Is The Bar Responsible For Perpetuating Laws Delays?
By Hemantha Warnakulasuriya –January 10, 2017
Hemantha Warnakulasuriya PC
When I was invited by the OPA to deliver a lecture on “Laws Delays”, emphasizing on the Criminal Law, I reluctantly agreed as I felt that the seminars of symposiums have no effect in Sri Lanka except to make some noise and eat some refreshments and if it is a five star hotel, participate at the cocktails. Laws Delays and remedies if any, are forgotten or thrown into the dustbin. This happens in every sphere where seminars and symposiums are held for the edification of those who lecture so that in their resume they could include this. When you think of the history of the Bar Association, where I was involved from its inception how many seminars had been held on many important aspects and recommendations made I believe, you could fill a small room with the papers written by various experts. But nothing happens, nothing changes and we become active participants of Laws Delays which I now think is an utterly criminal act.
At this seminar, though I was requested by the convener of Committee to seriously address the issues concerning the Delays in the Criminal Law, I was determined to commit penance for the sins I committed in defeating the most progressive and precautious legislation which we knew as the Administrative Justice of Law which we all opposed. We were jubilant that we were able to defeat not only the Felix Dias’s Law and Felix Dias himself. Now I know, and am convinced that even if the Government of the day due to reasons other than the plight of the poor litigant, the Bar would oppose any such progressive legislation. I as one time Secretary and its Deputy President of the Bar Association are equally guilty of this crime. That is why the Judicial Services Commission by Circular to impose day-to-day proceedings in cases which have been postponed for a long period of time. Of course, this will not help the cause of Justice or the cause of the poor litigants but, the JSC, was I am told overwhelmed by the number of petitions they received from the public complaining of long delays.
At the seminar other speakers were former Supreme Court Judge Mr. Saleem Marsoof and Mr. Nihal Jayamanne PC. Mr. Jayamanne was one time President of the Bar Association. When Justice Marsoof was addressing the seminar, Mr. Jayamanne whispered to me and said that Mr. Marsoof is spreading on to the path where he has chosen about the delays in civil litigation. When Mr. Nihal Jayamanne spoke, I had nothing to add as all three of us agreed on many points and wanted radical changes in the law, if one is seriously interested in curbing the Laws Delays.
Mr. Nihal Jayamanne former President of the Bar Association and former Chairman of the Law Commission said that, legislations which will expedite the procedure and reduce the technicalities will always be opposed by the Bar. He told me as the Chairman of the Law Commission, they recommended far reaching amendments for the procedure which were never even discussed by the politicians, far from being implemented. So it is necessary for us to reflect back on the one man who seriously thought of bringing sweeping changes to the Civil and Criminal Procedure.
At that time Felix Dias Bandaranaike was the Minister of Justice. He was one of the most powerful Ministers in the Sirimavo Bandaranaike Cabinet and was hated by a certain section of the Legal Fraternity because they felt that he interfered with their profession and was trying to introduce barefoot lawyers and control the fees of lawyers. Dr. Jayawardena said, “Where we think that any proposed action of any Government is against the democratic rights of the people, or it is prejudicial to our profession, the Bar will not hesitate not only to express its views promptly but, to take action which it may consider proper to oppose any undemocratic move or one detrimental to the interest of the profession”.
This has been the motto of our association since then.
I would like to ask the reader and litigants “What position should the Bar take when the Government in power takes action in the interest of the public and in the interest of litigants, to lessen their burden but, this action is detrimental to our profession?” Sadly if the proposed legislation affects the profession and helps the litigants, the Bar would vehemently oppose it. Therefore, Felix Dias Bandaranaike, whom in hindsight I consider as one of the most intelligent, precocious , Ministers of Justice we had, who was ahead of his times, was painted as the devil that ought to be exorcised. He and his team comprising Dr. Nihal Jayawickrema, one of the most efficient and powerful Secretaries the Ministry of Justice ever had, were not only driven from political power, but were possibly punished by the political circus called the ‘Presidential Commission’.
What had he done to earn the wrath of the Bar? He, as the Minister of Justice, and a politician from the rural Dompe, had an obligation to the people who voted him to power. As the Minister of Justice he had to ease the burden of litigation and laws delays and he wanted to tackle the back log of cases. Most common men think that the administration of justice only serves the rich, and not the poor.
The SLFP vote base, the rural masses, genuinely complained about the Laws Delays. This was not something new. Sir John Kotelawala, felt that there was an urgent need for legal reform, for the laws of the country to suite the local situation, which was quite different to what we inherited from our colonial masters. He appointed two Commissions, Justice Nagalingam to inquire into delays in the Civil Court and Justice Gratian to discuss the delays in Criminal Courts. It was Justice Gratian who was the first to recommend the abolition of the non-summary proceedings. That was his main recommendation.
Similarly, Justice Nagalingam made far reaching recommendations for radical reforms of the Civil Procedure Code. This Commission collected material from the entire island and was a compendium of the Reasons for Delays, and in fact I am told that the Nagalingam Commission had even drafted the Civil Procedure Code to be introduced in place of the present Civil Procedure Code.
What happened then? There was no Bar Association then. The Advocates had their separate organization called the ‘Bar Council’, and the Proctors had the ‘Law Society’. I was also told that when it came to adoption of these reports, the Bar Council, headed by the Wickremanayake’s totally opposed the recommendations of the Nagalingam Commission. The Wickremanayake’s together with the Bar Council, opposed the recommendations and a similar fate fell upon Justice Gratian’s Criminal Procedure Reforms Commission.
