13 July, 2024

Blog

The Law’s Delays

By Upatissa Pethiyagoda –

Dr. Upatissa Pethiyagoda

“Justice delayed is justice denied,” is an oft quoted legal maxim, credited to William Gladstone, Prime Minister of England in the late 1800’s.

This is of the greatest relevance to us. Among all the extreme realities that confront us today, the nearly sole consolation is that a robust and reliable relief, is that offered by a fearless judiciary. Any departure from this lofty stature, accorded to our Courts, ranging from the “lowest” legislature, to the all-powerful Supreme Court, is a grievous assault to all that we rely on. Any departure from the trust that the Courts have earned through the ages, allows no compromise. In particular, in an increasing sense of bullying by the political and administrative establishments, the judiciary offers the victim their only refuge. If this bastion of protection of the citizenry is breached, a hapless public will lose its entire lifeline of defense against an unkind, even criminally disorderly government.

There are many incidents where inefficient and inadequate entities, seek refuge in an arrogant impunity. That impunity (if real), is best exercised by not allowing the conditions that warrants its exercise. It is the bounden duty of the judiciary, to always ensure that the sacred trust reposed in it, will not ever be betrayed.

We are happy that there are many examples of heroism by members of our Supreme Court, in reminding the administration of where the boundaries of administrative authority lie. The Supreme Court remains the last recourse to justice available, since resort to the British Privy Council has ceased.

While it is unfair (and perhaps inaccurate), to blame the Courts for all lapses, one may be excused for deploring the inordinate delay in the dispensation of justice. As an example, one may have noticed that a few weeks ago, an accused was sentenced (to life imprisonment?), for a murder committed in 1999, technically in the last century. It is reported that inquiries regarding the suspicious circumstances under which the death of a prominent businessman occurred, no less than a year ago, have not yet been concluded.

The “Easter Sunday Tragedy” shook our collective conscience as never before. The nation emitted a sigh of relief when the Supreme Court in a perhaps unique judgement, seriously recognized the criminality of the dereliction of duty. The Court imposed record fines, and prescribed jail for non-payment within a specified time. Has this been observed? If not, is this not recognizable as a “Contempt of Court”?        

One cannot help but be amused by the procedure of turning off the fans in the Courthouse, and the judge donning black headgear, to pronounce with due solemnity, that the guilty “be hanged until death……………”, knowing full well that no death sentence has been carried out (I deliberately avoid the word “executed”), during past decades. Maybe the “system” demands such, but the process may seem somewhat like pantomime.

The laws delays have drawn the attention of both participants and the authorities, who both feel the need for change/reform of this wasteful process. It is clear that more Courthouses, staff and typewriters, are not the cure.

It is said that the legal systems practiced in different countries, fall into one of two types – the “inquisitorial” and the “adversarial”.

Ours belongs to the “adversarial,” where the Court has the role of a referee, while the counsel for the parties argue on behalf of their respective clients. In the inquisitorial, the judge/s participate directly. It has to be for the experts to device the system best suited for our needs and customs. It could even be a “hybrid“, which combines the best of both systems.

It is not for the layman to decide what system suits us best. It is certain that the pros and cons will determine where the preference lies. We would be deceiving ourselves to believe that all is well with the existing arrangements. The present situation is atrociously wasteful of time and effort. Many could recall instances, where procedural needs have led to seemingly ridiculous delays. Thus, the relevant need is a system that is speedy but fair. Some of the archaic systems and practices (rituals) may be suitably trimmed whilst retaining the two aims referred to above.

Another factor that needs attention, is the inconvenience caused to witnesses, who are required to be attend on routine pre-trial dates, at which there is possibly no need. Many postponements and delays are due to the multitude of documents required. This applies especially in civil actions, related to land or property disputes.

When a judge goes on leave, part heard cases might necessitate a tedious repetition of pertinent actions. A system must be designed to overcome this, perhaps by the trial judge being freed of other duties and distractions to dispose of pending cases, to ensure that his replacement colleague can perform substantive duties, with a clean slate.

It would not be within the competence of laymen (such as the writer), to go beyond penning some points, which with little doubt, would have already engaged the attention of competent professionals.

Print Friendly, PDF & Email

Latest comments

  • 1
    2

    “Ours belongs to the “adversarial,” where the Court has the role of a referee, while the counsel for the parties argue on behalf of their respective clients. In the inquisitorial, the judge/s participate directly.”
    .
    Thank you Upatissa Pethiyagoda for bringing the difference between inquisitorial and adversarial judicial systems to light.
    .
    “It has to be for the experts to device the system best suited for our needs and customs. It could even be a “hybrid“, which combines the best of both systems.”
    .
    Yes. – While having no legal expertise here, I tend to agree that a blended system may be able to bring out the best of both world’s, as a given case may require.
    .
    TBC

    • 2
      1

      Cont’d…
      .
      But my faith in so called experts in many a field in this country, is losing rapidly, something of a graver concern. .
      The gravest concern being political meddling in the processes of law enforcement and others that are of judicial in nature.
      .
      I was once told by one lawyer, about a born rich attorney at law, that has held cabinet ministerial positions in the government, who bribe judges to fix trials.
      .
      How can we ensure that the ethics and moral standards of the professionals involved in enforcing law and carrying out justice are of the highest standards, without which no system is going to deliver justice to the ordinary, and no fairness could be expected from enforcement of the law.

  • 13
    9

    Not only judges Sri Lankans are not good administrators or time managers. For them a job is a opportunity to glorify themselves ,but will never perform to time or deliver good service.

    Anything made in Sri Lanka will lack high quality unless it is pure mechanical like garments or tea bags. Even here I have my doubts.

    Our courts are an embarrassment , you go there and you will be caught in an never ending trap

  • 24
    2

    All these Chief Justices ……. have progressively failed continuously for 76 years …….

    Should have appointed ol’ Prabakaran the Chief Justice when we had the chance ……. that’s one man who knew how to expedite the process …….. and hand out the correct verdict/justice instantly.

    Looking back …….. all the great opportunities the nation …….. has missed!


    Native, ………. there’s no point in crying over spilled milk ……….. now ……..

    • 14
      1

      Sham Lanka’s Low and Odor. Started from the time of Megalo Maniac JR who send goons to threaten then CJ
      N. Samarakoon and culminating in Kapputa brothers getting rid of CJ . In between there were scums like Sarath, Mohan , Eva ……… came to a point Kapputas henchmen like Ganasara assured of Presidential pardon and immunity, could walk into any courts and threaten the judiciary. Presidential criminals inturn became acting CJ ‘s pardoning convicted criminals like Ganasara, Sunil , Duminda……….. End result years of unsolved mysteries …. Easter, political killings, murder of journalism, scams , shams , impotent commissions, political corruption, BS citizenships , constipational ammendments………

      • 13
        1

        Today it’s not the judiciary but our sham governments are dispensing law. When courts disagree govt gets their way by constitutional ammendments. Whether it’s anti terrorism laws , media vigilantism, nominating a criminal as IGP , Tiran’s encounter speciality, deciding elections , Gotha closing cases telling public he is law ….. and ….. full of it ( SHAM ) .

      • 9
        1

        Forget to mention the senior supreme court judge resigning and fleeing country because of threats .

    • 4
      13

      Nimal, in praise of Prabakaran…..wasn’t he living in luxury while his goons were kidnapping Tamil children?

    • 2
      10

      NF: “Should have appointed Prbakaran the Chief Justice when we had the chance….that’s one man who knew how to expedite the process…. and hand out the correct verdict/justice instantly”.

      Last night did you have “GAL” or “POL”? OR that “Sticker” (illegal and fraudulent) wrapped bottles put out to the market by the distilleries that failed to pay “Billion” taxes, you already had paid at the time of purchase?

      “Looking back….all the great opportunities the nation… has missed”. “there is no point in crying over spilled milk…now”

      “Now”….take one more for the road and sleep well. Be awakened fresh….the Presidential Election is coming…..announced to the Cabinet by the President.

      • 14
        1

        So, now the latest JVP motto is, anyone they don’t agree with ……. is under the influence of alcohol? Brilliant!

        Believe it or not ……. I don’t consume alcohol. I don’t need alcohol to get high ……. the forum is enough! :)))


        Learn to have some gratitude …….. if not for good ol’ Prabakaran, your cowardly AKD and the JVP, who were hiding under beds, wouldn’t have a country to rule.

        Who saved Lanka from partition? ………. Have some bloody courage, decency and honesty to say it out loud!

        Spit the word out ……. don’t let it get stuck in your throat. :))))

        You bloody Sinhalese are all the same ……. for you, empty big talk is bravery.

        Wait for someone else to do all the hard work and then turn up at the right time to take all the credit.

        Prabakaran is the greatest patriot Lanka ever produced in recent times! ……. If not, name your own. C’mon just one name would do!! ……. It’s that simple!!! :))))

        The only reason people can’t accept Prabakaran’s great act of patriotism …….. is because he is a Tamil.

        A Tamil with matinee idol looks …….. who looked better than all the aesthetically challenged Sinhalese. (That’s for Native)

        In ye frigging little Sinhala minds, only Sinhalese can do acts of patriotism …….. the others can only do within the conditions set out by you.

        Bloody pathetic …….. isn’t it any wonder, Lanka is bankrupt and is in such a mess?

        • 12
          1

          This part might’ve got truncated,


          The only reason people can’t accept Prabakaran’s great act of patriotism …….. is because he is a Tamil.

          A Tamil with matinee idol looks …….. who looked better than all the aesthetically challenged Sinhalese. (That’s for Native)

          In ye frigging little Sinhala minds, only Sinhalese can do acts of patriotism …….. the others can only do within the conditions set out by you.

          Bloody pathetic …….. isn’t it any wonder, Lanka is bankrupt and is in such a mess?

          The only marvel is, it has yet not disappeared from the map!

        • 0
          0

          Dear NF: I note my remarks have hurt you. Sorry and apologize to have made that remark (sarcastic and meant to be fun) hurt you.

          Still, I don’t agree with the suggestion of Prabakaran’s appointment.

  • 9
    0

    If the Police and Judiciary act in a clean, honest manner, most of the problems could be solved quickly.

    • 3
      1

      Where do you go for such men?

    • 10
      0

      Buddhist1. This is the root cause of the national disaster. The judges from Chief Justice down and the entire Police Force are corrupt from inside out and outside in.

      • 8
        0

        Dear HP and all other rational thinkers,

        Why is Sri Lankan mainstream media (VISUAL MEDIA) not publicly apologizing for the big mistake of standing up against Dr. Safi since November 2019?

        https://www.youtube.com/watch?v=od_L8KFocUw

        At the time I was discussing “falopian tube issue” with a colleague of mine at the BMJ, who said this would be the biggest joke he’d ever heard.

        That fake professor Jayasumana has not been arrested yet… ?
        What about Wimal Weerawansa?
        Where is that Athana Methana Ratana today ?

        Media acted like wildfire but they don’t seem to take responsibility today ? why is that ?

        Why are judges and lawyers in Sri Lanka today “blind and deaf” on high crime commited against Dr Safi and his family? When do they act against common injustice?

        If the media analysts go back to the archives and compare it, should most of the mainstream TV channels be banned in Sri Lanka or not? Knowing that even the Sri Lankan beasts in human disguise are highly emotional and stupid, they set themselves on fire.

        • 6
          0

          Dear LM: Thanks for that link. I too watched this one along with that of Shani Abeysekera yesterday.

          Our “Media” is yet another “Kulee Hamudawa” belonging to the elite Businessmen. They even managed to bring a “Nagaya” (a cobra) from the “Naga Lokaya” – the other territorial Universe to convince the voters to elect “Gota” -the “Reincarnation” of “Diyasena”.

          This must STOP…. no doubt. How? This “CULTURE” of “IMPUNITY” must be STOPPED. I guarantee that the NPP Government would do it. You may disagree…. but it’s worth waiting with a HOPE.

        • 4
          3

          Hi Leela, still hard at work thumbing me down !

          I worry about you sometimes.

          Once in a way take a break from your hard mental work, walk across the black forest, have some German beer and their super sausages my dear Leela.

          • 2
            3

            Prof. DS (even if you are not, it is my intention to put you above at least for some moments).

            Why don’t you worry about yourself? Elephant is in the room, but you deliberately neglect.
            .
            You can learn things from LankaScot who seems neutral in his thoughts no matter the topic. THere is no barrier if you are to learn some good demeanours.

            Not just because he was born a UK citizen, but because his experiences and education make him who he is. Unortunately most of Our men and women live in their own parallel universes. You display the best example to us.

            In fact, most of us are convinced that you are somehow sick because you are in a mental asylum.
            I think the rainy weathers must have worsened your mood. I have colleagues in many NHS hospitals across UK.. They are busy as hell but their mood is hugely positive compared to that of your mood.

            Btw, my relatives who are retired go back home and spend their later life as best they can.
            A cousin of mine (she’s in her early 80s, I think you’re in your 70s) lives in Sri Lanka for 6 months and the rest in the UK.

  • 0
    9

    UP, God never delays justice. Did you see what happened so fast to the Iranian President who declared that he was going to wipe Israel (nation established by God to bring Jesus to earth for his purpose) off the map and into the sea. Can challenge men but dangerous to challenge the Creator God Jehovah, son Jesus and the Holy Spirit.

    • 0
      11

      UP, Many do not understand that the Creator God Jehovah has sovereign control over his universe, even though free will choice given. Ezekiel war and Russian invasion of Israel is now coming to a head according to the bible. Ezek.38,22 says, “I will judge him with plague and bloodshed”

    • 3
      0

      DTG ‘Did you see what happened so fast to the Iranian President who declared that he was going to wipe Israel’
      .
      You’re quick to give the credit to Jehovah when it suits you.
      .
      ‘dangerous to challenge the Creator God Jehovah, son Jesus and the Holy Spirit.’
      .
      I challenge all three, let them do their worst.

      • 0
        7

        Paul, Do not just shout here. Call on them first and then challenge them and see what happens. May even show mercy.

        • 3
          0

          I did just that, many years ago when my parents and sister died in an accident. I was met with total silence.

          • 0
            1

            Paul, Sorry about challenging. Just submit to God and say you want to obey him and do his will and purpose for your life. He will show his love and mercy towards you. He never let down anyone except to allow their free will.

  • 10
    0

    What about Mr. Sarath N. Siva and Mr. Mohan Pieris as Chief Justices who used the Judiciary as part of their dowry??

  • 2
    0

    May I please grab your attention to a heinous crime carried out by Chief (cheap) Justices, a two term former president of the Bar Association and an underworld criminal gang. It got sanctified by the District Court, High Court and the Supreme Court through bribery and intimidation of justices. To whom a victim of such a crime complain to and seek solace from??Dear Dr. Pethiagoda.

    • 0
      0

      Dear Dr. Pethiyagoda. Are we a captive audience to empty rhetoric?

  • 2
    0

    An article which highlights the heartburn and dismay of a majority of the people and I thank Dr. Pethiyagoda
    while totally in agreement I am sure if the Judiciary and the Bar along with the Police nd representatives of the general public { the sector that is affected most} sit down in earnest this issue could be resolved
    I too could dwell at length on this but feel its best its initially left to the professionals
    In addition to the subject matter and related to it I wish to note the following too
    1} The present method of remanding of suspects should be thoroughly re visited as I am sure most of those can be easily enlarged on bail at the very first hearing without setting unnecessary conditions { This would ease the congestion in the prisons as well} As things stand now it seems like remanding a person is a sort of ” pre judgement punishment”
    Furthermore the practice of accommodating those remanded with convicts should be done away with and separate accommodation with reasonably good facilities should be considered as all remandees should be deemed innocent

    2} The other issue is the role of lawyers – do most of the defendant’s lawyers actually assist the judiciary in it’s endeavor of seeking justice or do they obstruct and even mislead ??? if yes this why is this tolerated ?

  • 8
    3

    When the LTTE was in control of the North and East in the early 2000s it had its own legal system, laws, and infrastructure. This court system was very efficient as it disposed of criminal cases and civil disputes quickly and in a just manner with the lawyers’ fees being strictly regulated.
    I urge that the government should study this system and adopt it with minor changes, if necessary. It will then be possible to clear the monumental backlog of cases quickly, while the concerned parties are still alive.
    Over to you, Justice Minister!

  • 8
    0

    It will be interesting to know the fate of the Container in which customs discovered 300 kgs. of Heroin arrived under the auspices of the Ministry of Buddha Sasana.

  • 1
    0

    Quite a large majority of those making comments on this forum seem to be
    either living out of Srilanka or from comfortable backgrounds . It is my guess
    due to their concerns of Quality of Life in a Third World Country like ours . My
    strong view is , quite a large majority of the country’s ordinaries have no
    experience with a different and better life to compare with . This is why they
    are still vulnerable to substandard talks of country’s Rogue Politics . I honestly
    want to put my weight behind a capable and determined lot but not tested and
    failed ones . So far , no clue and bloody frustrated . Not only Law , nothing else
    is on time and no signs of Future Change .

  • 2
    0

    Thanks Dr.Pethiyagoda for highlighting this issue.
    The Legal Profession has often been described as one where Lawyers make a living on the miseries of others. It is the Lawyers themselves who become Judges later on.Besides the Legal Profession is overcrowded. Many are called but few are chosen. One of those early books on the History of Ceylon by S.A.Pakeman notes that Ceylon has an abundance of litigants. Partly due to put one side into trouble and harassing him knowing very well that the case will drag on and cause immense cost and time.
    For a civil action say one involving land, hearing from the District court to the Supreme court could take decades.The Plaintiff or the defendant may be dead by the time the final judgement is made.
    Is legislation made for the citizens or for the lawyers and the Judges?
    The Laws delays is a very serious issue and should be given top priority.

    • 1
      0

      There are no professionals in Sri Lanka. From doctors to lawyers to accountants to journalists most of them are either corrupt themselves or collude with the corrupt for self preservation.

      • 1
        0

        “There are no professionals in Sri Lanka.”
        A rather sweeping statement.
        *
        If “most of them are either corrupt etc.” what are the rest?

  • 4
    0

    A senior judge no sooner as he retired appointed chairman of a bank of which the major owner is notorious Ishara Nannayakara. !

    Ishara showing gratitude to a judge !

    • 1
      0

      No laws to stop revolving doors I guess

  • 2
    0

    Typical case study “Diana Gamage”ex SrilLankan still no action managed to get diplomatic passport but at BIA people wanted to escape the paradise for any means arrested

  • 2
    0

    Noticing all the crooks getting the judgement “nidos kota nidahas”, I wonder if it’s time for foreign judges to sit on our benches. Sri Lankan judges are corrupt!

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 5 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.