Colombo Telegraph

Deformed Judiciary

By 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.

Back to Home page