Posted on August 30th, 2017

Sarath Wijesinghe Solicitor/Attorney –At- Law and former Ambassador to UAE and Israel

Complicated Legal System in Sri Lanka

Legal system in Sri Lanka is complicated and controversial with a mixture of English Law, Property Law based on Roman- Dutch Law in addition to Kandian, Tamil and Muslim on Personal laws. Areas on Business and Commerce are governed by the English and Western Jurisprudence and International Law is based on the principles of the Convention of United Nations and International Organizations. International Arbitrations, WTO and International Trade Agreements have entered the jurisprudence with contested international trade disputes of multinational companies and the local traders including the State. Situation has become still complicated after the change of power structure and legal system on independence from the British Colonial Powers from 4th February 1948 when the power was transferred to the indigenous but western oriented rulers by the Order in Council. Law College was established in 1874 and the University College continued academic Legal education and Courts were established under the Saulbury Constitution for the delivery of justice unchanged headed by the Queen of Great Britain. English is dominated in the legal field despite making Sinhala, Tamil and English as official/court languages expecting English as a link language to communicate with the international legal fields and the world.

Judicial System and independence of the Judiciary

Changes made by the 1972 and 1978 Constitutions are in the public domain and known to the people. Under the 1978 Constitution which is in force today,

judicial power of the People is exercised by the Parliament through courts, tribunals and institutions established guaranteeing the independence of the courts and the judiciary respecting and recognizing the principles of separation of powers placed in compartments. Constitution as the source of all other legislature made laws have set up the court structure with the Supreme Court as the Apex court with enormous powers and to manage and control the legal education through the Law College as the institutions to permit the legal profession to act as officers of the court system to assist courts. Those who are qualified from the Universities in Sri Lanka and worldwide are bound to qualify themselves at the Law College as attorneys-at-Law to be eligible to perform duties of officers in court of law and private practice. In the UK and Western jurisprudence the lawyers are serving in many capacities in addition to engaging in active practice whereas in Sri Lanka the tendency of professionals is to engage mostly in practice courts as the centre.

UN Guidelines and Dhammapada”

According to UN guidelines and accepted norms the Judiciary should be kept away and insulated from other branches maintaining freedom on appointments, promotions and transfers which includes the Attorney General – the Chief Adviser to the State as an independent entity. Now that the former Justice Minister Dr Wijayadasa Rajapaksa has become a casualty as a result of refusing influence to influence the Attorney General to set up special Courts to run on daily basis and the sudden meeting of the AG with the Prime Minister raises eyebrows of the Legal profession and concerned citizens. There were talks of ‘trephine Justice’ during the last regime- especially under the leadership of the most controversial Chief Justice Sarath Silva who was responsible for the degrading the integrity of the judiciary. Today Hulftsdorf Gossip echoes telephone justice is rampant even more than before and may be worse when the inexperienced new Minister Justice has been armed with the mandate to direct intervention over the AG and the other institutions of justice and peace. The Quotation on Dharamapada” that not by passing arbitrary judgments a man become wise and the judgement should be given according to the truth applies all the time to any society appear to be the most relevant during the current era .

Laws delays, incompetence, Bribery and Corruption

Currently 10% of the population are litigants complaining of laws delays, injustice, corruption, and short comings on the delivery justice which has become a main issue in the legal system facing criticism by the public on daily basis. Backlog and delay of concluding cases are high with the citizen attempting law into their hands due to excessive delay with 95000 unresolved cases and backlogs of 800,000 cases pending including the controversial 105 cases demanding the Attorney Generals Department to put on the fast track to be heard on daily basis by special courts established most probably outside the constitution akin to the steps taken to deal with Madam Bandaraneika then main contender of H.E. Jayawardena who won the Presidential Elections easily in the absence of Madam Bandaraneike – the most popular and powerful also the person aimed to win the Presidential Elections. It seems the attempts of repeating history by appointing special fast track cases aiming at political opponents. Some partition and land cases take over 30 years when Rape or Murder takes around 20 years when the witnesses and productions are lost and police officers are dead or retired. Rape victims at the age of 12 are bound to wait until they are majors in marriageable age common in the public domain. This phenomenon is common problems in jurisdictions such as UK with a backlog of 63000 of Immigration appeals and India with hundreds of thousands of backlog and delay in criminal and civil matters also in search of solutions. Therefore laws delays are due to the weakness of ineffective system and not due to incompetence of the AG, Judiciary, or the Legal Profession. Bribery and corruption is rampant and all over as air and breath taking place uncontrolled despite pledges, announcements and pronouncements by the leaders of Good Governance, who got rid of Madam Dilrukshi – the former director of the Bribery Commission and – Lacille de Silva the former secretary of the Commission appointed to fight corruption. They are good officers compelled to vacate leaving a black hole leaving the bribery and underworld to act free. Most corrupt state offices and institutions in the good governance machinery are the offices of the courts, motor traffic, Immigration, Customs, and finance and trade related establishments carrying on the business of corruption with no interception from the good governance machinery consisting of 15% of the population as government servants. Deputy Minister Ranjan Ramanayaka is in hot water with the erroneous statement that most Judges and Lawyers are corrupt is challenged by the BASL planning to file

papers on contempt of court. Hon Ramanayaka has forgotten that we have the most corrupt Parliament Mafia” working together shedding party politics and other differences to earn money at any cost by selling vehicle permits (including him) with the loss of 3.1 billion to the citizen and more to be exposed. Unprecedented and unusual Meeting of the Attorney General with the Prime Minister at Temple Trees has resulted in accelerating prosecution of selected political cases against one family and clan on political grounds based on pressure is a worrying the citizen at large.

Ignorance of Law is no excuse

Ignorance of law is no excuse (Ignoratia excusa –famous Latin phrase) is accepted and followed in the Sri Lankan jurisprudence where a person unaware of law may not escape liability merely because one was unaware of law whereby the citizen is presumed to know the law and procedure on the land. It is due to this practice that the state should take steps to educate the citizen of the basic knowledge on law and procedure from school to adulthood and legal profession is equipped with sufficient to assist the litigants and the courts as officers to assist the judiciary. Legal profession have been an honourable profession where during the Roman Empire the lawyers represented and assisted the litigants as a voluntary service the Cloke” lawyers wear over the dress signifies the litigants to leave whatever they could as the fee to the pocket in the official dress. The members of the legal profession should be honourable and knowledgeable in law and procedure. Legal education and professionalism is developed to meet this requirement to the citizen depends on the calibre lawyers available for assistance to the public and judges. Then there is an issue whether the lawyers and honest and honourable and also knowledgeable and conversant on law and procedure are doubtful issues and it is the citizen who are capable of answering this question.

Legal Education – Improve the quality discipline and honesty of major players

Majority of law books, decisions, and judgements are in English most of the present generation lawyers are not conversant with which is a worrying factor in the legal education and law practice. In the United Kingdom the legal profession is disciplined and rigorous punishments are given for unprofessionalism, dishonesty, inefficiency and misdirecting the clients. In the

United Kingdom Solicitor Dijit Bechada age 45 found guilty of fraud and obstructing the course of justice and jailed after inquiry by the Solicitor’s disciplinary tribunal after reporting to courts not heard in Sri Lanka. UK has a developed free legal system supported by law centres and citizen advice bureaus which are not found in Sri Lanka found in nutshell in Sri Lanka. Sri Lanka Law College has not improved for the current needs and challenges and still the out-dated methods are followed without taking the current needs of the citizen into consideration. Sri Lanka Law College is managed by the Council of Legal Education headed by the Chief Justice following the old traditions without taking the modern challenges and needs into consideration. Therefore revolutionary changes are required to educate the profession and the citizen to equip them with knowledge by making the complicated legal system simple and accessible to the common man by encouraging and assisting the students and the legal profession on enhancing the knowledge on English language and the subject matter with the assistance of the dormant and ineffective Law Commission with the vision to promote the reforms of the law to promote and implement good governance asleep and inactive full of bribery and corruption. None of the institutions appear to be active and vibrant. Law college is fortunate to be managed by an able head – only an employee with no powers to change the system which in the hands of the main management team.

Way forward towards Good Governance and Rule of Law

Collective attempts of the law College, Bar Association, Faculties of Universities, Legal Aid Commission non-governmental organisations with the court network and the state departments should be mobilised with a vision to assist the citizen to regain the lost confidence to prevent taking law into their hands for justice when justice and fair play is not forthcoming from the justice system. Process of decision making and process by which decisions are made and implemented should be independent, participatory, with consensus based, responsive, efficient, equitable, inclusive which are main features of principles of good governance akin to principles of Lichchive Kings” historically took collective decisions and dispersed peacefully according to the proponents’ of God governance. Do the rulers who are appointed by the people as trustees of the nation for a specified period living up to the expectations and principles

good governance is a million dollar question capable of answering only by the people at the receiving end supposed to be powerful on paper.

Writer claims responsibility to the contents of the article and could be contacted on sarath7@hotmail.co.uk/0777880166

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