In dealing with the Law in this series, I have added much to the text of the book that was published some years back by Cambridge University Press in India. This is because the decline in our legal system in the last couple of decades has been appalling. So in addition to my analysis of what law is about, I thought it essential to include some recommendations on establishing a system that will help restore the confidence of the people in the justice system.
For this purpose I have drawn much on the suggestions of Nagananda Kodituwakku, whose deep commitment to a professional and honest public service has been heightened by his experience as a lawyer in England. His paper shows that, whereas we claim that our system is based on the forms developed by the British, we have failed to move with the times as Britain has done.
I realized from what he wrote that it will not be enough to restore the independence of the judiciary. That is essential, and we must ensure that appointments are made in accordance with clear criteria and transparently, through a system that ensures consultation and professional input that weighs more than politican convenience.
But in addition we must ensure that the court system is responsive to public needs. Costs must be controlled so that justice is not beyond the reach of the majority. And justice should not be delayed, since that is not justice.
In fulfilment of these requirements, I am reproducing some of the ideas put forward by Mr Kodituwakku, which I have forwarded to the Minsiter of justice. He suggests that –
The Court Vacation system be abolished – 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.
There be a specific call-in time allocated for all cases – In Sri Lanka litigants, government officials, lawyers waste 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 is ought to adopt a similar system to save precious time and energy of the people attend court. In Sri Lanka the irreparable loss of man-hours are immeasurable due the absence of such a system.
Record Keeping be more efficient and useful – 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.
There should instead be effective computer based record keeping for the entire Court system.
There be 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 held up in the superior Court system downwards causing enormous economic and financial to all concerned.
Strict adherence to the Rule Book be required – At present, adherence to the Rule book is not 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.
Accused be produced before the Magistrate for remand custody – When a 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.
A Case Management hearing be conducted at the beginning – This is a new phenomena 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. 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.
Proper and citizen friendly procedures should be followed with regard to Petitions about the violation of Rights, viz
- 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.
- Extended time frame for filing Rights Violation Petitions – As at present only thirty days have been permitted for the purpose which is inadequate and shall be extended up to three months
- 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 rights violators shall be held responsible for such payments in their personal capacity.
Finally I should note briefly that, while I have no doubt the question of appointments to the Supreme Court is being looked at seriously elsewhere, one point Kodituwakku makes is extremely pertinent. He notes that at present many vacancies ‘are filled with public officers serving at the Attorney General’s Department. This has to be stopped forthwith. It is noted that in the UK not a single judge to the Judiciary is appointed from the Crown Prosecution Service headed by the Attorney General of the UK. And the same practice shall be adopted in this country as well. Priority should be given to eminent career judges over other applicants. Public officers serving in the AG’s Department and the members in the private bar should be afforded an equal opportunity to submit their application for vacancies. But no preferential treatment whatsoever shall be afforded to the lawyers serving in the Attorney General’s Department over the other applicants. This merit-based system shall be implemented to the appointments to the lower Courts as well.’
And of course there should be no appointments to positions after retirement. Work for the private sector, or the conduct of inquiries, should be permitted, but no salaried position in government should be given to judges of the Supreme Court when they retire since, as Kodituwakku notes, ‘This practice conveys a wrong message that those who are inclined towards executive would get a preferential treatment over others after their retirement. This naturally affects the independence of the Judiciary.’