By K. Balendra –

K. Balendra

The verdict given on the Fundamental Rights petition filed against the President has been hailed as Historic. Historic! Indeed, when compared with various other verdicts not given and given in the recent past and the time consumed to conclude the hearings. 

Not only the Judgment is considered Historic, but, even the sacking of Prime Minister Ranil, installing Mahinda, (A lost case) as Prime Minister, two Prime Ministers functioning at the same time, ‘re-appointment’ of Ranil  as the Prime Minister  by the President, after shouting all over  that he will never appoint Ranil as the Prime Minister, even if all the 225 MP’s  demand it,  the Speaker appointing a new  opposition leader without removing the existing Leader, MP’s in parliament not allowing  the speaker to take his chair, throwing chili powder in a so called ‘august assembly’ breaking the furniture in  the Parliament,  a  former President of approximately 8 years of ‘standing,’ ‘creeping’ between the knees of the President who is supposed to have ‘betrayed’ and defeated him, demeaning himself to become the Prime Minister, failing in his attempt  to fortify his position through the Supreme Court and finally making an all out effort to become the leader of the opposition, should not only be considered ‘Historic’  but should go down in our history books for the present/future generations to understand, as to how their  fathers and forefathers conducted themselves and why they should not follow their footsteps.

While, no one will deny the fact the FR petition referred to is important for the welfare of the citizens of Sri Lanka, was this case really meant for the welfare   of the ordinary citizens or to safeguard the pivotal positions held by the petitioners, as rulers. One cannot be satisfied that only the FR petitions filed against the government by ‘important’ individuals/organizations should be heard and disposed of in double quick time. Originally 3 judges and subsequently seven judges were involved in hearing this case, thus depriving the ordinary citizen’s cases being heard for some time, pending the availability of judges, who appear to be in short supply, unlike the ministers. The need to file FR petition arose simply because of the egoistic attitude of the President, coupled with Mahinda’s greed for power, (a kumanthiranayak) not for the welfare of the people, but to safeguard himself from possible repercussion of his activities, while in power previously.   This was adequately amplified by the immediate transfer of the police officer deeply involved in investigating the crimes committed by the previous lawmakers, together with their kith and kin. 

Notwithstanding the above sequence, who is to foot the bill for the (con) fusion caused between Srisena and Mahinda, which resulted in the FR petition? 

It may be interesting to find out as to how many FR petitions are pending and how long and why?

Two of us are struggling to get the verdict of a FR petition, hearing of which commenced on or about June 2011 and concluded in June 2016. However the verdict has not been delivered even after 2-1/2 years. A detail letter, with the sequence of events under the caption authored by me was published in Colombo Telegraph on 28^th June 2018. But, up to date no response has been forthcoming from those concerned. Even previously, a few letters in this regard were published in the Sunday Times, with no results.

On a perusal of the press cuttings available with me, I note that almost all the newly appointed Judges, speak eloquently at their inaugural ceremonies, about the law’s delay and other shortcomings experienced by the litigants, with a promise to remedy it. But, efforts, if any, made by them, to arrest the delays seem to be unsuccessful as they seem to be ‘evading arrest.’ This may be probably, due to the non co-operation attitude, of the Judiciary, Police, Minor Law Enforcing Authorities and Lawyers, under whose cloak matters lye, unseen/unheard.

In an article which appeared in the Daily Mirror of24th.October 2016, under the caption ‘Truth behind law’s Delay,’ a state counsel who did not wish to be named said, “Lawyers should take 90% of the blame for the delays that occur in our courts. They drag the cases on mainly for two reasons; one being financial factor with their day’s fees increasing with the case being postponed and the fact that most lawyers do not come prepared for the cases in which they appear.”

“We are public servants but I have encountered that on many occasions we have to fight with the lawyer to take the matter to trial. In such instances it is the role of the judges to pressurize the counsel to take the case to Trial”. 

Not only in the courts, even at the inquiries in the lower law enforcing authorities, lawyers who are short of clients elsewhere, look for avenues to wear their black coats and block the smooth functioning of the inquiry. I am of opinion that lawyers should be precluded in such inquiries to expedite the conclusion.  

But in our case, we crossed various hurdles/obstacles and the hearing was completed in June 2016. We almost reached the goal, but for some reason the goal post appears to be continuously on the move behind. Apparently this may be due to some foul play, which even the judges seem to be unaware of?  We are awaiting our verdict for the past 2-1/2 years, after completion of the hearings.

In our case, we cannot blame the lawyers as we did not engage the services of any lawyers. We appeared in person. Of course the opposite side was represented by well known legal firms and the Attorney General’s Department. The other person who was associated with me in the FR petition was a Consultant

 Surgeon, whose capacity to ‘dissect successfully’ the matters which caused problems with regard to parking space was revealed to the Judges, numbering approximately18( 3 at a time) from the commencement of the hearing from June 2011 to its conclusion in June 2016. The core issue under litigation was that adequate parking space has not been provided in the ground floor of our apartment complex a as per the law and agreement with the Seagull Property Developers. We have been deprived of the parking space, as part of the ground floor was leased out to KFC restaurant, despite our protests.  We are now short of parking space by a total of 16 nos.

The need to seek remedy from the Supreme Court by means of FR petition arose due to deliberate undue delay experienced by us at the Condominium Management Authority, in sorting out matters. They were being defended by the Attorney Generals Department, who is paid for from the tax payer’s money. Similarly, the CMC and UDA who are involved in this case were also defended from the Tax payer’s money. The irony of it is, our own money, paid as taxes is being used to defend our opponents.

It may be appropriate to mention here that almost all the Chief Justices, together with other Senior Supreme Court Judges who were in service between 2O11 to 2015 some of them are retired now and at least one Judge who passed away, were on the bench to hear our petition. Although this may not be ‘historic’ but may go down in history in the Law Journals, with the passage of time. Over ten of the stake holders too have passed away. 

A registered letter was sent to the then Chief Justice Dep with regard to the delay prior to his retirement. But no response was received.

Another registered letter was sent to the present Chief Justice HNJ Perera, after reading his speech at the time he took office, which appeared in the Sunday Times of 28^th October 2018. Extracts are given here:-“I am painfully aware that we live in a society that is increasingly losing confidence in the ability to uphold Justice. The increasing depravity of human values and practice has had its impact on the trust that the people in the country may place on the judicial system itself. We live in a world where people, almost by default expect those in power to misuse the same. We are taken by surprise if those in power actually make true their promise.” How True. Indeed the citizens were ‘taken by surprise’ with the lordship’s verdict with regard to the FR petition against the President. 

Further Chief Justice Perera went on to say that “I assure you that I will always be available as the CJ of the country, to give you a hearing and to find a just solution to your grievances.” He appears to have actually made true, part of his promise at the hearing of the FR petition against the President which was supported and opposed by legal luminaries.  However the other part of his statement which applies to our plight remains to be seen.

What about our petition referred to by me? Though it may not have come under his judgment, I have no doubt that the Chief Justice will give a ‘patient and fair hearing to find a just solution’ to my grievance indicated to his lordship in my letter dated 3rd December 2018, sent under registered cover , if and when it reaches his attention. I am inclined to believe that letters of this nature may never reach CJ’s hands for obvious reasons.

It may be informative to include here, my personal experience, as a member of the panel of jurors in a murder trial, way back in early 1960’s. Justice Gratian was on the bench. His presence on the bench and the manner in which he conducted the case was a treat to watch. One of the witnesses (a lady) who gave evidence was rather arrogant and apparently disrespectful, though actually not. When Justice Gratian summed up the evidence given by the lady in question, he drove a point to the Jurors, that, one should be concerned only about the facts stated by the witness and not to be carried away by the physical reaction of the witness. Further, he also advised us that some witnesses may act rashly due to excitement which should not prejudice our minds. This gave us an impetus to consider the witnesses statement accordingly and not to be influenced by her agitated conduct. 

How many Judges have the capacity to advice the Jurors in a similar manner?

 In addition to the above quotes from the CJ, I would like to quote from extract of the speech delivered by Justice Sithambarapillai Thurairajah on the occasion of his elevation as a Judge to the court of appeal as reported in the Daily Mirror of 27th.September 2016.  “The single largest challenge by our profession is delay. From A moral or rights- based perspective, delay is clearly detrimental and amounts to gross violation of litigants and victim rights”. “In the original courts there is no excuse for trials not being taken up on a daily basis. If our profession is serious about it commitment to professionalism and the interests of litigants and states it is imperative that immediate measures are taken  to discuss with Chief Justice and the Judicial service commission to implement  day to day hearing in both criminal and civil cases and indeed in appellate hearing as well. I can safely state that the judiciary and the Official Bar are ready and willing to take the lead in this regard; it is up to the Bar Association to demonstrate its commitment. I commend this matter for a serious and immediate action to the President of the Bar Association”. 

A very meaningful suggestion indeed! But one wonders whether any positive move has been made in this direction? The possibilities of a multiple ‘Stay Orders’ by the Bar Council cannot be ruled out.

Although, my case centers round  ‘verdict being at large’ for over 2-1/2 years, after the matter being in the court for approximately 5 years, I have referred to other matters too which is consistent with ‘law and disorder’ prevailing in the country and the law’s delay in general. It is said, that, if a person does not fight for himself, even God won’t help.

It may be pertinent to mention here that a letter dated 27^th.August 2017; hand delivered to the Registrar of Supreme Court also did not bring in the desired results, either.

Where does one go from here?