Laws' delays - a major concern - Justice Ministry Secretary
By Sahanika SRIYANANDA

Kamalini de Silva
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"Although Sri Lanka's judicial system is of a high standard compared
to other countries in the region, law reforms need to be introduced to
to meet present day challenges, the newly appointed Secretary to the
Ministry of Justice Kamalini de Silva said."
We are still observing archaic laws of our colonial masters. We need
good infrastructure and good management skills to step into the modern
legal systems", she said. Speaking about the laws delays, remedies taken
to reduce the backlog, the faith of the people in the country's
judiciary in resolving their legal issues, the Secretary, who is in the
legal field for over 30-years, said Judges were competent to handle the
issues but need the support of all those in the legal system, ranging
from lawyers to peons to clear cases amounting to over 650,000 cases
which are piled up in courts islandwide.
Kamalini, who spearheads a project to expedite cases related to
children to avoid secondary victimisation of the child said steps had
been taken to avoid administrative delays to reduce trauma to child
victims when hearing cases.Explaining about capital punishment she said
the decision to hang a person depends on the final nod from the
President but she was not in favour of capital punishment as she felt
that the state does not have the right to take away a citizen's life.
Excerpts of the interview
Q: How do you describe the present judiciary system in the country?
A: We have a very efficient judicial system and I think considering
other countries in the region most of our laws are adequate. I'm not
saying that we don't need to bring law reforms to update the laws to
meet present day challenges. But basically we have a good legal
framework. In addition we have quality judges, who are competent. We
also uphold principles.
I am also happy that we have a woman Chief Justice, who is sensitive
to issues that really concern the public.
What is really not in place is infrastructure and also poor
management skills, which is something we have not concentrated on still.
our registries and systems are what we have inherited from our colonial
masters. while they have moved forward we have not. It is really
difficult, particularly in our sector to change from the existing system
to a modern system and it has to come gradually.
The other factor is that we don't have resources and we are looking
into it. As we are a developing country there are many priorities and
the justice sector has not considered development per se.
We really make an impact on the development of the country because if
a land is locked in litigation that land becomes unproductive. For
example say a man who has been dismissed and is later cleared then he is
given his job with back wages, the state or the person spends.
These things impact on projects which are stalled as a result of
litigation and will take time. We have to recognise this fact and need
to work towards a solution.
Q: What are the loopholes that hinder a sound judicial system in Sri
Lanka and What are the changes that you think we need to implement to
bring changes to this system?
A: I have just taken over. I have been in this field for almost 30
years. The laws delays is a perennial problem not only to Sri Lanka but
almost all countries in the region, especially India, though it is
developing fast still it has a huge backlog. Many studies have been done
for the last so many years.
I don't intend to turn the wheel. We will make use of the
recommendations and reports of several committees on the laws delays on
how to expedite cases.
My predecessor has made an amendment to the civil procedure code
which will definitely help bring some of the statutory provisions in the
earlier laws. We are also trying to introduce judicial mediation which
will help to expedite cases.
There are many things that have been recommended to reduce the
backlog. Fortunately, Minister Rauf Hakeem, who is also an experienced
lawyer and well aware of the scenario, will support us to overcome the
issue with the support of the Law Commission.
I am confident that I will get the support of everybody to implement
some of the recommendations in the reports to take remedial action to
resolve the laws delays.
Q: So you are confident that the recommendations of those committees
will not gather dust anymore?
A: Yes. We will take it up and also try to expedite this issue which
is the major problem in the judiciary. Over the years, we have been
taking steps to address this issue but could not resolve it although we
have enacted laws, conducted programs and provided necessary
infrastructure.
We are going into modernisation, e-governance and also brought in
computerisation to expedite the system but as I said before still there
is a lot more to do.
Q: However due to certain incidents the majority have no faith in the
judiciary and claim that there is no independent judicial system in Sri
Lanka. What are your comments?
A: I refute these allegations. Most of our judges still maintain
standards and people have confidence in the judiciary system. There have
been studies where people have said that when they have a problem they
will go to courts to resolve it. They will also try mediation and thus
is the confidence that has been built over the years. I don't think
there is an erosion as such but there may be isolated incidents where
they feel that they don't have confidence in the system. But the
majority believe in the system that is why so many people go to courts.
If not they will not seek justice from the courts. They know that they
will get justice. But as I said earlier the laws delays are a serious
problem.
Q: The post of a Master is to be introduced to expedite delays. How
do you think this will help the purpose?
A: The initial steps in a case are handled by judges. with the new
law coming in the preliminary steps will be handled by a Master. Then
the judge has more time to hear the case.
But if you go to courts now you can see till 11.30 am judges involved
in handling preliminary work and they are tired by the time they hear
the case. Under the new system they will have more time to hear the
case. A judicial officer will be appointed to the post of Master.
Q: It is reported that there are over 750,000 cases piled up in
courts. What are the main reasons for this and how does the Ministry
plan to reduce this number?
A: The real number is over 650,000 and you need to remember this is
an assessment but there is no count on all the cases. Some of them may
be on the role but parties are disinterested. so the case remains.
during the last few years the number of courts have been increased and
also the number of high court judges.
There is the jurisdiction gazette where we have provided that
litigants have to travel the least distance to the court and they will
have new courthouses and this will help to clear the backlog.
But management is weak and to address this we have establish the
Non-Judiciary Training Institute to train those who are in courts like
registrars, fiscals and peons. They are very important people in the
process.
Their inefficiency contributes to the laws delays and it is not only
is the judge's role important but also the support staff. If the support
staff is not competent, naturally there will be a delay in the cases.
Q: Do you think judges are also responsible for the laws delays? and
also it is claimed that most of our courts are still lacking facilities.
What is your comment?
A: Judges have a role to play. I personally know this because we have
been training judges. They are committed. The Laws delays are not the
fault of judges or lawyers but they don't have the necessary support. It
is a contributory aspect and even litigants are reasonable.
Judges really work hard. We want the support staff to be competent as
we still follow the old archaic system. It is a very good system, where
you will not default. Everything is recorded but because the numbers are
huge, we need to be more efficient.
For that we need to introduce computerisation, a case tracking system
and new methodology which has been introduced in countries like
Singapore.
They had many problems earlier but they really went all out and
introduced the new system, which costs a massive amount of money but for
us as we are still developing and it is difficult to invest so much to
have a efficient system, which is doing everything online.
Q: Has the Ministry taken steps at least to kick start with modern
technology?
A: We are in the process and taking steps to computerise the system
and computers have been provided. That alone is not enough. we need to
introduce systems to make it efficient otherwise replacing the existing
systems and computerising it will not make a difference.
Q: Courts in the North and East are established after decades and how
do you evaluate the progress?
A: New courthouses have been established where existing courthouses
were damaged.
They are functioning well and we are focussing particularly on the
North and East. A building program is under way to establish courts in
those areas.
Q: Language is a barrier in the courts in the North and East as they
lack Tamil speaking judicial staff. How does the ministry plan to
overcome this issue?
A: Recruiting judicial officers is done by the Judicial Services
Commission. It is their role and they have recruited some officers. They
are taking steps to address the issue.
Q: Are there any plans to redesign the Judiciary system, to set up a
court every 20km?
A: I don't think there is a need to have a court every 20 km. We have
a mediation Board in every AG's division. As much as we bring justice
close to the people, we must see that they get true justice so we need
good judicial officers.
The Ministry has the jurisdiction gazette where we have looked at
liaison and accessibility. We have looked at areas and we have provided
court houses according to the needs of the country.
Q: How effective is the legal aid system, which was set up with the
intention of facilitating the public?
A: Being a member of the Legal Aid Commission, I have personally seen
the financial allocation being has tremendously increased as there is a
need to assist people to resolve legal issues. The Present Chairman of
the Legal Aid Commission, S.S. Wijeratne is very committed and has the
vision to have Legal Aid Centres in every courthouse and we have been
working towards that. Poverty does not mean that they should not have
access to justice.
Legal Aid is a very important component and it is providing a service
to the people. We have also been trying to enhance the cadre of legal
officers to ensure that we don't get second class justice. We try to see
that lawyers who appear for litigants are competent.
Q: Computer-related crimes are a novel experience in Sri Lanka. What
are the steps that the ministry has taken to address this issue?
A: Yes, the Computer-related Act already exists.
Q: Does the Ministry intend to change the system of the
identification parade, where everyone has a face-to-face-meeting
session?
A: The issue here is that sometimes people are afraid to identify the
perpetrator of the crime. In some countries they do it behind a glass
panel so the victims are protected.
We are thinking of such a system, especially in the cases of children
as it provides a certain amount of protection. But one-way mirrors are
costly.
Q: When a minor is raped and a complaint is lodged, she will be
mentally undergoing the trauma because of the lengthy interrogation
process. Can the Ministry look into a different system where there is
less exposure for the victim to report her story?
A: We have a new project where the police, the Attorney General's
Department and Health Ministry are involved. I am spearheading it from
the ministry.
We are trying to see that there is no secondary victimisation of the
child and also to expedite the case.
Training programs for police officers are underway and the pilot
project has been a success.
We have got the commitment of senior officials of the AG's Department
and the Solicitor General, who is the brainchild behind this scheme are
keen that this project gets off the ground.
We are avoiding administrative delays to reduce trauma for the
victim. The Police is giving excellent support. They have realised that
they have a duty towards cases relating to children. We have a very good
system in Sri Lanka where the rights of the suspect is also protected.
Q: With the crime wave, there are growing calls to implement capital
punishment. Are you going to consider it?
A: Capital punishment is there in the existing law. We have not made
a census. The final say is with the President. We have stringent
punishment for those who commit grave crimes but personally I am not in
favour of capital punishment as I feel the state does not have the right
to take away a citizen's life.
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