The Law’s delays: causes and remedies

Part I

The Golden Jubilee of the Law Asia was held in Sri Lanka and sponsored by the Bar Association of Sri Lanka. At the said seminar there was a special session to discuss ‘Laws Delays’. I was fortunate to get copies of papers presented at the Conference. One of the papers quoted Dr. H.W. Jayawardena QC, the First President of the BASL and the First President of the Organisation of Professionals Association, who had made a very revealing speech on the day he was inducted as the President of the BASL.

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.

Colonial masters

The SLFP vote base, the rural masses, genuinely complained about the Laws Delays. This was not something new. Sir John Kotalawala, 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.

Today, sometimes we hear of convictions in a murder trial, 20 years after the incident. Laws delays are caused by people who refuse to accept any changes. In a changing world, changes are mandatory. We are inundated with laws which were enacted by our colonial master in the 1890s. Civil Procedure was enacted in 1889, Criminal Procedure Code 1899 and the Evidence Ordinance in 1895.

I remember the time when my friend Nihal Jayamanne’s father served in the Ministry of Justice for a short time. He was progressive in his outlook though he was a leading land lawyer in Sri Lanka. He was moved by the delays in the ‘Adversarial System’ of Judges in Sri Lanka and wanted to bring, ‘Alternative Dispute Resolution’. Thus the ‘Conciliating Board Act’ was introduced by him. But, as usual, the legal fraternity and even some judges felt that this would ultimately dilute the powers of the group of non-lawyers and was discouraging.

But, later again, Felix Dias Bandaranaike introduced the Conciliation Boards, and strengthened the powers of the Conciliatory Board and today, statistics reveal that 50% of matters referred to the Conciliatory Board have been amicably settled. Thereafter, the Conciliatory Board was scrapped and the Mediation Board was introduced. Even today some members of the Board totally oppose the Mediation Board.

Administration of Justice

Similarly, when Felix Dias Bandaranaike, with the help of Nihal Jayawickrema, introduced the ‘Administration of Justice Law’ [AJL] and replaced it with the Civil Procedure Act, there was tremendous opposition. The opposition to these two Acts continued, until they were defeated politically. The AJL repealed the provisions relating to non-summary proceedings, held to decide whether there was sufficient material for an accused to stand trial in a higher court.

Naturally, I was angry at the inception, as I had a fair number of junior lawyers, were involved in defending people who had committed murder. Though Non summary procedure was repealed, I, as a Criminal Practitioner, never lost my practice.

The civil reform, based on Justice Nagalingam’s recommendation, was far reaching in its effects. One of the most important and far reaching laws that came into being was the AJL Act which got rid of the Fiscal, one of the most corrupt Institutions in the Administration of Justice.

The Summons was delivered by the postman and the acknowledgement which was sent with the summons was on a postcard to be filled and given to the postman. There was a Registrar who had to accept the plaint with the lists of witnesses and the documents. This dossier is served on the Defendant and the Defendant would then have to prepare his answers with all the documents and the Registrar would thereafter refer any contentious matter to the District Judge, which helped to settle most cases under the AGL without coming into protracted trial.

The Late Justice Souza, told me that as a District Judge he intervened and settled 65% of civil cases that were filed under the AJL that it was a resounding success. But the Bar opposed it. Even some judges opposed it. They were trying to make Laws unworkable. The Fiscals Officers resisted it. Most Registrars did not support the new laws. But in 1977, when the new UNP Government was elected, no one bothered to find out how to amend the AJL, so that whatever flaws were in it could be rectified.

Efficient disposal of cases

In civil cases under the AJL, the Plaintiff will have to file his plaint with the documents and a summary of evidence with the Registrar. Then the Registrar will post it to the defendants and the defendants, when they receive the summons by post, there will be a ‘postal delivery confirmation post card’ which will have to be given to the postman. Thereafter, the Registrar will decide to send it to the District Judge who will examine the documents and will try to curtail oral evidence being led unless it is very important. It is easier when all the documents are available and it would facilitate an efficient judge to bring about a settlement.

This was working very well. There was efficient disposal of cases but with the election of the ‘Darmishta Government’ this was repealed and the same old Civil Procedure and Criminal Procedure, with some slight amendments, were re-activated.

The Prescription Ordinance was enacted in 1889 by our Colonial Masters. Section 3 of the Prescription Ordinance, states that if a land is possessed by someone for more than 10 years, he is entitled to ownership of the land. The reason for this legislation is not known to me. Maybe to prevent an absentee landlord and that the owners should be vigilant of their rights. But in the villages it has paved the way for any intruder and trespasser, or a village thug to forcibly occupy the land and own title by prescription.