Proposed 18th Amendment to the Constitution: 'Help deliver justice without delay'

Sandasen Marasinghe

Justice system: The proposed 18th amendment to the Constitution is designed to strengthen the justice system, says Attorney-at-Law Koggala Wellala Bandula, Chairman of Sri Lanka Foundation Institute (SLFI).

"It would help deliver justice without delay minimising the unnecessary travails and hassle suffered by the litigants," Wellala said.

Wellala said, the proposed 18th Amendment is the result of years of arguments, researches and discussions among legal scholars on the law's delays.

The backlog of the cases in the Court of Appeal is so much that even though the cases were heard on a daily basis from morning till evening they cannot be concluded.

According to section 137 of the Constitution, the Court of Appeal shall consist of the President of the Court of Appeal and not less than six and not more than 11 other Judges.

But the Court of Appeal is still hearing cases filed as far back as 1995 and these yet to be concluded. Since then (1995) more than 12,000 cases have been filed before the Court of Appeal to date. For example 1598, 1822, 1592 cases were filed in 2003, 2004, 2005 respectively. During the first six months this year 339 cases have been filed before the Court of Appeal.

According to the proposed 18th amendment, Article 137 of the Constitution will be amended by the substitution of the words "not less than six and not more than eleven other judges" with the words "not less than eleven and not more than twenty-one other judges".

"It's a matter of delight to have Court of Appeal judges numbering between 11 and 21. But under these circumstances there should be more than another 20 judges and more Court of Appeal courts to bring justice to the litigants," Chairman Wellala said.

Article 146 of the Constitution is amended by the 18th amendment by the repeal of paragraph (1) of the Article namely 'the Court of Appeal' shall ordinarily exercise its jurisdiction at Colombo.

The substitution therefore is "(1) The Court of Appeal shall exercise its jurisdiction in Colombo and in the several Circuits as specified below:-(a) the Southern Circuit comprising of the Southern Province, (b) the Midland Circuit comprising of the Central and Uva Provinces, (c) the North Western and Central Circuit comprising of the North Western and North Central Provinces, (d) the North Eastern Circuit comprising of the Northern and Eastern Provinces and (e) the Western and Sabaragamuwa Circuit comprising of the Western and Sabaragamuwa Provinces".

Attorney Wellala further said, even where the security of the country is concerned it is better to have Appeal Courts in the said provinces.

The litigants from all over Sri Lanka including the North and East have to come to Colombo which would provide terrorists in disguise enough opportunities to gather information or engage in sabotage.

The litigants in Jaffna Trincomalee, Vavuniya, Mannar, Batticaloa have to come to the Colombo Court of Appeal and the terrorists might find many easy ways to approach Colombo in the guise of litigants. "When the Appeal Courts are located in different areas there will be less strangers in Colombo which would mean lesser opportunities to the terrorists," Bandula explained.

The litigants from remote parts of the country for instance Kebithigollewa, Padaviya, Kalmunai, Hambantota, Monaragala find it difficult to cope up with the hardships they have to endure as litigants.

"These litigants cannot arrive in Colombo on time in the morning if they do not leave their homes the previous day. Some of them stay at lodges and their expenditure for the trip plus counsels' fee, food etc.. becomes unbearable.

Those who cannot afford lodges and have no relatives or a friend to stay in with in Colombo spend the nights at railway stations and bus stands".

"Almost all these litigants are very poor people, most of them live on a daily wage while others are Government servants or private sector employees".

The latter in order to get to Colombo have to obtain full day's leave since half day's would not suffice.

Attorney Wellala said, since the Court of Appeal was in Colombo most of the lawyers from the provinces do not get the opportunity to appear before the Court of Appeal due to practical difficulties.

As a result a limited number of Attorneys enjoy the privilege of appearing before the Court of Appeal. When the Court of Appeal is de-centralised around the country it would help many lawyers to develop their skills. As a result of the fewer number of court houses of the Court of Appeal and the excessive number of cases, even the lawyers do not find enough spaces inside the court houses.

Wellala Bandula maintained that the population has increased exponentially during the last two decades that the Justice system has to be made more accessible. "Unfortunately bigger the population bigger the number of cases to be heard".

"The repercussion of all these is delayed justice. Justice delayed is justice denied," he reflected. "The worst aspect is, in such instances the people might take the law into their hands. For instance, sometimes, when justice is delayed in a civil matter it might turn to a criminal matter."

He opined that as a result of delays in justice the public loses faith in the justice system.

"As it is we are already too late. The Bill should have been by around 2000."

He said, when Prof. G.L. Pieris was the Constitutional Affairs Minister he suggested that the Judges of the Court of Appeal should be not less than 14 and not more than 24. This was contained in the draft Constitution presented on August 3, 2000 before Parliament. But it was not passed. He also said, this system is not a novel experience for Sri Lanka.

In the 1950s there was a practice that the Chief Justice went to areas like Kandy, Galle and Hambantota to attend court sessions. After a formal ceremony attended by the Chief Justice and the Government Agent it was proclaimed what cases would be heard at that session.

At the end of the ceremony the GA leaves and the Chief Justice continues to hear the cases. It was a practice that helped to deliver justice efficaciously.

"Today the responsibility of all the responsible politicians is to help to pass this 18th Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka setting aside political differences," Wellala said.

Wellala Bandula was a former Chairman of the Sri Lanka Cement Corporation. He was the former director to the Sri Lanka Broadcasting Corporation and legal adviser to the Environment Ministry in 1996.

He passed his bachelor of Arts Degree in 1970 and completed his LLB in 1980 and was sworn in as an Attorney-at-Law in 1984. He also has published a book on political violence titled "Wanaye Gijindaya Dutuwoth Vanasaya".