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.