Sri Lanka: Court Vacation System is Illegal

In 1973 Supreme Court Vacation Ordinance was repealed and never replaced

Has the Supreme Court in Sri Lanka violated the fundamental rights of the citizen?

(December 28, 2017, Colombo, Sri Lanka Guardian) “Further to a fact-finding study undertaken on the Court Vacation System presently in force in Sri Lanka, I consider it is proper and right to make this request on behalf of the fellow citizens, who suffer enormously due to law’s delay for which the court vacation system is clearly a contributory factor,” in his submission to the former Chief Justice K. Sripavan has noted while requesting to terminate the unlawful Court Vacation System in Sri Lanka by a well-known advocate and activist  Nagananda Kodutuiwakku.

“In 1973 by the Administration of Justice Law, No 44 of 1973 Supreme Court Vacation Ordinance was repealed and never replaced since then,” he added.

However, he has received no response so far from the authority, though new chief justice assumed the office a few months ago.

His submission has further elaborated as follows;

Nagananda Kodituwakku

The provision of law that enables suspension of sittings had been enacted in the Ordinance No 1 of 1906 read as Ordinance for the Establishment and Regulation of Vacations in the Supreme Court. This law proclaimed three vacations to be called respectively the Christmas vacation, the Easter vacation and the August vacation in each year to be observed by the Supreme Court.

This law was later revised in 1928 by the Supreme Courts Vacations Ordinance No 2 of 1928, which declared the duration of the holidays as follows (Section 4).

The Christmas vacation shall commence on the twenty-second day of December and terminate on the twelfth day of the next following January [Section 4 (1)].

The Easter vacation shall commence on ‘Maundy Thursday’ and shall continue for twenty three days [4 (2)].

The August vacation shall commence on such day in August as the Chief Justice shall appoint in each year for the purpose and shall continue for twelve days.

The repeal of the Supreme Court Vacation laws

In 1973 by the Administration of Justice Law, No 44 of 1973 Supreme Court Vacation Ordinance was repealed and never replaced since then. This means, now there is no law in force, permitting the current Court Vacation system, made under the Rules by the Supreme Court in terms of Article 136 of the Constitution (1978), which is illustrated below, operational.

The sittings of the Supreme Court and the Court of Appeal will be suspended for period of 3 weeks, 2 weeks and 3 weeks in each year commencing from such date in the month of April, August and December respectively as the Chief Justice may determine”.

“Judges in the Court of First Instance may suspend sitting of their courts on such dates as the Chief Justice may determine commencing in the month of April, August, and December for the period of 2 weeks, 1 week and 2 weeks respectively”

Rulemaking power vested in the Supreme Court by the 1978 Constitution

Subject to the provisions of the Constitution ( Article 136) and any law, the Chief Justice with any three judges of the Supreme Court nominated by him, may, from time to time , makes rules regulating generally the Practice and Procedure of the Court and sets out 12 grounds under which such rules may be made.

However, none of these provisions do authorize the Supreme Court to declare any vacations for suspension of the Court sittings. Therefore, the Court Vacation System declared under the powers vested in the Supreme Court by the Article 136 of the Constitution becomes ab initio void.

Supreme Court has a prime duty by the people

As illustrated above there is no provision of law justifying the current Court Vacation System. Therefore, the judiciary has no other alternative except nullifying it all together as a prime duty by the people.

Your Lordship is fully aware that as mentioned above, the law’s delay has become a major concern in this country making citizens suffer heavily in terms of money, time and energy, due to delays in the dispensing of justice, with the entire Court System has been burdened with heavy caseloads. It is common knowledge that the ‘justice delayed is justice denied’.

On the other hand the judiciary that exercises people’s judicial power on trust cannot itself betray the people violating the Constitution, as the citizens have no other forum to seek justice against this injustice.

Therefore, with due respect and regard, I request Your Lordship to seize this opportunity to pronounce that the existing court vacation system is void in law and has no legal effect, a great remedial act of which will eternally be respected by the citizens of this country.

Author: Sri Lanka Guardian

Sri Lanka Guardian has been providing breaking news & views for the progressive community since 2007. We are independent and non-profit.

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