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.
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.
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
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:
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.
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.
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 :-
Circuit, covering the Southern Province with sittings at Galle and
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.
from the Sabaragamuwa and Western provinces will be heard in Colombo
as at present.
req-uires amendments to be made to the Cons-titution.
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
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.
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.