Sri Lanka's perennial problem of delayed Justice
Today, when one enters into litigation in our courts, one has no idea
as to when one will learn of one's destiny on this critical matter of
one's life. Such is the delay in justice in our country.
How many years have ordinary Sri Lankans waited for their court cases
pertaining to a property issue, or personal relations, or business, to
be finally resolved? How many years have suspects in crimes waited in
remand jail for court cases or preliminary legal proceedings to be
completed to enable their guilt or innocence to be established? How many
kilometres do litigants have to travel from village to court in a
distant town and, how many times in the course of a case?
Society is replete with frustrating and disheartening experiences
caused by the many delays in the system of justice.
Administration of justice in Sri Lanka is burdened with many glitches
ranging from a high backlog of cases in Courts of Law, to overcrowding
of prisons which is seemingly bursting at the seams.
The reasons are numerous, and it is important to fathom the actual
reasons to find lasting solutions. Though it has been considered by many
as a critical social issue, it has not surfaced in a strong manner to
generate a robust debate in society to compel the government to address
them and take immediate measures to mitigate the ill effects of this
We often use the dictum "Justice delayed is justice denied," coined
by the famous British Prime Minister William Gladstone, and at times, go
further to quote Dr Martin Luther King Jr who said, "Justice denied
anywhere diminishes justice everywhere." All these dicta remain mere
words if we, as a vibrant democracy, fail to take appropriate steps to
resolve the issues at hand.
Delays in legal proceedings have immensely contributed to social
upheavals and even isolation. The financial issues emanating from such
delays are mostly unbearable in many cases and some individuals have had
their lives torn apart due to undue delays.
It is the poor litigant who is at the receiving end while the
governments that have come into power since independence continuously
failed miserably to find practical solutions for this recurring problem.
Most holding high offices would say "this is a perennial problem not
only to Sri Lanka but to the countries of the region" and try to shift
the blame elsewhere.
Delays in dispensing justice would inexorably lead to people
inevitably losing faith in the system and taking the law into their
At present, according to our sources, there is a massive backlog of
over 65,000 cases pending before the Sri Lankan courts.
When the Sunday Observer contacted a senior legal luminary, who spoke
on the basis of anonymity, he said, "I have tried to resolve the issue
or mitigate it for the last 15 years but it was such a dreaded subject
that I don't want to talk about it.".
Former President of the Bar Association of Sri Lanka (BASL) Romesh De
Silva PC refused to comment on the delays of the law. "I have spoken
many times about the issue on different platforms and even addressed the
Bar Association. I don't want to speak about it any more", said De
When contacted, the President of BASL, Jeoffrey Alagaratnam said, "We
need more manpower, capacity building and more judges. In addition, laws
and procedures need to be improved."
He said, the system needs to have more processes such as mediation
boards to resolve disputes rather than referring all the cases to court.
E-filing and tracking of cases online will fast track the process and
suggested the need for a system where things are resolved out of court
and the courts are the last resort. This would definitely reduce the
number of cases which get stuck in court, he said.
"In Singapore there is a system where postponements carry penalties.
In Sri Lanka, if a lawyer doesn't turn up or the case is unnecessarily
postponed, there is no penalty," said Alagaratnam.
He said, the BASL has frequently recommended various methods to
reduce the trial period. But, compared to the economy and politics,
these things are considered less important and are not the priority of
Meanwhile, even as the Justice Ministry tries to tackle the problem
of laws' delays, its own proposed amendments to introduce new systems to
expedite the process have been delayed.
Minister of Justice Wijeyadasa Rajapakshe, in January, had reportedly
said, draft legislation to enact new laws and amendments will be
presented to Parliament "within the next two months" but, months later,
this has still not happened.
The Minister last week told the Sunday Observer the bills would
include amendments to the Civil Procedure Code, Motor Traffic Ordinance
and the Mediation Boards Ordinance.
"These things take time. We should be able to do it in the next two
months", reiterated Minister Rajapakshe.
"Law delays are not a new thing. We have been discussing the topic at
various seminars even as far back as the 1950s and 1960s. But now we
have identified key issues that need to be dealt with and we will be
introducing amendments, to address the main concerns," he said.
Attorney-at-Law Gomin Dayasiri's opinion was that when laws are
delayed, the blame is often placed on the courts and judges. He says
delays are sometimes deliberate.
"According to my knowledge, it's only a few judges who will delay a
case. Most times, the delaying is by the lawyers. Political cases are
usually tactically delayed or expedited to get the benefit originating
from the regime in office," he added.
Meanwhile, prison overcrowding today is a result of the ponderous
justice system and its many delays. If the prisons are bursting at their
seams, one reason is that the accused is often remanded in prison before
being tried or convicted.
Minister of Prison Reforms, Rehabilitation, Resettlement and Hindu
Religious Affairs D.M. Swaminathan told the Sunday Observer, "when the
number of remand prisoners increase, there is heavy overcrowding which
then burdens the prisons system."
"At times when prisoners cannot pay even a trifling fine they are
remanded and detained," he said. "We are committed to uphold
international standards prescribed for maintaining prisons and thereby
ensure the dignity of the prisoners," Swaminathan said.
He said, the lack of space for the gradually increasing number of
prisoners is the cause, especially in remand prisons due to the
inability of suspects to pay fines for minor offences.
According to the Minister, the government has drafted an action plan
to carry out prison reforms and is now negotiating with relevant parties
to obtain suitable land for a prison relocation program. Under this,
prisons will be relocated to rural areas. "For example, Welikada Prison
will be relocated to Horana," the Minister said.
He said, suggestions have been made to the President and the Prime
Minister to implement the Malaysian style prison system. The Ministry is
currently working with the Justice Ministry to address issues such as
'no date cases' and overcrowding.
"A task force has been appointed to address these issues. Our
Ministry will co-chair the meetings of the task force which will convene
in the coming weeks," he said.
Swaminathan opined they have suggested that payment of fines be made
in instalments and direct offenders who have committed minor offences to
be involved in social work rather imprisoning them.
The Minister said their main concern is relocating the prisons.
"Drafting laws to ease overcrowding has to be done through the Justice
Ministry and as I mentioned earlier our Ministry has made the necessary
recommendations," he said.
To grant 'bail' or not
A Commissioner of the Legal Aid Commission, also heading the
committee formed by the Justice Ministry on the issue of overcrowding in
prisons, U.R De Silva, told the Sunday Observer there was often
difficulty in obtaining bail, especially with regard to minor offences.
He said the provision on bail contained in the Criminal Procedure Code
was enacted to grant bail as of right.
He said although an Officer in Charge (OIC) of a police station has
the authority to grant bail for minor or other bailable offences, they
do not grant bail, basing their decision on section 14 of the Bail Act.
Section 14 of the Bail Act says if the investigations are not
completed and the Police are of the view that the person will go out and
commit an offence while on bail, or interfere with the witnesses, or the
alleged offence may give rise to public disquiet, the court may refuse
to release such person on bail or upon application.
"On that ground, they can ask the magistrate to decide on the matter
and remand the person even if it's a bailable offence. This leads to the
imprisoning of suspects unnecessarily," said De Silva.
Although the purpose of enacting a Bail Act was to grant bail,it is
not happening as required and expressly stated by the law, he said .
When Police filed a report merely saying section 14 applies the
magistrate would order the suspect to be remanded," he claimed.
As suggestions, De Silva said there must be proper and solid evidence
to show that section 14 will apply in any situation and only then a
person can be remanded. He said, the Magistrates and Police officers
should be educated on this matter. "In grave crimes remanding a suspect
is essential given the nature of the offence. But for minor cases
authorities should not remand people for the sake of remanding," he
De Silva said, the Justice Ministry has formed the commission to look
into this matter and provide suggestions. At present the Police and the
remand authorities are given the opportunity to present their ideas and
suggestions. "We questioned the purpose of the committee when it was
formed. We hope the suggestions will not remain suggestions," said De
In terms of Section 5 of the Release Of Remand Prisoners Act (No. 8
of 1991) it is the duty of the Magistrate to visit the prison. It says,
it shall be the duty of every Magistrate to visit every prison situated
within his judicial division, at least once a month.
Deputy President of BASL, Saliya Peiris, explaining the purpose of
such visits to the prisons by the Magistrates, said it is to find out
whether people are detained/remanded unnecessarily and ascertain whether
there are defendants unable to make bail, and he also plays a
supervisory role to ensure the welfare of the prisoners since they are
kept in state custody.
"Prior to making a remand order, the magistrate must apply his
judicial mind and consider whether remanding is necessary and whether in
fact there is sufficient material against the suspect," said Peiris.
He added, sometimes judges use the "weapon of remand" to punish
suspects, "For them, remand is a way of teaching a suspect a lesson.
Some suspects are thrown into remand for trivial offences, even before
they are found guilty, contrary to the presumption of innocence."
Explaining how unnecessary use of remanding will affect people, he
stressed that even after conviction one must see whether the ends of
justice are met by imprisoning people. "The other important question is
whether the prisons really rehabilitate persons. It is not a place where
people come out better," said Peiris.
Speaking of another factor causing delays he said, is the fleecing of
litigants by repeatedly postponing cases, lawyer and international human
rights expert Basil Fernando said that prolonged litigation "creates a
culture that encourages lying" and the long years between the commission
of a crime and disposal of the case provides immense opportunities for
unscrupulous litigants and lawyers to engage in many forms of
"The types of manipulations and tricks are varied. For example: a
party that is aware that it has a weak case will want to delay the
trial, with the expectation that, at some point, the opposing party will
get tired and not appear in court," he said.
He said the victims of crime, who already suffered from serious
emotional distress, particularly in cases of rape, murder and similar
crimes, may find it difficult to repeatedly come to courts for many
years. As a result, criminals can slowly get to being acquitted due to
discouragement among complainants or witnesses.
"In some instances, the prosecutors may offer trivial punishments if
the accused is willing to plead for a lesser crime than the one he is
charged with. An example is the granting of suspended sentences for very
serious crimes, including rape," said Fernando.
Also, when the same case is heard by several judges, the judgment is
written by the last judge, who, on some occasions, has not heard any of
"The final judge, who writes the judgment, is unable to appreciate
vital aspects of the trial or could be misled by some unscrupulous
lawyers who, in their submissions, give a version of events not
supported by the actual evidence led in court," he added.
Not having enough, Appellate Courts in the provinces is also another
reason for the laws to be delayed. However, when questioned whether
there is a move to have Provincial Appellate Courts, Minister Wijeyadasa
Rajapakshe said, "We already have several Provincial Appellate Courts,
there is no move to have any more."
Time taken to resolve land issues especially with regard to partition
cases is always highlighted since it takes more than 10 years if the
parties to the action are many. President's Counsel Uditha Egalahewa
agreed that partition actions do take a lot of time to get resolved.
"In such cases, each person's claim has to be established, each party
is entitled to commission of a surveyor and they can challenge the
other's surveyor, then the preliminary plan as to how it should be
divided, takes time. But it is not so in every partition case," he said.
Egalahewa said to solve this issue, the government has now introduced
a system named title registration, which is in operation in some parts
of the country. Still there are issues. "Nevertheless, it is an
effective remedy for these types of complex partition actions," he said.
With the introduction of Labour Tribunals, which became a popular
machinery among workmen, it has enabled to provide speedy settlements of
industrial disputes both collective and individual. It is a good
solution to stop laws being delayed.
According to Egalahewa prior to 1950, before Labour Tribunals came
into being, the only remedy was to ask for damages for termination and
the employee never got back the job. Labour Tribunals are a creation of
the Industrial Dispute Act.
"In 1957, Labour Tribunals were instituted by an amendment where
specific statutory powers were given to order reinstatement. The
litigant will be either compensated or reinstated," he said.
He said, in the Industrial Dispute Act of 1950, the main dispute
resolution was the arbitration procedure and it was not very effective.
It is at the discretion of a political body to refer a dispute through
arbitration and it took fairly a long time.
Former Additional Solicitor General and President's Counsel, Srinath
Perera suggested that the law has to be amended whereby an employer can
terminate the services of an employee without any due reason. "But if he
does so the worker must be compensated with a reasonable amount of
money," said Perera.
He said, Labour Law in this country should be amended according to
the present day requirements.When the Sunday Observer consulted a former
Attorney General as to how the laws delays could be mitigated he said
issues in the criminal justice system can be reduced if a system is
introduced where the Attorney General's Department, Police and
Government Analyst's Department are linked so that the process is more
accurate and speedy.
"Delays in the criminal justice system need to be fixed quickly,
since it can make a dent in the delay", he added.
He said, with regard to civil cases, court houses and judges should
be increased, especially to clear up the backlog of cases retired judges
could be hired, he said.
The Minister of Justice admitted that there is an increase in the
backlog of cases due to the increase in disputes over the years. It
meant that more cases were coming into courts, creating an even bigger
"We have opened new court houses and planned to open more to deal
with all these cases", said Rajapakshe.
What people say
Litigants get severely burned by the issues of delays in law and it
disheartens them to go before courts seeking justice. Most continue to
be disappointed in the current system.
Rizni Fareed, 45, from Wanawasala says the last few months have been
a very frustrating time for him and his family of four.
"I didn't want to pursue legal action because I knew a case of this
nature could drag on for years. But when my business partner decides to
go to the Magistrate's Court, I had no option but to support him," he
Today, Rizni says, he has spent more than Rs 60, 000 as lawyers' fees
only to see the case being repeatedly put off.
"We are fast becoming cash strapped and there is no way out," he
lamented. "At this rate we will be spending more than we hoped to get
back from the case."
A resident of Piliyandala aged 80, who sought court intervention
regarding a land issue is still being heard for over 30 years. He said
that now he has lost faith in the existing system and wished he never
initiated such an action. He also blamed the lawyers for dragging the
Another litigant who wishes to remain anonymous expressed her utter
displeasure over the existing judicial proceedings, and said, "I hired a
President's Counsel for my case. I was told that it will take only six
months for the trial to end and it has been three years and the case is
still not settled."
Given her busy life with the job and household chores she said
sometimes she even considered the option of discontinuing the claim.
Coming from a family of lawyers she said, "I have lost track as to how
much I have paid for my lawyer. When they demand we have to pay because
we want this to end soon."