‘Contempt’ Of Litigants

By K. Balendra –JANUARY 22, 2020

K. Balendra

Various News Items are appearing in all Medias with regard to the conduct of the Judiciary in general under the influence of politicians and their henchman. In the past, may be about 40 years ago, no influence would have been possible, which would have changed the course of Justice. There may have been a few, but to my knowledge it was not highlighted like today. I recollect an assault on Justice Neville Samarakone’s house for not complying with JR’s request allegedly to change course. 

I am inclined to believe, that my experience with Law Enforcing Authorities, District Courts, Appeal Courts and Supreme Courts, has given me some insight into the function of the Judiciary and my advice to any would be litigants to ‘KEEP OF THE JUDICIARY,’ unless there is no alternative in sorting our matters. 

It may be mentioned the need to get the assistance of the Judiciary arose as a member of the Management Corporation of an apartment Complex, to rectify certain short comings. We were compelled to appear in the District Courts to defend our position against an International Restaurant situated in the ground floor of our apartment complex allegedly occupying the allocated parking area. The developer has leased this space out to the restaurant at a high rent. At one stage the restaurant demanded additional facilities from the Management Corporation (CMA), which was refused as we were not involved in the lease agreement. The lease agreement between the builder and the restaurant was entered despite our objections. 

Hence, they filed a case against the Management Corporation. I appeared in person with the help of another member of the Management Corporation and successfully resisted their demand.  This litigation was filed by the restaurant while there was a pending inquiry against the developer for wrongfully leasing the part of parking area, at the Condominium Management Authority.   Money power and perhaps ‘fluctuating’ political leanings of the Developer dragged on the inquiry at the CMA indefinitely. 

 Arising out of my experience, I have contributed articles regarding the Judiciary in the Colombo Telegraph and Sunday Times, under the following captions:

Colombo Telegraph: ‘Deformed Judiciary’16/12/15, Verdict at Large 28/06/18, Contempt of Justice 01/05/19

Sunday Times:  Justice Delayed in Condo Issues 06/07/14, Justice still awaits Residents of Colombo Condos 15/03/15.

However there has been no response from the appropriate authorities  

It appears that the judiciary does not care for the litigants as they do not depend on them for their living. Only the lawyers depend on their litigants for their fees and when the hearing by the judiciary is delayed, better it is for them, ‘to earn more, by selling the ‘putrid dates’ to the litigants.’

I have also written to the Registrar of Supreme Court, The Attorney General Mr. Dappula De Livera(24/5/2019) and the following Chief Justices too with regard to the delay in receiving judgment on the FR petition namely Justice Priyasath Dep,(9/11/17 &28/9/18) Justice HNJ Perera,(3/12/18) CJ. Jayantha Jayasuriya (22/5/19). I also wrote to the Secretary–Judicial Service Commission (22/3/19). All these letters were sent under Registered Cover. No acknowledgements or reply was received.

Every Judicial person, whether they are elevated to the Magistrate Court, District Courts, High Court, and Supreme Court or to the Attorney General’s Department,  do not hesitate to speak about the Laws Delays, with the undertaking to do all what they can to ensure that Justice is not delayed. This solemn promise is made during their welcome ceremonies to their respective benches. But soon after their elevation, they fail to consider the Litigants plight as the ‘bench’ become rather ‘shaky’ and their promises are never honoured, partly due to their lethargy and mostly due to their inability to break through the prevailing system, which apparently is an appendage coming from the colonial rule.  

This situation does not affect the judiciary, but the litigants. The members of the judiciary, including the lawyers who appear, receive their salaries and fees continuously without a break. But the litigants have to empty their pockets, sell their lands or get indebted to keep on feeding their lawyers, thus depriving their families of their dues.

I am personally aware of two cases, one with regard to a bank officer, whose case is pending for the past 21 years resulting in him being deprived of his pension and ending as a ‘sick of life’ person’ and the other over a land dispute, going on for over 46 years with no end in sight.

My case is over a Fundamental Right Petition against the Condominium Management Authority (CMA) due to their in action and delaying tactics over an inquiry against the developer. Associated with the CMA were Urban Development Authority (UDA), Colombo Municipal Council (CMC) and Consumer Affairs Authority. A representative from the Attorney General department was present to defend the CMA. Two of us appeared in person in support of our point. It must be mentioned that although only two of us filed this case, the outcome will affect 36 apartment owners. Some of the apartment owners are reluctant to challenging the developer or other government departments and local authorities who are responsible for the welfare of the apartment dwellers.

The FR petition was filed by two of us in June 2011. The petition was heard by over 17 judges, 3 at a time. Some of the Judges have passed away and some have retired. We have gone through three different governments, two different presidents and the third President’s government is on from whom we may ‘experience’ the light of the day. 

The hearing was concluded in June 2016 after 5 years from the commencement of the inquiry. According to the constitution FR petitions have to be heard and disposed of within 2 months, but3-1/2 years have elapsed after the conclusion of the hearing and the verdict has not yet been given. As the hearing was concluded during the ‘Yahapalanaya’ government’s period, the outcome may be consistent with the incompetence of the government. Due to this delay I wrote two articles to the Colombo Telegraph under the caption “Verdict at Large and “Contempt of Justice” as indicated in the beginning of this article.

It appears that due to some unknown reason Verdict & Justice seem to be ‘absconding’ despite our reminders.

The crux of the matter is, whether our apartment complex has been provided with adequate parking space according to law? If not, why not? Is it because part of the ground floor allocated for parking has been leased out by the developer to an International Restaurant despite our protests? Even after 15 years no conclusion has been arrived at by the law enforcers.   

As we were left out as ‘babes in the wood’ the author of this letter approached the Right to Information Commission, to seek their intervention to ascertain the reasons for delay in receiving the verdict. There I was asked to follow certain procedure in dealing with this matter and there after report to them.

Accordingly I wrote to the Information Officer Supreme Court on22/08/19, requesting reason for the delay in giving verdict. The reply to my letter dated27/08/219, states that my case is under review of the Hon. Judge who heard the said case and will be informed after the Judgment is given. This does not answer my question as to when the verdict will be given and the reason for the delay.

Hence, as per the procedure adopted by RTI, I wrote to the Registrar of Supreme Court on 5/9/19, but no reply was received. Hence I visited the Right to Information Commission once again to seek their assistance. As instructed by Dr. U. Sumanadasa, Senior Research Officer, I sent an application to Designated Officer Mr. PMT Bandara, Senior Assistant Secretary, Judicial Service Commission Secretariat on5/12/19. According to rules, if I do not receive a reply within 21 working days, I will have to knock at the doors of the RTI again and write to them to assist me in ‘arresting the verdict’ which seem to be ‘absconding’ for the past 4 years approximately. I realize that my TASK is time consuming with various hurdles to clear.

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