Any new laws aimed at expediting cases and curbing laws delays will not succeed unless there is an attitudinal change in the institutions of justice, the new Court of Appeal (CA) President Priyantha Fernando said. “Joint effort of the Bench and the Bar, in my view, is the answer to resolve disputes between the parties [...]


The Bench and Bar must be equal partners in expediting justice: New CA President

Speaking on law and equality, newly appointed CA Judge Sasi Mahendran stresses the importance of giving prominence to gender equality

Justice Priyantha Fernando

Any new laws aimed at expediting cases and curbing laws delays will not succeed unless there is an attitudinal change in the institutions of justice, the new Court of Appeal (CA) President Priyantha Fernando said.

“Joint effort of the Bench and the Bar, in my view, is the answer to resolve disputes between the parties expeditiously; and, defeat any possible misuse or abuse of the laws to prolong cases reversing the objectives of the legislature,” Justice Fernando added, speaking during the Ceremonial Sitting held to welcome him and the newly appointed CA Judge Sasi Mahendran at the Superior Court complex.

Justice Fernando said that the Bar, both official and unofficial, has always readily extended their fullest co-operation enabling him to perform the task of dispensing justice at an optimum level. “I would reiterate that dispensation of justice at optimal level, in my opinion, means doing justice without undue delay and without undue hurry. The Bench and the Bar must be equal partners in performing this noble task,” he remarked.

He noted that throughout his 30-year long judicial career, he has always stood against condoning insincere and unethical delaying of cases. “Such conduct needs to be denounced. That is because I believe in the duty of court towards the litigant as much as the duty owed by counsel towards the client and the court.”

Justice Sasi Mahendran

Frivolous technical objections, often taken by counsel, cause delays in proceedings, the new CA President pointed out. Such conduct undoubtedly defeats the course of an effective and efficient system of justice. “The resultant position is that a litigant, being the most important stakeholder in the system of justice, is made to suffer perhaps at the hands of his own counsel. Merit-based approach to deal with a case needs to be adopted unless an objection of preliminary nature goes into the very basis of jurisdiction upon which the court is founded,” he declared.

Every now and then, laws delays have become a much-debated subject, Justice Fernando observed. Periodically, the legislature, too, brings in new laws by way of amendments to the existing laws with the intention of expediting cases and to curb the laws delays.

“Impractical and cumbersome procedures have often been found as impediments to speedy justice. Procedural laws on principal branches of the law have, therefore, undergone frequent changes from time to time. Yet, law’s delays occur. The problem is, therefore, seen as perennial, which can be remedied only by the unwavering commitment of the Bench and the Bar,” he argued.

Justice Fernando assured that he will try hard to attain judicial excellence and maintain the optimum level of justice according to law. “I shall perform my duties impartially without fear or favour not only between man and man, but also between man and State.”

The new CA President also expressed appreciation of the Ministry of Justice and the Bar Association of Sri Lanka (BASL) and their officials for spearheading the project to offer digital platforms to hear cases. “I need to specially thank the Chairman and the members of the digitization committee of the Ministry of Justice, for its pioneering work on the project. My brother and sister judges, members of the Attorney-General’s Department and the private Bar, too, also need to be commended for the unstinted co-operation extended to make the project a success. The Registrar as well as the staff, too, deserve great appreciation for their support. Digital infrastructure is now in place to overcome challenges posed against court hearings by the epidemic-ridden difficulties,” he assured.

The concept of Equality is a deep-rooted Fundamental Right guaranteed not only in the Constitution, but is also a basic Human Right, CA Judge Sasi Mahendran stressed in his remarks.

Having served as a High Court Judge for 11 years in many provinces in the country Justice Mahendran stated that he had observed the varied cultural and social differences unique to each jurisdiction. He added that these differences have influenced the nature of cases pending in the courts that he has presided.

“The Judiciary is bound to guarantee that equality shall be entrusted to all citizens of the country. In the broad sphere of ‘equality’, it is my fervent belief that gender equality should take prominence in today’s context. I would like to take this opportunity to refer to the somewhat controversial subject of gender equality and the role that law plays in it,” he said.

Justice Mahendran revealed that when he was serving in Jaffna as a Civil Appellate Court Judge, he came across many cases where women who are subjected to the Thesawalamai Law have pleaded in Court that they face discrimination because of the law that governs them.

“In this respect, a woman who is governed by Thesawalamai Law ceases to be governed by that system, when she marries a man who is not subject to that system. However, if a woman to whom Thesawalamai Law does not apply marries a man to whom Thesawalamai Law does apply, then she shall during the subsistence of her marriage, be subject to that Law. Therefore, it is pertinent to note that the concept that a woman is deemed to acquire her husband’s domicile and personal law still remains a part of the Thesawalamai Law,” he explained.

He further pointed out that in respect of thediatettam, although it refers to ‘acquired property’, acquired probably by both husband and wife, the wife is not allowed to dispose her property without the consent of her husband. The husband remains the manager of the thediatettam property during the subsistence of the marriage and he is regarded as the sole and irrevocable attorney of his wife.

“Further the Jaffna Matrimonial Rights and Inheritance Ordinance makes it mandatory that the wife obtains the written consent of the husband to deal with her immovable property. However, under section 8, the District Court in which the woman resides or in which the property sought to be disposed of, is situated, the court is empowered to provide the consent required under section 6. This patriarchal attitude unveils that a woman is viewed as being incompetent to make her own rational decisions. Therefore, a woman’s legal status is always tied to that of her spouse.”

Justice Mahendran added that the urgent necessity to reconsider the laws that were legislated so many years ago and the necessity of adapting Thesawalamai Law to meet the needs and requirements of the present times cannot be stressed enough.

In his welcome speech, Attorney General Sanjay Rajaratnam PC, observed that the Justices Fernando and Mahendran had taken two different paths representing two equally important but distinct institutions operating in one and the same system of the administration of Justice. Both of these institutions, the Judiciary as well as the Attorney General’s Department, make their own contribution to achieve a common goal, working within their respective parameters, he stressed.

“There is an indispensable duty cast on both these institutions to perform their functions while maintaining the highest standards and to ensure an efficient and effective administration of justice. Your Lordships, Justice Priyantha Fernando as well as Your Lordship Justice Sasi Mahendran have embellished those respective institutions, where present and future generations can proudly look up to the commitment and dedication with which Your Lordships discharged the duties and responsibilities entrusted to you,” he also said.

“The competency and skill, Your Lordships Justice Priyantha Fernando and Justice Sasi Mahendran acquired with your wealth of experience will undoubtedly enhance and enrich your journey to higher echelons, while upholding the principles of natural justice in the administration of justice,” the AG further added, congratulating the two justices on behalf of the Bar.

BASL President Saliya Pieris, PC also spoke on the occasion.

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