Focus on Rights

Do we need the draft 18th amendment to the constitution?
The proposed 18th Amendment to the Constitution by which the appellate courts are sought to be taken to the provinces and the numbers of appellate judges are sought to be increased has been shrugged off as populist by some and lauded as people friendly by others.

The latter argue that easier access to the appellate courts would be provided thereby for the thousands of provincial litigants who would otherwise be compelled to travel to Colombo and brave the elite portals of Hulftsdorp along with the tremendously increased litigation costs that such a process would undoubtedly involve.

It is suggested therefore that the amendment would do much to decrease laws delays that are now an entrenched and detested part of the legal process in the country. In the abstract, this is a problem acknowledged by the judges themselves. The “chronic delay and frustration” in a typical civil litigation was succinctly summed up by a onetime President of the Court of Appeal when, after analysing the case flow statistics, he pointed out that the system reflects “excessive judicial passivity in an adversarial, undisciplined legal procedure with limited availability of versatile alternatives to a protracted trial………where the institutions of civil appeals far outnumber the disposals.” (see address of Justice Ameer Ismail at the ceremonial sitting on his assumption as President, Court of Appeal, The Daily News, Tuesday, August 25, 1998)

Law’s delays has also been focussed upon as a primary concern facing the legal profession in the country by visiting teams of observers from international missions, including the International Commission of Jurists in 1997. (see for example, ‘Judicial Independence in Sri Lanka, Report of a Mission,’ 14-23 September, 1993, pp 54-55)

However, whether the proposed 18th Amendment would, by itself, serve as a panacea for this chronically aggravated problem is another matter altogether. If the amendment does go through, care ought to be taken to ensure that court processes in the respective appeal courts in the provinces are also streamlined with court registries functioning properly and transparently.

It is relevant in this regard that two recent studies on the judiciary had found substantial lack of confidence evidenced among court users in relation to the existing court system, including allegations of corruption against court officers. If existing dysfunctional court structures are replicated in the new appeal courts that will be set up, then what we would end up with is not an improved system but rather a continuation of the miseries of the litigant and yet another way for provincial lawyers, this time, to increase the power of their respective purses.

In a different context, one amendment to the 18th Amendment put forward by the United National Front (UNF) and the Sri Lanka Muslim Congress (SLMC) proposes that the provincial appeal courts be granted the power to determine questions of fundamental rights presently within the exclusive jurisdiction of the Supreme Court.

In principle, a strong argument could be made out, both in theoretical and practical terms as to why the conferring of jurisdiction to hear fundamental rights cases should not be confined to the Supreme Court only. The enforcement of the rights is one of the most important remedies afforded to citizens. The availability of such remedies in the provinces that would take the hearing of such complaints out of the rarified atmosphere of the highest court in the land and bring rights closer to those marginalised victims most in need of such a remedy, has much to recommend it.

Though in a very different constitutional context, the Indian Constitution, for example, has successfully merged the concept of writ jurisdiction and fundamental rights and granted both the Supreme Court and the High Court to hear questions of violations of rights and issue writ accordingly. The right to a remedy to a High Court in India arises if the cause of action has arisen wholly or in part within the High Court’s jurisdiction or if the seat of the person in authority who is alleged to have been responsible for the violation rests within that court’s jurisdiction.

However, in contrast, the writ remedy and the fundamental rights remedy, (though the latter has been influenced in its expansion by the former), has been kept constitutionally separate in Sri Lanka with the writ jurisdiction lying with the Court of Appeal and the Supreme Court exercising its exclusive powers to determine rights violations. With the institution of the provincial High Courts, these courts were given the power to hear writ applications in respect of matters arising within their jurisdictions. In that regard, the impact that the conferring of fundamental rights jurisdiction in the provincial courts of appeal set up in terms of the 18th Amendment will inevitably have on the existing appellate courts needs to be thought through adequately to ensure minimal confusion in the existing court hierarchy and the conferring of jurisdiction thereby. That the draft 18th Amendment might be referred to a select committee of parliament is perhaps a relief in that sense.

As already pointed out in this column, whatever form that the 18th Amendment takes, it will have little effect if existing court processes are not streamlined. Other issues remain unresolved, not the least of which concerns legal assistance. Even if the appeal courts are taken to the provinces, vast numbers of individuals will still be unable to afford the costs of litigation where current schemes of legal aid have an income related cut-off point to qualify for aid which bypasses individuals whose income may be marginally higher than the cut-off point but are still not high enough to absorb costs of actual litigation. Unavailability of legal aid continues to be one of the most pressing questions affecting access to justice.

In sum, the present travails affecting Sri Lanka’s legal system cannot be miraculously addressed by an 18th Amendment to the Constitution setting up provincial courts of appeal or even by granting such courts the authority to hear rights applications. Rejuvenation of the country’s legal system is a far more difficult task, commencing from the resolution of core questions affecting the independence of the institution of the judiciary that have been bedeviling us for the past several years, thereafter followed by carefully thought out reform of the existing system. This process is yet a long way off from our currently confused thinking dominated by the respectively opportunistic political agendas of the government and opposition parties.

Back to Columns