The right of a party who has suffered prejudice or injustice to present their case is a fundamental legal right grounded in the principle of “hear both sides,” which is a core element of the Rules of Natural Justice.
SECTION 260 OF THE CODE OF CRIMINAL PROCEDURE ACT NO. 15 OF 1979:
Subject to the provisions of this Code and any written law, every person accused before any criminal court may of right be defended by an attorney-at-law, and every aggrieved party shall have the right to be represented in court by an attorney-at-law.
SECTION 41(1) OF THE JUDICATURE ACT NO. 2 OF 1978:
(1) Every attorney-at-law shall be entitled to assist and advise clients and to appear, plead or act in every court or other institution established by law for the administration of justice and every person who is a party to or has or claims to have the right to be heard in any proceeding in any such court or other such institution shall be entitled to be represented by an attorney-at-law.
(2) Every person who is a party to any proceeding before any person or tribunal exercising quasi-judicial powers and every person who has or claims to have the right to be heard before any such person or tribunal shall, unless otherwise expressly provided by law, be entitled to be represented by an attorney-at-law.
SUPREME COURT [1984] 2 SLR 397 - “BANDARANAYAKE V JAGATHSEN AND OTHERS”
Held -
(1) Under section 260 of the Code of Criminal Procedure Act No. 15 of 1979, every aggrieved party has the right to be represented in "any criminal court" by an attorney-at-Law, and implicit in this right is the right to address court and make submissions. This right is not confined to a Court of First Instance; the expression "any criminal court" is wide enough to cover all Courts, including Appellate Courts having the necessary jurisdiction. Section 41(1) of the Judicature Act No. 2 of 1978 lends support to this interpretation. An attorney-at-law is entitled not only to assist and advise his clients but also to appear, plead, or act on behalf of them in every court or other institution established by law for the administration of justice.
The Court of Appeal had rightly held that Mrs. Bandaranaike was an aggrieved party and that this status did not cease with the conviction of the respondents in the Magistrate's Court. It was a status which continues until the final disposal of the appeal. She was therefore entitled to be represented in the Court of Appeal and her attorney-at-law was entitled to be heard in that Court.
(Page 405)
Every person who is either a party to or has or claims to have the right to be heard in any proceedings in any Court is invariably a client of an attorney-at-law. It follows, therefore, that an attorney-at-law shall be entitled not only to assist and advice his clients but also to appear, plead, or act on behalf of them in every court or other institution established by law for the administration of justice.
CA/PHC/APN/101/2013 – 14.12.2016 - “E. GAMAGE ROSHAN FERNANDO V HON. ATTORNEY GENERAL”
The Court of Appeal considered Section 41(1) of the Judicature Act together with the decision in Bandaranayake v Jagathsen and Others
(Page 8)
If the appeal can be signed by an Attorney At Law, there is no reason why application for bail cannot be signed by an Attorney at Law. The law has provided the right to be represented by an Attorney at Law. Section 41 (1) of the Judicature Act, No.2 of 1978, lends support to this interpretation.
If the person "claims to have the right to be heard," the Court has to decide whether he has a right to make an application on behalf of another person. The Court has to consider the fact that if the appellant can instruct the Attorney at Law to file the appeal whiles he is in the prison, why cannot he instruct on the bail application.
(Page 6)
Referring to “Sonali Fernando v Hon. Attorney General” CA (PHC) APN 144/07 the Court explained the meaning of locus standi, quoting the opinion of Justice A.W.A. Salam:
“In law, locus standi is generally understood to be right to bring an action, to be heard in Court, or to address the Court on a matter before it.”
The Oxford Dictionary of Law defines the English meaning of the Latin term "locus standi" as "a place to stand'. Its legal definition is "The right to bring an action or challenge a decision". The Wharton's Concise Law Dictionary, revised and updated by Dr. Justice AR Lakshmanan, former Judge of the Supreme Court of India, defines the term as "The right of a party to appear and be heard on the question before any tribunal. The Black's Law Dictionary defines as "The right to bring an action or to be heard in a given forum".
Who has this right to bring an action or who has the right to address the Court? The answer is the person who was harmed or aggrieved by the decision of the Court.
SUPREME COURT [2006] 1 SLR 219 – “PIYASENA DE SILVA AND OTHERS V WIMALAWANSA THERO AND OTHERS”
Page 226:
A fair administrative procedure, which would be comparable to ‘due process of law’ embedded in the Constitution of the United States, is based on the principles of granting a fair hearing to both sides. The Courts, therefore, are bound to exercise the rules of natural justice, as the decisions would not be valid if ordered without first hearing the party who was going to suffer owing to the decision of the Court. Although the applicability and thereby the interest in the development of the well-known rule “audi alteram partem” to a wider category succeeded recently, giving a hearing to an aggrieved party had begun arguably at the beginning of humankind.
Page 227:
Justice Amerasinghe, in his Treatise on Judicial Conduct, Ethics and Responsibilities (Vishva Lekha, 2002, pg. 782) refers to the right to be heard and is of the view that a judge can not decide a matter without hearing the parties. In Justice Amerasinghe's words:
"In general, however, a judge cannot decide a matter without hearing the parties; nor may a judge decide a matter before hearing both parties to a dispute, for, it is an indispensable requirement of justice that the party who has to decide shall hear both sides, giving each an opportunity of hearing what is urged against him."
According to Justice Amerasinghe, a Judge is expected, not only to arrive at an accurate decision, but also to ensure that it has been fairly reached (Supra). For that purpose, it would be essential to hear all parties, which would clearly include an intervenient. (This emphasizes the necessity of hearing each party.)
CA (WRIT) APPLICATION NO. 347/1998 – 11.01.2012 - “ASHOKA SARATH AMARASINGHE V WIJERATNE AND OTHERS.”
Pages 19–20:
Sri Lanka Courts, as well as the U.K., and very many developed legal systems all over the world follow the Adversarial System. This system would permit and elaborate on the rules of Natural Justice.
The English advocate has a duty to court (so is in Sri Lanka). The Judge relies on him for the facts and law (see Rondel Vs. Worsley (1969) 1 AC 272/3 Judge may have not studied the case before hearing. To give a decision at the end of it the Judge relies on the Barristers to present the two sides of the case fully and fairly, and they had a duty to do so. That is the Adversarial (accusatorial) system. It is central to the adversarial system that each party should have a fair opportunity to put his or her case and to know the other parties case, and the final decision need to be based on Justifiable in terms of the cases put by the parties.
There is a general right for both sides to a proper hearing. Fair hearing which should be unbiased would embrace legitimate expectation to this it should be added a proper and sufficient notice of the case against a party. Such notice would enable a party to be prepared and contest contrary positions. Very often the ordinary court procedure would guide a litigant in this regard and civil and criminal procedure would regulate such procedure.
SECTION 07 OF THE CODE OF CRIMINAL PROCEDURE ACT NO. 15 OF 1979
This provision states that where a matter is not specifically provided for in the Code or any other applicable law, courts may adopt procedures necessary to ensure justice, provided such procedures are not inconsistent with the Code.
Accordingly, in criminal proceedings conducted under this Code, it is clear that all parties affected by a decision of the court—including complainants and accused persons—must be afforded the right to a fair hearing to ensure justice.
[2010] 1 SLR 163 – TRICO MARITIME (PVT) LTD V CEYLINCO INSURANCE COMPANY LTD.
Held
(1) The law contemplates the consolidation of applications made to set aside the award and to enforce the award. It is an accepted norm in the jurisprudence of this country that “actus curiae nemium gravabit” meaning, an act of Court should not prejudice any man. If the Court h as not consolidated both applications a party should not suffer as a consequence of the Court not doing what it should do in terms of the law. It is the duty of the High Court to consolidate the two applications and take them up together.
[2005] 1 SLR 58 – WIJESEKERA V WIJESEKERA AND OTHERS
Held
(iii) A court cannot override the express provisions of the Code.
(iv) It is only in cases where no specific rule exists the court has the power to act according to equity, justice and good conscience.
Per Wimalachandra, J.
“It is to the best interest of the administration of justice that judges should not ignore or deviate from the procedural law and decide matters on equity and justice.
NELSON KUMARANAYAKE LAW ASSOCIATES www.lawnelsonk.com