23 August, 2019

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Deformed Judiciary

By K. Balendra

K. Balendra

K. Balendra

Various articles have appeared in the press regarding the inordinate delays experienced by the litigants in obtaining justice from the Courts of law. Every budget speech refers to the delays and promise to ensure that justice is meted without delay, quoting the saying that Justice Delayed is Justice Denied. However, no tangible steps have been taken in this regard. Retired judges and legal luminaries too have commented on this matter. Unfortunately, the retired judges appeared to have failed in their effort to rectify matters while in service, for reasons best known to them.

Two of us represented ourselves in person in all the legal battles, Commencing from Condominium Management Authority (CMA) District Courts Mt.lavinia & Colombo Appeal Court (2005-20015) and the Supreme Court (2011-20015), where a fundamental rights petition was filed by us, necessitated by the inaction of the Condominium Management Authority. Associated with the CMA were Urban Development Authority (UDA) Colombo Municipal Council (CMC) and Consumer Affairs Authority (CAA). The Condominium Management Authority was supported by the Attorney General’s Department, despite obvious flaws exhibited by them in their activities. One would have normally expected the Attorney General’s Department to pinpoint the shortcomings of the CMA and requested them to rectify same instead of proceeding with the inquiry. Unfortunately it did not happen. Attorney General’s department forgets the fact that they exist on tax Payers Money. Well, Attorney General’s Department is now in the news for different reasons.

I do not wish to dwell at length with regard to the ‘art and science’ used by CMA to deliberately delay the proceedings. The core of the dispute was/is provision of parking space as per rules in an Apartment Complex owned by us. The sequence of events were indicated in my letters to the press under the captions ‘Justice delayed in condo issues’ and an ‘Open letter to Wijeyadasa Rajapakshe Justice Minister’- ‘Justice still awaits residents of Colombo condo’ respectively.

I am happy to state that leave to proceed with the F.R. petition have been granted on 20/10/15 in terms of Article 12 (1) of the Constitution, after a total of 10 long years of hearing, in all the institutions mentioned above.

This does not mean we see the light at the end of the tunnel.

The purpose of this letter is to know whether the Courts of Law are meant for the Lawyers to earn their living or to ease the trials and tribulations experienced by the litigants. Regretfully, my experience suggests that it is meant for the former. This is fortified by the administration of Justice Law introduced by the one- time Justice Minister Mr. Felix Dias Bandaranaike. This law, I understand would have eased the time consumed at the courts. Unfortunately, I am inclined to believe that this law was withdrawn to satisfy the legal luminaries to continue their earnings, without a dent.

During the past 10 years, Judiciary in Sri Lanka faced frequent turmoil and turbulences. In the past five years, in particular, we witnessed the dismissal and appointments of Chief Justice. In fact this episode caused grave concern to the members of the public in general and to the litigants in particular who were caught up in the process of seeking justice from various courts. Litigants were put in a situation of ‘no return’. It appears that the prevailing confusion has been contained to a certain extent by quick action of the new government, apparently regularizing the appointment of Chief Justice.

However, same cannot be said about the poor litigants who are sent from pillar to post to solve their problems. Once, you enter our hall of justice, almost 25/50% of your life span is spent in ‘greeting’ the lawyers and Judges in an atmosphere of fear and trepidation.

My contention is, the system and the lawyers who eclipse themselves behind the system are responsible for the plight of the litigants. We should have more Courts of Justice than Courts of Law for the simple reason that every law enacted is not justifiable and every justifiable matter is not enacted as law. Due process of law and procedures are good as long as it benefits the underdog, but unfortunately it is being used as tool to procrastinate the proceedings.

This position is amplified by the press reports arising out of the Golden Key Company case where it is stated by the then Chief Justice Mr. Mohan Pieris thus: “some of the depositors are dying, some don’t have money to pay for their medicines, some are committing suicide and we are here talking of jurisprudence. Have some conscience, have some moral responsibility to words the people and the community……” “Every day something new comes up; lawyers come with fancy submissions and fancy legal jargons which are of little use to the people. Have some conscience.”

There may be considerable prejudices against the person who had made this statement, but let not the prejudices obscure the meaning of the statement. It may be stated that that two other Judges, namely, Justice Sripavan and Justice Rohini Marasinghe comprised the bench in question, which I am sure would mitigate the prejudices, if any.

Further at the induction ceremony of the Bar Association President, Mr Wijeyadasa Rajapakshe for 2012/13, then Chef Justice Shirani Bandaranayake stated that “though it is noteworthy to see young faces in the legal fraternity it Is saddening to receive complaints on a daily basis over the conduct of some lawyers. Five Supreme Court Judges are presently inquiring into allegations, most of them are from the public, with some even possessing sufficient materials to prove such conduct’’ I am not aware whether the inquiry was held at all? If it was held ,the outcome of the inquiry?.

It may be appropriate to include the extract of the speech made by the Chief Justice K. Sripavan, while inaugurating the Sri Lanka legal summit in Colombo on 4th.March 2015 ‘the integrity and independence of the Judiciary, police, armed forces and the public service was an important reflection of the government that exist in a country-good governance lies not only with the Government but with other institution as well”.

If the ‘other’ institutions conduct themselves in a manner consistence with, ‘Good Governance’- ‘Jahapalanaya’- ‘Nalladchi’ the need to seek redress from the Superior Court may not arise.

In the news item appearing in the press sometimes back (2012) under the caption “Time Limit for Lawyers- a Master to manage court proceedings and conduct pre- trial conference” is indicated. Further it is stated by a Senior Justice Ministry official that ‘A new judicial post in the judicial system is to be established this year to prevent delays in hearing of cases and to maintain time management in courts by allocating a specific timeframes for the disposal of cases’. A brilliant idea- but has any attempt been made in this regard?

The budget speech (2011) stated that, about 650,000 cases were pending. Where do we go from here? Will these cases ever be heard/ concluded within the life span of the litigants? The number of cases may have increased by about 10,000 numbers by now. Perhaps if the Government honour its promise and arrest a few M.P’s and their kith and kin for bribery and corruption, the number may further increase by at least another a couple of thousands?

I recollect reading an article in the Indian News Papers that numerous pending cases were disposed of within a few weeks, in an amicable manner recently by talking to the parties concerned, without resorting to court procedures. On browsing the internet, I came across a number of publications dealing with settlement procedures.

One that caught my eye was ‘Alternative Dispute Resolution in India-ADR’- Status/Effectiveness Study by Konoorayar,Vishnu; Pillai,KN. Chandrasekharan and VS. JAYA . On a cursory glance I find very useful information including statistics of cases resolved. Hence I am of opinion that this will be a useful publication for guidance. Of course the lawyers may not like to implement the contents, as it may be detrimental to their earnings.

I have extensively quoted from press reports in my letter as it is within my easy reach as a layman. Further, despite various articles appearing in the press, no serious thought has been given to it.

It may be pertinent to mention, that, professionals like Doctors and Civil Engineers are liable to be prosecuted for medical/surgical misadventure and engineering faults respectively. However, Judges and Lawyers are immune from such prosecutions, even when they make grave blunders. One such example is the confession made by Justice Sarath N Silva with regard to the ‘Helping Hambantota’ case, which came under his purview.

A lot has been written by a lot of people with a lot of suggestions to overcome the law delays, but little has been done by the concerned Legal Brains and the Law makers in the parliament, which is inundated with so many legal luminaries including President Counsels and those aspiring to be one, flirting with the government, forgetting the reason for their election.

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Latest comments

  • 6
    0

    Dear Mr Balendra

    Sitting under a magnificent mangosteen tree in our garden, a long-gone ancestor advised me that ‘in Sri Lanka, to enter litigation is to give oneself a lengthy sentence of stress, anxiety and frustration, all even before the judge has ruled ’. In a ripe old age, I fully understand the wisdom of those words; and I feel the frustration and anguish in your article.

    Our legal fraternity have now mastered the dark arts of frustration, obfuscation and procrastination. These words are money spinners to a lawyer. Further up the food chain other considerations will delay justice. Will the judgement annoy or discomfort someone/s of importance. Has this case repercussion if I get the judgement wrong? Important questions for those who wish to safeguard their status and career. We have in our legal system, superstars, honourable men and women who can match the best anywhere, but their reputation is spoilt by the growing underclass in the profession. The ones you have had the misfortune to deal with. Witness how the powers that be have closed ranks these past few years in the case of serious sexual allegations against a judge. Surprising then that our legal stock is so low. No surprise then that there is clamour for foreign judges to help us in our deliberations on the end of the war.

    The sad thing is that the great and good of the profession are unable (even unwilling?) to bring about change to this most parlous state of affairs. They are a most shameless lot, and are oblivious to the bad reputation our legal system has in the wider world.

    The fact is that even the present Yahapalanaya government might find cleaning up our legal system a bridge too far. But then that is no surprise at all given that politicians, most of all, have much to gain from the atrophying of the system.

    After all this, I am sad to say that the outlook is bleak. Mr Balendra, I wish you the best, but it may be sometime before you get justice. May Perseverance and determination be your watchwords.

    • 5
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      Mr. Ken Balendra,

      What you have discussed seems to have been a problem from ancient times. When I discussed with my father my interest in doing law after the A-Levels, he came out strongly against it, quoting a song from either the Thevaram or the Thiruvasagam. The point he was making was that two categories of persons will not attain liberation of the spirit on death (heaven):

      1. Those who make a living by learning law and the cut and thrust of argument ( Kathi moethi vaathadum nool katrituvorum)

      2. Those who make money but do not spend anything on charity ( Kaasu Thedi Eeyamal Vaala Paduvorum)

      In most instances, the two come together.

      I remember, G.G.Ponnambalam Snr. who was considered a great criminal lawyer, secured the release of many a murderer by confusing witnesses. He perverted justice rather than ensuring that justice prevailed. The dictum, ‘ an accused is innocent until proven guilty’ although noble, opens the door for its perversion. The required proof is subverted in many ways, including delays, securing the loss of documents, buying and paying witnesses. Etc. I also am aware that the judges too can be purchased for the right price.

      The legal system as operational in this country is utterly corrupt, unprincipled and is loaded against the poor victims. What we call inefficiency is a reflection of the underlying corruption and of course avarice. When men of law become successful politicians- they are well trained to be corrupt and devious-,we have double trouble.

      Dr.Rajasingham Narendran

      • 3
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        Good stuff Dr Narendran.

        When one of my sons contemplated doing law at university, he would tell all and sundry, with a schoolboy twinkle in his eye that ‘the law’ was an anagram of ‘wealth’. He did do law, specialised in International Taxation, worked for a multinational bank, and is now into property development.

        I think it all comes down to intention; you can pick up a knife and cause mayhem or use it to carve something of enduring beauty.

        • 0
          0

          Springkoha,

          Thanks. Ultimately what one is and what one becomes, is determined by ones swabhawa and swadharma. Particular professions and trades may be attracting a particular type of people. Even within a particular types their may be variation, as is in nature universally.

          Although I desired to do law because I liked its logic, I found the same logic in biology, disease, pharmacology and management, and have had a career that has been diverse
          , interesting and satisfying.

          Dr.RN

  • 3
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    K. Balendra

    RE: Deformed Judiciary

    Yes.

    1, Deformed Judiciary.

    2. Corrupt Politicians

    3. Corrupt Police

    4. Corrupt Customs.

    5. Bought Out Journalists and Media

    6. Incompetent Ambassadors ( Example, Wahhabi Saudi Arabian Ambassador, Mootal Moda Wahhabi Thassim)

    7. Add yours to the list.

  • 4
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    Mr Balendra

    What you say is absolutely true.

    The Justice System in this country has absolutely failed to earn the trust and confidence of the people; after all the judges have forgotten that they exercise people’s judicial power.

    In January 2015 at his ceremonial sitting CJ Sripavan said that ‘Credibility of the Judiciary rests in the faith of the people, and that the power of the judiciary depends largely on its reputation for independence, integrity and wisdom’.

    These are just nothing more than words, which it means he wanted install a independent judiciary.

    As usual Mr Justice Sripavan too has miserably failed. In fact, he was given a free ticket by PM Ranil Wickramasinghe, after Srirani Bandaranayake was shown the door (she was allowed to return to office only for 24 hours to claim her retirement benefits). If not she would have been the CJ for another 7 more years.

    As he was given an absolutely unexpected chance to be the CJ, Justice Sripavan now under total control of RW administration and forgotten his constitution duty to the people and to uphold their judicial power. It is sad to say that these people are truly a disgrace to the Justice system of Sri Lanka.

  • 3
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    I made this suggestion some time ago too: The Courts and Magistrates
    can be brought under an Incentive Scheme, whereby they are monetarily
    rewarded based on well-thought out analysis of Pending Cases, to aim
    at disposal of cases. This may force the Lawyers to fall in line with
    the Courts required status, to the benefit of victims of delayed justice?

    Can true patriots within the BASL initiate such a move, I wonder.

  • 3
    0

    Is the author the prominent businessman Ken Balendra? I don’t know but if so, imagine what the ordinary people have to go through…

  • 3
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    Last six years a higher police officer is not attending Courts by ignoring the summons, and yet Judge had no guts to issue a warrant and arrest him. Due to this the hearing of the case has been postponed several times and the accused Jeleepan Sivarasa had no other alternative but to go on hunger strike now while in prison. He is now removed from magazine prison to the prison hospital.

    Another Tamil prisoner Komahan Murugaiah too engaged in hunger strike now in spite of the complainant Douglas Devananda has appealed for his release. Prosecution is all out to keep Komahan inside the prison indefinitely.

    This is Srilankan justice whether Mahinda or Sirisena or Ranil in power or not.

  • 0
    0

    I am happy to note that Mr. K. Balendra is doing justice to the late Mr. Felix Dias Bandaranaike for introducing the AJL. The character Mr. Felix Dias Bandaranaike was much hated by the gentry at that time. Felix Dias Bandaranaike was stripped of his civic rights and thrown into oblivion for committing “Crimes against Humanity” on lawyers.

    Bhutan was backward in so many ways than Sri Lanka. But today it has introduced electronic court services into its judicial system winning an award. CAN WE DO THAT? Aiyo NO. THE LEGAL MUDALALI’s would be up in arms against the government of the day.

  • 3
    0

    There are so many references to the Supreme Court and its judges,to put it mildly ,being either incompetent or prejudiced. The judges would have brought contempt proceedings in the old days against makers of such statements. They do not dare to do that these days because it would be easy to prove their incompetence and prejudices. The Chief Justices have all been rotten in the recent past. They owed favours to politicians for their appointments. What can be expected of the judges lower down. They are the laughing stock of the community, bereft of all respect which the once formidable judiciary in the country had.

  • 0
    0

    The laws’ delay as obtaining in Sri Lanka is peculiar to Sri Lanka having immediately inherited a corrupt and distorted justice system. The fear is that the course of justice may not get carried to its logical conclusion. Bensen

  • 0
    0

    As per Sunday Times article on 13/12/2015.A total of 236 Condos with very nearly 6000 apartments are awaiting their deeds. CMA,CMC,UDA and the DEVELOPERS have still to get their act to-gether.What is worse is that owners are in occupation for more than a decade.If all this ends up in Litigation,well it could take a century to be sorted out!

    • 0
      0

      On this point, I wonder how Dual-citizenship applicants, some of whom
      who own Apartments are expected to submit Title Reports for their Assets
      along with a certified copy of the Deed? I suppose fake Papers
      are being used, with the support of I/E staff who are well used to
      bribes?

  • 0
    0

    ” we three of us were arrested and charged with same offences but two were able to get released by retaining Lawyer Mr Wijedasa who is now justice minister. Families of those two begged and borrowed a lot of money and paid his fees, whereas i come from a very poor family and therefore still in the magazine prison. Had I retained Wijedasa by paying a huge amount as his fees, I would have been released as well.”

    ” when Mahinda Rajapakse released nearly eleven thousand LTTE members no one raised any objection. Every one was keeping quite. Now look how many politicians are objecting our release. Mahinda took a decision and implemented it without fear but the present President PM and others are passing the ball to various departments ( including justice ministry ) and do not want to take a decision”

    The above was conveyed by a Tamil political prisoner to Mr Assath Ali and Mr Vickramabahu Karunaratne who met the political prisoners yesterday at magazine prison.

    Let the readers pass judgement on Wijedasa, our Justice Minister, and on justice system.

  • 0
    0

    ” we three of us were arrested and charged with same offences but two were able to get released by retaining Lawyer Mr Wijedasa who is now justice minister. Families of those two begged and borrowed a lot of money and paid his fees, whereas i come from a very poor family and therefore still in the magazine prison. Had I retained Wijedasa by paying a huge amount as his fees, I would have been released as well.”

    ” when Mahinda Rajapakse released nearly eleven thousand LTTE members no one raised any objection. Every one was keeping quite. Now look how many politicians are objecting our release. Mahinda took a decision and implemented it without fear but the present President PM and others are passing the ball to various departments ( including justice ministry ) and do not want to take a decision”

    The above was conveyed by a Tamil political prisoner to Mr Assath Ali and Mr Vickramabahu Karunaratne who met the political prisoners yesterday at magazine prison.

    I leave it to the readers to pass judgement on Wijedasa, our great Justice, Minister, and on President Sirisena who plays hide and seek game. TNA is part of this game too!

  • 0
    0

    When the Justice, Security and Education systems of the country, previously in good health, declines that country’s future is sealed. Combine this with an economy spiralling downwards what you have is a Failed Society. That is what we are – whether you like it or not. Many wonder how long will it take for us to make it. Some even wonder if we indeed ever will.

    Blame our law-makers (politicians) and our politicised clergy for
    destroying the Pearl of the Indian Ocean.

    Kettikaran

  • 0
    0

    that bastard [Edited out]

  • 0
    0

    Thirty years of conflict and war in Sri Lanka, between Tamils and politically engineered thugs and subsequently with the Government armed forces originated in the courts and parliament, engineered and conducted by Lawyers nexus , of arms of Law and democracy operators ending in fourty thousand plus deaths, destruction of wealth ,wisdom, culture above all Dharma forgetting Karma.
    We have not learnt lessons and will not learn in the future also, as we are asuras, who are averse to Dharma and ignorant/ blind to Karma.
    I have personal experience on a religious / spiritual public interest litigation case from 1974, to date ,2015, still not over Fourty years. I have left it to Karma which might after same time, recur.
    I went to magistrate courts number of times connected with the same case. I was able to enter the Jam packed court room every time with difficulty.
    Judge was transferred, I went to the same court subsequently, for the same case. This time the court room was virtually empty .The reason is change/transfer of magistrate.
    This gave me an insight regarding the courts, why Jam packed.
    Conflicts in minds are the cause for all violence.
    Good people do not want to go to courts.
    Ruler must rule – Says Chanakiya

    Old Yarlpanathan

  • 2
    0

    The author of this article Mr. Balendra & the people who had commented adversely on the delays experienced by the litigants in getting their cases cleared or heard through the courts of law in Sri Lanka in reasonable time, should be complimented as this is an eye opener to the minister, Chief Justice and the judiciary in general. The current govt. bragged that all involved in corruption in the past regime will be investigated,giving priority to such cases and punished accordingly in double quick time but 12 months have passed after this assurance was given by the President/PM ,and we are still awaiting to hear any judgement passed on any one involved in corruption. though arrests and bail outs have become the order of the day.
    Some people feel that courts have given their judgement long time back on some cases and these cases are sent to kangaroo court for decision
    whether to be indicted or set free. Judiciary in Sri Lanka should function reasonably well if there is no political interference and transfer of judges on political grounds. Time and again people wanted a free judiciary but can this ever happen in Sri Lanka ?

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