16 May, 2022

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Twice Bitten But Not Shy

By K. Balendra

K. Balendra

At the outset, I wish to apologise to the readers of Colombo Telegraph for writing about matters connected with the ‘Laws Delays’ once again. I have already written 6 letters to CT between2015-2021 and 3 letters to Sunday Times between2014-2015. Well, 17 years of hearing, six years at the Condominium Management Authority (CMA) and Eleven years at the Supreme Court, by way of Fundamental Rights (FR). FR petition arose due to the delay experienced in concluding the hearing at CMA. But unfortunately, the time consumed at the Supreme Court was more than that of the CMA.

In short, the remedy was worse than the disease.

I am rather baffled, battered and bitter about the sequence of events leading to this case. This essay maybe a little longer than the earlier ones, as I have to cover over 18 years of my experience with the law-enforcing authorities. (2004-2022)

The matter under dispute was simple. Whether adequate parking space has been provided for the 33 apartments according to the prevailing law in 2003 and the agreement entered into with the developer at the time of purchase. The agreement clearly states that the Ground Floor of the apartment complex is reserved for parking. According to law, there should have been 24 parking slots for 33 apartments. This is because, CMC, UDA and CMA in their wisdom have provided only 24 numbers in the paper, based on the measurement of each apartment. In some cases, measurements of two smaller apartments have been taken together for providing a single parking space.

Despite the agreement, and shortage of parking slots, part of the ground floor was taken over by the developer and leased out to KFC thus depriving us of 5 parking slots, leaving us with only 17 slots including the semi-basement car park provided as an afterthought to hoodwink the authorities? And the owners/occupants. In fact, the authorities were not hoodwinked. They were hand in gloves, apparently with the developers.

Together, they have misled the owners, jointly and severally.

What prompted me to write, was the long delays, experienced by me with regard to the Fundamental Rights Petition filed by two of us in 2011. 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 making of such reference.” Chapter XVI 126 (5).

If the time consumed for hearing of FR petition violates the Constitution, where does one go for remedy?

Now, it ‘appears’ that that hearing of my case has been concluded for the second time with ‘Judgement being reserved’. This is why I have given the Heading as ‘Twice Bitten but Not Shy’. I have used the word ‘appears’ as I am not sure whether the hearing has been actually Concluded, from my past experience.

Hearing of my FR petition commenced in the middle of 2011. The first conclusion of the hearing was announced in mid-June 2016 without a date being given for the Judgement to be pronounced. The second time, it was concluded on February 2022 with the announcement that ‘Judgement is reserved’ again without a date being given.

Between the two announcements, lots of trials and tribulations were experienced by me without any results being achieved.

After the first Conclusion of the Hearing in 2016, there was ‘Pin Drop Silence’ with regard to the verdict for over 4 years. During these four years of silence, I wrote to the Registrar of Supreme Court, Attorney General, different Chief Justices, who were in service during that time, The Judicial Service Commission and an open letter to the Minister of Justice Thalatha Athukorale, under the caption ‘Contempt of Justice’ via Colombo Telegraph. But no response was forthcoming. Previously I wrote a letter to the then Minister of Justice Wijeyadasa Rajapakshe on 15th. March 2015, via Sunday Times, regarding the delay in concluding our FR petition.

As there were no signs of the verdict being delivered after the first Conclusion of Hearing or any response from the Judiciary for my letters, I sought the assistance of the Right to Information (RTI). The RTI guided and assisted me to write letters to the appropriate authorities. My first letter was addressed to the Information Officer, Supreme Court on 22/08/19, asking for the reason for the delay in giving the verdict. The reply to my letter dated 27/0819 states that my case is under review Of the Hon. the Judge who heard the said case and will be informed after the Judgement is given. This does not answer my question as to when the verdict will be given and the reason for the delay. It appears, that the RTI’s intervention alerted the Judiciary and the case was reopened.

Prior to the intervention of the RTI, the Judiciary maintained a deafening silence.

The case was reopened again in 2020 and came to a sudden halt due to various reasons including Covid19. Once again there was no information about the case.

I was inclined to believe that letters addressed to the Chief Justice were not reaching their hands. It was being derailed by some interested parties. Hence, I addressed a letter to the Chief Justice’s Official residence and hand-delivered it on 5/10/21. This brought in the desired results and the case was listed.

The building plan called for by the CMA and the courts was missing from all authorities and the builder too. The courts initially viewed the Building Plan as an important document. Rightly so. But with the passage of time, over 10 years, the loss of the Building Plan was not a matter of concern for the courts. No order was made to find the whereabouts of the Building Plan. The loss was taken for granted despite its importance. In my opinion, the courts should have directed the authorities to redraw the plan as there were enough and more engineers attached to the authorities concerned. In the alternative, the Judges should have visited the apartment complex and ascertained the position as in the case of some murder cases. This may be unusual, but it is the only way they could have prevented the ‘Murder of Justice’

The builder leased out part of the ground floor reserved for parking and earned a sum of Rs.31, 000,000/= Rupees Thirty-One Million, approximately, from KFC over a period of a15 years, at our expense.

While the FR petition was in ‘progress’ the word progress may be a misnomer, as there was no real ‘progress’ in the hearing for over 10 years. KFC vacated the premises at the end of February 2021. We had a faint hope that after the KFC vacated the place, the premises, may be handed over to the Management Corporation. Unfortunately, it was not to be. Instead Maharajah Super Market has taken over the premises, despite our warning that the premises are under litigation. Impunity prevailed.

The irony of the whole episode is, over 22 Judges, (approximately) 3 at a time were on the bench during the period. Associated with them were the Attorney General, UDA, CMC, CMA and the Consumer Affairs Authority. But they could not retrieve the lost parking space.

However, the parking space allotted to the apartment complex has changed hands a couple of times during this period. Our attempts to go through various law enforcing authorities ended up in a Cul-de-Sac.

The 22 Judges would have had different views in this regard. But finally, only three Judges who heard the case on 15th February 2022 appears to have taken over the responsibility of delivering the Judgement. Will the 22 living judges confer prior to the judgement being delivered?

One could sense the different attitudes of the different Judges from their manner of questioning.

What will happen to the views expressed by other19 Judges (approximately) from time to time, when they were on the bench.

My wife and I Obtained a 10year Multiple Visa at a high cost to visit our grandchildren in the UK, as often as possible. But we could not do so ‘often’ due to the uncertainty of calls from the courts. Unfortunately, I lost both ways.

During this period of approximately 18 years, over 10 stakeholders have passed away. Some Judges who heard the case too have passed away, some others have retired. At least one President Counsel who appeared for one of the respondents passed away. Attorney Generals and Registrars have changed. Governments have changed. But I am still in square No.1.

It may be mentioned that this petition is not in respect of an individual, but about One Hundred Persons living in 33 apartments – very similar to Public Interest Litigation.

It must be said that both the Petitioners appeared in person. This was appreciated by some Judges and they assisted us to proceed without being trapped by the Prevailing Judicial ‘System’, which seems to be the main cause of ‘Laws Delays’.

It may be relevant to quote from the statement made by the Court of Appeal Judge Wickum Athula Kaluarachchi at the ceremonial sitting, as reported in the Sunday Times of 16/1/22:- “Although some cases seem to be not important to us, every single case is important to the parties of the case. Every case before the court merits the same meticulous attention………………”. How true?

“It is not merely of some importance, but it is fundamental importance that justice should be not only done but should manifestly and undoubtedly be seen to be done”. (Lord Hewart).

This statement undoubtedly applies to the Sri Lankan Judiciary, I believe.

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Latest comments

  • 9
    0

    Well if an FR case with stipulation of a time frame takes so long, imagine land and property dispute cases taking three generations for a result.
    Here in SL “The Law” moves in mysterious ways.
    Eva W, SC Judge gave one year enjoining order to prevent arrest for GR. Ranil looked the other way.
    Today in DM:
    https://www.dailymirror.lk/latest_news/Court-expresses-displeasure-over-lackadaisical-attitude-of-police/342-231855
    Power and Money is above the LAW.

    • 10
      0

      Yes! I am aware of a Land case of-46 years Not Out and a bank officer’s dismissal case at high court on the ‘pitch’ for over 19 years. Not out. There will be thousands of cases where the complainant and the respondents are not in the world of living.
      But at every ceremonial sittings judges promise to ensure justice is meted out fast.

  • 5
    0

    There are two key documents to resolve the matter.
    1) THE BUILDING PLAN, which the writer says is missing. It is not possible. The CMC should have the building plan, otherwise, how did they approve the construction of the condominium? I understand the court hasn’t issue an order to the builder to submit the building plan, which is wrong.
    2) SALE AND LEASE AGREEMENTS OF CONDO UNITS. It is important to check sale and lease agreements to ascertain whether there is any mention about parking slots being allocated to each unit and whether it is included in the sale/rent price. If yes, the condominium should have 33 parking slots for 33 units. If they have only 24 parking slots, CMC should be answerable for approving the building plan. What is CMC’s regulation for parking slots in condominiums? Also, if there aren’t enough parking slots in the building, does the builder/seller abide by law to provide the residents parking spots on the street? In any case, the builder has no legal right to use parking slots for other purposes, such as retail businesses. The court can easily issue an order to release ALL parking slots to condominium residents.

    • 2
      0

      All what you say may be correct-but Justice is different in Srilanka,

  • 5
    0

    “During this period of approximately 18 years, over 10 stakeholders have passed away. Some Judges who heard the case too have passed away, some others have retired. At least one President Counsel who appeared for one of the respondents passed away. “

    the country has also passed away.Nothing is permanent said Lord Bhuddha.

  • 7
    0

    Dear Mr Balendra,
    .
    Thank you for writing so well and eloquently. No, it didn’t seem too long.
    .
    Your action has been on behalf of one hundred persons in 33 apartments. You have quoted Judge Kaluarachchi, who also has been sympathetic; yet nothing has happened. These civil cases may not seem spectacular, and it is true that the horrific delays cause hardships only to those involved, but they are as bad as some other stories that hit the headlines..
    .
    We just must change this system.
    .
    Panini Edirisinhe of Bandarawela (NIC 48 3111 444V)

  • 5
    0

    My heartfelt sympathies to the author of this piece and his ordeal. The reality is the whole judicial system is corrupt from head to foot. Most judges are also corrupt. We had Chief Justice like Sarath N. Silva who publicly said he saved Mahinda Rajapakse from the gallows in a murder case when he was attached to the Attorney General’s Department. He saved him a second time from going to jail when MR was the Prime Minister. On 26, December 2004 Tsunami struck Ceylon taking the lives of more than 20,000 people. Overwhelmed by the tragedy and moved by the plight of its victims’ money poured in from every corner of the world. It was then found MR was siphoning off Tsunami funds into a private account.
    A total of Rs. 82 million given to the Prime Minister’s Fund as tsunami relief and reconstruction went, into a private account called ‘Helping Hambantota’ maintained at the Standard Chartered Bank in direct violation of Presidential directives.
    In a lighter vein let me narrate a joke I read recently about a retired lawyer and his prodigal son also a lawyer.
    1/2

    • 1
      2

      T
      You call it as joke. but there are people who will narrate it as gospel truth.
      That is how history is written in the era of the Intenet.

  • 6
    0

    The son took over all the client files from his father. After his first day in court, he returned home and jubilantly announced to his father that he had obtained a favourable judgment to his client, a land case that was winding up in the courts for over 17 donkey years.
    His father was furious. He told his son that the house they are living in was built from fees he earned from that case alone. Even his education was financed from the fees he earned from the same client!
    When I was a public servant, I have to attend court cases relating to my work. Most cases got postponed, some for months and months. One day I complained to the lawyer that I am wasting my time unnecessarily in court. He answered by saying if someone gets a headache and take aspirin, it will take at least 2 hours for the pain to cease. What he meant was that delay in courts is the rule and that we have to endure stoically!
    The moral of the story is there is no justice in the justice system. Lawyers, Judges all get benefitted by delaying justice. So, take heart my friend. . The wheels of justice grind eternally.
    2/2

  • 5
    0

    I could well imagine the frustration of the essayist in seeking Legal remedies through our Legal System. Lawyers are like Arabs- they live on dates……….
    Judges live on the miseries of others……….
    There is a pithy saying Kalu Coat Karaya Hora ……….Gini [GUINEA] Kanavaa…………

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