Untitled - International Commission of Jurists

The Court of Appeal when sending the case to the Magistrate Court does not
notify parties of a possible date when this case will be inquired into thereby
leaving the MC to notify parties all over again. In some cases, although the
Court of Appeal has identified the location of the respondents more fully than
is described in the petition (which very often only contains an address of the
temporary camps). This is not notified to the MC and the MC has to take steps
to find the Respondents all over again. If the petitioner dies during the pending
of the inquiry, there are no provisions under which the MC can act of its own
volition and the case has to be referred to the CA and sent back to the MC.
Further, both the Chief Magistrate and the Registrar of the High Court gave
evidence as to the volume of work already handled by the MC and the
difficulty in accommodating the large influx of cases of the High Court that
were sent to the Chief Magistrate in one go.
When the cases are returned to the Court of Appeal by the Magistrate's Court,
there is usually a delay of several months before the Court hears the arguments
based on the findings of the Magistrate. In fact, in several cases, although
reports have been sent to the Court of Appeal in 1995, no final decision of the
Court of Appeal is available as yet.
Thus, in cases where a magisterial inquiry has been ordered and findings made
by the Court of First Instance against the respondents, there is a time lag of
approximately 7 years from the date of disappearance to an order from the
Court of Appeal regarding this disappearance. In this period, petitioners have
died or left the country seeking employment or have lost interest in the case;
The respondents have also died and several have left the service before the
completion of the action against them thereby rendering impossible any
disciplinary action that can be taken against them in cases where there are
findings against them. 139
These problems, although though pointed out at least since the 1990s, persist.
Currently, even though this remedy is now being resorted to primarily before the
Provincial High Courts, the problems of delays that plagued the Court of Appeal
processes are reflected in the Provincial High Court processes as well.
The delays are most particularly seen in ‘sensitive cases’ emanating from the conflict
in the North-East. For example, in one habeas corpus application filed in the High
Court of Jaffna in 2003, the matter has been continuously postponed following its
referral to the Magistrates’ Court for preliminary inquiry. The relevant journal entries
indicate that in most instances, postponements have been at the instance of the state
counsel appearing for the respondent army officers. 140 Other general reasons for
postponements include the inability of witnesses to be present; absence of a
competent interpreter; and unspecified ‘personal grounds’ of counsel appearing in the
applications. In addition, the tense security situation continually prevalent in these
areas has also resulted in the postponements of hearings.
139 ibid.
140 HCA No. 08/2004, Minutes of the Magistrate’s Court of Chavakatcheri, 12.02.2007.
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