22 September, 2018

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Verdict At Large 

By K. Balendra

K. Balendra

I have been hopefully waiting for approximately 2 years for a verdict on a Fundamental Rights Petition, hearing of which was concluded in June 2016. As a layman, I am now, compelled to bring to light the details of my case to enable the public in general and the litigants in particular (existing and would be) to understand the Judicial System prevailing in Srilanka and be prepared for the worst. 

Various articles and news items have been published in the press with regard to the overall delays experienced by the litigants. Unfortunately, no definite attempt has been made by the Judiciary nor the successive Ministers of Justice to remedy the situation, except to issue decorative statements on their assumption of office, to hoodwink the members of the public, that ‘delays will be a thing of the past’. 

However, the past appears to override the promised present, because it seems that Justice System itself is politicised beyond redemption and considered a money-making concern similar to that of the private hospitals and medical consultants. Unfortunately, the members of the public are caught up in the tentacles of both. A ‘Necessary Evil ‘

I have written a few letters to the press with regard to particular reference to my case. In fact, I compiled a book let consisting of three letters, two from The Sunday Times (6/7/14 &15/3/15) and one from Colombo Telegraph, under the caption ‘Deformed Judiciary’ and forwarded few to the lawyers, Judges, including Chief Justices past and present to enable them to understand the plight of the litigants who climb the steps of the courts up and down, of course, some with the help of the walking aids, on numerous occasions, hoping against hope to receive Judgements expeditiously. When they commenced their cases, they may have been ‘young and handsome’ and walking aids may not have been necessary. But with the long passage of time the walking aids became an integral part of their body, as much as the Lawyers and Judges have become an integral part of their mind. The writer himself may have to seek aids soon, to walk about.

This letter is in respect of unexpected delay of over two years in receiving judgement on conclusion of the hearing of a FR petition in June 2016. Two of us appeared in person in all the institutions.

A concise history of the case may give all a food for thought. If a simple case like ours takes over 12 Years in all, to seek remedy, what could you expect with regard to other cases which are deliberately Implicated by the police and Complicated by the lawyers and the Judges who may succumb to it, willingly or otherwise.

The crux of our case was with regard to a developer cheating the purchasers with regard to providing adequate parking space for the 33 apartments.

In the first instance we referred this matter to the Condominium Management Authority. But there was no response. Thereafter it was referred to the Consumer Affairs Authority, on whose intervention the Condominium Management Authority half-heartedly initiated an inquiry. Instead of directly ascertaining the position they invited the CMC and UDA to participate in the inquiry.

According to the prevailing law in 2003 we should have been provided with a minimum of 24 parking space taking into consideration the square area of each apartment. However, as part of the ground floor area reserved for parking, as per the initial plan, was converted to a restaurant by the developer who was greedy for money. our parking space was reduced to 17. Even, the 17 spaces are enough only to park the cars as in the car sales premises.

All what the Condominium Management Authority should have done was ascertain for themselves the position and come to conclusion. Even if CMC and UDA had turned a blind eye to the law, the CMA, considered the Guardian Angel of the apartment dwellers, should have cried halt to the illegal accommodation of the restaurant. It appears that the three law enforcing authorities for obvious reasons were reluctant to do so. It may be mentioned even with the space occupied by the restaurant the total parking space would still be short by two spaces.

It is evident that the trio was trying to take shelter behind each other.

It is similar to a murder by poisoning, but the JMO gives a certificate to state that the death was due to natural causes and the Judicial verdict given accordingly unless challenged by interested parties. 

This inquiry at the CMA commenced in 2005 and went on till 2011. As there were no signs of conclusion of the inquiry, we filed a Fundamental Right   petition. But again till 2015 there were no signs of conclusion. It was just dragging on.

In fairness to the Acting Chief Justice Mahroof  who sat on the bench once, (Now Retired) it must be said that he made an order to CMA to conclude the inquiry within 6 months and submit their findings. CMA, instead of submitting their findings submitted an order (another delaying tactic to hide the facts). Once again, we had to insist that the findings of the inquiry should be submitted and the Judges made an order to submit the findings, which was submitted in December 2015.But the findings did not address the issues raised by us appropriately, for fear of confronting the developer and the other two CMC and UDA.

Due to frequent changes on the bench, we had to continuously prompt the matters referred to in the previous hearings.

Hearing of the FR petition was concluded in June 2016, but the verdict has not jet been given even after two years.

The irony of it is that over 18 different Judges, 3 at a time, including past and present Chief Justices too were on the bench. It is not known whether all the judges who the heard the case have to confer and give verdict? Unfortunately, some Judges have retired and at least one judge to my knowledge had passed away.

An open letter was addressed to the then Minster of Justice, Hon. Wijeyadasa Rajapakshe, asking for an appointment to meet him (copy was also sent to his ministry, direct) which was published in the Sunday Times of 6/7/14. It appears, on receipt of the said letter at the Ministry, the secretary at the Ministry called me over the phone while having my lunch and justified the need for different Judges (at that time about 15 Judges had heard the case) by saying that it was a normal practice and the Judges are capable of reading and understanding the previous proceedings, to which I said that Judges are not supernatural beings. They are humans and have their own short comings. Further I also told him, the 15 minutes he spent over the phone could have been allocated to me in his office. Notwithstanding, overall, he sounded courteous and concerned.

On cannot understand as to why the inquiry should have taken over 12 years, when the matter under dispute was over the number of parking space according to prevailing laws. Even if CMC, CMA and UDA has violated the laws jointly and severally to help the developer, they should have confined themselves to the law when it was pointed out. I am opinion, this inquiry should have been completed, within a month by the CMA. But, maybe there were ‘other reasons’ not to.

It appears that there is radically wrong with the ‘System’ prevailing in the Judiciary, I am not sure whether any changes were ever made to the system after obtaining Independence. Recently, a programme was aired by Aljaseera (17/6/18 at 9 PM and repeated at 1 PM on 18//6 18 UK. time.) with regard to Justice System prevailing In USA which resulted in two persons in two separate cases – Jeffery Discovic and Kristin Llobato respectively were imprisoned due to the Faulty System. (a synopsis is given here) This was due to the Courts not wanting to accommodate the DNA tests carried out to prove the innocence of the accused. Subsequently, after a prolonged fight, Jeffery Discovic was released in September 2006. Thereafter, he successfully claimed a compensation and obtained over US$ 13, Million. He utilized this money to qualify himself in Criminal Justice and helped a few others, who were similarly imprisoned to be released. Do we have a similar system here to claim similar compensation? Later, the DNA test carried on Kristin too was accepted and she too was released somewhere in December 2017.  It is very clear that the Prevailing judicial system plays an important part in the final outcome of the verdict. It was also said that the prosecutor involved in this case is now a Judge. This may be only a “dark side of American Justice”.

Very often we hear in the Banks, that their ‘system’ has failed, therefore encashment may be delayed. This may be acceptable as the remedy is almost available immediately, but when the judiciary system fails the whole life of a person may fail. Manmade machines may fail but not the man himself.

Hence, I would respectfully Suggest to the Hon. Justice Minister and the Lordship Chief Justice Dep, to appoint a committee to make an in-depth study of the Judicial System and make changes. The committee should consist of at least two retired Judges (relatively young) and two litigants who have spent over 5 years in the courts and 3 unspoilt young lawyers including one Lady (like Ms.Sugandhika) with pragmatic views, to man the committee. They should sit daily and complete the work without asking for ‘dates’. They may also ask for the number of cases pending tabulated according to Criminal, Civil, FR etc. This may not be difficult in a computerised atmosphere.

I was prompted to write this letter after Ms Sugandhika’s and Mr.Nagananda Kodithuwkku’s and their supporters and opponents exposure of the Judiciary.

This letter does not intend to cast any deliberate aspersions on the Judiciary, but depict the actual trials and tribulations experienced by me and others in the same boat, who are looking for a ‘port of call’ to save their lives like the refugees all over the world.

Irrespective of the fact whether a Government functions or not the Judiciary should function unhindered without fear.

I convey and you conclude please.

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Latest comments

  • 1
    9

    As soon as you include Ms. Sugandhika, it looks highly political and foreign influence. already BASL is identified as Western lacky. there are accusations against top officlas i the BASL. YOu may have a jenuine complain but when you take this woman. IT looks either you are being used or you are willing partcipant of some kind fo foreign Coup.

  • 1
    3

    Sri lanka definitely has problems every where. but, if you become victim or a PAwn of a bigger coup, then you need to be abandoned and your case considered political.

    • 2
      0

      I am not influenced by others. I have my own thinking and act accordingly. No one can make use of me and not even myself.

    • 2
      0

      I have only expressed my problems. Certainly I am a ‘VICTIM’ of the law enforcing authorities together with others like me.

  • 11
    0

    Sri Lankan don’t have fundamental rights, it has only Fund and Mental rights you choose what do you want

  • 7
    0

    They are going to establish Special Courts to speed up the process. Thalatha says the first case could be ‘Bond Scam’. Let us wait and see. Thousands of people whose cases are dragging on for ages will not get any benefit from these Special Courts. They will have to continue to pay for lawyers probably until they die. They will be able to hear the verdict in the next life. That is how things work in Sri Lanka.

  • 8
    1

    Rule of Law depends very much on dedicated independent prosecution. This unfortunately is getting eroded all over the world.
    Take a typical case far far far below the K Balendra litigation level.
    Recently some villagers killed a leopard. No fire arms were used. The whole village was intimidated by the police – some paid bribes. There will be prosecution. Not far away, few months back a tusker as shot for the tusks. The culprits are known but no prosecution yet. Why because some high-ups (including a priest) provided the guns and ammunitions!

    • 6
      0

      Pillai
      Besides what you have said, villagers had no previous intentions to kill the leopard. It was killed only after it had attacked the villagers and wounded a few of them that they killed the leopard in the presence of the police only after a Wild Life Department official had withdrawn to tend to his injuries following the attack on him by the leopard.
      The video clip shown on TV by a SL News Channel clearly depicts what exactly happened.
      But the strange thing was that some bright spark from the Buddha Sasana outfit in Colombo blurted out an inane question about the justification for depriving the leopard’s life for the whole issue to take a different hue.
      The fact of the matter is that the villagers who happened to kill the animal are all Tamils and they are not Buddhists.That’s all.

  • 7
    0

    “Hence, I would respectfully Suggest to the Hon. Justice Minister and the Lordship Chief Justice Dep, to appoint a committee to make an in-depth study of the Judicial System and make changes. “

    waste of time.He does not have the skills to overhaul the judicial system.You have to bring in a foreign guy and make him the chief justice.He will immediately know the difference between how things work in his country and here.Dep won’t have a clue because he is a frog in the well called sri lanka.

    Next best thing is to get the foreign guy as a consultant and ask him to give his recommendations.

    However from what i see of Mr.balendra’s problem,the developer has no ethics.When it comes to ethics of private firms NZ tops the list and singapore third while we are 68th.Get down someone from these countries with experience in regulating private firms and get his recommendations.

    I feel that that CMA body is a corrupted one and beyond redemption and should be liquidated and a fresh one started up with the NZ or singapore guys recommendations.The developer has bribed some people at the CMA and that is why it was going at a snails pace.The focus should be on these type of bodies instead of the courts which are a massive overhaul to do and probably will be done in Mr,balendra’s next birth after Mr.dep waits for his retirement and goes off and some one else holds the baby and he too waits for his retirement to come and goes off and so on and so on…………..

    ps.please don’t ask the PM to get down anyone from singapore mr.balendra.Yo find the guy,not PM.

  • 11
    0

    while K. Balendra is climbing steps up and down in the supreme court complex two years for justice …….Gotabaya gets a verdict to prevent his arrest in minutes from the same supreme court…What justice is that CJ ?

    • 2
      0

      “K. Balendra is climbing steps up and down in the supreme court complex”

      instead of asking unreasonable overhauls for Dep who is counting the days to his retirement Mr.Balendra who is supposed to be a practical type,should ask for a lift.

    • 0
      0

      What does CJ knows about justice.

  • 5
    0

    why not you expose the property developer by naming and shaming –

    • 2
      1

      Ha ha! Naming and shaming does not work in the Emerald Isle.

      • 4
        0

        you can name but you can’t shame.darwins evolution theory,buffalo hide evolves.

  • 8
    0

    This case of Mr.K. Balendra is nothing compared to the cruel and wicked cesspit of a justice system of Srilanka that I have been dragged through. The Chief Justices, their Ladyships and Lordships in collusion with the criminal underworld for the share of the loot without any sense of shame taken over the duty and responsibility to sanitize the dirty linen of criminals by turning the laws of the land on their heads. What hope there is for the helpless and powerless citizens of this country have to protect themselves from dangerous criminals?

    The Justice System of Srilanka NEEDS a complete overhaul by sacking the corrupt justices.

  • 7
    0

    What future for a country with an inefficient and corrupt judiciary. Read recently there are around 600,000 pending cases, for such a small country. Cases are postponed for the flimsiest of reasons so that the legal profession can make money while the people suffer. The Government nor the Judiciary have come out with any explanations for the exposure made months ago by Ms. Sugandhika. The people of the country deserve to know the truth. Changing the Minister of Justice is like “changing a pillow to cure a headache”.

    • 5
      0

      Shame, shame & shame on you, the Minister of Justice. You should go and hide your head in the sand.

      • 3
        0

        don’t talk of sand.he might take lorry loads of it and STF will be powerless.

  • 7
    0

    Mr.K. Balendra/ I am a retired senior police officer. I was ASP Moratuwa in 1989 September during the insurgency. Kahatuduwa Police was under my supervision. A case of rape of of Montessori teacher aged 21 years was reported. Inquiries by me revealed that five police officers from kahatuduwa police had gone to the house of the Montessori teacher abducted her in a van and two of them raped her. The five police officers were arrested and remanded. The Kesbewa magistrate heard the non summary proceedings in quick time and committed the accused to stand trial in high courts colombo. The case files were sent to AG’s Dept who laboured with files for 8 years and committed to high courts.high court took another 20 years to hear and complete the case.during the trial one main accused. Other main accused got married and I believe his daughter is now married. He had to sell his house to spend for lawyers fees .The victim is married with two children. Final verdict all accused were discharged . The victim telephoned me why this verdict. I said this is justice SrI Lankan Style. This case took 29 years. One the prosecuting lawyers in this case is the present Director General Bribery and Corruption. I have instructed the victim to get an appointment Mr Sarath Jayamanne Director General Bribery. The case was concluded in 2018.

    • 5
      0

      Five Police officers raping a 21 year old teacher ? Animals are better . Final verdict after 29 years – all accused discharged ? Absolutely Disgraceful. Law & Order at its worst.

      • 3
        0

        Steve
        Well said.
        But what is your view about that innocent kindergarten six year old girl in Chulipuram in the NP now hitting headlines in the print and electronic media?
        The man arrested is said to be a drug addict.
        How is it that Kerala ganja is being smuggled in to the country freely without the knowledge of the army and police when smuggling of gold and ammunition do not escape their keen capacity to detect?
        Is it due to a convenient gainfully motivated selective attention deficiency?
        Or is it with a nod and a wink by those higher up holding the reins of power in the South with a larger interest to keep the denizethe North in a state of amnesia and under control ?

      • 0
        0

        Yes ! animals are better, They don’t rape or kidnap,They are seasonal.

    • 1
      0

      “One the prosecuting lawyers in this case is the present Director General Bribery and Corruption. “

      ideal guy.Now we can be sure that any bigwigs charged for corruption will be acquitted in 29 years.At least it is a step in the right direction and we know of a sure outcome.

    • 0
      0

      tom

      if those five had started the morning at the police station meditating,they might not have done that foul deed.Meditation cleanses the mind and removes all bad thoughts.

    • 2
      0

      May be you are one in a thousand.

  • 5
    1

    During its heyday the LTTE had in place a very efficient system of administration of justice. The majority of cases were resolved within six months or so. The lawyers too did their work properly and their fees were quite reasonable. I am sure many of those persons who served in the LTTE court system are still around.

    It would be a good idea to trace some of them and appoint them to suitable positions in a newly established, post graduate law school. We could then send all our ‘legal luminaries’ including our chief justices (each of whom serves for less than one year in that post) and supreme court justices and other lawyers too for getting special training on how to tackle this problem of interminable delays in the dispensation of justice.

    • 2
      0

      instead of shooting constable nadesan,they should have made him the IGP.Then medication,er sorry meditation would not have been made compulsory.

  • 2
    0

    Dear Mr. Balendran,

    It is the time for urgent action. There are tens of thousands of us who have been traumatized and made destitute by the judiciary which is corrupt from the CJ down. They take bribes from the criminals to wipe off their criminal records in order to spend to pamper and entertain themselves

    We need to come together to embolden ourselves to ensure that the country gets rid of the Judicial Criminals empowered by law.

  • 2
    0

    Late Rtd Senior DIG Police A. C. Dep was a very respected police officer in Ceylon. The CJ is his son. I don’t think he do any wrong. We expect that he will clean up the present mess in the judiciary before his retirement

    • 0
      0

      Tom Jones ~ “……….We expect that he will clean up the present mess in the judiciary before his retirement”
      Optimism is good but unrealistic optimism?

    • 0
      0

      tom

      it will depend on whether he got the job through seniority or merit?If it is the former don’t expect too much because they all want to leave with minimum trouble for them.

      Sincerely hope you are right and this man will be a fonseka who got the job on merit.

  • 1
    0

    Dear Mr K. Balendran and Tom Jones,
    .
    Lawyers appearing for Corporate Clients think they can bully “weak” plaintiffs in to submission through delaying the outcome of cases for years. Most of the time they are right.
    .
    Those who can, ought to administer a shock to these guys by showing this won’t always work. They will thereby be doing a great favour to the average citizen.
    .
    Very recently, I saw this, described in the report itself, as a landmark case. Chief Justice Priyasath Dep and two other Justices agreeing have awarded 400K,
    punishing the Tobacco Company for delaying tactics, quite apart from the outcome of the main case which has been deliberately dragged on for 12 years using appeals and dates.
    .
    http://www.dailymirror.lk/151362/Delaying-trial-for-years-SC-orders-CTC-to-pay-widow-Rs-as-costs
    .
    This surely is worth following up by you.
    .
    I know of another case, of which I will give you the details in the form of a Reply to the present comment. In that case, a vehicle belonging to Dialog rammed in to my neighbour’s SUV which had stopped at traffic lights.
    .
    My neighbour got mad when Dialog lawyers said that “they had a policy never to pay more than” 200K (or something like that), although it was going to cost at least double that to repair the vehicle. So, my friend (who could afford to wait, and could manage without a vehicle for some time) decided teach them a lesson.
    .
    After some time he did get his SUV repaired. Many years, and lots of hearings later, the compensation came – in millions. Interest was added on; the inconvenience suffered by my friend was also taken in to account.
    .
    If you want the results, I’ll post them here, as a Reply to this comment. My friend was not interested in somebody else’s arbitrarily decided “policy”, which was smugly stated by the lawyers: he would have settled in a more normal way had there been even a touch of remorse.

    • 0
      0

      sinhala man

      “a vehicle belonging to Dialog rammed in to my neighbour’s SUV which had stopped at traffic lights.”

      serves him right for obeying these stupid rules.In sri lanka rules are meant to be broken. i was waiting at the lights and a young girl bumped me from behind.After that i go through all the lights unless i feel it will be close shave.Touchwood so far nothing has happened to me but some other drivers looked like they had cardio problems.Just tell your friends not to stop at traffic lights unless absolutely necessary to do so.

      • 0
        0

        Thank you, shankar.
        .
        Shall cogitate on lessons to be learnt from your insights. Lucky you, to be bumped by girls.
        .
        But this is the problem with us all; when are we going to realise that things have got unendurably bad.
        .
        It doesn’t look as though anybody else is following these comments now.

        • 0
          0

          sinhala man

          ” Lucky you, to be bumped by girls.”

          unlike your case she was parked behind me,then suddenly she bumps me a little bit.Only minor scratch and she said her boyfriend will fix it up for me.When she said boyfriend any thoughts i had that she was propositioning me went away.Now that i think back it might have been her way of asking me for a date.My profile from the back of the car may have made her curious to see my face i think maybe i should have told her lets go and have a drink and forget about all this.Life is short,let us enjoy every day.

  • 1
    0

    Mr Balendra,
    .
    I’ve been looking at your two earlier articles in T. One deals with this same problem.
    .
    The other, I found quite refreshing. You’ve given us a new angle on the exploitation of labour on estates, and the plight of Up-country Tamils”. Yes, so-called “socialists like A.E. Goonasinghe were racist in outlook.
    .
    On the other hand, I’ve always heard it said that the Brits found the Sinhalese too lazy to work on plantations. You credit our villagers with common sense!
    .
    “The Ceylonese labour was not willing to fall a prey to the designs of the British. They were aware of the immense hardship one has to undergo in preparing the land to plant Tea, Rubber and Coconut.”
    .
    An intelligent approach is necessary in analysing anything.

  • 2
    0

    The Supreme Court Complex at Hultsdorp is no different from the Tip of the Meethotamulla Garbage Dump which killed so many innocent lives. The good news is that it has been made harmless. But the Hultsdorp Complex is becoming more and more vicious by gathering greater momentum under the influence of bribery and corruption.

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