Editorial

Security

Politics

World

Letters

Sports

Obituaries

Archives

Prospect of cheaper, expeditious legal relief

by Neil Dias

At a meeting of the National Conference on Legal Aid held recently, Chief Justice Sarath N. Silva, made a very important announcement that Constitutional Affairs Minister G. L. Peiris has prepared draft legislation to set up Regional Courts of Appeal on a countrywide basis.

It is reliably learnt that the Association of High Court Judges has expressed approval of the proposal of the Chief Justice to set up Regional Courts of Appeal. In their communication they have pointed to the existence of a backlog of some eight thousand appeals pending before the Court of Appeal. At the rate that the appeals could be disposed of it is estimated to take approximately five to seven years to conclude an appeal. The appeals that are being taken up at present are said to be those filed in 1994/1995. These would be in addition to the innumerable interlocutory appeals that are daily being sent up to the Court of Appeal.

In a country labouring under the heavy and unbearable burdens of the law's delays resulting in colossal expense to the general public as well as to the state and in addition leading to violations of Human Rights and Fundamental Freedom it was thought that the announcement, would be well received by the general public as well as those interested in the expeditious and more efficient implementation of legal relief for the people.

The very damaging effects of laws delays on the country cannot be assessed in terms of monetary or otherwise. The blame for the delays in the legal process cannot solely be placed on the legal profession or the judiciary. Their portion of blame is minimal. The persistent refusal or the failure to implement very workable and meaningful measures that would have expedited the judicial process has led in a much greater measure to the laws delays.

It is at the expense of the public and the state that doctors, police and other officers make several trips sometimes lasting several days to attend trials and inquiries in Court. In the meantime patients are left without urgently needed medical attention and important and urgent work in other departments of the state come to a grinding halt. Even the burial of the dead get delayed sometimes. Denial of hassle free access to Courts of justice lead to laws delays which in turn has led to grave violations of Human Rights and Fundamental Freedoms.

Thirteenth Amendment

Until President J. R. Jayawardena introduced the Thirteenth Amendment to the Constitution and devolved some of the judicial functions that were hitherto centered in Colombo since the time of the colonial masters and took them to the provinces through the establishment of Provincial High Courts people from Jaffna and Tissamaharama had to travel to Hulftsdorp to make a simple bail application or to prefer an appeal or a revision application challenging the order of a minor provincial Court.

From the days of the Dutch administration the island's judicial administration was centered in Colombo it being their centre for trade. The Hoff van Justitie situated in Colombo exercised original jurisdiction both civil and criminal with a restricted right of appeal to the Hoff van Justitia in Batavia. Later, the Charter of April 18, 1801 constituted the "Supreme Court of judicature in the Island of Ceylon". It consisted of two judges: a Chief Justice and a Puisne Justice.

They had to be Barristers of either the English or Irish Bars of not less than five years in practice. They were appointed by Letters Patent under the Great Seal of Great Britain and Ireland and held their positions during the pleasure of the Crown of Great Britain. An appeal from this Court was confined to civil disputes that exceeded a sum of five hundred pounds or five thousand rix dollars thus confining the relief to the extremely rich. There was no appeal to the King in criminal cases. The Charter of 1810 extended the jurisdiction of the Supreme Court both civil and criminal to "every part of the British settlements in Ceylon". This Charter also introduced the system of trial by jury.

The First Republican Constitution aimed at a complete break with our country's colonial past with the establishment and restructuring of institutions totally home grown. After 1970 appeals to the Privy Council were done away with and Act No. 44 of 1971 established the Court of Appeal as the ultimate court of appeal.

The 1978 Constitution brought back the Supreme Court, as the highest appellate Court with the Court of Appeal placed subordinate to it.

The Thirteenth Amendment referred to earlier enabled the public to rid themselves of some of the rigors of a centralized judicial administration that were designed and practised to solely suit the commercial needs of our colonial exploiters. The Thirteenth Amendment enabled and empowered the Provincial High Courts to entertain and dispose of applications for habeas corpus and other important writs on matters pertaining to the administration of the provinces and with regard to subjects illegally detained within the respective provinces.

The fears, certainly based on an abundance of caution, expressed by the dissenting judgement in the case arising out of the Thirteenth Amendment about the concurrent power conferred by the Thirteenth Amendment on the Court of Appeal and the Provincial High Court leading to absurd situations have now been proved to be not quite real.

Particular mention must be made of the enormous benefits that the working class derive as a result of the provisions that enable them to prefer appeals and revision applications to the Provincial High Courts from orders of Labour Tribunals and Commissioners of Workmen's Compensation sitting within the provinces. Additionally a host of other matters pertaining to workmen that came up before local Magistrates are disposed of in appeal and in revision applications within the respective Provincial High Courts.

These include the enforcement of orders from Labour Tribunals, dues recoverable under various labour laws and innumerable other matters beneficial to the working population. Additionally orders made in regard to disputes as to succession under section 9 of the Agrarian Services Act are capable of being contested in appeal before the Provincial High Courts. All these have been made possible largely by the enactment of just one Article into the Thirteenth Amendment. Unfortunately due to bad drafting the Supreme Court has had to strike down an issue of a writ by a Provincial High Court in respect of an order of a Labour Tribunal thus closing the avenues for relief in that area.

judicial review of legislation

The absence of provisions enabling judicial review of legislation in the American Constitutions did not in any way fetter Chief Justice marshall from handing down the celebrated judgment in Marbury. Absence of similar provisions in our Constitution did not fetter Chief Justice Sharvananda from invalidating legislation concerning a forest offence not on the ground of inconsistency with constitutional provisions but on the ground of being violative of the natural justice principle of audi alteram patem. Similarly our High Court Judges in the provinces have not failed to be innovative when the occasion demanded.

With all their inadequacies and room for improvement, the system of decentralization and devolution of judicial functions introduced under the Thirteenth Amendment have worked very well under very committed Provincial High Court Judges and with enormous and inestimable benefits to the people.

The time and energy spent in totally condemning and rejecting the said amendment on the inadequate and wholly unacceptable ground that they do not cater adequately to the aspirations of the people could and should have been very profitably utilized to improve and make the system more workable.

The resulting loss to the general public and the country is inestimable both in terms of money and other material benefits. In monetary terms alone the loss is far more than the monies spent on the war. Ironically President Jayawardena was far more representative of the people than those who sought to condemn his devolution proposals on the said grounds. Additionally improved and updated provisions of the Thirteenth Amendment if properly and sensibly utilized and implemented would have prepared the people and made them accept concepts and schemes of further devolution. It is not such a long step from the concept of the Provinces to that of Regions. This also would have contributed enormously to weaken the warmongers and the arms dealers and lessened the financial burden of the war, which was raging until the last general election.

The direct and immediate benefits of a decentralized and regionalized Court of Appeal will be enormous and will be felt and reaped by the people almost from their inception.

Litigation under such a set up will be much less expensive both in terms of lawyers' fees and other related expenses connected with litigation. There will be wider and freer access to Courts and to lawyers and people will welcome the establishment of higher Courts of Appeal closer to them and in their own respective provinces. The experiences with the Provincial High Courts have given the people in the respective provinces a sense of security that they did not enjoy under the centralized set up.

A simple example can be found in a situation where a person is detained inside a police station for more than the period of twenty-four hours permitted under the provisions of the Criminal Procedure Code. In such a situation people have found it far more convenient and much less expensive to obtain relief through a habeas corpus application made to their respective Provincial High Court than going to Colombo for the purpose.

In the field of civil litigation Judges of Provincial High Courts have boldly innovated procedures and indulged in judicial activism which have rescued poor villagers from the political onslaughts of minor politicians at Pradeseeya Shabha level who have attempted to use certain provisions in the Pradeseeya Sabha Act to declare and construct unnecessary roadways through blocks of lands owned by their political opponents.

Looking forward then, for the proposal of the Chief Justice to reap real benefit the Regional Courts of Appeal will have to be set up on a permanent basis. Circuit Courts may not confer the benefits that would accrue under the proposed set up. The Regional Appeal Court Judge who will reside in the region would be a beneficial institution in the Region. He could be entrusted with the very important function of supervising the administration of the other Courts and Tribunals under the Region.

Under the provisions of the Thirteenth Amendment the Judicial Services Commission is empowered with the task of delegating to the Provincial High Court the power to inspect and report on the administration of any Court of First instance within the Province. With the setting up of permanent Courts of Appeal in the Regions these powers could be conferred on those Courts. Not only will such Courts be able to supervise the much-needed administration of minor Courts they will be able to study and recommend measures for their improvement and better administration.

provinces sans basic needs

As at present most Courts of first instance in the provinces function sans the basic needs. Most Courts are not supplied with the basic enactments and their amendments

Courts often having to depend on the police and other officials for them. In a provincial Court a suspect brought from remand custody was able to enter the chambers of a Magistrate and attempt to hurl a hand grenade at her. In the same Court, a couple of months later, another suspect, also brought from remand custody, was able to hurl a packet of human excreta at the presiding Judge who succeeded her. Adequate protection will have to be provided for Courts to function fearlessly. The carving out of judicial Districts and Zones was done most arbitrarily at the behest of power wielding politics without any reference to the judges in the areas. Such actions result in people living just a couple of yards from the existing Court house being forced to travel several miles to a different Court house in search of access to justice, reminiscent of going to Batavia during Dutch times and England during the time of the British.

Some people in their helplessness just give up the fight and succumb to the rigors of illegal and unjust verdicts. Are they not instances of grave violations of Fundamental Rights? An instance could be cited of a sentence of imprisonment and a fine being imposed under the provisions of the Primary Courts Procedure Act relating to land disputes to illustrate the suffering that people could undergo due to such arbitrary demarcation of judicial districts.

It is reported that a man in his late sixties and sickly who was not a party to the original case was sentenced to a term of rigorous imprisonment and fine in his absence for putting up a hut in a land that was a subject of an action under the said law. He is said to have been sentenced and fined for violating the said order or acting contrary to it. If the jurisdiction of the Provincial High Court that existed at his doorstep continued he could have got the case record sent to the High Court in a matter of a day and the order revised in a matter of days. Now he has to travel more than eighteen miles for access to justice and he prefers to live with a warrant over his head.

To sum up then the Court of Appeal in Colombo is presently handling election petitions and other matters connected with Pradeseeya Sabha and Provincial Council elections. The initiative for setting up of Regional Courts of Appeal is welcome, as they will facilitate the hearing of all these matters in the regions. It will be both a cheaper and expeditious process and will be well received by both the people and their political leaders irrespective of party differences.

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright 2001 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager