The legal system in Sri Lanka Good governance and the state of legal education
2017-08-31By Sarath Wijesinghe (Solicitor/Attorney-At- Law and former Ambassador to UAE and Israel)
Legal system in Sri Lanka is complicated and controversial with a mixture of English Law, Property Law based on Roman-Dutch Law in addition to Kandyan, Tamil and Muslim personal laws. Areas on Business and Commerce are governed by the English and western jurisprudence and International Law is based on the principles of the Convention of United Nations and International Organizations.
International Arbitrations, WTO and International Trade Agreements have entered the realm of jurisprudence with contested international trade disputes of multinational companies and local traders including the State. The situation has become complicated after the change of power structure and the legal system on independence from British colonial powers from 4 February 1948 when power was transferred to the indigenous but western oriented rulers by the Order in Council. The Law College was established in 1874 and the University College continued academic legal education and Courts were established under the Soulbury Constitution for the delivery of justice unchanged, headed by the Queen of Great Britain. English dominates in the legal field despite all three languages, Sinhala and Tamil being used as official Court languages with English as a link language to communicate with the international legal community and the world in general.
The judicial system and independence of the Judiciary
Changes made by the 1972 and 1978 Constitutions are in the public domain and known to the people. Under the 1978 Constitution which is in force today, judicial power of the people is exercised by Parliament through Courts, tribunals and institutions established under laws guaranteeing the independence of the Courts and the Judiciary, respecting and recognizing the principles of separation of powers placed in compartments. With the Constitution as the source, all other legislature-made laws have set up the Court structure with the Supreme Court as the Apex Court with enormous powers and to manage and control the legal education through the Law College as the institutions to permit the legal profession to act as officers of the Court system to assist Courts. Those who have graduated from the Universities in Sri Lanka and worldwide are obliged to qualify themselves at the Law College as Attorneys-at-Law to be eligible to perform duties of officers in a Court of Law and private practice. In the UK and western jurisprudence the lawyers serve in many capacities in addition to engaging in active practice whereas in Sri Lanka the tendency of professionals is to engage mostly in practice in Courts as the centre.
UN Guidelines and Dhammapada
According to UN guidelines and accepted norms the Judiciary should be kept away and insulated from other branches maintaining freedom of appointments, promotions and transfers which include the Attorney General – the Chief Adviser to the State as an independent entity. Now that the former Justice Minister Wijeyadasa Rajapakshe has become a casualty as a result of refusing to influence the Attorney General to set up special Courts to function on a daily basis and the sudden meeting of the AG with the Prime Minister raises eyebrows in the Legal profession and among concerned citizens. There were talks of 'trephine Justice' during the last regime – especially under the leadership of the most controversial Chief Justice Sarath Silva who was responsible for degrading the integrity of the Judiciary. Today Hulftsdorp gossip echoes are heard about 'telephone justice' being rampant even more than before and may be worse when the inexperienced new Minister of Justice has been armed with the mandate to direct intervention over the AG and the other institutions of justice and peace. The quote from the 'Dhammapada' to wit, that it's not by passing arbitrary judgments that a man becomes wise but that the judgment should be given according to the truth. This applies all the time to any society and it would appear to be most relevant in this era of the law's delays, incompetence, Bribery and Corruption.
Currently 10% of the population are litigants complaining of the law's delays, injustice, corruption, and shortcomings in the delivery of justice, which has become a main issue in the legal system facing criticism by the public on a daily basis. Backlogs and delays in concluding cases are high, with the citizens attempting to take the law into their hands due to excessive delays with 95,000 unresolved cases and a backlog of 800,000 cases pending including the controversial 105 cases, which demand that the Attorney General's Department puts on the fast track to be heard on a daily basis by special Courts, established most probably outside the Constitution, akin to the steps taken to deal with Mrs. Bandaranaike the main contender of J.R. Jayewardene who won the Presidential Election easily in her absence. It seems that history is repeating itself by prioritizing special fast-track cases targeting political opponents. Some partition and land cases take over 30 years with rape and murder cases taking around 20 years for conclusion, with witnesses and productions lost and Police officers are dead or retired. Twelve-year-old rape victims are fated to wait until they are adults of marriageable age for their cases to be finalized. This phenomenon obtains in jurisdictions such as the UK with a backlog of 63,000 cases of immigration appeals, and India with a backlog of hundreds of thousands of criminal and civil cases also begging solutions. Therefore, the law's delays are due to the weaknesses of ineffective systems and not due to incompetence of the AG, Judiciary, or the legal profession.
Bribery and corruption are rampant
Bribery and corruption are rampant despite pledges, announcements and pronouncements by the leaders of Good Governance, who got rid of Mrs. Dilrukshi Wickremasinghe – the former Chair of the Bribery Commission and – Lacille de Silva the former Secretary to the Commission who were appointed to fight corruption. They are good officers who were compelled to vacate leaving a vacuum in which bribery and underworld characters were free to run amok. Most corrupt State officers and institutions in the good governance machinery are the officers of the Courts, Motor Traffic,
Immigration, Customs, and Finance and Trade related establishments carrying on the business of corruption with no interference from the good governance machinery that consists of 15% of the population as government servants. Deputy Minister Ranjan Ramanayaka is in hot water with the erroneous statement that most Judges and Lawyers are corrupt. This has been challenged by the BASL, which is planning to file papers on contempt of Court. Ramanayaka has forgotten that we have the most corrupt 'Parliament Mafia' working together shedding party politics and other differences to earn money at any cost by selling vehicle permits (including him) accounting for a loss of Rs 3.1 billion to the citizen and more to be exposed. The unprecedented and unusual meeting of the Attorney General with the Prime Minister at Temple Trees has resulted in accelerating prosecution of selected political cases against one family and clan on political grounds. This is a matter of concern to the average citizen.
Ignorance of law is no excuse (Ignoratia excusa – famous Latin phrase) is accepted and followed in Sri Lankan jurisprudence where a person unaware of law may not escape liability merely because one was unaware of law whereby the citizen is presumed to know the law and procedure of the land. It is due to this practice that the State should take steps to educate the citizen in basic knowledge of the law and procedures from school to adulthood and to ensure that the legal profession is equipped adequately to assist litigants and the Courts. The legal profession has been an honourable profession. During the days of the Roman Empire the lawyers represented and assisted the litigants as a voluntary service. The cloak that lawyers wear over their clothes was meant for litigants to drop whatever they could afford as the lawyer's fee in either pocket of the cloak. The members of the legal profession should be honourable and knowledgeable in law and legal procedure.
Legal education and professionalism are developed to meet this requirement of high calibre lawyers by all litigants. Then there is an issue whether the lawyers are honest and honourable and also knowledgeable and conversant in the law and procedures. This is a doubtful issue and it is the citizen who is capable of answering this question.
Legal Education - Improve the quality, discipline and honesty of major players
Majority of law books, decisions, and judgments are in English. Most of the present generation of lawyers are not conversant with the law and its procedures. This is a worrying factor in the sphere of legal education and law practice. In the United Kingdom the legal profession is disciplined and rigorous punishments are handed down for unprofessionalism, dishonesty, inefficiency and misdirecting clients. In the
United Kingdom Solicitor Dijit Bechada, 45, was found guilty of fraud and obstructing the course of justice and jailed after inquiry by the Solicitor's disciplinary tribunal after the matter was reported to courts. This sort of thing is not heard of in Sri Lanka. UK has a developed free legal system supported by law centres and citizen advice bureaus which are not found in Sri Lanka. Sri Lanka Law College has not improved in step with the current needs and challenges and still the out-dated methods are followed without taking the current needs of the citizen into consideration. The Sri Lanka Law College is managed by the Council of Legal Education headed by the Chief Justice following the old traditions without taking the modern challenges and needs into consideration. Therefore revolutionary changes are required to educate the profession and the citizen to equip them with knowledge by making the complicated legal system simple and accessible to the common man by encouraging and assisting the students and the legal profession on enhancing the knowledge of the English language and the subject matter, with the assistance of the dormant and ineffective Law Commission with the vision to promote the reforms of the law to promote and implement good governance that is asleep and inactive and full of bribery and corruption. None of the institutions appear to be active and vibrant. The Law College is fortunate to be managed by an able head – but he is only an employee with no powers to change the system which is in the hands of the main management team.
Way forward towards Good, Governance and Rule of Law
Collective attempts of the law College, Bar Association, Faculties of Universities, Legal Aid Commission, and non-governmental organizations with the court network and the State departments should be mobilized with a vision to assist the citizen to regain his lost confidence in the effectiveness of the law and thereby to prevent taking the law into their hands for justice when justice and fair play are not forthcoming from the justice system. The process of decision making and process by which decisions are made and implemented should be independent, participatory, with consensus based, responsive, efficient, equitable and inclusive. These are the main features of principles of good governance akin to principles of " Lichchive Kings" who historically took collective decisions and dispersed peacefully according to the proponents of good governance. Do the rulers who are appointed by the people as trustees of the nation for a specified period, live up to the expectations and principles of good governance? This is the million dollar question capable of being answered only by the people at the receiving end who are supposed to be powerful on paper.
(Writer claims responsibility for the contents of the article and could be contacted on sarath7@hotmail.co.uk)
