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.