23 September, 2020

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The Laws Delays – Possible Remedies 

By Upatissa Pethiyagoda

Dr. Upatissa Pethiyagoda

Lakshman Kadirgamar was assassinated thirteen years ago – and a suspect was arrested in Germany, just the other day. Here, by all accounts was a “high Profile “case. If it took so long to even apprehend a possible suspect, what can an ordinary citizen expect? A partial answer comes from another report that a man is just been sentenced for a murder committed at the end of the last century (1998 ?). Will the murders of Lasantha Wickrematunge and of Wasim Thajudeen ever be solved and the killers punished? When will the “disappearance” of Ekneligoda be explained? Not much hope, as judged by current form. 

These are terrible indictments on our law enforcement authorities. “Justice delayed” someone said, “is justice denied”.

The Police are charged with tardiness, evidence “doctored” to ensure failure in Court, The Attorney-General’s Department where files are said to remain unattended for months on end. The over-worked Courts that seem ever willing to allow postponements for the most trivial of excuses. As editorially expressed many years ago that “Lawyers like Bedouin Arabs, live on dates”. When a case coming up in February is fixed for the next calling in December is strange!  By then, one or both, the litigating parties may be dead and brought before other “Higher Courts”. Then, the worldly verdicts are of no possible interest. There is also the flattering implication that Judges plan their programmes months ahead. In many legislatures (eg. Crown Courts) the whole process is impressively much more prompt. There must be some differences in their processes and ours from which we could draw lessons. In some instances, protracted delays in our Courts could mean that if a judge has retired, been transferred or promoted, some of the cumbersome formal preliminaries have to start afresh. Surely there must be some remedies waiting to be implemented. The recent case of the Bond Scam, where there were continuous daily sittings, which allowed speedy and smart conclusion, shows that given the will, there is a way! It may be noted that The Commission, which included two retired Supreme Court Judges, clearly indicated the persons who should be brought before the Courts (The Commission itself not having powers to go beyond recommending actions). The necessary indictments have still not happened for nearly an year after the Commission Report was made public!

 Any reform has to deal with two aspects, the physical and the procedural. The former being simpler than the latter. Both the Police and the Attorney-General’s Department plead a case for more staff, space and office equipment. But more staff, clerks, typewriters and Computers which alone may not necessarily improve efficiency and speed, will no doubt help.    

Two other points are relevant. One is the great number of “Defamation” cases, mostly filed by politicians claiming astronomical amounts as “damages”. It is more than likely that few of these “penalties” are imposed or respected. They are however, a handy means of hiding illegal payments such as “commissions” or bribes! The second demand on judicial time, is the alacrity in seeking the “advice” of the Supreme Court on proposed actions which, to any reasonable person, are clearly illegal! There is also, the readiness with which complainants are challenged to “go to Courts” for the most trivial of reasons. All these involve judicial time, robbing it of attention to more worthy judicial responsibilities.                     

Regarding the Judicial Process, one learns that there are broadly two Systems. The “adversarial ” and the “Inquisitorial”. In the former (which we follow) the whole process occurs in Court, where lawyers promote their case by argument, references and forensic skill. This however results in much time being spent. In the “Inquisitorial” form, the lawyers of the two contending parties, sit together, get through the formalities quickly  and then proceed to presenting their legal positions, in the presence of the client parties. They try to reach agreement, and present to Court only those points where agreement could not be reached, and require the intervention of a third party the Judge. The necessary legal provisions and details of process are for the relevant specialists to consider.

Hasty actions may be impractical or unwise, but maintaining the “status quo” is not a satisfactory option. Under the present system, it has been declared that over many thousands of cases are “pending”, mainly in the AG’s Department. Quick expansion of the numbers of Court Houses, increased staff in the AG’s Department would be needed. The increase in the number of Judges is more complex as the delivery of justice should remain paramount. Quality, and not mere increase of quantity should be the guiding principle. As the late Mr S.L. Gunasekara stated in one of his books, “Judges” have to be born and not merely “created”.  

By venturing into an area which is unfamiliar to me – have I jumped in at the deep end and invaded territory in which even Angels fear to tread? Where “It is better to keep ones mouth shut and be thought a fool, than to open it and provide the proof.” But I dare!

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Latest comments

  • 1
    0

    I have read a number of articles in the Colombo Telegraph and other News Papers with regard to Laws Delays. Even newly appointed judges refer to the Laws Delays at their Inaugural Ceremonies where numerous Legal personalities too are present. They faithfully promise to take remedial measures as if they have included it in their ‘oaths.’
    But the moment the step down from the stage all good things are forgotten. Often lawyers live on ‘dates’ it is said but the Judges are no way better. The fact they accommodate the ‘dates’ asked for by the lawyers without taking into consideration the trials and tribulation of the litigants, speak volumes.. After all the Judges too were practicing lawyers prior to ‘Climbing the Bench’ Hence they cannot forget their past and let down their ‘clan’.
    I read an articles in the Colombo Telegraph recently, where some one has stated that though the hearing of his FR Petition was concluded after 5 years, in June 2016 the verdict has not yet been delivered as at date Ie. Even after 2-1/2 years from the date of conclusion, approximately.

  • 2
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    When it has happened to the former Chief Justice Mrs.Shirani Bandaranayake, even President Maithiripala Srisena remained silent. Even President Maithiripala Sirisena has committed wrong when he took drastic action against a DIG’s son at Batticaloa who engaged in a confrontation with the President’s son and was not at fault. Moreover, judges are at the mercy of politicians and drug dealers which is history. After all, politicians have different laws for themselves and this is Sri Lanka. On the whole I agree with the writer.

  • 0
    3

    Dr. PEthiagoda: MAhinda Rajapakse was there with the right people. That is his brother was a former Military man and Sarath Fonseka had prepared the troops for a possible war. So, Mahinda Rajapakse won but Mahinda Rajapakse had not prepared for the post war experiences and he did not understand the whole scenario as it is. His only need was to become the president and to establish a dynasty. Sri lanka while engaged in the war should have prepared legislation for similar scenarios. Because of that we got traitors like LAsantha, Keyth Noyahir and international community giving hardships. The PRO-LTTE anti-Sinhala camp was very intelligent. they used personal things to attack Mahinda Rajapakse. But, LAsantha like people were pro-LTTE and Keyth Noyahir like people wrote for the NGOs and against the war. Britain knew their soldiers did wrong but bRITAIN AND SOME OTHER COUNTRIES openly said they would never prosecute their SOLDIERS AS THEY FOUGHT THE WAR FOR THE GOVT. that is for invading countries and not protecting our own soil.

  • 0
    1

    the only person who was not afraid of lawyers was FDB
    unfortunately all his prop0sals werethrown out by unp lawyers after jrj replaced mrs B
    and we are back at square one

    • 1
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      Lawyers are a Law unto themselves and the Judges are their saviors..

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