|
|
 |
 |
| Sunday, 02 March 2003 |
 |
|
 |
Features |  |
| News Business Features Editorial
|
'Justice delayed is justice denied' : Doing away with law's delays by ASIFF HUSSEIN The delay in dispensing legal relief is perhaps the biggest problem our judicial system faces today. The huge backlog in our courts,appeals and counter-appeals, absence of counsel or witnesses and the postponement of cases at the behest of lawyers all contribute to law's delays. This is of course a matter which causes a lot of mental anguish and frustration for those involved, besides being a source of social unrest. People are known to take the law into their own hands as they are frustrated with legal delays and doubtful whether justice will be done. Today cases are known to drag on for years on end. According to Sriyantha Senaratne, a senior partner of Simon & Associates, a reputable legal firm specializing in corporate law, it would definitely be 12-18 months before a court hears the facts of a case for the first time. This is because once a case is filed, the other side would get the opportunity of making its own replication and once the dates are fixed they invariably get postponed due to the absence of counsel or witnesses or delay on the part of lawyers in making their case. There are also cases where the lawyers themselves deliberately seek a postponement of the hearing by coming up with some excuse or other. Legal situation Senaratne said that the backlog is such in the Appeal Court that it would take as much as five years before the case is cleared and judgement delivered. He is especially concerned that the prevailing legal situation could prove to be a stumbling block to foreign investment in the country, now that the economy is bound to expand with the conclusion of the peace talks. " The situation is such today that if any foreign investor takes a matter to courts, we could be certain that he wouldn't see the light of day for another couple of years. Commercial law cases pending in our courts today are in a scandalous state and I say so through experience. The courts should be there to facilitate economic development and not hinder it. Investors should be assured that they will get justice and get it as fast as they get it in their own country. In countries like Singapore litigants do not mind paying higher legal fees to their lawyers as they can be assured that justice will be dispensed quickly and so they know where they stand", he explained. Senaratne proposes that in order to overcome this situation, we should have mandatory day-to-day hearings by enlisting the assistance of retired judges as a provisional measure to clear the backlog."I am certain that if we were to have daily hearings, we could clear the backlog well within a year. Retired judges have a wealth of experience behind them and enlisting them for a specific period should not be a difficult task. The space for sittings should not pose a problem as they could be held almost anywhere, and not necessarily in courthouses. There has only to be the will to make it work on the part of government", he stressed. Retired judges Leslie Abeysekera, Executive Director, Legal Aid Commission and Executive Committee Member of the Retired Judges, Association also supports the idea of appointing retired judges to clear the backlog of cases pending in our Appellate Court. The Retired Judges Association has a membership of about 80 retired Judges including District Court Judges, High Court Judges, Court of Appeal Judges and Supreme Court judges. Judges are required to retire at the age of 60 in the District and Magistrates' Courts, at 61 in the High Court, at 63 in the Court of Appeal and at 65 in the Supreme Court. However,judges who retire at 65 have much more experience than their younger colleagues and this is why in certain states like the US, judges are not retired compulsorily at a certain age, observed Abeysekera. He recalled that the Retired Judges. Association had made a formal request to a former Minister of Justice offering their services in order to clear the backlog and to ensure that cases are disposed of much faster than at present. This particular minister whom a delegation of retired judges had met to discuss the matter, was not even prepared to listen to the proposal, arguing that it would meet with much opposition from career judges as they would lose their chances of promotion. Abeysekera however explained that a method could be devised whereby retired judges could sit on the bench without affecting seniority or the chances of promotion. He noted that the judiciary in Sri Lanka was quite limited with less than 200 judges available islandwide to dispense justice to the people. The Supreme Court has only 10 judges, the Court of Appeal 11 and the High Court about 20, while there are around 75 District Judges and perhaps another 75 magistrates, he pointed out. He noted that the job of a judge was no easy one and that it was simply not a matter of sitting in judgement. They also have to study the cases and write judgements which take a considerable amount of their time. There are even instances where judges experience delays in delivering judgements for the simple reason that they do not have the time to write a proper judgement. This too contributes to law's delays and adds to the backlog. Thus, if the number of judges could be doubled by appointing retired judges who would sit on alternate days, it would give the present judges adequate time to study the cases and write judgements while at the same time relieving them of the workload they are presently burdened with. Appointing retired judges to sit alternately with the existing ones would also not obstruct the chances of promotion as they would be outside the normal cadre. Such a scheme would also enable each judge to hear a greater number of cases than is heard at present, he explained. Desmond Fernando PC, Chairman, Sri Lanka National Commission of Jurists said that although there existed a need to clear the legal backlog, the appointment of retired judges for the purpose should be approached cautiously. He noted that the appointment of ad hoc judges, even for short periods, could lead to considerable opposition from the judiciary as happened recently in Pakistan. Fernando said that if at all we were to consider hiring retired judges, they should be guaranteed security of tenure, which is to say that they should have the same security which judges of the Appeal Court enjoy and should be removable only by Parliament. Such a scheme would however necessitate an amendment to the constitution, he pointed out. Fernando said that instead of appointing retired judges to clear the backlog, it would be a better idea to increase the number of judges sitting on the Court of Appeal where there exists the greatest backlog by promoting junior judges. For instance, we could enlarge the Court of Appeal by promoting senior High Court judges. Similarly, the backlog in the high courts could be taken care of by promoting District judges or Senior Officers from the Attorney General's Department. There could also be lateral appointments by appointing judges directly from the bar. The low salaries of judges however remains a major drawback to recruiting members of the bar for the purpose. Indeed, salaries for judges are so low that the members of the bar may be reluctant to accept appointments, however prestigious it might be, explained Fernando. This is especially so in the case of Appeal Court judges who take an oath not to revert to legal practice. The solution may therefore lie in increasing the salaries of judges,even doubling them. An amendment to the constitution would also be necessary to increase the number of judges sitting on the Court of Appeal, he pointed out. Drastic measures Court of Appeal judge Justice Raja Fernando also supports the idea of hiring retired judges as a provisional measure to clear the backlog, on the grounds that 'drastic situations needs drastic measures'. He noted that considering the state of the economy it may not be possible to recruit new judges or to set up the necessary infrastructure such as courthouses for sittings. As such, there is no harm in giving the proposal a try. He said that this could initially be undertaken as a pilot project and on a contract basis where the ex-judge would be given a number of cases to clear within a stipulated period, the failure of which will result in the non-renewal of the contract. He opined that the proposal could work if only if it were given the necessary encouragement. As to the question of whether there could be opposition from the judiciary, he said that although there might be, there was little else one could do to clear the backlog. Three other senior judges whom we spoke to refused to comment on the matter. Senior lawyer and Secretary of the Citizens's Movement for Good Governance (CIMOGG), Elmore Perera however said that although there was nothing wrong in hiring the services of former judges, this should be done on a selective basis by enlisting only those whose judgements have not been overturned or revised and those who have been found to act impartially in delivering judgements, especially in cases involving government and public officials.This is because there are those former judges who have arbitrarily given judgements and are ultimately responsible for causing the backlog by permitting endless postponements on very flimsy grounds. He further stressed that in case retired judges are employed, they should not be given salaries and perks over and above those which a normal retired public officer is entitled to under the Establishment Code. This should ensure that judicial officers do not attempt to curry favour with the powers that be towards the end of their normal tenure of service for pecuniary gain but rather undertake the task with an intention to serve society."I firmly believe that there are so many judges who will willingly serve under these conditions on condition that no undue pressure is brought to bear on them in the discharge of their duties", he observed. As for promoting junior judges with a view to expanding the Supreme and Appellate Courts, Perera said that the danger in promoting judges, even those who were performing at a reasonably acceptable level, was that promoting them to a higher level at this stage could mean that they would have reached their level of incompetence. He also expressed the fear that such promotions were more likely to go to those who were acting authoritatively and arbitrarily rather than those who acted according to the rule of law. Frivolous appeals A senior judicial officer with long experience on the bench who declined to be named however gave a dissenting viewpoint, arguing that hiring retired judges or promoting new ones was not going to help at all since the basic problem was not the judges, but the lawyers. He observed that even if we were to expand the number of judges, it would be the same lawyers who would be appearing in the courts and it is these lawyers who were ultimately responsible for the delay, either by advising their clients to file frivolous appeals or by not being present when the case was being heard. He noted that as much as 75 per cent of the appeals submitted to the Court of Appeal are based on extremely frivolous grounds and are merely filed on the instructions of lawyers to stall the judgement and to keep the evil day off. He also pointed out that the practice of lawyers constantly asking for 'dates' also contributes to law's delays. Although lawyers have a duty by the court and the client to be present when a case was being heard, they constantly seek a postponement of the case as they have taken up a case in another court and would have to be present there as well. Further, judges burdened with handling many cases a day would only be too happy to oblige a lawyer seeking dates, he explained. |
|
News | Business | Features
| Editorial | Security Produced by Lake House |
