Posted on April 9th, 2022

Sarath Wijesinghe President’s Counsel, former Ambassador to UAE and Israel, President Ambassador’s Forum and, a former General Secretary to Bar Association of Sri Lanka- Currently in the United Kingdom

New Procedure with small claim courts

It is indeed to the credit to then Minister of Justice and the committee appointed to draft laws headed by an Appeal Court Judge and the learned and efficient committee members that they have prepared the draft to be forwarded to the Law Commission and the Legal Draftsman Department for final touches in such a short space of time. Law commissions in other countries are pioneers on law reforms and changes. In Sri Lanka it is rarely heard of. Small claim courts with less complexities are prevalent in many commonwealth countries and in USA serving the community is speedy resolution of cases with the shortest possible time helping laws delays and easy access to justice.  The    new procedure scheduled to be introduced to Sri Lanka in order to solve the main issues on laws delays – a long overdue problem faced by the Sri Lankan litigants entangled with issues on laws delays and complications of the legal system in resolving the cases that has arisen in day to day life. This process will be successful in finding easy solutions for litigants to resolve money claims easily and speedily. ‘Laws delays is justice delayed’ which is a violation of human rights and breach of  civic duty by the governance , contrary to the contract entered into between the governance and the citizen. In addition to preventing laws delays, efficient legal system will transform the governance to be a more efficient and a safe mode for the citizen to handle and manage litigation, easily with or without the assistance of lawyers with the small claim courts. Therefore it is the duty of the governance in power to pave the way for expeditious disposition of the cases speedily and with the minimum expenditure preferably subject to legal aid which is currently practiced in the United Kingdom well providing legal aid to the needy litigants who are entitle to be based on merits and income tests conducted by the Legal Aid Commission which requires reforms to provide legal aid to the needy in Sri Lanka who are entitled to, but sadly denied! This system of small claims courts, prevails and successfully in operation in many parts of the world such as Australia, Canada, England and Wales, Hong Kong, Israel, New Zeeland, Philippine, Scotland, Singapore, South Africa and USA mostly in countries prating adversarial  systems of legal system. What prompted the then Minister of Justice to forward the proposal to the Cabinet is to prevent laws delays and speedy disposition of some cases with less complications which is praiseworthy. The carefully picked group who has researched and proposed on the backlog of cases accumulated unresolved as follows at an alarming rate, is an excellent move but it is a good idea to reduce the membership of the committee to the minimum for quick and more productive outcome.  Members appear to be of good standing and they may help the process from periphery sphere to meet at the end of the deliberations during fine tuning. It is a good idea for the committee to communicate with the ASSLUK the Sri Lankan Lawyers in UK who are a powerful and dedicated Lawyers group with top experienced professionals in practice in process ever prepared to help Sri Lanka and the professionals in this process in order to harness their knowledge and experiences in the exercise. ‘Doing Business’ rate in  Sri Lanka is on the 64th position which is a drawback and discouragement of the proposed investors, including the Port City that has pumped Sri Lanka the highest ever Foreign Direct investment – a main turning point and a game changer on the economy in Sri Lanka to be on the upward trend. Figures shown as cases stagnating are frightening as follows, 8000,000 cases pending generally,, 535000 in Magistrates Courts, 3486 in Supreme Court, 4817 in Court of Appeal 5880 in Civil appellate court, 16811 in High Court Criminal, 167945 in District Courts, 17513 in ‘’Quati Courts’’, 200,000 referred to mediation boards which is worrying and acts as a bottle neck on the system of court administration which has a direct effect on the economy.

Judicator Act to be amended

After the cabinet approval the judicator act 2 of 1978 to be amended to accommodate the new process and it is a good idea to follow the procedure adopted in the United Kingdom for us to grasp the finer points of the functioning of the system which is available online to be operated by the litigants with less expenditure, complications and quicker. It is a good idea to strengthen the mediation board functioning with no legal representation in settlements which is functioning with 40% success and making the preliminary attempt at the mediation boards before seeking the Small Claim Court is ideal to implement. Though the Small Claim Courts are mainly meant for recovery expanding the area in the SCC jurisdiction may ease the congestion giving the litigants access to justice more conveniently and the drafters may leave room for future expansions if necessary. Small time businessmen, and villagers are finding difficulties due to the cost of litigation and non-availability of legal aid due to financial constraints easing the process will reduce the crime rate as many crimes and serious disputes are based on small claims become more serious disputes.

Please refer to ‘’Laws delays lawyer’s delays or system delays 3/1/2021’’ (article Ceylon Observer Sarath Wijesinghe)

Who are responsible for laws delays? Is it lawyers, judges, or the system is a frequently asked questions with no proper answers. Definitely some lawyers are a part of the issue to a certain extent for not being professional and honest in dealings which is a gross mistake in their own interest. If the legal system is fast and expeditious lawyers too will be benefited with the litigants, as then only the litigant will have a trust on the system now has dwindled to the extend to take law unto their hands. Lawyers should be well disciplined as in the United Kingdom and the complaints against them should be dealt with properly and promptly like in the UK. Judges must be trained properly and given opportunity to enhance the knowledge with modern developments on case law and practice which is doubtful to be in practice to the best of the expected standards. Judges should be giver research assistance as in UK and many counters and they must be encouraged and assisted in improving It literacy on them. Dwindling and  deteriorate the standards is due to the fault of all including the governance and litigants and it is in the hands of all to get together on reforms for their own benefits as this is a problem faced by many countries in the world. Judges, lawyers, Law College, and AG’s department consists of lawyers who understand the ‘legal language’ and sense and it is with the joint efforts of all that we can bring about changes to the legal system which is a dire necessity today to maintain law and order, economic stability, and a smooth system of governance which is unfortunately lacking today. Laws delays is common to many parts of the world looking for solutions. We are not the worst. In India 22 million cases are pending. Famous ‘’Vinode’s’’ case of 1994 took 20 years with 36 witnesses with no results with the not found and promoted. 94 year old mother died in awaiting for justice. India spends 2% for the justice Ministry in 2016 have 13 judges for one million. This is only an example that we are not alone in the needs of justice, and a joint efforts are needed with the Ministry of Justice, legal apparatus, and the citizen to work together for solution to give benefits to the needy suffering citizens. If the system is intact and update the delay will be minimized ; for example the reports from various institutions and the communication system is to be organized and updated such as the submission of the fiscals reports and the communication of documents by post instead of fax and email as in the UK is more appropriate. It is good news Supreme Court is gradually adopting the new communication techniques in some instances which are on the right directions. All in all the compartments must run smoothly for a smooth functioning of the system in operation. We invite you to browse the net and read the above article for further details. Laws delays is a world scenario with many systems looking for solutions and a matter that has been discussed by many in various forums. ‘’William Gladstone’’ four times Prime Minister in the UK (1868/1874/1880/1885/1886) said the famous quotation used again and again that ‘’Justice Delayed is Justice denied’’ which Sri Lankans Indian and citizens in many part of the world experiencing with little or no solution. Small claims courts if set up will help to bring about some relief to bring the backlog down to a certain extent by taking the pressure from District courts which is going to be bit above the proposed courts with simplified procedure in making applications online and implementation with less complications, which will assist the business community pressurized due to the complexity of the system and denial of access due to the expensive commitments, in litigation. Legal aid is a complicated system with the merits and income tests which is a need to the needy citizen freely available in the United Kingdom, and it is questionable whether the legal Aid commission in Sri Lanka is living up to the expected standards, and we wish the Bar Association and Legal Aid Chairman will read this article.  Access to Justice, legal aid, and denial of justice to the poor and not so educated is a serious matter that has to be considered by the legal profession and the judiciary, in the delivery of justice. Lenard Woolf’s book on BADDAGAGMA gives a sad and important story on the poor man ‘’Sinudu’’ in ‘’Walasmulla’’ area the miscarriage of justice meted by him due to the way the village headman conducted inquiry and the translator of the court house misinterpreted the case resulting denial of justice to ‘’Sinudu’’ imprisoning and losing the only wealth and possessions left for him and his disabled daughter. Similar things have happened and thereafter and there is no grantee that it is not happening today. Therefore we with the Hon Minister will read this article and make overall changes in the legal system including legal aid, and creating atmosphere to access to justice to all along with the proposed changes on small claims courts.

Mediation and small claims

Mediation is a concept historically proven successful and currently with a success rate of 40% in effect. In fact this is to be regularized without the intervention of the politicos appointed by the Ministry of justice as the Justices of Peace appointed on political connections at times with people of bad repute and criminal faiths, to indicate the erroneous system in practice. Given the opportunity by appointing honest and dedicated members not poisoned on political ideologies and practices the prospective litigants will settle matters out of courts leaving the complicated cases for litigation on straight tries in small claims and district courts as practices in India and many Asian countries successfully. Mediation boards can be extended to settlements on consumer affairs to prevent the consumer in exploitation and provide the consumer settling disputes with the help of the regulator consumer affairs authority.

‘’Dhammapada’’, UN, EU, on justice and laws delays in relation to the concept of small claims court

‘’By passing arbitrary judgements does a man become wise? Wise man is one who investigates both sides for right and wrong’’ is an extract of Dhammapada a handbook on Buddhism on conflicts and judgments of judges in litigation. It is a requirement for the governance to appoint impartial fearless independent and learned judges giving them freedom to hear cases freely with no influence and hindrance to them in any way at any stage. Obviously good judges should be appointed giving all the facilities in the new court structure, as stated and provided by the UN and EU in their public documents and the Constitution of Sri Lanka the supreme law of the nation. The new court system established will be next to District courts online and as a medium to settle issues easier with simpler procedure with or without the assistance of lawyers to make the process simple. The directions of the European Commission one court is bound to be efficient as required by the European Commission on efficiency (CEPE), and ECHR and ICCPR international covenant on civil and political rights where 168 countries have ratified that excessive delay declaring that delay in litigation is an offence under Article 6, and that delays are hateful. On the other hand the Sri Lankan Constitution provides safeguards for the independence of the judiciary under Articles 4 (c), 12(1), 13(5). Are our judges are learned, properly trained, and persons with judicial temperament are matters that superior court judges, and the citizen are capable of commenting without getting into difficulties.

Good Attempt it is – Someone should ‘Bell the Cat’

Definitely it is a good attempt and more avenues are to be thought of to ease the congestion on laws delays, to help the citizen and also to raise standard of the country in the doing business standard/world status from 64 to above upwards, which is a need to promote our business and to attract the investors. It may help ease the problem only to a slight extent as the real remedy is somewhere else. Main bottleneck to smooth and speedy resolution of cases is the complexity of the legal system inherited as a pickle of the type of legal system including, Roman Dutch law, English Law with age old acts and legislature such as Penal Code, Civil Procedure Code and many more going up to 1800s imported and used as a part of the legal system with personal laws on different communities connected to case laws worldwide used as precedents by jurists, judges and lawyers. There is a political slogan one country one law by those who does not understand the actual situation behind. But in the business and commercial fields mainly the English law takes the precedence which is advantages in international business. Legal system has to be taught and overhauled by restructuring the court system by drastic changes to the Judicature act in reshaping the court structure. Judicature act was amended hap hazily with no proper vision or a long plan of action. Judges are to be trained to keep pace with the modern trends. In the West Judges use laptops when in Sri Lanka they still seek the services of the stenographers which is a dying inefficient breed. Emails, what’s app, and modern techniques are used in Sri Lanka which is a good trend but still there are court housed without even basic needs. It is a sorry state but true to state some lawyers are not living up to the expected sundered on studying the brief and update on the knowledge as in other countries.

Port City is meant for a different business community dealt with by the regulations by the Commission itself with by laws, and also subjected to the normal legal structure generally based on law on commerce and trade. As the amount dealt with is small this changes may have to direct effect on the port city dealings. But when time to come this may have a beneficial influence as it mainly deals with tread end business.

Way out for delivery of affordable and proper justice/legal system

It is definitely a timely and brave move by the Minister’s initiative on the matter, and we expect it will have desired results, and we are of the view that this will lead to many changes from time to time based on the outcome of the results. It is a good idea to learn from the mistakes made by the originators, for us to learn at their expenses, by swimming in the day light when they swam in the dark in the learning process. Legal aid will have to play a pivot role in formulation the applicability to the common man for the process to be handy and affordable with less intervention with the lawyers, who will be in advisory capacity for a fee. Many other propositions are lined up based on the success of the SCC, such as Consumer Courts, Less complicated arbitration tribunals on a lower level to that of the arbitrations set up formulated under the Port City structure. This may be extended to other areas such as family, and property as it is an area that needs serious attention, as once the process is in action it is easy to adopt it and extend to other areas in the process of simplifying the law and to make law access to the citizen. While legal aid commission playing a pivot role, the concept of CAB citizen advice bureaux, and Law Centres could be introduced as SCC which are novel but productive to the system gaining the experience in UK for us. Citizen Advice bureaux and law centres are managed by the local authorities and social organization which are funding as an important appendages of the system in the delivery of legal system to the citizen. In any event the success of SCC depends on how the legal profession, judiciary, BASL and the community understands the concept and make use of for their benefits and the nation as a whole in managing it in the right directions. Author can be contacted on sarath28dw@gmai.com or Sarath 281@outlook.com. (Whats app 0094777880166 active in UK)

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