Dr. Chandana Jayalath

The 155 meter long and 127 meter wide ship manufactured in 1985 came under detention in Sri Lanka on a court order after a dispute arose involving the cargo and its crew. The vessel was found drifting off the coast of Panadura three years ago and had been anchored there since, pending the outcome of a Court case. Along with the court case dragging the condition of the ship was deteriorating and finally sank in offshore in Angulana, leading to considerable oil seepage unto Colombo.

Similarly, one of my friends has been facing a court trail over 3 years now awaiting a judgment on a ministerial decision related to a termination of employment. The case is straightforward where the client has terminated the employee on the grounds that the recruitment has been allegedly made by then the chairman of the institute while the party so suffered due to termination has sought a redress from the labour tribunal. How many years have ordinary people (except of course, the trails pertaining to FM Sarath Fonseka and Mrs Shirani Bandaranayake) waited for their court cases pertaining to a property issue, or personal relations, or business, to be finally resolved? How many years have suspects in crimes waited in remand jail for court cases or preliminary legal proceedings to be completed to enable their guilt or innocence to be established? How many kilometers do litigants have to travel from village to court in a distant town and, how many times in the course of a case?

The entire society is replete with frustrating and disheartening experiences caused by many delays in the system of justice.  The question is why it takes such a long time for a resolution. The reasons are numerous, and it is important to gauge the actual reasons to find lasting solutions. Though it has been considered by many as a critical social issue, it has not surfaced in a strong manner to generate a robust debate in society so as to compel the government to address them and take immediate measures to mitigate the ill effects of this persistent problem.

Lawyers for example have to safeguard the public interests in the administration of justice. Rules that govern their professional conduct arise out of the duty that they owe the court, the client, their opponents and other advocates. These standards must also be known to the public at the outset in a language understandable. Acting in a dignified manner is of high significance where the lawyer at all times conducts himself with self-respect. Dignity and respect maintained towards judicial office is essential for the survival of a free community. For example, an advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge and  should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc. An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties.

However, when one enters into litigation in our courts today, no one has any idea as to when the justice will prevail. Such is the delay in justice in our country. We often use the dictum “Justice delayed is justice denied,” coined by the famous British Prime Minister William Gladstone. This dictum remains mere words if we, as a vibrant democracy, fail to take appropriate steps to resolve the issues at hand. Delays in legal proceedings have immensely contributed to social upheaval and even isolation, inevitably losing faith in the system and taking the law into hands of the masses.

At present, if I am not mistaken, there is a massive backlog of over 650,000 cases pending before the Sri Lankan courts. A known fact is that prolonged litigation creates a culture that encourages lying.  Also it provides immense opportunities for unscrupulous litigants and lawyers to engage in many forms of manipulation.  If a legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. In an interview with the Sunday Observer, 2012, the Secretary to the Ministry of Justice Kamalini de Silva said “Although Sri Lanka’s judicial system is of a high standard compared to other countries in the region, law reforms need to be introduced to meet present day challenges. We are still observing archaic laws of our colonial masters. We need good infrastructure and good management skills to step into the modern legal systems”, she said. Speaking about the laws delays, remedies taken to reduce the backlog, the faith of the people in the country’s judiciary in resolving their legal issues, the Secretary, who is in the legal field for over 30-years, said Judges were competent to handle the issues but need the support of all those in the legal system, ranging from lawyers to peons to clear cases amounting to over 650,000 cases which are piled up in Courts island wide.

On the other hand in Sri Lanka, the arbitration process (for which it is possible) has become very adversarial and expensive. Therefore, it is important to review and improve the arbitration process as early as possible. It is also important to pick experts such as architects, engineers, quantity surveyors, and lawyers to constitute arbitral tribunals. However, one of the serious criticisms leveled against arbitrations in Sri Lanka is the time factor. The arbitration agreement incorporated in the ICTAD Conditions of Contract under clause No. 67 stipulates that the period within which the award should be made is four months. Although the Arbitration Ordinance of 1948 stipulated a period of three months, the present Arbitration Act does not specify a time limit where the parties are free to fix a desired time period for proceeding and award the agreement. According to the arbitration agreement recommended by ICTAD the period for commencement of arbitration may take a maximum of 90 days whereas the FIDIC documents the maximum period of 154 days. Hence, the time factor remains a major drawback in the arbitration process. A further drawback is that there are no facilities to conduct construction arbitration proceedings besides Colombo. It will be helpful if an association of arbitrators whose objective is to educate and train professionals in the field of arbitration is formed to promote the continuous development of the skills of arbitrators.

We have no Court exclusive for construction disputes unlike for example Technology and Construction Court (TCC) in UK that was set up as a specialist group of courts within the Queen’s Bench Division of the High Court of Justice to handle disputes about buildings, engineering and surveying. Cases that TCC hear generally include claims about services provided by engineers, architects, surveyors and other professionals in this sector, claims about local authority duties relating to land and buildings, environmental claims (e.g. pollution and nuisance), claims resulting from fires, challenges to decisions of arbitrators in construction and engineering disputes. TCC does not attend to cases with a value of less than £250,000 unless there is a good reason, e.g. the case involves a new or difficult point of law or the case is international.

Due to the delays in the administration of justice, leaving the Courts to administer justice relating to public affairs is perceived as succumbing to the delays and thereby delaying opportunities to bring about required changes. For example, when a highway is to be constructed, there may be some land owners who will object to their lands being taken and may go to court to object. Delays in court may then be manipulated by lawyers, whereby the construction of the road may be delayed for a long time. Similarly, on insurance matters delays in courts may result in parties to accidents not being able to get their dues, with insurance company lawyers manipulating delays in order to force settlements to the disadvantage of the affected parties. A further example is where the government wants to take over some lands for purposes which the government thinks is useful, but this is objected to by people living there. The residents could go to the courts for the purpose of seeking justice. The Government, perceiving this as a delay in the achievement of their purpose, will not want the courts to have jurisdiction on the matter. A related problem is the ejecting of residents by force without court orders. The gaining of court orders may require giving notice to the affected parties and the affected parties may thereafter object. And, until these matters are settled, the government will not be able to eject the residents and proceed with their construction.

To make matters easy, it is important the government find ways to oust the jurisdiction of the courts. However, the questions that are not discussed are why the government cannot undo the court delays by introducing necessary reforms and allocating resources. There are many countries in the world where undue and extraordinary delays have been overcome. A related issue is that ousting the jurisdiction of the courts creates opportunities for corruption. The pretext of avoiding delays involved in court processes is often a pretext used to avoid the discussion on the vast possibilities available for corruption when the scrutiny of the courts has been removed. Many justice issues can thus be suppressed under the pretext of development. Within modern development projects, the possibilities of corruption are extraordinarily large and if the matters of dispute go through court processes, such corruption would be exposed. At the same time it needs to be stressed it is possible to create justification for corruption when quick results are possible as against the possibilities of justice accompanied only with extraordinary delays.

Thus, the central issue to be dealt with is the issue of overcoming delays in the resolution process by necessary institutional reforms and the allocation of resources. Another important issue is that the access to law seems to be severely curtailed, reduced or restricted by the poor being unable to afford the costs of litigation. Delays which go on for years aggravate this factor. Sadly, there is no authentic and adequate legal aid system to help persons from lower income groups take advantage of the law. The powerful and the powerless then starts sharply seen in litigation. Now, added to that is the politicization that brings advantages to those who have political connections and disadvantages to those who do not.

Inter-alia the courts’ primary role is to make, interpret and define law and safeguard the public interests and social values. Courts interpret what the documents depict in terms of true intent the parties had in their minds at the time they entered into the contract, in the case of private contracts. Courts eventually rely on court-appointed experts in the context of highly technical issues, ultimately generating a vicious circle. For any alternative method to be truly voluntary, Courts should use discretion only when the will-power of the parties remains. The outcome would still vary on the court’s persuasiveness such as any sanction that makes participation and conduct of the process obligatory which will in turn restrict the choice of the disputants.

On the other hand, Courts should be sensitive when power imbalances exist, not necessarily to protect the parties’ rights but to leave enough room for self-determination. When tapping the potential of these techniques, I strongly believe that courts should first test the appropriateness, resistance and willingness before encouraging and facilitating paralegal functions and alternative dispute resolution methods. It will help secure key characteristics such as participation in good faith, autonomy, choice and self-determination.

On the contrary, mandating alternative means without consent of the disputed parties or court connected means with imposed rules such as strict deadlines may dictate the outcome and prejudice the aim of laissez-faire amicable settlement. What the parties need is, therefore, something that works well, indeed works faster, cheaper and in a much less contentious manner than traditional tribunals. Parties strongly believe in a process in which the parties retain the right to decide the outcome of the dispute rather than a court order or an appeal board decision. Under circumstances, in construction related disputes, the Construction Industry Development Act should have allowed an extra contractual opportunity for the parties to revisit their concerns at any point of the settlement gauntlet, for example a third intervention, a neutral approach where the lay employer refers the matter to a third neutral who will first evaluate the case independently and recommend a solution.

For example, in Qatar, today, the parties seek a nominee to review the disputed issues and consider it an extra ‘contractual’ opportunity to get their disputes settled at the employer’s level. Such an arrangement in fact avoids the formalities in arbitration or litigation. Almost all the cases have been successfully handled within a contractual framework as mentioned, taking all the circumstances into detailed consideration, resulting in fair assessment acceptable to all the parties. Accuracy, accountability, short response time, cost and time savings, increased awareness of the issues and increased dependency are a reflection of success as a dispute mechanism. This kind of a modality will help in non-construction matters as well. Parties who act in good faith are likely to comply with a recommendation just as they would accept a decision anyway. At present the District Courts in Sri Lanka and the two Commercial High Courts in Colombo are unable to cope with the large volume of cases. The result is that courts are not in a position to dispense justice expeditiously to litigants who have sought recourse to the courts.

Construction claims tend to be of the most technical nature – intensive and multifaceted than most other commercial disputes. The construction industry needs a fast and cost effective means for dispute resolution. The Act should have given enough emphasis on the concept of ‘internalizing’ disputes via mediation instead of focusing on traditional, highly formal and rigid procedural techniques. Alternative Dispute Resolution (ADR) is truly a multidisciplinary area. Alternatives to the resolution of disputes have deep and different roots worldwide. With the growing trend in ADR, the blurring of boundaries raises crucial issues to the further development of the field, particularly regarding fundamental distinctions between ADR processes that encourage both cooperative and competitive behavior.

In the late 1980s and early 1990s, many people became increasingly concerned that the traditional method of resolving disputes, through conventional litigation, had become too expensive, too slow, and too cumbersome for many civil lawsuits (cases between private parties). This concern led to the growing use of ways other than litigation to resolve disputes. As of the early 2000s, ADR techniques were being used more and more, as parties, lawyers and Courts realized that these techniques could often help them resolve disputes quickly and cheaply and more privately than could conventional litigation. Moreover, many people preferred ADR approaches because they understood that these methods as being more focused on problem-solving than litigation, which has always been based on an adversarial model. The term alternative dispute resolution has become such well-accepted shorthand for the vast array of non-litigation processes that its continued use seems assured.

Although certain ADR techniques are well established and frequently used—for example, mediation and arbitration—alternative dispute resolution has no fixed definition. Unless someone indulged in a conceptual debate, we need no problem as to definition. The term alternative dispute resolution includes a wide range of processes, many with little in common except that each is an alternative to full-blown litigation. In many developed countries, litigants, lawyers, and judges are constantly adapting existing ADR processes or devising new ones to meet the unique needs of their legal disputes. Apart from clearing backlog, I do not see ADR techniques are to destabilize the traditional Court system. Certainly, ADR options can be used in cases where litigation is not the most appropriate route- a potential untapped in Sri Lanka. However, they can also be used in conjunction with litigation when the parties want to explore other options but also want to remain free to return to the traditional Court process at any point.

Although widely known for its propensity for litigation, the USA for example has one of the world’s most advanced and successful systems for settlement of disputes outside the formal legal system through mechanisms of mediation and arbitration. More extensive use of this system internationally and by other countries can dramatically enhance the speed and quality of social justice globally. The growing complexity of modern life has multiplied the burden on the legal justice system, rendering it increasingly inadequate and ineffective. In year 2000 the Italian Government was required to pay €600m to litigants claiming damages caused by trial delays. The potential importance of mediation is illustrated by the fact that at the present pace India will not clear its current backlog of cases until 2330. The wide range of innovative mechanisms commonly employed to settle disputes outside the courtroom is illustrative of the larger potential for organizational innovation in other fields designed to enhance governance nationally and globally.