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SRI LANKA: The Quality of our Judiciary ?

An interview with Dr. Sunil Coorey on delays in the administration of justice

The Sectoral Oversight Committee on Legal Affairs (anti-corruption) and Media made its recommendations pertaining to the expeditious and efficient administration of criminal justice on 20 September 2017. The Committee recommended an increase in the number of High Court Judges, State Counsels and stenographers. They also recommended that cases should be heard on a day-to-day basis to deal with what the Committee called the shameful state of delays that has angered the public.

Basil Fernando, Director of Policy and Programmes at the Asian Human Rights Commission (AHRC), interviewed a senior lawyer and legal scholar, Dr. Sunil Coorey, on this report.

[Basil Fernando- BF; Dr Sunil Coorey-SC.]

BF: Do you think that the mere increase of the number of judges and State Counsels is sufficient to overcome the problem of delays in the administration of justice?

SC: In my view, what is needed in order to better deal with cases is not increasing the number of judges or the officers in the Attorney General’s Department. What is needed is better quality judges; judges who are able to understand cases quickly and deliver justice without much delay. Therefore, merely increasing numbers will not help.

BF: Would you say the same thing about the Attorney General’s representatives?

SC: Yes, I would say the same thing about the Attorney General’s Department. What is needed is quality, not quantity.

BF: Can you explain how the limitations in quality are the reason for the delays in justice, including the problems with getting indictments filed?

SC: Yes. When a judge is not up to the mark, there will obviously be a failure in delivering justice; he may not understand the evidence, he may not properly evaluate the evidence, he may not know the law and he may not be able to give a proper judgement. One of the parties will be dissatisfied, so dissatisfied that they may have to appeal. And if the appeal is also not properly handled – if it is not dealt with by competent judges – there will be dissatisfaction again. The lawyers will think of a further appeal, maybe to the Supreme Court. So, in that way, there is more delay caused by the inefficient administration of justice.

BF: Now, other than the knowledge of law, in a trial there is an administrative aspect. Has court administration and the various approaches by which you limit submissions, and various other limitations and actions that have to be taken, been affected in recent times in a big way?

SC: It has been affected. First of all, I would say that the judges are not very competent. Even the lawyers are not very competent. It is the same with the court staff, and there are various problems with the work of the court staff because of the lack of electronic equipment and delays in proceedings being made available to parties and the lawyers, and so on.

BF: In relation to that, the Committee’s suggestion is that the stenographers’ limitations are a major problem and they are making recommendations on how to get a greater number of stenographers, as well as how to improve the quality of stenographers. Would you think that better utilisation of more communication facilities, as is done elsewhere (e.g. evidence is video recorded, and there is more IT for the secretarial work, such as getting copies) will create much more efficiency in that area?

SC: Of course and, in fact, this was thought to be put into practice even in Sri Lanka. The World Bank or some other body gave assistance, and even if you go to Colombo District Court today, they have installed monitors and electronic equipment. For a time, when some order was being made, the stenographer who sat with the judge would type it on the computer and it was put on the screen for all the court, for the lawyers and everybody, to see the order that that was being made. But now, because of the lack of trained persons to operate these things, it has now stopped.

BF: The way they put into effect elsewhere is that there is a separate management. The technical management provided by the World Bank here was from the same company that is doing it in Hong Kong. They are managing efficiently there.

SC: Yes, some other person is responsible and it is managed by them.

And the funds were allocated. Where it stopped in Sri Lanka was that they said it has to begin the Supreme Court, and the Supreme Court was then under the leadership of Sarath Nanda Silva, who didn’t want its proceedings to be recorded – because if you are recorded, everything gets recorded, the comments and everything. So there has to be a willingness from the Supreme Court and other courts to participate in this process. In the Supreme Court and other courts, leadership and initiative should come from the top. The other thing is that many people complain that although we gave out computers, many do not know how to operate the computers. Some judges and lawyers don’t know, so there has to be some training and it should be made compulsory that they should be given some training. At the time of recruitment, there must be some competence in it. Like language competence, they should learn communication technology skills.

BF: But the thing is, if that is done, many of the things that are being done cannot happen. So you must be willing to go through the required discipline but now, for convenience, discipline is sacrificed.

SC: I think most of them are not competent in the use of computers. And they don’t want to get competent at it, even the judges. The secretaries break the computers. They prefer to do it on the typewriters for small gains, such as small bribes from the lawyers, and that means it is connected to the salaries they should get, isn’t it? So that they don’t have to do that.

BF: Sunil, you mentioned that the lawyers and judges all need improvement in work quality. These are the main actors. There is certain inadequacy in their quality. Now, what are the methods by which you can improve quality? For example, is it the levels of education at the recruitment level? And, thereafter, the levels of quality improved through by various training and examinations etc.?

SC: Various examinations should be held for both the judges as well as the staff. I think that is very essential. Salaries, of course, should be improved, because otherwise you don’t attract the best quality of candidates. Therefore, these are things to be improved.

Now, there is also the question of the equipment that has been installed and is lying idle in the court houses, and issues about lawyers not being allowed to operate their laptops inside the court houses. They should be able to do so without causing a noise or any disturbance and this should be allowed. These are the things that should be thought about by the courts.

Some judges take offence even if you have a recording device. For example, when a witness is giving evidence, sometimes people bribe the person taking down the evidence to purposely change the evidence. That causes big problems. To avoid that, some lawyers wish to electronically record evidence when it is being given. Even if they are willing to do so themselves, without the court’s assistance, it is looked down upon.

BF: This time, in the Budget speech, there was a section where they directly say that technological improvements in audio recording should be made, and they allocate a certain amount of money towards that. Whether the allocation is sufficient or not is one issue, but the fact is that, for the first time in history, the Budget has been used to recognise these changes as necessary.

SC: Yes, there is an allocation called ‘judicial improvement.’ That’s the first time it has happened in the country.

BF: The other aspect is that there is a lot of criticism of lawyers, particularly for seeking dates on personal grounds.

SC: Yes, that is true. It could be said that around 50 percent of cases in the Supreme Court are moved out each day because of personal grounds given by counsel. That is a very sad thing because sometimes very old cases are postponed due to some difficulties with the lawyer. It is a matter that should be looked into: whether we should continue this practice of personal grounds being mentioned as reasons for cases to be postponed.

BF: One big problem after the period of Sarath Nanda Silva’s period as the Chief Justice was the tampering with procedural law. In many places, you can see that procedure is still being ignored. Do you think that this is a factor that is affecting the outcome of cases?

SC: I think after Sarath Nanda Silva’s stewardship of the Supreme Court, a lot of problems have arisen in the administration of justice. There have been a lot of judges who have been mistreated by the Judicial Services Commission. No reasons have been given when judges have been summarily asked to resign. This caused a great deal of stress for judges. In that context, it is not easy for judges to carry out their work in fairly assessing all the facts and law involved in cases. This is because there are so many implications that come into giving judgments for one party another. There have been reported instances of such incidents. At one time the Chief Justice would inform judges by telephone how a judgment of the District court or lower court should be given. One does not know how a Chief Justice could come to taking such a course of action. And if the judicial officer informed the Chief Justice that the direction did not fit with the judicial officer’s view of the case, the Chief Justice expressed unhappiness and that could be the beginning of the end of that person’s career in the judiciary of Sri Lanka.

BF: Now, in particularly in instances of leave to appeal, a habit has developed of making orders without giving reasons.

SC: Yes, this is a big problem because they can get away with anything. The judges can get away with anything because, when they say leave is refused, that is the end of the case. Sometimes we as lawyers find it difficult to explain to our clients why we could not get leave to appeal. That is a big problem, so there must be a specific provision made that for any judicial decision, reasons must be given.

BF: There is an argument that is used in the more developed systems that judges are not elected and that they are not examined in other ways. For example, if you are an MP, you have to give explanations to your electorate and otherwise you will not get elected. So there are other ways of explaining to people what they do, but judges don’t have such avenues; therefore, that is one reason why, by their very nature, to avoid arbitrariness, judges should necessarily give reasons.

SC: Yes, they should necessarily give reasons because they are performing a very important function of the state. They are deciding on people’s property, people’s lives and people’s freedom, so it is absurd to say that they need not give reasons for their decisions. In the field of administrative law, it is generally said that reasons must be given; natural justice requires that reasons have to be given for every decision. So, if that be so, we don’t see how judges can say, “Well, we will not give reasons”.


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