Posted on March 19th, 2023

Sarath Wijesinghe (President’s Counsel, LLM International Law London UCL, Solicitor in England and Wales former Ambassador to UAE and Israel and former Secretary Bar Association of Sri Lanka, President Ambassador’s Forum)

Justice Delayed is Justice denied

Justice delays is justice denied is the famous quotation by ‘’Lord William Gladstone’’ said on legal system –  indicating that this  old and worldwide issue that needs attention still in the main agenda in the modern society still prevails, timely and current.  Laws delays retards development, affects law and order, encourages crime while discouraging foreign investments and good will that needs for a country, Image of the nation is shattered, brings down doing well index, productivity is fallen with the loss of confidence of the citizen and the foreigners planning to invest, and generally affects foreign policy and the image of the country that needs in all respects in devilments and conduct in the family of nations on the globe. Laws, delays blocks all other cogs of the governance system in the hub of activity and productivity. Laws delays measure indicates the image and the standard of a country in the community of nations. Some countries have minimized the laws delays but many have not. Sri Lanka is not the only country that suffers from laws delays due to various reasons and interpretations given when other countries are aware of the issue and finding solutions, taking corrective measures. When legal system paralyzes the other parts of the system follow suit leading to a slow decay and a grinding halt of the system partially or completely in the end. Laws delays are rampant in Sri Lanka. It takes decades (15 to 25 years and sometimes more) to reach the rape murder and major crimes to the trial stage with the witness are dead or cannot be traced that are reported so often on the media. Civil cases are the same especially partition and many civil suits stagnate in Court of Appeal and Supreme Courts moving up and downward on appeals refusals ect with technicalities and complicated  appeals procedure. By the time  the trials on rape cases are taken up for trial the victims are matured  married and the evidence is shattered with the conducting police officers and government servants dead or cannot be traced on transfer and cannot be found and the victims may lose interest due to social impediments. Some civil cases delay for generations.

Take Law to your own hands

It may come to a stage when litigants prefer to resort to other means to resolve their disputes by themselves may be with the underworld , because litigation is so expensive, delayed ,unfair,  complicated  and time-consuming (mostly) proving the famous village adage that ‘’those who resort to litigation destroys themselves.’’ ‘’Nadu Yanno Wanasanno ‘’Civil and partition cases are the most time consuming that some partition cases are delayed up to 30 years or more   with litigants part with the rest of the property for legal expenditure which are true incidents. ‘’Vinodes’’ case in India of the murder of 5 year child took 22 years with 36 witnesses to testify. It is almost same in Sri Lanka. In UK the backlog of 63000 cases is still not resolved according to Law Society Gazette but they are improving fast using modern technology and methods. In Sri Lanka five family members were convicted of murder recently for the offence committed in 2009. Examples in Sri Lanka are numerous. When the cases of rape, juvenile, offence are taken up for trial, on children, girls are they may be married, abroad or the witnesses may be missing. 10 year child was molested and it took 11 years to reach the trial stage when the child is a matured person and the accused was missing. At times land civil cases take two to three decades to reach the trial stage thereby the citizen loose the trust on the court system and resort to take laws into their hands while loose trust on the legal system at all, increasing the crime rate as a result. Litigation in Sri Lanka is expensive and complicated in view of the complexity of the legal system which is a mixture of Roman Dutch, English, and personal laws in the complicated legal process expensive to handle. In UK there is one system of law to all including immigrants vociferous and in large numbers. This issue is discussed spoken with no permanent or proper solutions found yet. We must have a simple law for all understood by all, instead of depending on legal systems such as Penal Code introduced in 1800’s. Personnel laws to be streamlined including ‘’Thesawalami’’powerful and traditional personal law confined to Jafna.UK is keeping pace with the new trends when we still cling into the systems inherited by colonel masters. There is a functioning law committee of BASL and Law Reforms Committee supposed to be active but inert and inactive. Yet laws delays is rampant. These are not exaggerations which is experienced by 10% populating engaged in litigation today still increasing.

Alternate ways of resolution of cases

This is happening worldwide especially in  financial hubs that needs speedy justice such as Arbitration, Conciliation, and other ways of speedy resolutions of disputes, which are fast and less time-consuming tough and  expensive. Singapore, Japan, UK, EU have centres for alternate dispute resolutions. In UK, Europe and even in India small claims courts are available with less complicated procedure without lawyers for the litigants to handle own litigation is a different  friendly atmosphere, which is a successful process ideal to be followed in Sri Lanka too, with a proposition to upgrade mediation centres to small claim courts.

Pending with backlog of cases

There are around 750,000 unresolved cases in the Magistrate courts. With 3486 cases pending in the Supreme Courts,4817 cases pending in the Court of Appeal, 5870 in the civil appellate court, 16811 in High Courts, 167945 in District Courts, 200000 on pending mediation and in labour tribunals and arbitration trials, with 11 judges per one million. (Statistics are changing based on different research groups led by Ministry of Justice) Laws delays has an impact on the crime and disturbances in the society in losing the trust on the system which has an impact on the economy and the trade when traders are disturbed with no quick solution on the resolution of their disputes with the most expensive and complicated commercial High Court not accessible to the ordinary trader. It has a direct relevance and impact on increase of crime and prison congestion and unrest. Speedy resolution in litigation is a pre-condition and a pre requisite on foreign investments and investors who are disappointed with the system in Sri Lanka and the quality of the legal profession which includes judiciary on knowledge, competency and conduct which is a serious drawback on development and investment. Lawyers and legal system plays a pivotal role in development and business in other parts of the world expecting us to maintain high standards.

Competency and Honour of the Legal Professionals and Judges

 Are our lawyers, Judges  and legal system living up to expectations and on  international standards is a moot issue compared to standards maintained by small but developed countries such as Singapore, Hong Kong and some Caribbean counties engaged in international law and business with the world.  These are experienced by average citizen who will have no good word on the legal system, the general conduct and it is the duty of the profession and professionals to work on a programme to save the nation and the profession on adverse inferences which affect all. It is a pity that foreign legal firms engage in practice in Sri Lanka with the cover of juniors Sri Lankan lawyers in multibillion transactions involving billions and/or they carry on legal work online which Sri Lankan Lawyers must take serious notice of. It is to be noted that the competence dedication and knowledge is to be improved to the expected levels if not on international standards. Bar council in India has allowed entry of foreign lawyers which is a significant development to keep pace with the world trends with transparency and challenging which is a matter that Sri Lank should follow. UK and Sri Lanka had reciprocity on the court audience for the lawyers in both jurisdiction could practice with professional arrangements made. Sri Lankan Attorneys-at law could engage in legal practice in UK having obtained qualifications form the Law Society and permission from the Bar Council permission engage in legal practice as Barrister at law until Sri Lankan side unilaterally declined to proceed, which is a pity in deed and it is time to restore in the interest of the younger generation awaiting to see the world with new visions and education from international universities a matter that has to be looked into by the Minister of Justice.

Lawyers Law College Bar Association and the Ministry of Justice

These are main groups in dealing with laws delays and implications, and main institutions of justice to the benefit of the sociality for their grievances in resolution of dispute3s, for justice and fair play, in protecting the life and property of the citizen. Lawyers are a product of Law College- the only professional training institution in Sri Lanka managed by the Council of Legal education to produce lawyers in Sri Lanka and to train them for the professional training CLE headed by the Chief Justice and majority of Supreme Court Judges. Currently there are over 18000 lawyers in Sri Lanka The Law College is managed in which they obtain mandatory membership of the Bar Association which is the only main recognized association for lawyers, The Law College is administrated by the Council of Legal Education also headed by the Chief Justice, who are extremely busy and requiring academic excellence and international exposure.

Minister Ministry of Justice Attorney General and Legal Draftsman

Ministry of Justice is headed generally by a lawyer who will mastermind the conduct of the judicial system and administration who also plan and involve in appointments and strategies with the AGs Department, Judiciary, Legal Draftsman, Court and Office (court offices only and not ‘courts’ or judges ) administration countrywide with the general impression of one of the most corrupt among Motor Traffic, Customs, Passport/ID and similar institutions with a reputation of institution of questionable nature which is only applicable to the corrupt lot  leaving  aside the honest officers. Reputation power and conduct of Minister of Justice depends on his personality and management skills of the process in delivery of justice to the citizen by the concerned parties in the process the Minister is playing a key role, in delivery of justice to the citizen offering a fair independent and effective system of justice. Generally the minister of justice has traditionally been an inactive and inert institution in the past until Hon;felix Dias Bandaraneika’s introduction of the Administration of Justice Law act 44 of 1974 was enacted to  help the poor and needy litigants with drastic reforms on a mixture USA and many models  including serving summons using modern technology, and many other steps to make the system simple, affordable and safe and to encourage personal representation in litigation, encouraging  mediation, and reconciliation, A powerful group of lawyers led by Mr H W  Jayawrdena QC, protested against the law reforms and the act was scrapped from the change of government then. People did not understand the admirable attempts made on legal reforms, by increasing the number of judges, introducing drastic changes in modernizing and innovative changes proposed by him (Felix) who became immensely unpopular among the legal fraternity died an unhappy person after a brief illness as a cancer patient- a great man with a vision and intellect  indeed- Attorney-General who is an institution as the advisor to the state plays a pivotal role in representing and advising the state in all matters, whilst expected to be fair and impartial. Legal draftsman holds an important position in drafting and mauling legislation to be submitted to the lawmakers.

Trends of modernization of the legal system

Trends and conduct of young lawyers have been encouraging with the modern BASL trends. Rajive Amarasuriys the past Secretary has conducted a record number of webinars on varied subjects which is credible. Past President and an able law teacher controversial Saliya Peris PC – yet concentrated more towards social reforms than legal reforms, has been for moderation trends, and the legal profession expects lot more from the current pair Isuru Balapathab and (Secretary) and Kaushliya Nawaratna President elect) to be more proactive and modern who appears to be more balanced and professional to lead the professional during the new era. The writer has been once the General Secretary of BASL and Administer Legal Aid Commission acknowledges the assistance given to him during his tenure of office on the initiation and expanding the fundamental rights Jurisdiction to what it is today, with many steps such as life membership, diary which is a pocket book for all professionals, initiation of law reports are pleasant memories. There are good trends on digitalization, yet introduction of transferring files via email, what Sapp, hearing cases zoom, are to be encouraged and introduced with the world trends to attract international players.

Judiciary and Legal Aid on administration of justice aiming at prevention of laws delays

By passing arbitrary judgements does a man become wise? A wise man is one who investigate both right and wrong ‘’Dhammapada ‘’

Judges are a main component of the system of administration of justice acting as umpires in the adversarial system we follow in Sri Lana as any other commonwealth nation. Today judges are well-paid remunerated and protected and they are protected unlike few years ago when they were not looked after so well.  They are politically insulated who are responsible for ultimate decisions on life and property and protection of personal and property rights and rights of the citizen with highest expectations of justice and fair play. They must be temperamentally suited with judicial temperament for the responsibility thrust on them living glass boxes scrutinized by the public for independence. Some judicial officials especially in the minor judiciary are unsuited to be a judge in when they are mentally and temporarily does not deliver justice fairly and carefully. Sadly we receive bad news on judiciary and lawyer on their conduct which is worrying in deed. It is necessary for judges to go through a rigorous training period as in other countries. Whether it is happening is a moot issue. Knowledge and competency of the higher judiciary should be revived considering the judgments they deliver and reluctance on promptly effectively and properly. Legal aid is not a favour but  a human right as in UK , where the citizen is entitled to a fair hearing for a reasonable/affordable fee and expenditure for which legal aid is given in the advanced society with an advance system of legal aid available in the UK and commonwealth jurisdictions where a similar system is inherited to Sri Lanka modified to  function as the legal aid commission jointly managed by the Judiciary, Bar Association and the Ministry of Justice for the delivery of justice at an affordable price. One of the main reasons of laws delays is the cost and complexity of litigation and combination of legal systems such as Roman Dutch Law, traditions personal laws, English law and international/traditional law and conventions and it is the duty of the BASL and the profession to find ways to make law simple for the common man and assist the legal aid system scheme as in UK where eligible litigant is entitled to legally up to the services of the QC. In the adversely system the judge acts as an umpire when the parties to litigation make representation on behalf of clients which is expensive when the litigant is expected not to have a sound knowledge of law. Therefore our system there should be changes for the judge to intervene as in a civil system where Judge takes a main role also encouraging mediation and settlements with system of prehearing where the cases in UK are settle date at the door step (idiomatic meaning) by lawyers who act strictly professionally to assist expedition disposition which helps them and the reputation of the profession. In Sri Lanka sometimes Judges are mere umpires when at times we are blessed with top judges. In expeditious disposition of cases the judge’s involvement/leadership is paramount so that some judges resolve cases with ease reasonably and family. Judge play a main role in delivery of justice and prevent laws delays. Some judges are smart and fast but if they have a common approach with targets by the Judicial Service Commission to supervise judges with guidelines the results will be overwhelming.

Way forward in providing delivery of speedy justice to the citizen – the need of the hour

Laws delays is a pain on the citizen awaiting a peaceful and conformable life due to no fault of himself, where many external factors are responsible for the agony. Lawyers should be educated, committed , concerned on the community  and abide by the rules and customs on practice and procedure,  Judges should be fair educated human beings act professionally with judicial temperament, Legal system should be clear and understood to all equally as the citizen is presumed to possess knowledge of law and procedure, The court system and the staff is to be efficient and free from bribery and corruption, there should be speedy disposition of cases provided at an affordable expenses and free legal aid for these cannot afford to. Confidence and trust on the Judiciary legal profession and the court structure is paramount and the system including supporting institutions on reports, information, need to be provided at the time for the inquiring process. Are lawyers and their conduct a part of the problem? Partially yes! It is time for them to realise the expeditious disposition will help them the profession and the nation in the long run! In order to gain the trust and confidence of investors expecting and efficient legal system in the host country. Improving language and IT skills of the professionals is also of great importance in the process. The system should run smoothly with the documents, reports and the support and cooperation of the staff and statutory bodies. The Ministry of Justice is acting a pivotal role as the provider of services and decision maker in appointments   policy making decisions and the success depends on the understanding and commitment of all parties who should act together for the betterment of the society they are blessed with.  Legal profession has the main responsibility, being the profession providing the judiciary, and Attorney General primarily lawyers pledge to serve the society in safe guarding human rights, properly delivery of legal service and acting as officer of courts assisting the judiciary. Laws delays affects every citizen and it must be checked and curtailed in the interest of the nation at large, a joint exercise by the legal profession, Judiciary, Ministry and the community civil society and greater community. /sarathwijesinghe

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