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Justice delayed is justice affirmed?

3 January 2019 12:00 am - 0     - {{hitsCtrl.values.hits}}

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Justice delayed is justice denied. We’ve heard that adage often enough. We also know that justice delayed makes for buck-making. Who makes the bucks? Well, the lawyers of course. And who or what are the accessories after the fact of buck-making courtesy delays? Why, the entire judicial system including laws, procedural culture and the judges. Let us add to this the tiny matter of mandatory court vacations, originally put in place for British judges to have holidays back in the ‘Mother Country’ but which defy all logic in this day and age.   

Of course, we must acknowledge that certain cases drag on account of factors outside the ones mentioned above. That also happens. It’s certainly no justification for the gross injustices wrought by (habitual) delays.   

  • The judicial system including laws, procedural culture and the judges
  • Efficiency, is not something associated with Sri Lanka’s justice system 

In November 2009, the then Minister of Justice, Milinda Moragoda shared with me some horrifying data which I summarized as below in an article published in the ‘Sunday Island’ titled ‘Childhood is made of innocence and adult traps’:  

‘Out of 14,966 cases pending before the High Courts, 4,032 (26.94%) were trials concerning child abuse. The data set indicates that close to 20% of all pending cases before the High Courts are of offenses committed before 1999 but there’s no category-wise break down. We can assume however that a significant number of cases are more than 10 years old. The implications for the abused child are obvious; there is bound to be a serious impact on that child’s overall development and that kind of scarring, exacerbated by inordinate delay in some form of closure, cannot be healthy for society either.’

The numbers would probably have changed over the past nine years, but probably not for the better. In terms of delay, cases in general are as bad or even worse. Recently the salaries of judges were upped considerably, in some cases by over 250%. If this was only about correcting some remuneration-related injustice, then no one should complain. However, if the ‘salary-uppers’ thought of it as an incentive for better service, they would be disappointed. Cases are not seeing quicker conclusion, let’s say.   

The proposed 20th Amendment, for example, seeks to repeal or amend no less than 30 articles of the Constitution. On the hand, one would expect judges of the Supreme Court to be well versed in the Constitution

Put it down to habit, put it down to profit, put it down to anything you like, but there are certain cases of such national import that delays are inexcusable.   

Yes, this is about the recently determined case pertaining to the dissolution powers of the president. The President, in his wisdom, took the entire country by surprise when he sacked Ranil Wickremesinghe. The President, for obvious reasons, issued a gazette notification dissolving Parliament. This was the move that was contested. The Supreme Court, in its wisdom, took weeks to pass judgement on the relevant objections. The political and even administrative system almost came to a standstill. Uncertainty ruled.   

It was important and the decision, either way, would have far reaching repercussions. Indeed the decision, some have pointed out, would be mandatory reading for law students for years to come. As such the argument can be made that for this very reason it was necessary to peruse carefully the arguments for and against the constitutionality of dissolution as per the 19th Amendment.   

On the other hand, what was there to peruse? The lawyers on either side presented strong cases, yes. Still, in the end, all that had to be determined was which of the two key articles in the 19th Amendment could stand alone. It was determined that the restrictions placed on dissolution in the draft 19th Amendment superseded those permitting dissolution. The restrictions, let us remember, were considered by the Supreme Court in an earlier deliberation to be unconstitutional and required two-thirds support in Parliament as well as in a referendum. Such things happen of course. The point here, however, is that the Supreme Court had to consider the weight of two articles for five to seven weeks?   

It’s not just the two articles of course. Constitutions have many cross-references. The proposed 20th Amendment, for example, seeks to repeal or amend no less than 30 articles of the Constitution. On the hand, one would expect judges of the Supreme Court to be well versed in the Constitution.   

Today, even after that decision, when it is apparent that despite the rhetoric pertaining to and the spirit of the 19th Amendment, the President retains enormous powers, when it is clear that any situation where the party that a President belongs to does not command a parliamentary majority there’s bound to be numerous conflicts given the distribution of constitutional powers between the President and the Prime Minister, we can anticipate continued litigation. In fact that is one of the glaring flaws of the 19th Amendment. The authors did not anticipate the obvious: disagreements between the President and the Prime Minister. The 19th is silent on this. The other glaring error in the text is that it gives a non-elected body, the Constitutional Council, the power to overrule the opinion of the President in approving individuals to the independent commissions. That’s a clear disavowal of sovereignty as embedded in Article 3 of the Constitution.  

In any event just imagine the worst-case-scenario of the Supreme Court being asked to interpret on multiple issues on account of irresponsible, incompetent and incorrigible legislation!   

First of all, this calls for a review of the Constitution and subsequent ‘cleaning up’. With respect to the thrust of this article, however, it calls for a greater degree of efficiency on the part of the Supreme Court simply because dilly-dallying compromises governance or even renders it untenable.   

For all the accolades showered on the Supreme Court by born-again democrats, funded-voices and candlelight-ladies (they’ve gone silent on the UNP veritably giving the finger to democracy since the ‘landmark’ decision on dissolution; and one suspects that they would have cried ‘foul’ had the determination gone the other way), this delay is worrisome, to put it mildly.   

Sure, one can make an argument that it is better to take time and get it right rather than risk erring on account of haste. Some have argued that the bench had to consider examples across time and space; that’s ridiculous because the bench just has to determine on a specific text (certain articles in an amendment) in terms of a larger text (the Constitution) that includes all relevant articles in the said amendment. In any case, people are supposed to be competent, knowledgeable and therefore efficient.   

Efficiency, however, is not something associated with Sri Lanka’s justice system. It showed in the last two months of 2018. That’s certainly not something to cheer about. Indeed, those who do not find any issue with delay on this occasion, might well live to suffer at the very hands of tardiness. Systems, when flawed, can work for one but flaw can also work against one in different circumstances. Boots do get worn on other feet, one notes.   For now, given a certain ‘tiding over,’ the nation can be pleased. For now. Perhaps we might have to regret that we did not question the length of time taken in this matter and indeed that we don’t question judicial delay in general.  

malindasenevi@gmail.com. www.malindawords.blogspot.com

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