New Legislation to expedite Civil Appeals
 

Reply by Kandiah Neelakandan
Attorney-at-Law

Delay in disposal of civil appeals has been a matter of concern to everyone who is interested in the matter. I am glad that my article appearing in The Island of 2nd December 2006 has provoked public interest in the matter. One written response by Mr. Lelise Abeysekera, L. L. M. (Retired Judge of the High Court) in The Island of 5th December 2006 at page 9). I was one of the few lawyers who enjoyed appearing before Mr. Abeysekera when he was an Additional District Judge of Colombo. It was not an easy task convincing Mr. Abeysekera as a Judge but I had no difficulty in that respect. I cannot remember a single instance where Mr. Abeysekera was displeased with me. After his retirement I had the pleasure of associating with him as the Convenor and later as the Chairman of the Legal Aid Commission, when Mr. Abeysekera was working for that Commission as its Director. Again I had no difficulty in working with him. In the same spirit I hope that I can clear certain misgivings of Mr. Abeysekera which appear in his response.

It is correct that my colleagues from the Bar Association of Sri Lanka (BASL) and I attended a workshop on Pre-Trial (Civil Proceedings) organized by the Law Commission of Sri Lanka. I can give the date precisely. It was 2nd November 2002. Mr. A.W. Atukorala, then President of BASL, Mr. Nihal Peiris, who I believe was then the President of the Colombo Law Society and I as the then Chairman of the BASL Law Committee were invited to theWorkshop. Mr. Abeysekera claims that the other representatives of the BASL and I vehemently opposed the proposed law. Mr. Abeysekera’s memory fails in that regard. What we did was we suggested amendments to that draft. Justice (Dr.) A.R.B. Amerasinghe, then Chairman of the Law Commission presided but we were made to believe that Mr. Nihal Jayamanne, PC as a member of the Law Commission was mainly involved in preparation of the draft. I might remind Mr. Abeysekera that it was Mr. Nihal Jayamanne, PC who made the presentation of the draft law at that Seminar on behalf of the Law Commission. A number of suggestions made by us were accepted. On 13th December 2002 the Law Commission sent a revised draft to the BASL. I quote below from page 46 of the BASL Annual Report for 2002/2003:

"Amendments to the Code of Civil Procedure on Pre-Trial Issues:

"A delegation of the BASL led by the President, Mr. Ajantha Atukorala attended a Workshop organised by the Law Commission of Sri Lanka on 2nd November 2002. The delegation pointed out that the proposed draft needed amendments and the Law Commission agreed to submit an amended draft and also to meet members of the BASL. An amended draft was circulated to all the Branches for their observations."

I still remember that I said at that workshop that although I was practising in Colombo mainly in commercial area and did not envisage difficulty in obtaining documents and filing copies thereof with pleadings in Court, my colleagues from outstations are not placed in the same situation and that they do not have all the facilities we Colombo lawyers did have and therefore had difficulty in obtaining documents from clients in their areas most of whom were individuals and a good percentage of those clients were are not educated.

Mr. Abeysekera can rest assured that whenever I represented the BASL at any fora I echoed the views of the membership of the BASL, (not forgetting my colleagues in outstations) and not my personal views.

It is obvious that Mr. Abeysekera is unaware of the steps that are being taken to appoint new High Court Judges so that there will be two Judges (in addition to the present High Court Judges who hear criminal cases) in every Province to hear civil appeals. At a recent function of the BASL, His Lordship the Chief Justice explained to the members of the BASL of such steps which are being taken. Therefore we need not worry that the High Court will be "saddled with what a higher court obviously could not cope with", as apprehended by Mr. Abeysekera. The new arrangement need not and should not be opposed for the reason that there is only one High Court Judge in a Province. The remedy is available by administrative arrangements. As His Lordship the Chief Justice has said more Judges can be and are likely to be appointed.

Mr. Abeysekera says that "even if as many as 18 additional High Court Judges are appointed it is humanly impossible for at least two Judges sitting in an appeal to expedite civil appeals, a task that the Court of Appeal with 12 Senior judges with more experience has been unable to accomplish?"

I know that Mr. Abeysekera was a senior experienced judge when he retired from the High Court. Like him there are a number of experienced judges in the High Courts. Does he say that he would not have been competent to sit with another High Court Judge and decide civil appeals if this law was brought in before his retirement? Furthermore the present High Court Judges are the prospective Judges of the Court of Appeal. If the number of the judges in the Court of Appeal are increased they are the persons likely to be promoted as such Appeal Court Judges.

I was surprised to note Mr. Abeysekera’s contention that the Law Commission should be well advised to perform the duty of recommending new procedural laws without the interference of lawyers. I am sorry to say that he appears to be unaware of the fact that the majority of the members of the Law Commission are practising lawyers. Mr. Nihal Jayamanne, PC was involved in drafting the Pre-Trial Procedures Law as such a member. I assert as a practising lawyer that we, only the practising lawyers, are the best suited to suggest law reforms. We know the problems faced by all the stake holders. Mr. Abeysekera also should realise that we are trained to deal with the matters without personal feelings. We do not come to hasty conclusions. We are also trained to represent the grievances of the others. When we suggest Law reforms we do not think of ourselves or our clients, but we consider the matter as a member of a responsible professional body which includes professionals from various parts of the country and endeavour to echo the views of the general body.

Mr. Abeysekera says that the tragic truth is that "arbitral awards are stuck in the Commercial High Court`85..". I am constrained to point out that applications to execute arbitral awards are not taken up in the Commercial High Courts. I cannot blame Mr. Abeysekera as he may not be in touch with what is now happening in Courts. This shows that the practising lawyers who are aware of what happens in various courts are more competent than retired judges like Mr. Abeysekera to work on legal reforms.