| by Victor Cherubim

( March 23, 2014, London, Sri Lanka Guardian) It is a well known fact that delays in dispute settlement throughout the Court system, whether in Sri Lanka or around the world is costly. There is cost for the prosecution, costs for defence. What influences a decision, “can be prejudice, bias, political advantage or disadvantage, sufficiency of evidence, and public interest,” to mention a few. Besides legal fees, there are investment and initiatives, which hugely increases uncertainty and risk. Besides, the financial cost, there is the physical and emotional cost awaiting justice. But, there is nothing more blatant than time wasting in the “award” of justice.

Courts in Sri Lanka have lacked time management all along. The idea of cutting out repeated and wasteful hearings with lawyers doing less for their fees is still prevalent. The fee system for lawyers makes less able lawyers to accept and even perpetuate such delays.
Litigants in Sri Lanka, in particular land cases, are regularly frustrated by the exceptionally long delays inherent in the Court settlement system. Able lawyers, we are informed waste valuable time idling in Courts waiting for cases to be called, which are most often postponed. This often reduces the work they can do, increases the costs to their client and further causes the justice system to slow down. In the Prevention of Terrorism appeals, we have seen delays
and procrastination, some justifiable, most unnecessary.

Everyone – the lawyers, clients and Sri Lanka’s economy suffers. Take the District Court, a Case List is displayed outside the Court, but without an assigned time. Lawyers, President’s Counsel, Litigants, Buddhist and other Clergy, Medical Officers, Police, even witnesses all have to come early and wait for their case(s) to be called. In the Magistrate’s Court, we are told, it is worse. Often, there is no such List and cases are called according to their type and in an order arbitrarily determined by the Court Clerk.

I can well remember the time I waited at a Trial in the District Court at Gampaha, as a visitor. The Crown Counsel, who I knew, was in full gown in scorching heat, in a crowded Courtroom, hardly informed that the case was only to be taken up at the very end of the Court’s day. That was over 60 years ago. I am informed today cases called “down the order,” are very likely to face postponement, but attorneys must still come prepared and waste their time waiting and cost fees.

Time Management

Courts in Sri Lanka have lacked time management all along. The idea of cutting out repeated and wasteful hearings with lawyers doing less for their fees is still prevalent. The fee system for lawyers makes less able lawyers to accept and even perpetuate such delays. Lawyers are generally paid per appearance in Court, whether or not the case is heard or postponed. There is even the possibility of potential collusion to slow down proceedings with postponements, for the flimsiest of excuses.

The cost in time of staff, prosecution, defence and judiciary perhaps, is immaterial, or has hardly been quantified, as there are no measurement standards adequately enforceable. That Justice must be done or seen to be done is commendable, but does anyone worry about the waste in time, which can be simplified in the process.

Courts service, we will all agree, should become more cost effective. Figures on waste may be stark. To tackle inefficiency during the 30 odd year war was difficult, if not impossible. The main problem was getting Police reports to the Attorney General’s office, on time, for speedy

The after effects of the war have had its toll. Though crime rates may have reduced, the workload in civil and criminal cases in Magisterial and District Courts has not proportionately reduced?

Case Management

Either in terms of speed or by result, there seems to be a yawning gulf of apathy. Case management is partly the cost of time wasting as well as adhering to antiquated methods of litigation. This is particularly true in Land disputes. Further little has been done to pursue mediation, arbitration and or other forms of alternative dispute resolution.

Land cases for instance are known to span generations. Many lawyers, mostly senior attorneys are reluctant to take on cases where proficiency in the language other their own is concerned. Many Lawyers are unable to work in all three languages. Besides, Interpreter service is outdated. Prosecution is delayed. The attitudes of law enforcement agencies, Police and Prison officers are in need of urgent reform. President Mahinda Rajapaksa, has emphasised the need for reform, but the law is seen as a “vested interest,” instead of “public interest.” Apathy is one excuse, but perhaps a concerted effort in introduction of “time management” procedures are lacking. The wheels of change are slow in change, costing a drain on the economy.

Justice is slow

It is accepted that justice is slow. However, there are noticeable breakthroughs on the horizon. “Witness Protection” legislation, is one among many. Prison reforms will have to be swift if our jails don’t get too overcrowded and unmanageable. A fee structure for legal representation could help litigants. Fast track procedures may be another.

When a young Sri Lankan lawyer, was asked by a reporter why he opted for a career in law, he replied: ”I am glad that I did, as I could earn a living by arguing.”

When asked if there was time wasting in the practice of law, he stated:

“You understand, the law has to take its course, but we also have to earn a living.”