A case for overhauling SL’s judicial system
To be embroiled in any sort of court case in Sri Lanka is to lose time, money and sanity in the corridors of crumbling courthouses. The Justice Ministry is now trying to fix that-- several decades too late.
Over the past one year, five subcommittees and 23 advisory committees have been devising ways in which to reform laws and processes to make justice more digestible. Cabinet has granted approval to a spate of changes that have been passed or are due to be presented in Parliament in coming weeks. Meanwhile, buildings are being constructed and there are plans to increase manpower ( such as the number of judges), training and the frequency of sittings to deal with crippling laws delays.
Rise in virtual hearings
The re c e n t l y passed Coronavirus Disease 2019 (COVID - 19) (Temporary Provisions) Act allows for the conduct of court proceedings through remote communication technology. The Mt Lavinia District Court (DC) held its first ever digital hearing on September 21 and the Colombo DC followed suit on September 27-both for the first time in the history of Sri Lanka’s DCs.
Considerable work has gone into digitalisation and court automation, said Shamir Zavahir, Coordinating Secretary and Director of the Justice Ministry’s Ju s t i c e S e c t o r Re f o r m Programme. During the pandemic, there were virtual Supreme Court ( SC) hearings, too, while the Ministry secured a donation of 55 laptops to enable judges to see prisoners over video conferencing to grant or extend bail. Separately, a court automation project has got Cabinet approval and is in procurement stage for a service provider.
The Covid-19 legislation introduced the concept of automatic allocation of the geographically closest courthouse if another is closed down. Usually, nothing can be done if a courthouse closes down for some reason--like a virus outbreak-- but to wait for it to open. Now, however, the Judicial Services Commission ( JSC) is empowered to refer the pending cases to the geographically closest court which will hear them till the affected courthouse is reopened.
Measures like this will also help ease one of the justice sector’s worst crises, Mr Zavahir said-that of laws delays. He calls it “a massive issue that just hasn’t been addressed for the longest period”. The statistics in comparison with the region and the world are “appalling”. The average time taken to enforce a contract here is 1,318 days or over three-and-a-half years. It should only take a few months. Other indicators are equally bad.
If you go to the Colombo DC and the counsel puts off a case, it will be taken up again in four to five months. “So, every postponement adds half-a-year to the case timetable. But they are allowed to do that. The court should be able to say the law doesn’t allow this amount of long postponements and give them a few days for the case to be taken up again.”
A million cases pending
“One of the reasons is that our laws are outdated and our processes are bad,” he pointed out. “The other is our judge- per- million index. India was considered to be one of the worst in the region with 20- per- million. As a result, at the end of 2019 we had close to one million pending cases in our courts. It just gets worse and worse every year because the number of litigants goes up, litigation increases and we have not had an increase in judges.”
The 20th Amendment to the Constitution did raise the number of SC and Appeals Court ( CA) judges. That “slightly improved” Sri Lanka’s ranking but there’s “a huge deficit” in original court judges. “There is no way you can go through a court case in Sri Lanka and not come out without spending enormous amounts of money and years fighting it,” Mr Zavahir said.
There is also the issue of counsel postponing cases. “If you go to the Colombo DC and the counsel puts off a case, it will be taken up again in four to five months,” he continued. “So, every postponement adds half-a-year to the case timetable. But they are allowed to do that. The court should be able to say the law doesn’t allow this amount of long postponements and give them a few days for the case to be taken up again.”
Meanwhile, Cabinet this week approved the conduct of day- today hearings in HCs. “At present, you come to court and your case gets taken up every couple of months or so,” Mr Zavahir said. “Judges will now be encouraged and pushed to hold day- to- day hearings-- Monday, Tuesday, Wednesday, etc-- so that they lead all the evidence and finish each case.” A proposal to introduce a dedicated ‘ recorder judge’ to carry out administration in the various courthouses is awaiting sanction.
All this costs money. The reform programme is a fulltime effort with a centralised plan and sprawling support structure. To fix severe under- funding, the Ministry obtained an allocation of Rs 20bn last year--up massively from Rs 4bn. Much of the capacity building is funded by international organisations. Locally, there is heavy investment on building construction, higher salaries, etc.
“If you go outstation, some of the courthouses are crumbling,” he narrated. “The judges are struggling with 100 to 200 cases and they’re just postponing and postponing. Sometimes, if the judge doesn’t come for a few days, hundreds of cases get put off for another year. It’s really sad.”
House of Justice
Five subcommittees under the Ministry’s Special Projects Unit are looking into changes in civil, criminal and commercial law, infrastructure development, digitalisation and court automation. It is planned to open 100 new courthouses in the next few years and to double the number of sitting judges.
“The approach now is that there’s a courthouse, one judge sitting above like in the British system, looking down on hundreds of people and he has a ton of cases,” Mr Zavahir described. “You go at 9.30am and your case could be taken up at 9.35am, at 1.30pm or not at all after spending the whole day there. There’s no plan, just luck-of-the-draw.”
“We want to change that,” he said. “The idea is that, if there are 50 cases for that courthouse in a particular day, instead of one judge hearing one case, it will be subdivided and there will be, say, three judges in smaller courthouses hearing maybe 10 to 12 cases per day. Litigants are given a specific time slot to come for their case.”
Transcriptions also take time with proceedings recorded manually after which a clerk hears them on headphones, writes them out and has them typed. This could take weeks. The plan, therefore, is to have smaller courthouses with smart technology.
A new House of Justice is being built near Hulftsdorp. It will have an MC tower, a DC and Commercial HC tower, a tower with judges’ quarters and a Ministry of Justice tower. The multilevel building will have inbuilt digitalisation and big, multiple court houses. The first tower will be done by next year.
Capacity building
There is no formal training for judges in Sri Lanka, unlike in many other countries where there are dedicated academies or institutes to carry out continuous career training. “Here, you get into the judiciary and that’s it,” Mr Zavahir pointed out. “You do a few seminars from time- to- time and you get promoted.”
To change this, Cabinet recently approved the construction of Sri Lanka’s first judicial training institute with a library, auditorium and lecture room, among other facilities. “Before you sit on the bench, you will have to mandatorily undergo a period of training,” he explained. “Over time that will produce a certain quality or breed of judges as opposed to them just getting in there and figuring it out for the rest of their career.”
“Another issue is that judges keep getting promoted so often,” he reflected. “They sometimes spend a couple of years in the Magistrate’s Court and, when they become a really good Magistrate’s Court judge, they get promoted to the District Court. Then they are back to the bottom, spending years figuring out civil law before they’re again thrown to the next courthouse. So there’s never a very good judge for a specific area before they get promoted. That should be offset by proper training.”
A committee will meet this week to start planning the building and curriculum.
Overdue legal reform
The 23 advisory committees are headed by senior lawyers who tackle specific areas of law. They are given three to four months to produce their report regarding changes that can be effected immediately, in the medium and in the long-term.
For instance, one was set up to review the rent laws. It recommended the creation of a summary procedure for a lessor to recover his or her property. “At present you go through normal rent and ejectment to get property back from a lesse,” Mr Zavahir said. “But the committee proposed that when you file the case with a notarially- executed lease, the court gives a decree nisi granting the lessor the right to kick the lessee out. The lessee must explain why he should be allowed to stay. Not the opposite.” Cabinet granted approval to amend the Rent Act accordingly this week.
The Ministry has also found a way to get speedier sanction for legal amendments. “Usually, a concept is approved which is then conveyed to the Legal Draftsman to turn out the draft,” Mr Zavahir said. “That can take around oneand-a-half years. Now, we get the respective advisory committee to draft the law within two to three months. We attach it to the Cabinet paper and get approval after which the Legal Draftsman puts his stamp on it and makes adjustments without messing with the content. What is left is to put it to Parliament.”
These drafts are also reviewed by all stakeholders before Cabinet approval is got. The COVID-19 law, for instance, was studied by the Bar Association of Sri Lanka, the Ceylon Chamber of Commerce, etc. The participants change according to the sector. Good observations are taken on board.
There are around 300 to 400 lawyers working with the advisory committees. “They are passionate about it and like to see the work they do come out,” he said. “We tell them to do the work, give it to us and we’ll push it through somehow.”
Identification of laws
The laws that need amendment are identified by the five main subcommittees who, not only have inbuilt expertise, but consult widely. “For example, people say it takes months to serve summons in a court case,” Mr Zavahir said. “So we appointed an advisory committee with a bunch of good instructing attorneys to review the summons procedure. They pointed to the obstacles and suggested how to fix them. Next, they got other lawyers, the Bar Association, etc, and came up with a basic law. After the Legal Draftsman, this goes to the AG’s Department for observations for constitutionality.”
The AG’s Department has also speeded things up. To stop it taking a long time to issue constitutionality certificates, Attorney General Sanjay Rajaratnam has appointed a dedicated team just to look at new laws. The turnaround time now is “very fast”.
A large number of reports have already been produced by the advisory committees. For instance, the notarial group has suggested amendment to five laws concerning notaries, revocation of gifts, powers of attorney, will and registration.
“There was a problem of surreptitious filing of caveats on other people’s properties as a tool to harass them,” Mr Zavahir related. “There’s no regulation. To remove the caveats, you have to file a court case. Nobody wants to buy a property with a caveat on it. So it was proposed that the lawyer must issue a certificate that he has perused the documents and the case and is confident there is good reason to put a caveat. There would be a penalty if it proves not to be the truth.”
To prevent fraudulent signing of wills, there is a suggestion (already approved by Cabinet) that powers of attorney must be registered. Cabinet also passed a proposal to introduce irretrievable breakdown of marriage for divorce. “Right now, you have to go and lie to court, saying your husband hit or you or something,” Mr Zavahir said. “With the amendment, you can state it was not working out. It is dignified.”
“The justice system shouldn’t force you to lie,” he concluded. “Sometimes marriages don’t work out.”