“LAWS DELAYAS OR LAWYERS DELAYS”
Posted on April 3rd, 2018

Sarath Wijesinghe a former Secretary Bar Association and a former Ambassador to UAE and Israel

Worldwide issue

Laws delays is a worldwide issue currently resolved in many jurisdictions including Commonwealth and United Kingdom we have been inherited with the current adversarial system from. The main players in the system are lawyers, Judges, where the state is providing funds for administration and catalyze independent judicial appointments and independence of the Judiciary, Law enforced institutions, and efficiently run the legal and administrative systems which require efficient and just legal/administrative systems with less delays while maintaining independence of the judiciary. True to the adage Justice delayed justice denied” Sri Lanka still takes few decades to end a civil/criminal matter to the completion. Thousands of unresolved cases are piled on everywhere including the higher courts. Some Land/Partition cases take more years and decades for completion including the appeal procedure.

Complicated system

We are inherited with a complicated system of justice with a mixture of English, Personnel, and Roman Dutch legal systems, with no proper system of compilation when most old and archaic laws are still in force with ad -hoc amendments to suit the political and administrative changes. We still use Civil and Criminal system forced on us by colonial rulers on 1800 s with the court system imported also in 1800 s further amended by the judicature act 40 years ago, still conducted in English with judgments in English by the judges attired in glamorous robes following British customs and convention with the usage of the foreign language in which the standard is fast deteriorating which is not understood by the citizen with 5% English knowledge of the population.

UK and Commonwealth

For a system to run smoothly, efficiently, and fast all the parts of the machine has to work together smoothly with the main stalk holder lawyers and Judges and it is a myth” for one branch to succeed in isolation! If we take one simple example in the procedure of an average magistrate court in the UK with a computer link” to the police stations in the area to exchange information, and court headed by a handsomely paid Judge assisted by a learned court clerk-a lawyer acting as an assistant and researcher- in a disciplined court house where the lawyers are well disciplined by the Bar Association and the Law Society with rigorous punishments on dishonest and behaviors unbecoming of a professional who are expected to conduct the case in full with no excuses as the first few questions by the magistrate of the expected time taken and the brief summary before the commencement of the proceedings, with warnings to all witness, and other institutions to be present with the documents. Magistrates are friendly but firm with no pompous or show off” attitudes like some of our judges in all levels. Magistrates are appointed by the Lord Chancellor with longtime training and surveillance having gone through understudy in the judge’s institute and senior magistrate’s before responsible appointments are given. Emails, transferring files, and digital technology are used in the court procedure and administration with laws delays are not an issue any longer in the court system in the United Kingdom.

40 years old Judicature Act reconditioned to expedite course of justice to find wrongdoers

Currently steps are taken to amend the 40 year old Judicature act with patch work to expedite cases on charges of finance and economic crimes creating new courts of Trial at Bar for selected cases on selected subjects allegedly in order to fulfill the promise made to the people to bring wrongdoers to justice. According’s the judges salaries have been increased, additional perks are given especially to the Attorney General – one of the most expensive unique cars. Since independence only few parliamentarians ( Monnakulama”, Marriakker”, and few others) were convicted during Hon SWRD Bandaranaike’s time (only) with the exiting legislation, and if there is a genuine desire to the governance, it is not difficult to bring the wrongdoers to books quick with existing legislation and citizen wonders whether it is inefficiency or lack of will to fight laws delays. Currently number of cases filed by the Bribery Commission is on the fast tract. Case against former Minister Authgmaga” for improper handling of 1,400,000 rupees is conducted on daily basis having detained in remand prisons can be taken as classic examples to show fast tract proceedings are possible under the current system, when the complaints made by Aluthgamage” against sitting Ministers in the government, for illegal dealings of 1, 32, 000, 00/= rupees none have been taken up by the Commission to date which is amusing and surprising. Bond Saga/Episode is the highest amount alleged to have stolen/robbed in Sri Lanka implicating the sitting Prime Minister for aiding, abetting and direct involvements by giving unwritten instructions to the former Central Bank Governor on the run, which is in the public domain and in commission records.

Proposed Bill – implications complications or/ and advantages?

The salient feathers of the proposed bill are appointment of three permanent High court Judges especially to hear Economic and financial corruption, on daily basis with a bench of three judges chosen for this particular issue in order to curb corruption according to the United Nation Guidelines on preventing Bribery and corruption and to speed up criminal justice with authority to the Attorney General to appoint Judges and provide adequate facilities administrative and professional with his staff to the newly established specialized High Courts, most probably to fulfill the pledges given to the people to find and punish wrong doers where the preliminary investigation by the FCID is now in the verge of completion. The question arises whether the current legislation and the powerful administrative set up with modern police structure appointed by the Constitutional Council is insufficient as in MP Aluthgamaga’s” case dealing with corruption and misuse of 14 million rupees which is heard day to day having remanded long periods be used to all other alleged cases with the existing High Court Judges in the same court system supervised by and appointment of judges by the Chief Justice for expeditious justice system. The political statements made in public by politicians that they are taking steps to fulfill the pledges during the election campaign to bring the wrongdoers to justice soon, sudden increments of salaries of judges, providing one of the most expensive vehicles to the Attorney General who is accused of soft peddling questing the Prime Minister alleged to be a main target in the public domain, raises eyebrows of those in Hulftsdorp” and country wide with eyes and ears open in this complicated and uncertain situations economically, politically with uprisings countrywide. Decision of judiciary is due and the results will be decisive for future deliberations.

Lawyers- Attorneys-at-Laws

There are around 18,000 legal professionals engaged in private practice, State sector including serving and retired Judges employed in private sector ipso- facto members of the Bar Association pledged to serve the nation and while protecting human rights and dignity of the profession, who are expected to maintain highest standards and engage in practice honestly and with due diligence. Misconduct of Attorneys – at- Law is inquired by a committee appointed by the Bar Association – the only statutory body for the lawyers and by a Rule from the Supreme Court. In the U K dishonest corrupt and those who do not live up to the expectations are prosecuted by the Law Society and a considerable numbers are convicted/found guilty and exposure to the media through the Law society Gazette and naming shaming is a common feature. It is a worrying feature that nothing of this nature is heard in Sri Lanka. Quality and competence of all professionals should be monitored by the Organizations of Professional Association which is also an inert body with no protection to the victims of anti-professionalism and the Bar Association – the powerful limb and a main initiator of the OPA.

Way out for Laws Delays- Lawyers Delays?

Reasons for laws delays are multiple and lawyers alone need not be accused of though partially responsible- lack of resources, lack of knowledge, lack of training to judges/lawyers, lack of discipline among lawyers, incompetency, lack of experience and will, lack of training and lack of judicial temperament of judges, Lack of vision and directions from the line minister and ministry and educational institutions including Law College and Faculties of Laws engaged in day to day work in place of academic and professional excellence, lack of coordination among connected institutions such as legal draftsman, A G s Department, Law Commission, Companies House and connected institutions for a united strategy with a will for changes in the interest of the country in turmoil with increase of crime rate out of frustrated litigants, bribery corruption, drug menace due to incompetence of the administration are all parts of the strings of the maize of unfortunate complicated events only a dedicated visionary or a group of visionaries will be able to win over with a new vision – out of politics or political considerations, with complete overhaul of legal education, legal system and the attitudes of stalk holders living in ivory towers. Let me end the article by narrating an unfortunate incident of myself recommending a civil lawyer with 40 year practice to send a letter in a land case of a friend from who made a handsome fee to my friend who Is chasing the lawyer for the last 6 months evading giving flimsy excuses putting me also into an embarrassing situation for recommending him not reachable via any mode of communications. In the UK it is a matter of a telephone call or a letter this to settle matter on few days via Law society. Another lawyer supposed to be transparent has charged nearly 4 million for a simple inquiry of 3 hours of a state flying cooperation losing billions as the remuneration of the regime change operation”, not giving the breakdown of the services rendered as required by law a matter should have been a matter of a mere letter in the law Society in the UK. Therefore it is the duty of the professional bodies to lead the campaign to minimize laws delays for the citizen to have trust and confident of the legal system avoid taking law into their hands out of desperation and anger. (Reading materials- laws delays and rule of law-31/2/2011 Press reader-Laws delays rule of law and good governance 23/8/ 2015 Tamil Information Center 29/6 2008 Observer – Public interest litigation 21/6/2015 Guardian all by the author who could be contacted on [email protected])

One Response to ““LAWS DELAYAS OR LAWYERS DELAYS””

  1. Nimal Says:

    Our legal system seem to be corrupt where judges deliberately postponing the cases for decades. Truly shameful.

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