The Laws Delays – Possible Remedies
Dr. Upatissa Pethiyagoda
Kadirgamar was assassinated thirteen years ago – and a suspect was arrested in Germany, just the other day. Here, by all accounts was a “high Profile “case. If it took so long to even apprehend a possible suspect, what can an ordinary citizen expect? A partial answer comes from another report that a man is just been sentenced for a murder committed at the end of the last century (1998 ?). Will the murders of Lasantha Wickrematunge and of Wasim Thajudeen ever be solved and the killers punished? When will the “disappearance” of Ekneligoda be explained? Not much hope, as judged by current form.
These are terrible indictments on our law enforcement authorities. “Justice delayed” someone said, “is justice denied”.
The Police are charged with tardiness, evidence “doctored” to ensure failure in Court, The Attorney-General’s Department where files are said to remain unattended for months on end. The over-worked Courts that seem ever willing to allow postponements for the most trivial of excuses. As editorially expressed many years ago that “Lawyers like Bedouin Arabs, live on dates”. When a case coming up in February is fixed for the next calling in December is strange! By then, one or both, the litigating parties may be dead and brought before other “Higher Courts”. Then, the worldly verdicts are of no possible interest. There is also the flattering implication that Judges plan their programmes months ahead. In many legislatures (eg. Crown Courts) the whole process is impressively much more prompt. There must be some differences in their processes and ours from which we could draw lessons. In some instances, protracted delays in our Courts could mean that if a judge has retired, been transferred or promoted, some of the cumbersome formal preliminaries have to start afresh. Surely there must be some remedies waiting to be implemented. The recent case of the Bond Scam, where there were continuous daily sittings, which allowed speedy and smart conclusion, shows that given the will, there is a way! It may be noted that The Commission, which included two retired Supreme Court Judges, clearly indicated the persons who should be brought before the Courts (The Commission itself not having powers to go beyond recommending actions). The necessary indictments have still not happened for nearly an year after the Commission Report was made public!
Any reform has to deal with two aspects, the physical and the procedural. The former being simpler than the latter. Both the Police and the Attorney-General’s Department plead a case for more staff, space and office equipment. But more staff, clerks, typewriters and Computers which alone may not necessarily improve efficiency and speed, will no doubt help.
Two other points are relevant. One is the great number of “Defamation” cases, mostly filed by politicians claiming astronomical amounts as “damages”. It is more than likely that few of these “penalties” are imposed or respected. They are however, a handy means of hiding illegal payments such as “commissions” or bribes! The second demand on judicial time, is the alacrity in seeking the “advice” of the Supreme Court on proposed actions which, to any reasonable person, are clearly illegal! There is also, the readiness with which complainants are challenged to “go to Courts” for the most trivial of reasons. All these involve judicial time, robbing it of attention to more worthy judicial responsibilities.
Regarding the Judicial Process, one learns that there are broadly two Systems. The “adversarial ” and the “Inquisitorial”. In the former (which we follow) the whole process occurs in Court, where lawyers promote their case by argument, references and forensic skill. This however results in much time being spent. In the “Inquisitorial” form, the lawyers of the two contending parties, sit together, get through the formalities quickly and then proceed to presenting their legal positions, in the presence of the client parties. They try to reach agreement, and present to Court only those points where agreement could not be reached, and require the intervention of a third party – the Judge. The necessary legal provisions and details of process are for the relevant specialists to consider.
Hasty actions may be impractical or unwise, but maintaining the “status quo” is not a satisfactory option. Under the present system, it has been declared that over many thousands of cases are “pending”, mainly in the AG’s Department. Quick expansion of the numbers of Court Houses, increased staff in the AG’s Department would be needed. The increase in the number of Judges is more complex as the delivery of justice should remain paramount. Quality, and not mere increase of quantity should be the guiding principle. As the late Mr S.L. Gunasekara stated in one of his books, “Judges” have to be born and not merely “created”.
