23 September, 2019

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Delays In Adjudication As A Manifestation Of Learned Helplessness

By Basil Fernando

Basil Fernando

Basil Fernando

Deterioration of the legal intellect (7): Delays in adjudication as a manifestation of learned helplessness

A young man, then 18 years old, filed a communication on 28th January 2003, about an incident that took place on 18th April 2002. The UNHRC came to a finding on 14th July 2006. The UNHRC found that the Sri Lankan Government has violated the rights of the man by its failure to adjudicate the case without undue delay. The man is over 30 years old today. Sri Lanka has witnessed 4 governments since 2002. However, his case is still pending before the Sri Lankan courts.

In his communication to the UNHRC, the young man recorded the following, in order to illustrate how delays take place.

“13.10.04 – Case called for trial but no evidence taken.

02.02.05 – A trial date but no evidence is heard.

26.05.05 – The evidence of the author commences: evidence taken for about 45-50 minutes.

12.07.05 – The author’s examination in chief continues: evidence taken for about 25 minutes.

23.08.05 – The author’s cross-examination begins: evidence recorded for about 45 minutes.

28.11.05 – The case is called and postponed without recording any evidence.

04.05.06 – The next scheduled date.”

Between 2004 and 2006 the case had been called eight times and hardly any progress had been made towards completion. If the dates on which the case has been postponed since then were also to be listed out, it would be long and ludicrous list indeed.

SripavanWhat is appalling about this kind of postponement is the trivial manner in which serious criminal trials are being treated in Sri Lanka in recent decades, ever since the practice of hearing a case from the start to the end on consecutive dates came to an end with the abandonment of jury trials.

The general excuse for the delays is that the courts have a heavy workload.

The UNHRC, however, rejected this excuse stating that

“… Under article 2, paragraph 3, [of the International Covenant on Civil and Political Rights] the State party has an obligation to ensure that remedies are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture. The general information provided by the State party on the workload of the domestic courts would appear to indicate that the High Court proceedings and, thus, the author’s Supreme Court fundamental rights case will not be determined for some time. The Committee considers that the State party may not avoid its responsibilities under the Covenant with the argument that the domestic courts are dealing with the matter, when it is clear that the remedies relied upon by the State party have been prolonged and would appear to be ineffective. For these reasons, the Committee finds that the State party has violated article 2, paragraph 3, in connection with 7 of the Covenant….”

A close examination of any of the cases pending for long periods of time in the courts would expose the argument that postponements are done due to heavy workload as not well founded.

Generally, the grounds on which postponements are made can be listed as follows:

  • Lawyers ask for postponements on personal grounds and courts allow these applications;
  • Many cases are fixed for trial on the same day and all such cases cannot be heard on that day;
  • The judge is absent for one reason or the other;
  • Administrative reasons, such as unavailability of stenographers or other technical problems.

These grounds do not arise out of a heavy workload. Rather, all these are management issues. If properly managed, most such postponements can be avoided. However, there have been no initiatives to train judges and other court staff on management skills and there is no enthusiasm for introduction of more efficient modes of management. For example, in many other jurisdictions, the modes of recording of evidence have changed radically due to the advancement of communication technologies.

A pilot project for digital recording of proceedings was experimented with in the Commercial High Court of Colombo and in eight other District Courts in Colombo and Kandy in 2007. However, this project was abandoned thereafter.

If proper technical arrangements are made for making court records through digital recordings, dramatic changes can ensue, reducing the time taken for adjudication of cases. The technologies needed for such work is fairly inexpensive. However, the deciding aspect for introducing such changes is the willingness of judges and court staff to properly manage such a system. It is the will and the skills that are missing and they have nothing to do with extra expenses.

In many functioning judicial systems, the time now taken for hearing and disposing most criminal trials is about one year. In less serious trials, relating to less serious offences, the time taken is even shorter. The habit of granting dates to suit the convenience of lawyers is now an obsolete habit in many such jurisdictions. It is even considered an unethical practice, to seek postponements on that basis. In any case, the judges do not accede to such requests.

The appalling nature of delays in adjudication has done more damage to the Sri Lankan legal system than any other single factor. Going through such a process goes against the common sense of everyone, be it litigants, lawyers, judges, or the wider public. The result is a psychological rejection of the entire system, which runs rather deep in the psyche. However, due to sheer absence of initiative seeking to change such practices that are abhorrent to the people, delays continue to persist.

Delays in adjudication, as they exist in Sri Lanka today, and good governance are incompatible. Delays in adjudication are, in fact, a manifestation of the absence of good governance. Therefore, President Maithripala Sirisena’s government, and, particularly, its Ministry of Justice, should take steps to address this problem within a short period.

As in the case of investigation into financial crimes, where the incumbent government has sought the assistance of experts from other jurisdictions, the issue of dealing with delays in the legal process is also one where such experts can help. Such experts can simply be asked how such delays were eliminated in their jurisdictions. Incorporating these solutions will alone be sufficient to help Sri Lanka overcome the societal crisis caused by undue delays.

A list of dates and postponements of virtually any of the thousands of cases proceeding at a snails pace through the system would demonstrate the comic and trivial reasons for most postponements. This tragicomic situation can be easily done away with. The benefits of such an overhaul would go far beyond what one can describe. One has to only observe how a proper functioning system of adjudication contributes to the elimination of crime and the creation of social harmony to begin comprehending how sorely Sri Lanka needs this change.

*This Article series is based local and international case records, interviews with many litigants from various parts of Sri Lanka, and the author’s previous writings on the subject.

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Latest comments

  • 1
    0

    lawyers Judges & Magistrates are hand in glove to scrounge the litigants like blood suckers so many govts have come and gone non dared to rectify this error.

  • 1
    0

    Mr. Fernando,

    A timely article for a very old problem. The European HRC in Strasbourg I believe has dismissed Italian cases when the delays were inordinate, running into 15, 20 years while those charged by the state died as their case was ongoing without knowing whether their name would be cleared.

    What happened to the young man of your story after the UNHRC ruling?

    You mention as the first reason for delay the following:
    “Lawyers ask for postponements on personal grounds and courts allow these applications”

    More than personal grounds it is that they charge for every appearance so the more postponements there are the better off the lawyers are.

    However in deference to ethical lawyers I must state being represented by

    1) Elmore Perera who never charged me and never asked for a postponement and indeed objected to requests for postponement by the opposing side because it meant a waste of a day for him and his clients and delayed justice for his clients.

    2) M.S. Perera of Kandy whose charges were modest and waived his charges when there was a postponement.

    It is lawyers like this that we need. Good lawyers can fix the problem easily.

  • 0
    0

    Judges should work like all other public servants, 8am to 12noon & 1pm to 5pm, on all weekdays.
    Any case should be heard continuously until a verdict is possible.
    Then only, the backlog of nearly 65,000 cases could be cleared in an year or two.
    Postponements for lawyers’ convenience must be minimal.

  • 1
    0

    Basil should stick to writing poetry, which he actually does quite well. Everything he had produced recently is a rehash of documents produced earlier by the Asian Human Rights Commission, researched, written and edited by others, which he is reproducing under his own name. Very sad.

  • 1
    0

    It’s interesting to see that Fernando has not replied to the post by sloan. Perhaps he agrees with him.

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