Sri Lanka’s Judiciary, Oppressed Litigants & Defied Public Discontent

By Damith Wickramanayake –MARCH 31, 2021

Dr. Damith Wickramanayake

The review of Colombo Telegraph’s article “Judging the Judges”, dated 15th August 2020 is to spotlight three Maxims oblivious to the public, to illustrate, they too like the Author Anaga are being inveigled by fraternity’s empathy on litigant misery, in reality, a guileful deception ornamenting Judiciary’s ceremonial events, forgotten immediately thereafter. These illustrated by precursors 1a) to 1f) below are further explicated at 2 and 3 subheadings for invoking revelations in columns of the like of “Contempt of Litigant’s”, dated 22nd Jan 2020 by K Balenrda for enlightening the public, including litigants, on the debacle of due Constitutional rights of People’s Judicial Power deprived. It’s to entreat unflinching unequivocal Public support for mobilizing the Three Maxims: M(1) Law is knowledge for all ; M(2) One cannot be his own judge M(3) The profound citation that Judiciary’s supremacy, is not by virtue of its infallibility but in reality by self- empowerment usurping from Jurisprudence that its final. The obliviousness of the Maxims has emboldened stealthy manoeuvring the inconsistency in Constitutions’ Clause 3 empowering clause 4c to “enjoy” the People’s Judicial Power as opposed to diligently serving its interest that too without Constitutional empowerment for scrutiny by the people the “enjoyment” is not abused, the propellant of Judiciary’s, exacerbating decay. The Judiciary’s eroding inefficacy long ignored by the Parliament reveals, imperativeness of engaging Multidisciplinary expertise, a vital requisite for advancement of any discipline is relevant to stall escalating disarray of Sri Lanka’s Judiciary. It’s evinced from practices of Judiciary’s of repute comprising a blend of Professional (PJ) and Lay (LJ) judges of Multidisciplinary expertise. Such mix supported with e-court services, could mould clause 4c to function in conformance with People’s Judicial Power and direct its advancement to an AI (Artificial Intelligence) driven system resilient to rent seeking influences currently eroding the nation’s socioeconomic wellbeing.

A vital few Precursors Breaching Peoples Judicial Power

These precursors breaching People’s Judicial Power manipulating the aforesaid Constitution’s inconsistency and the obliviousness of the Maxims, exacerbating the debacle of litigants’ misery and adversities to the nations’ socioeconomic wellbeing are elucidated below

a) The Maxim M (3) the profound citation of Justice Robert Jackson of the United States, on the heralded Judiciary’s divine Supremacy, says “We are not final because we are infallible, but we are infallible only because we are final” – a rare admission beyond legal fraternity’s hegemonic bounds, usurping People’s Judicial Power, for fraternity’s enrichment – that’s illustriously endorsed by b) to e) to below.

b) The Constitutional Assembly’s Judiciary Subcommittee Report (CAJSR) is a conspicuous instance exposing blatant deceptiveness of fraternity’s’ empathy aforesaid. The eight paged CAJSR report, minuscule in size compared with other subcommittee reports, comprising over 50 pages, nearly all striving to improve deliverables to the public. Whereas the CAJSR devotes nearly 7 of its 8 pages to fortify interests and well-being of judges, ignores the inordinate court delays, let alone the urgency to abolish the 70 day court Holidays, a perk of the colonial Era but done way in UK four decades ago. Such, conduct disregardful of People’s Judicial power affirms stealthy maneuvering legal inconsistency of Constitution’s Article 4 (c), with clause 3 harming nation’s socioeconomic well-being.

c) The National Law conference 2016, screened a poignant true experience of an aging litigant, then published on Facebook, an ironic display of fraternity’s empathy on the unlikelihood of dispensing justice within the litigant’s lifespan, a guileful inveiglements of VIP invitees like the then Minister JW also an attorney and keynote speakers but forgotten immediately thereafter. It’s irony is further endorsed by the publication “Hulftsdorp Shaken” reporting prompt transfer of a New Judge opposing the lawyers moving for dates.

d) An illustrious violation of M(2) is the column by the eminent PC late Hemantha W., on atonement of penance for sins he and the legal fraternity committed in defeating the most progressive legislation: the Administrative Justice Law or better known the Felix Dias’s Law. He avers the fraternity’s seminars symposiums have not allayed delays, except opportunity for sipping cocktails, relishing sumptuous refreshments and dining in five star hotels while thriving on empathy of litigants’ misery, presenting volumes of papers never ever followed up but always forgotten or thrown to dustbin thereafter. To assert the undisclosed stance fraternity’s manipulation of law delays, he poses a question to the reader and litigants “What position should the Bar take when the Government in power takes action in the interest of the public and in the interest of litigants, to lessen their burden but, this action is detrimental to our profession? affirming ,”sadly if the proposed legislation affects the legal profession and helps the litigants, the Bar would vehemently oppose it”

e) An illustrious abuse of M(3) is the court upholding un-heeding expertise warnings, the telecom tariff proposal Ref DG/Misc /07 flawed in rudimentary mathematics prepared by a team of three attorneys one of whom was the then DGT . Enforcement of the flawed tariff resulted a flurry of discontent by grieved subscribers, reporting in newspapers, discontent of bill hikes, as high as 25% contravening the court ordered equitable bill reduction. Far more abusive of M(3) is the jurisdiction dismissing without hearing the appeal on flawed tariff. That too without publicly declaring the jurisdiction’s reason for rejection, aiding the DGT to remain passive to the flurry of subscriber discontent. Nevertheless its adversity essentially from the mathematically flawed asymmetric off net call charge and the floor price strongly opposed by the then CEO Mobitel but overruled by the then Sec Treasury and DGT in collusion with the proponent of anti-competitive tariff the Operator with the Dominant Market share the only recipient of its net gains. Its yet depriving benefits of trend of declining call charges known globally as trend of zero tariff. Thus it’s far more atrocious than Galileo’s inquisition by the Catholic Church for advocating Copernican’s theory

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