By Mudliyar

Short circuiting law's delays
A nation's prerogative for progress should be supported by its ability to change direction from an inert lethargic monotony to positive activism in the right direction. But in doing so it is necessary to preserve the essence of goodness of the past - not to throw out the baby with the bath water - but yet change the thinking and other retrogressions, which hinder progressive movement.

The legal profession is always accused unfairly by many of being a pressure group that is always against progress and progressive legislation. That any legislation that would endanger the ability of the legal fraternity to collect fees would be frowned upon by them selfishly is the lament of the people who wish to change lifestyles radically without heeding the practical advice given by those who administer the law. These bureaucrats wrongfully accuse the legal profession of being a hindrance to progressive legislation.

The largest perce-ntage of any profession that constitutes the legislature is the legal profession. But strangely the contribution they make when new laws are presented in Parliament is minimal. Like the other parliamentarians, the lawyer-parliamentarians are also driven by factionalism and, partisan political thinking. When this happens, one ponders on the valuable contributions made by Senator S. Nadesan, Q.C. who was in the forefront of educating the people and the members of the House of Representatives of the many pitfalls that such legislation would bring about.

Constitutional Affairs Minister G. L. Peiris has written to the presidents of all branches of the Bar Association requesting them to consider the amendments to the Constitution that would change the existing procedure with regard to the jurisdiction of the Court of Appeal.

It is pointed out that when the present Supreme Court was established (Article 105(1)(b) and Articles 137 and 146), the Court of Appeal was vested with jurisdiction hitherto exercised by the Supreme Court. Any reference to the Supreme Court under the Administration of Justice Law or any other law was deemed to be a reference to the Court of Appeal. All pending proceedings before the Supreme Court by way of appeal applications for revisions, prerogative writs and election petitions pending before the High Courts were transferred to the Court of Appeal. The Supreme Court did not have any cases pending before it but the Court of Appeal by the end of 1993 had nearly 20,000 cases pending. The backlog decreased to 10,000 cases by the end of 1996 but had to remain constant thereafter. It is stated that the incoming cases exceed the number of cases that are disposed of.

The appeals from the District Courts are transmitted to the Court of Appeal and it is said that there is a delay of five to six years to get an appeal listed. Therefore there is a school of thought, which advocates that there ought to be a change in the present system and the jurisdiction in the Court of Appeal must be on a circuit basis and must be decentralised to be held in the provinces. The proponents of this system state that:

(1) Litigants from distance provinces have to travel to Colombo, deposit brief fees to retain junior counsel/instructing attorneys to check the state of the application and to attend court on the days of hearing.

(2) The level of fees are higher in Colombo than in the outstations.

(3) The records of cases will have to be sent to Colombo and thereafter sent back to the respective District Courts.

The suggestion that more Courts in Colombo would relieve the burden of the backlog of cases is challenged on the basis that it is not functional as the appeal work in Colombo is handled by only a few lawyers and that it will not be possible for them to undertake work in more courts. It is further adverted that to establish Provincial Circuit Courts the cadre of judges in the Court of Appeal will have to be increased and that the judicial process will be closer to the respective areas where litigants live thus reducing the cost in appeal and shortening the delay in the disposal of appeals.

This would enable a set of lawyers practising essentially in the High Court with limited appellate jurisdiction to appear before the Provincial Circuit Courts of the Court of Appeal. This will also encourage young lawyers in the outstations to establish themselves as appellate lawyers in the Circuit Courts of the Court of Appeal.

It is proposed that there should be four circuits of the Court of Appeal :-

1.Southern Circuit, covering the Southern Province with sittings at Galle and possibly Matara.

2. Midland Circuit, covering the Central and Uva provinces with sittings at Kandy and Badulla.

3. North Western and North Central Circuit, covering North Western and North Central provinces with sittings at Kurunegala and Anuradhapura.

4. North Eastern Circuit, covering the Northern and Eastern provinces with sittings at Batticaloa, Trin-comalee and Jaffna.

The appeals from the Sabaragamuwa and Western provinces will be heard in Colombo as at present.

This proposal req-uires amendments to be made to the Cons-titution.

The opponents to the proposal are of the view that such decen-tralisation will have an affect on the quality of justice meted out by circuit courts. It is said that judges change their attitude and even their idiosyncrasies when they are elevated to the Court of Appeal. One of the main reasons for this is that there is a continuous learning process where Judges promoted to the Court of Appeal will have to sit with a senior Judge for a very long time before they decide to write judgements of their own. Our legal literature, legal writing and judgements of yesteryear have a definite stamp of class and the judgements delivered by most Judges of the Supreme Court could be compared very favourably with judgement of the Privy Council or any contemporary judge-ments of Common-wealth countries.

A practitioner in the Court of Appeal has told this columnist that the same cannot be said of the judgements of High Court Judges with appellate juris-diction. He said that this was not due to the fact that the High Court Judges though vested with appellate jurisdiction do not possess the experience and the learning that they would obtain by sitting with a senior Judge in the Court of Appeal. At the same time it would be a disaster to decentralise the Court of Appeal without proper infrastructure deve-lopment, he claims. Even though we could promote Judges of the High Court to the Court of Appeal, the dearth of English stenographers and typists and equipment such as type-writers and photo-copying machines etc cannot be rectified overnight.

One of the laments often heard is of the delays encountered in typing briefs. What is the answer to this? Whether the courts are decentralised or not the briefs will have to be typed. The delays often begin with the typing of the briefs. This delay cannot be avoided at all. The proponents do not accept this argument at all. They contend that in the outstations the typing of the briefs could be done by photocopying and given to the parties within a few months after the appeal is lodged. One of the main causes of the delay when the cases are fixed for hearing is that a handful of lawyers who practise in the Court of Appeal are retained and as they are over burdened with work give earlier dates. Therefore the hearing gets delayed and the parties suffer due to extraneous circumstances.

''Justice hurried is justice buried'' is a dictum that one should not forget as much as people lament on the delays in the justice system. They are worst offended and cry foul when their cases are disposed of in a hurry without a proper hearing. Whether the establishment of circuit courts would bring relief to the litigant is a contentious matter. The outstation lawyers would welcome the amendment to the Constitution and the establishment of circuit courts.

Over to you Mr. Minister, I have pointed out various shades of opinion, like in any matter the proof of the pudding is in the eating. Before the amendments are brought before parliamentary consultative committee, I believe the minister being a true democrat would seek the opinion not only of the branches of the bar but also that of the practitioners in the Court of Appeal, not only the PC's but also from other practitioners. It is also essential to invite from the outstation bars their representatives who essentially practice in the provincial High Courts.

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