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