( January 19, 2015, Colombo, Sri Lanka Guardian) The Attorney General's (AG) Department has uninvited the de facto Chief Justice Mohan Peiris from the department's 130th Anniversary celebrations.
According to sources the AG's department took the decision following a resolution passed by the Executive Committee of the Bar Association of Sri Lanka (BASL). The lawyers association decided that when Peiris began his address the President of the BASL and several senior lawyers would walk out in a show of protest.
In a show of apparent opposition to the de facto Chief Justice the AG's department then decided that they should remove his name from the guest list.
The BASL's resolution is the latest in a line of moves to show their growing opposition to the de facto CJ, on Friday a resolution was passed demanding the immediate resignation of Peiris.
The de facto Chief Justice has come in for much criticism in the recent past with opposition members accusing him of being present at Temple Trees when the Rajapaksa government allegedly attempted a military coup.
Peiris has refused to comment on any of the allegations.
Meanwhile, an open pledge to restore public confidence in the justice system has been released;
a) Abolish the Court Vacation system - The present Court Vacation system is a legacy from the British Colonial Rule. The UK has abolished this system long time ago, taking into consideration the valuable time being lost as a result of the said vacation system. In Sri Lanka however, this practice continues unabated, causing tremendous delays in dispense of justice.
b) Specific call-in time be allocated for all cases- In Sri Lanka litigants, government officials, lawyers waste away their valuable time in Courthouses until their cases are being called. In the established democracies like UK from where we have inherited our judicial system the parties to a case are notified with a specific time to attend Court for their respective cases. Sri Lanka is ought to adopt a similar system to save precious time and energy of the people attend court. In Sri Lanka the irreparable loss of man-hours are immeasurable due the absence of such a system.
c) Record Keeping - Current system is based on paper based case records. This system has led to various issues such as losing of case records, storage issues and inability to provide information swiftly as and when necessary causing tremendous to Court Staff, from Registrar downwards. Therefore, it is suggested to introduce an effective computer based record keeping to the entire Court system.
d) Compulsory time scale for Court sessions - Sittings in the entire Court system shall be made from 9.30 am to 4.00 pm. At any given time, a large number of cases held up in the superior Court system downwards causing enormous economic and financial to all concerned.
e)Strict adherence to the Rule Book - At present, the adherence to the rule book is not being strictly followed, causing enormous losses to litigants. For instance, in the superior court system, it is observed that the Attorney General is given preferential treatment over Rule Book.
This needs to be stopped forthwith.
f). Producing the accused before the Magistrate for remand custody – When an accused is produced before the Magistrate to be placed in remand custody, the magistrate shall see him personally before making any order. And the accused shall be given an opportunity to make a statement if wishes to do so, which shall be recorded with the signature of the accused person obtained by the Magistrate.
g) Case management hearing at the beginning
This is a new phenomenon not tested yet in Sri Lanka which prevails in the other leading democracies to save time money and energy of all concerned and to provide an judicial service to the people
For example in the UK parties are required to specify the time needed to present their case to the Court. Then the Court allocates a specific time frame for each and every case. Once it is done no postponements whatsoever will be permitted. If the counsels are not ready or busy for whatever the reason, still they must make appropriate arrangements to proceed with the steps stipulated by the Court, to finish the case within the specified time frame.
a. Transparent recruitment process to select judges to superior Court System
As at present the vacancies in the superior court system are filled with persons who earn the pleasure of the Executive President and with no place for merit at all and disregarding the eminent career judges of their legitimate expectations. And most vacancies are filled with public officers serving at the Attorney General's Department' This has to be stopped forthwith.
It is noted that in the UK not a single judge to the judiciary is appointed from the crown Prosecution service headed by the Attorney General of the UK. And the same practice shall be adopted in this country as well. Priority should be given to eminent career judges over other applicants. Public officers serving in the AG's Department and the members in the private bar should be afforded an equal opportunity to submit their application for vacancies. But no preferential treatment whatsoever shall be afforded to the lawyers serving in the Attorney General's Department over the other applicants. This merit-based system shall be implemented to the appointments to the lower Courts as well.
b. No inducements with gratifications after retirement - There shall not be any gratification whatsoever to judges after their retirement'
To cite few examples in the recent past;
i). Appointing Asoka Silva CJ as an advisor to the President after his retirement
ii). Appointing D.J. De S. Balapatabendi, as the Chairman to the Corruption Commission
iii). Appointing Sathya Hettige J, as the Chairman to the Public Service Commission.
This practice conveys a wrong message that those who are inclined towards executive would get a preferential treatment over others after their retirement. This naturally affects the independence of the judiciary.
DEALING WITH RIGHT VIOLATION PETITIONS
a) Strict compliance with the process specified by law - The Constitution requires [Article L26 (5)j that Fundamental Rights Petitions shall be disposed of within 2 months from filing in Court. But in real terms there are cases over 2 to 3 years pending in the Supreme Court. This is a blatant violation of the Constitution, the Supreme Law by the judiciary itself and needs to be addressed with no excuses whatsoever.
b) Extended time frame for filing Right Violation Petitions- As at present only thirty days have been permitted for the purpose which is inadequate and shall be extended up to three months
c) All Compensation orders be made only in personal capacity of the CJ right violators and not from the public funds- The practice of paying compensations from public funds shall be stopped forthwith. And the right violators shall be held responsible for such payments in their personal capacity.
Mandatory disciplinary action against right violators
d) Strict disciplinary action be taken against right violators with mandatory dismissal from service coupled with an unreserved apology by the law enforcement agency found at fault by court for use of excessive and/or unlawful force
RESTORE PUBLIC CONFIDENCE IN THE AG'S DEPARTMENT
a. AG's office shall be made absolutely independent
As at present the AG Department functions under the Executive President. Although it is required to uphold the Rule of Law, in practice what it does is completely the opposite. Having become absolutely subservient to the President, today its prime duty is to act according to the whims and fancies of the Executive. It withdraws the indictments serve on ruling party politicians and suppresses cases where serious charges are being levelled against those who hold high profile public offices. This pathetic state of affairs is beyond the standards expected from the office of the Attorney General. AG's Department shall be freed from the shackles of the Executive President and made to uphold the Rule of Law with no fear or favour.
b. Recruitment of lawyers to the AG's Department
The lawyers who join the AG's department are public officers. At present there is no proper and transparent selection standard but purely based on connections to the AG's staff and to the serving judges in the superior court system, which shall be stopped forthwith.
Their recruitment shall be based on a competitive exam followed by an interview by a panel of serving judges in the superior court system through an acceptable and transparent process.
c. Strict compliance with the Rule Book
At present State Counsels pay no respect to the Rule Book and judges, especially those who are appointed to the judiciary do not take any notice of this grave abuse of office despite inordinate delays caused to the dispensation of justice, which sometimes dragged on for years. This needs to be stopped forthwith in the interest of justice and fair play with stern action against abusing the Rule Book.
d. AG should not defend right violators where the violations are obvious
At present there in no system in place to ascertain and to decide whether the respondents are qualified to be defended by the AG, with the litigation cost charged to public funds.
This practice is needs to be addressed with a vetting system in place to determine the stand of the AG in Right violation cases.
REGULATING THE LEGAL PROFESSION
1. Establishment of a Regulatory Authority for AALs
As at present there is no authority to regulate the legal profession in this country, leading to a lot of abuses and victimization of innocent litigants. In leading democracies like in the UK there is a mechanism in place to protect the citizens from unscrupulous lawyers. It is noted that in the UK a large number of lawyers found guilty for various abuses by the Regulatory Authority are being either dis enrolled, suspended or imposed compensation orders.
The Regulatory Authority for lawyers in the UK is empowered with wide powers, which include searching premises, seizing of records, sealing of offices and prosecuting all unscrupulous lawyers against whom prima facie cases are established. To protect the citizen and to instil discipline in the profession a similar body shall be established by law with wide ranging powers.
2. Each client be issued with a client care letter - This is also a totally new process to be introduced need to be followed by the profession. This practice is strictly follows in the UK and other leading democracies, providing adequate guard against abuse of litigants by the members in the profession.
After initial instructions are given by a client every lawyer shall be made to issue client care letter in duplicate specifying the nature of the case, the law involved, the rights of the client, fees and method of payment and details of the Regulatory Authority (address, phone number, fax, email address etc.) to make complaints in cases of professional misconduct or negligence. If the client agreed with the client care letter he shall sign and hand over one copy and retain the other for his reference.
3. Appointment of Presidents Counsels - At present these appointments are made only through an application process, which solely depends on the pleasure of the Executive President clearly based on political affiliations.
4. This has to be replaced by a system to be administered by a panel of eminent serving judges in the superior court system. The selection shall be purely based on merits along and to be assented by the head of the state.
5. Introduction of an annual practicing certificate system -This is also new to Sri Lanka and is in operation in the UK. This system helps sustain people's confidence in the members of the profession. It shall be made compulsory for all practitioners to earn the practicing certificate annually from the Regulatory Authority, after demonstrating the knowledge and competence in the relevant area of law by undergoing professional development courses with a minimum of 40 hours. This process will help the lawyers to enhance their knowledge in the new developments of law in the respective areas of law they practice. The Practicing Certificate so earned from the Regulatory Authority shall be displayed prominently in the offices.
These professional development courses shall be conducted by accredited service providers, approved by the Regulatory Authority.
The issuance of the practicing certificate shall be subject to a specified fee payable to the Regulatory Authority.
6. Introduction of a mandatory indemnity insurance policy for all AALs - This is another new concept for Sri Lanka,that is operating in other leading democracies to protect clients/litigants from the losses they may sustain due to professional negligence of the lawyers. A minimum of threshold shall be introduced (eg: Rs 1,000,000/-) which should go up according to the size of practice. Any compensation order made against lawyers by the Regulatory Authority shall be charged against the indemnity insurance
7. Publishing complaints made to the Regulatory Authority: All complaints made by the clients/members of public shall be published in the Law Gazette that should be made available in the public domain which would be a warning against any possible abuse.
The Regulatory Authority shall have power to inquire into public complaints (all forms of abuses, professional negligence, misconduct, dishonesty, misappropriation of client's funds) and to mete out appropriate punishments. All punishments such as compensation awards, suspension and removal from the Roll shall also be published in the Law Gazette.
8. Maintenance of 'Client Accounf and 'Office Account' - This should be made mandatory for all members in the profession. Although this is taught in the law school it has become only an academic exercise, which is not practiced but totally ignored by the members in the profession.
In the UK the maintenance of these accounts is mandatory which shall be audited and made available to the Regulatory Authority at the end of every financial year. This way all monitory transactions with the clients are duly recorded and with receipts issued for the fees charged. It would give plausible financial status of the practice securing proper collection of tax due from the members in the profession.
All transactions with the lawyers [eg: over Rs 1000/-) shall be made only through account payee cheques only to arrest tax evasions.
All interests accrued for money in the client account shall be credited to the respective client
9. Establishment of a Code of Ethics & Conduct to all AALs