Dec 02

Now that the Country’s attention could be diverted a little, without too much competition from extended celebrations of various kinds and Budget debates, it is time to get Parliament, the Judiciary and the legal fraternity to address their minds to the painful tortures to which litigants are subjected on account of the apparent indifference, reluctance or myopia of these three bodies to take practical steps to give a measure of relief to the suffering public. The Citizens’ Movement for Good Governance (CIMOGG) sets out below four suggestions (of the many that were considered) which could be implemented without much delay if the interests of the People are given due weight by Parliament, the Judiciary and the legal fraternity.

The first profoundly important step that requires to be taken is to learn from countries which practice more efficient ways of speeding up litigation. Indeed, the late Mr. Felix Dias Bandaranaike got the required laws passed and implemented in or about 1973 to update our litigation procedures. In a shocking turn of events, the more inefficient and unprincipled of our lawyers who, regrettably, greatly outnumber their betters, managed to get his progressive legislation repealed after Mr J.R.Jayawardene came into power. The basis for our serious accusation is explained below.

The usual practice is that most of our lawyers keep “nibbling away” at cases because prolongation of the legal process enables them to get away with shoddy, piecemeal homework, with the collateral benefit that the consequent delays would only tend to increase their income. Moreover, too many of our lawyers think that it is very smart to knock out witnesses for the other side by aggressive cross-examination during which they produce “surprises” of various kinds, which put the opposing witnesses and counsel into difficulties arising from the unexpectedness of the “facts” presented. This kind of tactic is not permitted in more organised and productive legal environments.

The convention in superior legal systems is that a complainant sets out his claim in detail with the entirety of the documentation available to him, together with a comprehensive list of witnesses. The respondent is given a fixed period of time at the end of which he must answer the claims made against him and also make whatever counterclaims there may be, together with a list of his own witnesses. The complainant is then allowed to refute any of the averments made by the respondent. No “surprises” may be sprung later on by either party on the other. Once this is done, the lawyers for both sides meet and list out the facts that both parties agree on, and frame issues jointly regarding the remaining contentious matters to be placed before the appropriate court. Generally it happens that, during the course of these preparatory discussions, the parties agree, for good reasons, to dispense with the calling of certain witnesses listed in the various documents. Similarly, agreement can be reached on the admissibility or otherwise of the documents listed in the Claim, the Answer/Counter-Claim and the Response. In the majority of cases, this whole exercise could be completed within a few hours, leaving only the disputed matters to be dealt with by Court. By adopting this procedure, the scope for curtailing the time to be spent in Court is enormous, not to mention the cost savings to the clients. Far from reducing the amount of work that lawyers would get, it is possible that a vast number of persons who would not consider going to court, on account of the present inefficiency, delays and costs, would be encouraged to resort to this kind of streamlined litigation, if it were available.

Another good practice relates to “dates” and postponements. For all practical purposes, the courts in “advanced” countries will not allow postponements – for example, “because my learned friend has a personal problem”. There is no room for saying “I should like to stop at that point for today”. The counsel for both sides are expected to make full use of the time allocated by the Court to help get the case concluded with all possible expedition.

We wonder whether, in the interests of the tens of thousands of long suffering litigants in this land, President Rajapakse would be willing, able and strong enough to resist the pressures exerted by the less conscientious members of the legal fraternity and get Minister of Justice Rauf Hakeem to reactivate the Felix Dias Bandaranaike legislation, with any updating required, as early as possible.

Turning our attention to the next point, we may mention that, as far back as 2005, if not before, surveys carried out by independent research groups had revealed that there had been a progressive erosion of public trust in many state institutions. This loss of confidence extended to the Judiciary as well. CIMOGG appealed through the press then, calling upon Parliament to enact legislation containing a Code of Conduct for all judicial officers and recommended that the said Code should be based on THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT, which had been formulated by the Chief Justices of 31 countries from around the world. About the same time, on account of certain incidents and facts considered independently by the Bar Association of Sri Lanka (BASL), its Council had decided to appoint a high-powered committee to draft a Code of Conduct for Judges. As nothing much appeared to be happening in this direction, CIMOGG proposed, in its letter of 2 November 2005 to the BASL, that the latter should recommend adoption of the said BANGALORE PRINCIPLES in toto as the basis of the proposed Code of Conduct, making only those additions or modifications which may be unavoidable to meet the Sri Lankan situation. Quite apart from the saving of time in not having to “reinvent the wheel”, this approach would have kept us closely in line with international standards in this area of good governance. For reasons that we can only guess at, the BASL’s interest in the conduct of the Judiciary waned rather rapidly and nothing has been heard thereafter about its initiative.

It is CIMOGG’s assessment that, as there are numerous lawyers in Parliament, there should be little difficulty in getting such a People-friendly piece of legislation passed, particularly considering the wording of Article 4(c) of the Constitution, which commences with words “the judicial power of the People shall be exercised by Parliament through courts, tribunals …”. If the necessary legislation is passed, strict adherence to the BANGALORE PRINCIPLES by the Judiciary would surely help to reverse “the progressive erosion of public trust” referred to above and lessen the tribulations that myriad litigants undergo every day.

Another matter of great consequence relates to the fact that, in most cases a lower Court goes into a dispute and gives its decision, with its reasons. If either one of the parties considers it advisable to do so, it will refer the matter to the Court of Appeal, which will give its own determination with reasons there for. Where the verdict of the Court of Appeal is deemed unfair by a party, that party could go to Supreme Court for a final word. However, there are certain types of cases, particularly those relating to Fundamental Rights, where the first reference is directly to the Supreme Court. In these instances, a sense of injustice is bound to be felt by the Petitioner whenever the Court mysteriously pronounces that “Leave to proceed is refused” without giving any indication as to the nature of the deficiency in the Petition. This is grossly unfair to the Petitioner, the public and the Court itself. In the case of the Petitioner, he has no clue as to whether his application is refused on account of some technical default, or whether the Court is in possession of such other reliable information (unknown to the Petitioner and perhaps even the Attorney General) that it feels obliged to throw out the case. The crucial difference is that, in all the cases which come up from the lower Courts, the litigant has some idea of where his case fails and he has some body (the Court of Appeal and/or the Supreme Court) to appeal to. In contrast, when the Supreme Court makes an order, without giving at least one sound reason for rejection, knowing that there is no further appeal possible, it leaves a very uncomfortable feeling in one’s stomach. Although the Supreme Court may feel that it has done justice, it certainly cannot be seen to have been done. Therefore, we call upon His Lordship the Chief Justice to issue whatever guidelines are necessary to prevent this kind of opaque justice being inflicted on citizens who seek the intervention of the Supreme Court as the sanctuary of last resort available to them.

The fourth issue that we wish to raise is that, some years back, knowledgeable commentators had observed that judgments given in favour of the government for the time being were often followed by the judges concerned being appointed to well-paid positions when they retired. Appointments to the Bribery Commission and to ambassadorial level posts in the Foreign Service were perceived, in some cases at least, to have been rewards for decisions given in favour of the appointing authority’s interests. After a time, the government was persuaded that it was not a good practice to appoint judges to various remunerative or high-status positions after their retirement. It was decided that all judges would, upon retirement, receive a pension equal to their full salary at retirement, thereby obviating the need for them to seek post-retirement employment. What has happened subsequently is that a number of judicial officers have not only drawn their full salaries after retirement but also accepted other highly paid, tax-free employment within the State machinery. It would be far better, in CIMOGG’s view, that the salaries and pensions of judicial officers should be increased even further to a level that would diminish the temptation to colour their judgments with a view to enhancing their chances of getting further profitable employment in the State sector.

We call upon other associations, individuals, the media and concerned members of the public to add their voices to CIMOGG’s to get these improvements implemented. If Minister Rauf Hakeem has any concern for the multitudes who are forced into litigation, he could really help them by working towards the objectives outlined above.

Dr A.C.Visvalingam
President, CIMOGG