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Access to courts
18/11/2003 The Star Articles of
Law with Bhag Singh
The right of access to courts is a crucial entitlement
of an individual whether he/she is a citizen or not. However the eventual
relief that a person is entitled to may vary depending on whether a person
is a citizen or not.
The right of access to the court is not entirely aalways
unrestricted. This is because the law may restrict this right by making provisions
as to how a person may be restrained from seeking relief in the ordinary courts.
The resort to the ordinary court can never be completely
taken away. Unless where it is specifically provided, the ordinary courts
continue to have jurisdiction to provide a measure of supervision over the
acts of the executive in the country as well as in the case of rights created
or restricted by mutual agreement.
Thus in the case of a detention under the Internal Security
Act 1960 it is the minister who makes the order for detention for the specified
period and the court cannot substitute its decision for the decision of the
minister.
However an aggrieved party can still go to the court to
challenge the decision of the minister not on its merits but on whether the
minister has complied with the requirements of the Act when making the order.
The arena of industrial relations provides another example.
Here is an employee aggrieved over his dismissal is by law provided with an
option. He could bring this grievance before the industrial court or the ordinary
courts.
Once the grievance is pursued through the industrial court
to address his grievance the rights to the ordinary courts are lost though
the ordinary courts may be used to quash the decision of the industrial court.
However in commercial transactions where parties regulate
their own relationship is it possible for them to agree to exclude resort
to the courts? Here the position is a qualified one even though parties may
have proceeded on the basis that they have freedom of contract.
In the context of contractual relationship one party cannot
be restrained from exercising its right to resort to legal proceedings though
there are exceptions in a qualified way. Section 29 of the Contracts Act 1950
provides: "Every agreement, by which any party thereto is restricted absolutely
from enforcing his rights under or in respect of any contract/by the usual
legal proceedings in the ordinary tribunals/or which limits the time within
which he may thus enforce his rights, is void to that extent".
It will be seen from the provision in the Contracts Act
that subject to stipulated qualifications not only may parties be restrained
from going to the ordinary courts but the period by the Limitations Act 1953
within which to commence an action cannot be shortened.
There are exceptions as stated in the same section. These
exceptions do not really exclude the jurisdiction of the court but allow the
parties subject to the supervision of the ordinary court to resort to other
means of resolving a dispute.
The law does not render illegal a contract by which two
or more persons agree that any dispute which may arise between them shall
be referred to arbitration, and that only the amount awarded in the arbitration
shall be recoverable.
Similarly the law does not render illegal any contract
in writing, by which two or more persons agree to refer to arbitration any
question between them which has already arisen or affect any law referring
to arbitration. The difference between the two situations is that in the former
the party agrees to refer to arbitration any possible dispute when they first
embark on their relationship, the second situation is about referring a dispute
to arbitration after is has arisen.
A third situation relates specifically to government scholars
in that it does not render any illegal any contract in writing between the
government and any person with respect to an award of a scholarship by the
government wherein it is provided that the government wherein it is provided
that the government's decision shall be final and shall not be questioned
by any court.
When disputes are referred to arbitration it cannot be
always said that the ordinary courts have been excluded. This is because arbitration,
at least in the domestic context, proceeds with the approval of the court
and subject to its supervision. In fact in the case of domestic arbitrations
governed by the Arbitration Act 1952 the court continues to play an important
role in the dispute even though it is to be arbitrated.
To start with the parties may not be able to agree on who
the arbitrator should be. The solution to this impasse lies in going to the
court to have the arbitrator appointed.
These matters to which resort to the ordinary court may
be necessary include application for security for costs, discovery of documents
and interrogatory, the giving of evidence by affidavit, examination of a witness
pursuant to a commission and interim preservation of property, amongst others.
Apart from all this event where there is an arbitration
clause one party may go to the courts and the court has the power to say that
the arbitration clause may be disregarded. This has to be based on judicial
grounds when the court exercises its power.
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