The People and the Judiciary
Posted on January 23rd, 2013
By Garvin Karunaratne-Former Government Agent, Matara District,
The Judiciary has come into great importance today in view of the impeachment of the Chief Justice. It is saidƒÆ’-¡ƒ”š‚ that because of this the people at large have lost confidence in the Judiciary.
In my opinion, the People lost confidence in the Judiciary a few decades ago.
The People lost confidence in the manner in whichƒÆ’-¡ƒ”š‚ cases are heard, where cases are postponed without any rhyme or reason and when a case is heard it is heard only for ten or fifteen minutes. The main attempt of the lawyers is to get casesƒÆ’-¡ƒ”š‚ postponed somehow and the Judges and Magistrates connive. Then theƒÆ’-¡ƒ”š‚ case is fixed to be heard in six months. The lawyers get paid and in this manner a case goes on for years. In cases known to me it took eight years for a simple uncomplicated, ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”open and shutƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ case to be completed.
Another case for complaint is that in some cases the fine imposed is ridiculously low. At times I have wondered whether the learned Judges have lost their heads.
Another case known to me happened in Colombo Fort, where a person known to me was remanded. He could not be bailed out unless a particular lawyer appears and that lawyer did charge the moon.ƒÆ’-¡ƒ”š‚ NoneƒÆ’-¡ƒ”š‚ of the other lawyers, however eminent, would take on the case because they were dead certain that if they appeared the person would not be bailed.ƒÆ’-¡ƒ”š‚ In about a yearsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ time the Judiciary Higher Ups got wind of what was happening and removedƒÆ’-¡ƒ”š‚ the magistrate. I now understand that he has not been struck off the role. In Scotland, where a solicitor had not done searches properly and did not give me the right advice, he had to pay damages and was also struck off the role. Lawyers are professionals who have to be invariably above board and once proved they deserve to be dealt with severely.
I admired OSM on the bench. In my 2006 book, How the IMF Ruined Sri Lanka (Godages), I commented
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-As young administrative officers we admired the manner in which he administered justice. Once I was summoned as a witness.. It was a Paddy Lands Act case of eviction where the landlord was charged for evicting the tenant. I had held the formal inquiry where I had decided that it was a clear case of eviction. I had accordingly informed the landlord of my decision and that the paddy land should be handed to the tenant for cultivation. The landlord did not heed my order and then we had to prosecute him in the Courts.
When the case was called up, I think at Mawarala in Deniyaya, I sat on the last row and enjoyed the Court proceedings because with OSM on the bench it was alwaysƒÆ’-¡ƒ”š‚ entertaining. Our case was on the books and Andy, a Crown Counsel had come all the way from Colombo to represent the Department.ƒÆ’-¡ƒ”š‚ Suddenly after about half an hour OSM spotted me, looked hard at me and said, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-I see Senior Officers wasting their time in my Court House. I have always told them to speak to my Mudliyar and get their cases heard first. They only want to waste their timeƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-I am sorry sir, I have come all the way from Colombo specially for this case as I now work in ColomboƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. He was satisfied. ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Take that case nextƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ he ordered.
Our case was called up. Andy, the Crown Counsel from Colombo came forward. Andy wanted to lead the evidence and called me to come forward. I stepped in front and opened my file of papers.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Where is the landlord that evicted the tenantƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ asked OSM.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-I am the Crown Counsel for this case and please let me lead evidence to prove that the landlord did evict the tenant. Sir, please let me lead evidence and prove to you that an inquiry was held and that the due notices were issued. As specified in the Ordinance
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-I want the landlord to come forwardƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Sir, please let me lead evidence to prove that the tenant was evictedƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
OSM was getting irritated at Andy.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Please take a seat and see how I handle this case. This is my Court.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
Andy sat down.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Call the landlordƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
The landlord came forward.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Are you the landlord of this paddy fieldƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Yes, my lordƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
Did you evict the tenant from the paddy landƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Yes, my lordƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-You have no authority to evict him. Hand back the paddy land to the tenant..ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Yes, I willƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚At what stage is the crop.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-it is flowering mylordƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Immediately you harvest the crop you should hand over the paddy land back to the tenant and report to me that you have done itƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Yes, my lordƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ agreed the landlord.
Then OSM addressed the Crown Council.
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-You see the case is over in fifteen minutes. If I had followed your method the case would have gone on at least for the full day. I have my own methods in my Court HouseƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢
OSM always decided on the maximum punishment. OSM also wanted to be certain that people who were innocent were not punished. Once I was witness to a case where the lawyer was trying to put words into the mouth of the accused and questioning in a belligerent manner to frighten him. Lawyers at times insist on a yes or no answer when the answer either way would implicate. That was not possible in OSMƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Court. OSM would then take over the questioning to elicit what really happened.ƒÆ’-¡ƒ”š‚ Once when he found that some witnesses had committed perjury, he ordered the police to file prosecutions against them.
If the standards that OSM followed are taken as a standard then people will again have faith in the Judiciary.
It is up to the Judicial Services Commission, the Chief Justice and all Judges in authority to cleanƒÆ’-¡ƒ”š‚ the Augean Stables and ensure that the people do once again have faith in the Judicial System.ƒÆ’-¡ƒ”š‚ OSM is no longer there to guide us but the manner in which he administered justice is there for us to follow.
Garvin Karunaratne
Former Government Agent, Matara District,
January 24th, 2013 at 6:37 am
when Felix Dias Banadaranayake changed the laws to help land litigation where the ultimate winner is the lawyer, the legal community and JR got so mad they removed his civic rights
January 24th, 2013 at 7:49 am
Former GA, Matara District
Old good days !!! How we all live together in mother lanka !
“I see Senior Officers wasting their time in my Court House” – I am not sure even our own children believe those our old good days ! how Judge valued Govt Senior officers work time .
January 24th, 2013 at 10:34 am
Every word here is true. That’s what we want in the judiciary. The first step has begun. The manape system must go, so that responsible law abiding people get selected as MPs. University students, should be monitored, and any initial signs of missing lectures for other activities must be dealt with by expulsion, temporarily first and on subsequent occasions permanently.Ring leaders must be identified and rehabilitated. The causes of unrest must be identified and a positive behaviour management systems in universities should be established. ‘Facebook’ hate mongers campaigning from abroad, should be identified through ‘informers’ and their movements monitored. 1000 LTTE activists were supposed to have arrived in Vanni during the impeachment days.
January 24th, 2013 at 4:29 pm
Garvin,
Thank you very much for bringing this foward.This is a big problem in the island. As far as we are concerned our courts are working like a criminal enterprise and the judges are part of the problem. I don’t care too hoots for what happens to CJ and who the new CJ is. They don’t make any difference to us. My innocent hard working parents went to their graves losing their hard earned (by their ancestors) property to the occupant where the courts postponed the case year by year going for decades. My dad was too frail to attend the court case. This happened to my sister who died exactly 3 months ago where she toiled for years in Middle East to buy her house. The court case went for over a decade and she never had the privilege to live in her own house. My surviving sister who is very sick gave her house (for which she paid loans over 30 years of her working life) on rent as she was transferred left right and centre. The occupant became a criminal, murdering a entire family in a land grab, where the others who took part in this crime is in the death row but due to his political connections he was released on a technicality. This guy took strength out of this and decided to stay in my sister’s house without paying a red cent. He dragged her through the rent tribunals where she lost thousands after several years of going many times to Colombo. I think she won the case after spending a lot of money but the case in courts still going on for nearly a decade without an end and my sister who is now retired is homeless.
Then in my case where we were encouraged to invest in SL, I sold a valuable investment of my wife in Malaysia to buy a land to put a hotel in SL.From the time I bought this land I had nothing but problems from the local autorities, where they don’t allow us even to put a gate or secure the land from land erosion where our contractor’s tools were forcibly removed. What a joke? Soon after I bought the land a SSP with political connections with a former regime blocked my only access to the top of the land and annexed it to his property completely denying me access to half my property. Though the court cases went over 15 years never got my land and road back but in spite of me putting a legal objection to sell my land by the occupant (a Craviet, I think) this land was sold with connivance of the HNB who held a charge on the SSP’s property. No decent bank would allow a disputed land to be sold or a loan off it be given. This is Sri Lanka where these crooked things are not uncommon. I took the new occupant to courts where the case is still going on for decades. Though the wrong dower is rewarded but the victim is the one who suffer, where I can’t put any structure on a property that is valued over 2 billion. After years of battling the case, I think the occupant to want to end the case, though I decided to giveaway my land that was illegally occupied and access away at a considerable cost to me in millions, but the two lawyers of both parties are playing hell. They don’t want to finish the case at all. The kept away from the appointments to settle the case out of courts before the next date in courts. They too extended that date because the power of Attorney document of my 91 year old brother was deliberately misplaced by our lawyer thus postponing the case again. Though it cost me a considerable amount and effort to get a new document drafted by the same lawyer I encountered few more obstacles in London by our Sri Lankan Lawyers and they are equally bad as the ones back home. Thinking of helping our own people I made an appointment with a lawyer having her office 12 miles a way (though there are lawyers within hundred yards from where I live.) We made the appointment for 4.30 PM and price of £30 was agreed to witness my signature and I was asked to bring my passport for ID.I rushed there by taxi costing me £15, oneway.When I went there she was not to be seen, forgotten all about my appointment I made few hours earlier. Reason given was that she had gone to pick her children from school and she won’t come back to her office for that day. I was desperate to get this document signed and dispatch it by a special courier to SL in time for the case. I pleaded with another SL lawyer in that office to witness this document, but she was showing the usual arrogance that our lawyers show in SL, wanted me to bring back an utility bill for her to proceed and if that was the case the other lawyer should have mentioned this when I made an appointment. Since I am 12 miles away from home need a helicopter to get home and back in time before they closed.. That document was irrelevant but the obstacle is just the same as in SL’s heartless lawyers of our country. I was disappointed the way I was treated by our own people. I walked out with a heavy heart and came across an English run Lawyer’s firm and tried my luck there. It so happen that my passport was good enough for him to witness and the fee was only £5.From the Sinhalese name he recognised that I am from Sri Lanka and his ancestors were working as Government agents and a judge or two in Colonial ceylon and he himself had spent a few memorable holidays in the island. Knowing the unreliable postal and other services to the island, he drafted (not photo copied) several copies of this document and the fee was COMPLETLY FREE.
I have experience their genuine generosity so many times in my life here in UK, which I will never get in my country of birth. In spite of all by hard effort the case was postponed at the gate due to strike over CJ, but the crooked lawyers never failed to get their fee for the day at the gate of the courts.
My dear friend’s ancestral house in Colomo7 is forcibly occupied by a gang, theatning to kill that young couple and their children, if they didn’t vacate the house by the 31st of July, perhaps in 2009.We appealed to the President who was in London and to Dr GR Peris asking them not to harm them, but that house is still occupied by the thugs and they live like prisoners in their own home. Cops won’t do anything because of a political connection with these thugs. I wrote in a another thread that I was stopped 7 times going from Kandy to Chi law by the cops and we protested to the highest(2years ago) and now my son who is visiting Anuradhapura was also stopped last Sunday 7 times coming to Kandy.
Can you really call this the wonder of Asia and who will have the confidence to invest in the country? Only investors that could survive will be crooks, cronies of the government but the honest and decent has no place as much odds are stacked up against them. Now we won the war against the terrorist and government must also fight the shortcomings in our country, from bottom to top.
January 24th, 2013 at 6:55 pm
Mr Charles Perera
In response to your comment on this subject to be in another thread in this web where you seems to favour the justice system in SL to that in UK,I beg to differ from you.
I have given the way how it work in SL in the above presentation.
Two cases in UK
First case was against my wife who runs the business(due to my job,I can’t do a business) in London where a couple tried to claim compensation for unfair dismissal.We were shocked when we got the summons as this couple only came for a job interview and never worked a single day.Perhaps it must be customary that we submit our plea in writing in our defence to the court authorities,which we did in our own words.Also we mentioned that we have applied for leave and bought tickets to go to the far east for a wedding and the case be postponed until we came back.Officials on the phone advised us to provide evidence of the wedding engagement in the Far East and a copy of the air ticket etc.Perhaps they may have written to the other party as well,prior to the court appearance.We mentioned in our plea in our own words that they never worked and they should be asked to provide witnesses and paper documents of their employment with us and name of one other employee worked with them.I am sure the courts may have communicated this to them and expecting an answer.The court also agreed to postpone the case for day when I am back in UK,which I was very grateful that was conveyed to the courts by letter.No lawyer was ever involved up to this stage.The day of the case I took a Sri Lankan Lawyer with me and an English gentleman who is a very regular client of our business to testify that he had never seen the claimant working for us.We discussed our case thoroughly with my lawyer over a month but at the hearing he played his usual SL tactic,claiming that he didn’t have sufficient time to go in the facts of the case with his clients(that’s us).The judge was not pleased and took his role as well.He read from the expected submissions prior to the hearing. The claimant hasn’t given sufficient proof of their employment and the claimant didn’t appear,in spite of their lawyer giving excuses for non appearance,also my witness was asked if a such a person ever worked,which he denied and the case was dismissed and apologised for waisting our time and money.
The second encounter in Courts in UK was about 2 years ago we were about to catch flight to SL on a Saturday,all three of us.Previous day(Friday) evening court officials having come to know that my son was leaving the country next day wanted him to postpone his flight and attend a court case the following Monday,where he will be a witness as a serving police officer who were part of a enquiry to a complain by a land lord of a house that was illegally occupied gang of people exceeding 20.The court officials expect him to attend and they assure that he will be on a flight to SL on that Monday night.I think the court session began at 10 AM and they were asked to submit their version of the case before the next appearance at 2PM.By 3PM a decision was made and my son was released from his duties to get to his station to remove his uniform and the new flight was arranged to Colombo.His transport was arranged by them,all the way to the airport.
My question to Mr Charles Perera is which is the best system.Is it in SL at present or in a country like UK?
I rest my case and good night to you all from freezing London.
January 25th, 2013 at 3:03 am
Nimal,
Thank you very much for highlighting the faults in our system, particularly those of judiciary. Though it looked lenghty, it may have saved me lot of trouble, because of a decision I took after reading your piece this morning.
January 25th, 2013 at 7:54 pm
Oh Nimal, you seem to be having a hard time with the law enforcing authorities in the UK. I empathise with you. Are these ‘sudda fellows’ that bad.
January 26th, 2013 at 6:28 am
callistus Says:
If they are bad I won’t be here this long.They solve any propblem fairly quickley if that answer your question?