There is much discussion now on the independence of the judiciary, and this is essential. The politicization of the judiciary in the last couple of decades has been disgraceful, and we must take forceful steps to ensure that political controls, and even political influences, are minimized.
But we must also register that there is more to Good Governance than that. The judiciary too must be responsive to the needs of the people. In particular it must be recognized by all decision makers that justice delayed is justice denied. It must also be accepted that, if the cost of justice is prohibitive, it will become the preserve only of the rich. Simply equity demands that unnecessary costs are avoided.
During the election I was privileged to meet Nagananda Kodituwakku, who is now best known as a Public Interest Lawyer. But he has also served the people ably in a previous incarnation, when he was a senior official in the Customs, who had to seek political asylum when his energy and integrity came in the way of the money making of politicians and those with political connections. I believe this government would do well to go into some of the problems he had to face. Given his capacity to collect evidence, this might help to pin down some of the corruption that has thus far escaped censure.But my subject here is good governance, so I will confine myself to the suggestions he has made to improve our legal systems. I have sent these on to the Minister of Justice, but I have had no reply. He was positive when I reminded him of the matter, but I fear that, as happened with the last government, the incapacity to multi-task will lead to lots of productive reforms going by the board.
The first suggestion Mr Kodituwakku made in the paper he sent me was extremely simple, and could easily be implemented.
Abolishing the Court Vacation system.
As he explained, ‘The present Court Vacation system is a legacy from the British Colonial Rule. The UK has abolished this system long time ago, taking into consideration the valuable time being lost as a result of the said vacation system. In Sri Lanka however, this practice continues unabated, causing tremendous delays in dispense of justice.’
He also suggested that specific call-in time be allocated for all cases, and productive use of court time.
As he put it, ‘In Sri Lanka litigants, government officials, lawyers waste away their valuable time in Courthouses until their cases are being called. In the established democracies like UK from where we have inherited our judicial system the parties to a case are notified with a specific time to attend Court for their respective cases. Sri Lanka ought to adopt a similar system to save precious time and energy of the people attending court. In Sri Lanka the irreparable loss of man-hours is immeasurable due to the absence of such a system.
Connected with this perhaps was his suggestion that there be a ‘Compulsory time scale for Court sessions – Sittings in the entire Court system shall be made from 09.30to 4.00 pm. At any given time, a large number of cases are held up in the superior Court system downwards causing enormous economic and financial to all concerned.’
Thirdly he noted the need for More effcient Record Keeping
‘The current system is based on paper based case records. This system has led to various issues such as losing of case records, storage issues and inability to provide information swiftly as and when necessary causing tremendous to Court Staff, from Registrar downwards.
Therefore, it is suggested to introduce an effective computer based record keeping to the entire Court system.’ What he does not note is the possibility for corruption in the prevailing system, with records readily being lost on demand as it were.
He also wanted Strict adherence to the Rule Book ‘At present, the adherence to the Rule book is not being strictly followed, causing enormous losses to litigants. For instance, in the superior court system, it is observed that the Attorney General is given preferential treatment over Rule Book. This needs to be stopped forthwith.’ I should add that, when I convened the Task Force to expedite action on the Human Rights Action Plan, I tried to get the then Chief Justice to tighten up the Rules procedure. We brought this up too in the Parliamentary Consultative Committee on Justice. But there seemed no interest in moving on the matter.
Kodituwakku also addressed another issue we had taken up in the Human Rights Action Plan when he wanted stricter procedures regarding producing accused before the Magistrate for remand custody.
‘When an accused is produced before the Magistrate to be placed in remand custody, the magistrate shall see him personally before making any order. And the accused shall be given an opportunity to make a statement if wishes to do so, which shall be recorded with the signature of the accused person obtained by the Magistrate.’
Indeed this is an area in which we need to strengthen the safeguards for the accused, while also ensuring that remanding occurs only when absolutely necessary. We tried to push this through the provisions of the Action Plan, and indeed the former President even introduced the idea of alternatives, in a budget speech after we had raised the issue with him, for instance with regard to drug cases. But we failed to institutionalize a less oppressive system, and in addition to the waste of time and money, we are also wasting lives, given the destruction of young lives caused by remanding into prisons where there is little concern for protecting them from hardened criminals and criminalization.
Kodituwakku also suggested something not tested yet in Sri Lanka which prevails in the other leading democracies to save time money and energy of all concerned and to provide an judicial service to the people. This is Case management hearing at the beginning.
He explains that, ‘For example in the UK, parties are required to specify the time needed to present their case to the Court. Then the Court allocates a specific time frame for each and every case. Once it is done no postponements whatsoever will be permitted. If the counsels are not ready or busy for whatever the reason, still they must make appropriate arrangements to proceed with the steps stipulated by the Court, to finish the case within the specified time frame.’
Finally, in suggesting a more user friendly system for the people who have recourse to it, he noted the need for streamlined dealing with Rights Violation Petitions –
a) Strict compliance with the process specified by law – The Constitution requires [Article 126 (5)] that Fundamental Rights Petitions shall be disposed of within 2 months from filing in Court. But in real terms there are cases over 2 to 3 years pending in the Supreme Court.
This is a blatant violation of the Constitution, the Supreme Law by the Judiciary itself and needs to be addressed with no excuses whatsoever.
b) Extended time frame for filing Right Violation Petitions – At present only thirty days have been permitted for the purpose which is inadequate and shall be extended up to three months
c) All Compensation orders be made only in personal capacity of the rights violators and not from the public funds
The practice of paying compensations from public funds shall be stopped forthwith. And the right violators shall be held responsible for such payments in their personal capacity.
d) Mandatory disciplinary action against rights violators
Strict disciplinary action be taken against right violators with mandatory dismissal from service coupled with an unreserved apology by the law enforcement agency found at fault by court for use of excessive and/or unlawful force.
Island 26 March 2015 – http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122047