15 April, 2024

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Fundamental Rights Petition – ‘Under Custody’

By K. Balendra

K. Balendra

Article126 section (5) of our constitution states “The Supreme Court shall hear and finally dispose of any petition or reference under this article within two months of the filing of such petition or the making of such reference”. 

Hearing of the FR petition referred to above commenced in June 2011 and concluded in June 2016. Though the hearing was concluded the verdict was ‘absconding’ for no known reason. 

I wrote to various sections of the Judiciary including an open letter to two Justice Ministers, namely Mr. Wijedasa Rajapakse in the Sunday Times of 15/3/2015, and another letter to Ms. Thalatha Atukorale in the Colombo Telegraph on 5/1/2019. But

No response was forthcoming. 

Hence, I sought the assistance of the Right to Information (RTI). RTI assisted me in writing letters to the appropriate authorities. Arising out of this communication, the Registrar of the Supreme Court relisted to mention the case on 5/3/20.

On the 5th the case was again postponed to 24/9/20.

In fairness to the RTI, it must be said that if not for their intervention, the case would not have been relisted. 

The FR case was relisted for hearing on 14/12/21 after a gap of approximately five years and was concluded in April 2022.  At the time of the conclusion of the hearing, the presiding judge made a remark to the effect that this case has been pending for quite some time and needs early attention.

Unfortunately, the verdict was not delivered even by the end of 2022.

 Once again I sought the assistance of the RTI in January 1923. An inquiry was held on 15/3/23.  According to the commission comprising four commissioners, a retired judge, two Attorneys-at-law, and another person whose background is not available? 

At the inquiry, I was informed that there was a flaw in the wording of my last letter of request submitted to the commissioners for inquiry by the RTI for action.

I have forwarded a couple of more letters in this regard to RTI previously commencing from 2019.  

In the letter submitted by the RTI for inquiry, I have stated ‘Verdict of FR…..This FR petition has been pending for over eleven years.’ 

It is true that I have failed to include the wording ‘reason for the delay in giving the verdict’ in the copy of the letter on which the commissioners acted. I am of the opinion that RTI should have handed over the previous letters to the commissioners which had included the expected wording namely ‘reason for the delay in giving the verdict’. The letter was addressed to the Designated Officer about two weeks prior to the hearing (15/3/23) and also specifically asked for the reason for the delay in giving the verdict. 

Notwithstanding, I believe the commissioners should have

Ascertained the position from me as to what I require, instead of harping on the wordings. I was present in person at the inquiry. Instead, I was asked to withdraw this application and file a fresh one. 

I had no other alternative but to act accordingly, though it would consume additional time. I explained this matter to the commissioners but it appears they followed the judicial procedure instead of being practical. 

However, I followed the procedure according to the rules. The information officer replied but the designated officer was silent. Hence, I forwarded relevant copies to the RTI on 17/5/23 for necessary action and followed it with telephone calls. I had considerable difficulties in contacting the appropriate parties. Already five months have elapsed.

Further in the form RTI 01 to send the application to receive the information it is stated on the top thus: “Note that completion of this form is not compulsory requirement to make a request for information and that any written letter, email or verbal request with the essential information to identify the requested information is sufficient”.

I am writing this letter not with the intention of finding fault with RTI, but to bring to light the problems faced by the appellants.

My contention is that when a Retired Justice is appointed to head an inquiry commission it will be rather difficult to expedite matters as they may not be able to get out of the Shell of the Judicial Practice. Thus it will delay the outcome of the inquiry as in the courts. 

I am an octogenarian and am naturally concerned about how long I will continue in this beautiful Island of ours.  

It would be appropriate to quote excerpts from Justice Yasantha Kotagoda.PC as published in the Sunday Times of 12/ 05/2019     “………. if a litigant cannot reap the results of the litigation within a reasonable period of time and certainly during his lifetime. Regular practitioners of this court would be conscious of the number of times matters came for substitution of parties since the litigants have died in the fullness of life.…………”

It may be said that over 20 different judges, 3 at a time were on the bench to hear this petition. 

In my case, however, no one is available for substitution. The possibility of a substitute is rather remote. Most of those who associated with me in this case are no more in the land of living.  A few Judges, Lawyers, and Stake Holders too have passed away during this period.

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