Asserting language rights in Court has several ramifications | Daily News

Asserting language rights in Court has several ramifications

A petitioner in the Court of Appeal filed an application in revision against a decision by a District Judge to allow a creditor bank, the plaintiff in the District Court, now respondent, to take certain steps against the defendant for default in payment.

The position taken up by the petitioner was curious. His Counsel alleged that the plaint and affidavit in the District Court had not been furnished in the English or Tamil language to the petitioner, who was a Tamil gentleman.

The Court of Appeal took up the matter of alleged breach of language rights with reference to the petitioner’s basic Constitutional rights, and observed in judgement: “Learned Counsel for the defendant-petitioners contended before us that the plaintiff bank failed to provide copies of the plaint and the affidavit in the Tamil language or at least in English language to the first defendant-petitioner who is a Tamil national and as such the plaintiff bank had not complied with Articles 24(2) and 24(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka (the Constitution). Article 24(2) of the Constitution reads as follows: ‘Any party or applicant or any person legally entitled to represent such party or applicant may initiate proceedings, and submit to Court pleadings and other documents, and participate in the proceedings in Court, in either Sinhala or Tamil’.”

Court further considered the matter with reference to specific Constitutional rights as guaranteed in the relevant Article, with the concerns at stake striking right at the heart of key language rights of litigants.

It was pointed out in judgement that Article 24(3) of the Constitution reads as follows: “Any judge, juror, party or applicant or any person legally entitled to represent such party or applicant, who is not conversant with the language used in a Court, shall be entitled to interpretation and to translation into Sinhala or Tamil, provided by the State, to enable him to understand and participate in the proceedings before such Court, and shall also be entitled to obtain in such language, any such part of the record or a translation thereof, as the case may be, as he may be entitled to obtain according to law.”

Court held that there was no evidence that went to show that the first defendant and now the petitioner was not conversant with the language of the District Court, which was Sinhala. Court also held that in the pleadings in the Court of Appeal, most importantly, the defendant petitioner had not stated in the petition and affidavit that he is not conversant in the Sinhala language.

It appeared that the defendant petitioner was submitting in Court that the Bank should have provided him with translations of its District Court plaint and affidavit, just by virtue of the fact that he was Tamil.

The words “translated into the language of each defendant whose language is not the language of Court” was the relevant part of the Constitutional clause that the Court underscored.

Court held: “Was there evidence before the learned District Judge to suggest that the language of the first defendant-petitioner was not the language of the District Court of Mount Lavinia? The above question has to be answered in the negative because the defendant-petitioners have failed to aver this position, viz., that his language is not the language of the District Court, in the petition and affidavit filed both in the District Court and this Court. For these reasons the above contention of learned Counsel for the defendant-petitioners should fail.”

Language rights can in different circumstances be afforded to litigants with reference to international covenants that we have signed as a country. In the case Mallawarachchige Kanishka Gunawardena vs. H.K. Sumanasena, it was decided in the Supreme Court that a host of rights including language rights can be applied through the agency of international covenants such as the ICCPR (International Covenant on Civil and Political Rights) when there is a lacuna in the law that does not provide certain rights say rights of appeal, or rights concerning language.

The relevant judgement excerpt reads: “Sri Lanka being a dualist state, implementation of the ICCPR requires that it be incorporated into domestic law which was accomplished in 2007 with the passage of ICCPR Act. The goal of the covenant is to define international human rights standards and to require signatory states to adopt measures to enforce those rights. The rights provided by the ICCPR are regarded as the basic human rights that should be viewed as restrictions (against derogation) on the government of signatory states. The ICCPR is valid for its signatory states and every signatory government is obligated to observe its provisions.”

In the case Kotuwila Kankanamalage Premalal Leonard Perera vs. OIC Police Station Buttala (SC Appeal 220 of 2014) it was held that Section 4(1) of the ICCPR Act No. 56 of 2007 referred to the entitlement of an alleged offender as follows:

“Section 4(1): A person charged of a criminal offence under any written Law, shall be entitled-

To be afforded an opportunity if being tried in his presence;

To defend himself in person or through legal assistance of his own choosing and where he does not have any such assistance, to be informed of that right;

To have legal assistance assigned to him in appropriate cases where the interest of justice so requires and without any payment by him, where he does not have sufficient means to pay for such assistance;

To examine or to have examined the witnesses against him and to obtain the attendance of witnesses on his behalf, under the same conditions as witnesses called against him; and

To have the assistance of an interpreter where such a person cannot understand or speak the language in which the trial is being conducted.”

To be availed of the assistance of an interpreter when the language of Court cannot be understood is a basic right that ICCPR guarantees, but yet Courts have held time and again that it must be sufficiently proved in Court that the language of the Court cannot be understood by the litigating party that makes such an application for an interpreter.