Court record saved and power plant silenced

By Nayana
Quick fix solutions cannot always override the law, and eternal vigilance is the price of liberty. These are two messages that came out of an incident at the Avissawella magistrate’s court earlier this month.

Last February, residents of Kosgama filed action under the public nuisance provisions of the Code of Criminal Procedure, complaining that a privately-owned diesel power plant situated in a residential area and operating round the clock was causing intolerable noise, heat and air pollution. It was proved that the level of noise emitted exceeded the level permitted by environmental regulations and the agistrate issued an interim injunction restraining its operation.

The company that owned the plant thereafter gave an undertaking that the plant would be removed from the area but apparently failed to comply, and the case was scheduled to be called again on Monday, March 4. In the early hours of that morning the court record room was destroyed by fire.

The cause of the fire has not been officially established, but destruction of court records by fire is not uncommon and sabotage is often suspected. However the record in the Kosgama power plant case was saved because the magistrate had directed it to be kept in his chambers. He had apparently done so on a hunch, after a person calling himself a journalist had taken what the magistrate considered to be an undue interest in the case record the previous Friday.

Owing to the fire, Court sittings on March 4 were cancelled but this case was called on March 8 and re-fixed for argument on March 14. By that time the Government’s new Energy Supply (Special Provisions) Act had been passed, which, amongst other measures, suspended the operation of environmental and public nuisance laws in respect of anything done under the provisions of the Act.

However,this did not avail the power supplier because the Magistrate accepted the argument that the law did not operate retrospectively and therefore did not affect cases already filed. The interim injunction was therefore re-issued.

Even if the record had been destroyed and a new case had to be instituted it would still be arguable that the operation of a power plant already in existence is not a something done "under the provisions of this [new] Act" and hence not affected by it. That argument will no doubt be tested elsewhere in the weeks and months to come.

The facts of the Kosgama case are almost identical to what happened in the "children of Kotte" case in 1997 when the then government suspended the operation of the same laws by Emergency Regulation while the case was pending. Coincidentally, it was the same magistrate sitting in Colombo who had heard that case and accepted the same argument.

Both these cases illustrate the fact that the knee-jerk reaction of successive governments to suspend environmental and public nuisance laws in the face of a power crisis does not lead to a durable solution to the crisis, but merely subjects hapless residents to suffer intolerable conditions in order to accommodate the commercial convenience of private power suppliers.

Meanwhile, the public is once again being asked to foot the bill, in the form of increased electricity tariffs, for the chronic mismanagement of the power crisis by the Ceylon Electricity Board and its political masters. Indeed today the question is not so much of mismanagement but whether there is any management at all in the real sense of the word.

In a situation where one would expect the Chairman CEB to be working overtime, the post is in fact being filled on a part-time basis by a banker. The Minister for Power and Energy is also deputy leader of his political party and would have, at the very least, had to divide his time between his Ministry and the recently concluded local government election campaign.

In any event the new Energy Supply (Special Provisions) Act is something of a slap in the face to the minister because the most vital functions of the CEB and the Petroleum Corporation have now been vested in an Energy Supply Committee chaired by the Secretary to the Treasury.

When all is not well at the topmost level of decision-making, there is room for concern as to whether those lower down the ladder such as engineers and other executives will feel free to act in a professional manner or whether they will be busy trying to decide which master they should please. It illustrates the point this column has made before, that the power crisis is in large measure due to a flawed decision-making process.

However, while laws are suspended and carte blanche powers of project approval are given to the Energy Supply Committee, the authorities have given no indication that they are directing their minds to any other aspects of the crisis such as inefficiency, irregularities and large-scale non-collection of dues by the CEB, most notably from government departments and local authorities. These matters were all highlighted last year by the CEB engineers themselves as well as by the then UNP-headed parliamentary committee on Public Enterprises (COPE).

According to figures filed by the CEB itself in response to a court case last year, there were accumulated arrears of over Rs. 420 million rupees due from Defence Ministry accounts alone by the end of May 2001. This does not relate wholly or even mainly to conflict areas, but across the board including such institutions as headquarters, garages and the officers’ mess. Sums owed by other large-scale defaulters mentioned in press reports last year, including the Presidential Secretariat and several other ministries are not disclosed.

The public may well feel that this is an unacceptable situation deserving of measures equally draconian as those in the new Energy Supply Act that appear to be designed to make life comfortable for private power suppliers. Indeed, unlike creditors who have to go to court to recover their money, the CEB has the power to disconnect supply if bills are not paid within 14 days.

The failure to punish defaulters and stop the accumulation of arrears not only deprives the CEB of essential revenue, but it also means that the new increase in tariffs will: merely operate as an additional tax on those law-abiding persons who are already paying their bills. This was one of the arguments used by the Citizens’ Trust when challenging the legality of the 25 per cent "fuel adjustment charge" that was imposed at the height of the CEB scandal last year. That case is fixed for argument in May, but whatever the legal outcome, the moral implications of the current situation are clear to the public.

In that case, in which notice was issued on the Respondents by May 2001, the CEB obtained four dates before filing their objections on October 30. During that time they wrote a series of letters to some of the smaller defaulters calling for payment, and filed these letters in court as proof that they were taking steps to recover arrears. In some cases the alleged defaulters have written back, denying the arrears and calling for particulars. The CEB did not file any letters to indicate that they had replied these queries or taken any further steps by way of follow-up action.

Not only have the authorities failed thus far to indicate what measures they are taking to deal with the inefficiency and accumulation of arrears at the CEB, but the spirit in which the Energy Supply (Special Provisions) Act was framed is also revealing.

The Government took three months to frame this Act as a Bill and then invoked Article 122 of the Constitution that requires the Supreme Court to determine its constitutionality within 24 hours. The lack of publicity attending the Bill gave no opportunity for members of the public to exercise their right to be heard, but the Supreme Court on its own initiative is understood to have made over twenty amendments to it.

In particular, the Court whittled down the near total immunity from suit that was sought to be conferred on members and officers of the Energy Supply Committee and struck down a clause that would have enabled selective non-disclosure in the Committee’s Annual Report of directions given by the minister.