The judicature of Sri Lanka in its historical setting - Part II

R T Vigna Raja

Continued from yesterday Link

Several steps were taken over the years to relieve the burden of the Court of Appeal. Quite apart from the inordinate delay, the exercise of appellate jurisdiction by the Court of Appeal, based only in Colombo has other negative factors, they are:

(i) Litigants from far removed parts of the country, form Jaffna to Hambantota, have to trek to Colombo for the purpose of their civil appeals.

(ii) They have to retain Counsel in Colombo and incur a higher overall cost than at provincial level.

Gradually steps were taken to transfer the appellate jurisdiction of the Court of Appeal to the High Courts. The process commenced with the 11th Amendment to the Constitution effected on June 5, 1987, which amended Article 111 (1) of the Constitution by deleting the reference to the High Court as being a Court of original jurisdiction. This paved the way for the High Court to exercise Appellate jurisdiction, in addition to its original jurisdiction.

Provincial Councils

The 13th Amendment to the Constitution effected on November, 14, 1987 established Provincial Councils, as a measure of devolving power directed at a settlement of the ethnic problem and the ongoing conflict. Article 154P of the 13th Amendment vested an appellate jurisdiction in the Provincial High Court in respect of Magistrate’s Courts and Primary Courts within the Province.

It also vested a writ jurisdiction in the Court with regard to matters set out in the Provincial Council List. Article 154P (c) left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could ‘exercise such other jurisdiction and power as Parliament may by law provide.’

It is in pursuance of this provision in the in the Constitution that the High Courts of the Provinces (Special Provisions) Amendment Act No: 54/2006 was enacted by Parliament and certified on December 28, 2006.

This Act amends the previous Act NO: 19 of 1990, which vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms of Sections 5 or 9 of the Agrarian Services Act.

Section 5A of the Act No. 54 of 2006 provides that High Courts established by Article 154P of the Constitution shall exercise Appellate and Revisionary jurisdiction in respect of judgements, decrees and orders delivered and made by the District Courts or Family Courts, within such Province.

Section 5A of Act No: 54 of 2006 referred to by me previously vests in the Provincial High Court with a concurrent jurisdiction with that of the Court of Appeal in regard to appeals and applications in revision from District Courts within the Province. Section 58 provides that such jurisdiction has to be exercised “by not less than two judges of that court sitting together as such High Court.”

This is a significant safeguard introduced by law, so that these matters would be considered by a minimum of two judges and where necessary three Judges if there is a division of opinion.

Explicit provision

Thus the first matter to be addressed as to jurisdiction is fully answered in the explicit provision contained in Section 5A (1) and the appointment of Judges made as required. However the jurisdiction is concurrent with that of the Court of Appeal.

The vesting of concurrent jurisdiction carries with it certain drawbacks of “forum shopping” of a party to a proceeding going to a Court of his choice and to as to the manner in which pending appeals are to be disposed of. These matters are addressed in Section 5D of Act No: 54 of 2006.

Section 5D (2) empowers the President of the Court of Appeal in consultation with the Chief Justice to issue directions from time to time transferring pending appeals and applications in revision for hearing and determination by the appropriate High Court.

The measure of expedition that has been introduced could be seen from the fact that as at December 2006 there were only two courts at Colombo hearing civil appeals, whereas now three courts in Colombo and almost 12 courts in the Provinces would be hearing such appeals.

It had been contended in the past that if a Court is vested with the appellate and revisionary jurisdiction it carries with it a right of a party to invoke, such jurisdiction. In the case of Martin vs Wijewardena 1989 2 SLR page 409, a Divisional Bench of the Supreme Court considered this question, and it was held that;

Right of appeal

“A right of appeal is a statutory right and must be expressly created and granted by statute. It cannot be implied. Article 138 is only an enabling Article and it confers the jurisdiction to hear and determine appeals to the Court of Appeal. The right to avail of or take advantage of that jurisdiction is governed by the several statutory provisions in various legislative enactments.”

In relation to the High Courts of the Provinces as well, there should be a specific right of appeal in a party. Section 5A (2) of Act No. 54 of 2006, addresses this issue and provides that the sections in the Judicature Act No. 2 of 1978 (Sections 23 and 27), which deals with the right of appeal to the Court of Appeal would be read and construed as including a reference to the Provincial High Court and that “any person aggrieved by any judgment, decree or order of the District Court or Family Court may invoke the jurisdiction of the Provincial High Court established for that purpose.”

Similarly, as regards Revision this section provides inter alia that Section 753 of the Civil Procedure Code which deals with the revisionary power of the Court of Appeal would apply to the Provincial High Court.

Thus the legislative scheme of Act No. 54 of 2006 avoids a laborious exercise of enacting a new law with regard to the right to invoke the jurisdiction and adopts a simple methods of making the same law as in relation to the Court of Appeal applicable to the High Courts.

As stated above Section 5A (2) of Act No. 54 of 2006 makes all the relevant provisions of the Civil Procedure Code and Rules of the Supreme Court being written law in terms of the definition in Article 170 of the Constitution) applicable in relation to Court of Appeal to be operative in relation to the Provincial High Courts that is now vested with concurrent jurisdiction.

Long process

This would avoid the long process of argument which arises when new procedures are created. The procedures have been applicable for more than two decades in regard to the Court of Appeal and the law that has been settled by several judgments would facilitate easy disposal of matters in the Provincial High Courts without undue delay arising from arguments with regard to matters of procedure.

I would now deal with certain general matters with regard to the basis of review exercised by the Appellate Court. The underlying principle is that a judgment will not be reversed or varied solely on the basis of any error, defect or irregularity. The Appellate Court has to consider its impact.

The proviso to Section 5A (2) of Act No. 54 of 2006 contains the same provision as in the Constitution, that no judgment or decree of the District Court be reversed or varied on account of any error, defect or irregularity which has not prejudiced the substantial rights of the parties or occasional failure of justice.

As regard the review of findings of fact the decision in De Silva and others vs Senaratne 1981 2 SLR page 7 contains useful guidelines as to when findings on questions of fact can be reversed by the Appellate Court. There are also such guidelines contained in the judgment in the case of Collettes vs Bank of Ceylon 1984 2SLR253.

Civil appeals

In conclusion, I wish to state that I have taken pains to set out some of the vital matters with regard to jurisdiction and procedure at a juncture when we shift the hearing of civil appeals hitherto based only in Colombo to the Provinces.

If these measures can be implemented with dedication by the respective judges, the members of the Bar and of course the litigants in the same spirit that authorities have planned and implemented the transition, the problem of delay at the appellate level which has plagued us for nearly quarter of a century would be a thing of the past.

Even the problem of delay at the Court of first instance would be a thing of the past if Section 7 of the Mediation Boards Act No: 72 of 1988 is fully implemented large number of cases will be referred to Mediation Boards and thus the Courts of first instance would find more time to dispose the remaining cases quickly that comes before the Court for adjudication.

That is why I say if everybody concerned is determined to implement Section 7 of this act then there will be meaningful progress in the administration of Justice in Sri Lanka.

Concluded