of a strain on their purse, they could easily bring their own containers or reuse ones previously acquired. That was the point.

I was so bemused that I went to take a look at the Constitution, just to check to see whether perhaps somebody had seen fit to include ‘right to be given an unlimited number of free shopping bags’ in the list of fundamental rights, alongside ‘right to freedom of speech’ and ‘right not to be tortured’. No, it wasn’t there. So the question of why this had to be stopped remains unanswered.

The Supreme Court might well be right about all of this, and far be it for a mere journalist to suggest otherwise, but then its members clearly haven’t properly explained themselves. It is a pity, because celebrating their judgements in support of the public interest was a lot of fun.

This article was published on the cover of the Midweek Review of October 22nd, 2008. The internet version can be accessed here.

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