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June 07, 2016
An Article titled “ Before we lose public confidence”, by Kamal Suneth Perera, Attorney-at-Law, which was published in the Daily News Issue of 6th June 2016, following the conclusion of the 2016, National Law Conference, in Colombo, Sri Lanka, forwarded by the Asian Human Rights Commission, Hong Kong.
This year’s National Law Conference, which was concluded last month gave a special attention on tackling law delays in Sri Lanka. This is an issue that has been talking for decades, but has taken very little action to address the problem. As a result, the confidence on the Sri Lanka legal system has dramatically reduced both among the people of this country and foreign investors.
It was revealed in the Conference, that according to a survey conducted by the World Bank on the efficiency of Enforcing Contracts, Sri Lanka ranked 161st among 189 countries. More specifically, it takes averagely 1,318 days in Sri Lanka to enforce a contract in the event of its breach.
Seeking legal advice
It was also revealed that the Attorney General’s Department annually receives over 5,000 files seeking legal advice. These files mostly relate to different crimes committed by suspects all around the country. But, it was revealed that there is only fewer than 50 State Counsel are there to look into these 5,000 files. So, the delay in criminal prosecution is inevitable in Sri Lanka. If a murder, rape or any other grave crime take place today, it is very much probable that the trial will happen in the court only after 4-5 years later. It was revealed that an average criminal trial takes 10 years to conclude in Sri Lanka.
One of the frequent things one would hear if you step into Magistrate’s Court that cases are postponing due to pending Attorney General’s advice. The Attorney General’s Department said to have vacancies for nearly 130 state counsel, but unable to recruit new staff due to the lack of space in building.
In civil matters, especially with regard to land and partition matters, in most cases, the trial and appeals take years so in most cases the original parties have dead and gone by the time the case reaches a conclusion.
Tackle the law delays
So it is very much important to look at the short-term and long-term measures that we could take to tackle the law delays, before we completely lose the public confidence on our legal system. Following are some of tangible and practical steps we could take to tackle the law delays.
1. In normal civil litigations (regular procedure), defendant receives summons from court asking him to appear on a certain day to file the answer. But, defendant’s lawyer usually do not file their answer in the first time, but moves the court for 2-3 times, that in months could be well over 6 months as a case being call usually once in a quarter due to large volume of cases in courts diaries. To avoid this delay, a simple amendment can be brought to the Civil Procedure Code to make it mandatory to file the answer on the first summons returnable date.
2. Admittedly there are increase numbers of crimes take place nowadays than few decades ago. Yet, we have failed to increase number of court houses to hear these trials. Those who being to any criminal high court in the country might have noticed that more often than not, everyday over 10 cases are listed for trials. In some instances we could see over 20 trial cases listed for a day. These are in addition to other bail, revision and appeal matters of that court. So, we desperately need more High Courts. Number of High Court Judges can be increased by a simple amendment to the Judicature Act, but the government should be ready to spend a considerable sum to build more court houses. It is very clear in some areas there should be more than one High Courts, if we want to have a meaningful administration of justice. As minimum mandatory sentence is no longer in force, certain courts encourage accuse to plead guilty for the charges while a non-custodial sentence is guaranteed. This has effectively reduced number of criminal cases in High Courts, but from the perspective of criminal justice system, it is highly doubtful as to whether this method has met the end justice.
Accused who charged for rape, child abuse and many other grave crimes, may getaway with a suspended prison term and a nominal compensation to be paid to the victim, often less than one hundred thousand. Therefore, having more High Courts is a must if we want to have a reasonably good criminal administration system.
3. The Motor Traffic Act should amend enabling most of the traffic violations (unless accidents) to be ended with a fine payable at the post office (or online payment system) without going to courts, when the driver willing to admit the violation. But now, even the driver who violates traffic rule willing to admit that, the police officer has no choice, but to file an action against the driver in the Court. So nearly 95% cases file in traffic courts (Magistrate’s Courts) just end with drivers admitting to traffic rules violations and a fine imposed. But for that driver has to go to courts, may be more than once. And the Judge and other officers in the Court spend considerable time for this process of imposing fine, while they have other serious criminal matters look into.
4. In civil trials (at the District Court) parties should not be easily allowed to postpone the trial, unless due to the ill-health of the lawyer or any other reasonable ground. An introduction of a mandatory “pre-payment of cost” would effectively prevent unnecessary postponements of trials. Also the amount should be a sizable amount that litigants and lawyers would care. For example, in practice today, the “pre-payment cost” is awarded only one party demanded and often lawyers do not object for postponements. Even awarded, the sum is often less than 7,500 rupees. If we bring a rule (or an amendment to Civil Procedure Code) for this effect with a sizable sum, for example 15,000 rupees of pre-payment cost of which 20% could be payable to the government would effectively prevent unnecessary postponement to civil trials.
5. With regards to appeals especially it can be seen in some civil appellate high courts there is a huge backlog while the next territorial civil appellate high court may have less number of cases. For example appeals from Kaduwela District Court earlier went to Avissawella civil appellate high court and now go to Colombo civil appellate high court.
In Colombo, due to the huge case load, it might take several years for the appeal to come for argument. While in Avissawella civil appellate high court, it might take argument for appeals filed even last year. So the Ministry of Justice should look into the allocation of appeal jurisdiction and adjust them in order to speedy disposal of appeal, rather than clogging up in courts situated in most urban areas.
Undoubtedly, there are many other ways we could think of tackle the law delays in Sri Lanka. But the above five steps are something we could quickly implement with least changes in law and could expect a dramatic improvement in the legal system. One cannot blame the judiciary and lawyers for the law delays when there is a pivotal role that has to be played both by the Ministry of Justice and the legislature of this country.