19 September, 2019

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Reforming The Judicial & Regulatory Agencies

By Kumar David

Prof. Kumar David

KK, I won’t tell you his real name, is good natured and a reliable friend (I have suffered him from schooldays) but he is also regarded as a pain in the butt because of the chaotic, topsy-turvy, upside-down emails of epic length he inflicts on his friends. If you learn Greek or Sanskrit or whatever, and if you have the everlasting patience to decipher, they do often address important issues. Two big issues that have been KK’s bee-in-the-bonnet for many years are telecommunications tariffs and systems, and the one which I intend to bring to your notice today, the need to reform the judicial and regulatory systems in Sri Lanka.

One of the advantages of election season is that candidates, corrupt and untruthful or decent and serious, are hungry to Hoover up anything they can chuck into their election manifestos. No matter, it’s an opportunity for me to push ideas into the public domain and the public is hungry to learn. This explains the timing of the topic of today’s column. The following has been extracted from one of KK’s recent mails and rendered into readable English. It draws attention to two issues of cardinal significance and Sri Lankan society will make little progress towards good governance without sorting them out.

Hamlet thought self-slaughter (suicide) better than “the laws delays and insolence of office”. Every citizen has at some time in life, or more than once, been subject to insufferable judicial delays, witnessed the systems incorrigible inefficiency, torn his hair out at the absurdity of its processes, and seen the powerful and the rich get away scot free while the hungry urchin who steals a loaf of bread has his right hand chopped off, literally in some Islamic states. Also, retired US judge F. Molloy accuses lawyers and judges of colluding to rip-off hapless clients. The most common quip in America is that the best lawyer is a dead lawyer. 

There are two ways to circumvent some of these problems, appointment of lay-judges and use of technology. A lay judge or assessor is a person with expertise in other fields who sits with the judges, or assists without sitting on the bench. The inclusion of subject expertise has expedited processes and improved the quality of judgements. The system is used in Japan, Germany, Finland, Austria, Norway and Finland. I have heard about something like this in China but am not sure. That technology can improve and expedite the judicial process is not something I need to expand on. It is obvious to every reader. Those drafting programmes for presidential candidates should include this in their lists of promises even if, as usual, nothing is done eventually!

The final matter that KK draws attention is that there are dozens of Regulators in the country, nearly all useless or worse – they actually do harm. This is not what in India is called ‘licence raj’ or the inability to get anything done because of bottlenecks; this is about bodies such as the Telecoms Regulator, the Electricity & Electricity Regulator and dozens of others which are sinecures for Chairmen and Board Members, jobs for the boys and corrupt to boot. These agencies need to be abolished or completely restructured.

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  • 1
    1

    As always Dr KD proposes radical overtures and views for change. I admire his vision however unpalatable it my be to the establishment. Change is a necessity in the administration of justice and this includes the appointment of judges too. In Plato’s words to place everything in a state of flux I would like to see a system that operates in the examples of UK with the Lord Chancellor’s office being fully independent as it is. In Sri Lanka there is no separation of powers as Dicey would expect because the appointment of judges is taken over as a prerogative of the executive. This makes a fallacy of the separation of powers essential for the rule of law and a laughing stocks in the face of the world that cherishes the very independence of the judiciary. In Sri Lanka we know not what it means to avoid conflict of interest and very rarely the concept is adhered to. On and off we see sometimes judges withdrawing themselves from hearing of a particular case citing conflict but one rarely would accept it because one can notice the judicial dependence or of some past allegiance to those litigants associated with the particular case. That said the issue of conflict seem never to rise in other administrative bodies including those of the Regulatory Bodies KD mentions. This indeed is a travesty and contributes to injustices to the public and derogates public confidence in those bodies.
    On the question of the appointment of lay judges, I consider this unworkable in Sri Lanka. Take for example the Magistrates in the UK are almost all of them are lay people. The court clerk is the only legally qualified officer who would advise the magistrates. Even there the system is now considered somewhat outdated and reforms have been proposed. This is in spite of rigorous selection process of the lay magistrates.

    • 0
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      perera,
      When KD speaks, it is always better be alert to see what is he up to! That is b’cos not just “dead lawyers make good lawyers”; dead Marxists also make good Marxists!

      The need to find some resolution to delays in the justice system is nothing new. Lawyers attempts to drag litigation may be only one small factor. But, I think that the biggest reason is not expanding the court system to meat population increase. there is huge need for the increase of lower courts in all districts, particularly in highly populated districts. However, not all delays are necessarily harmful for justice. In some cases, where exhaustive investigations are essential particularly when evidences are carefully destroyed or participants are not cooperating as in the case of Lasanatha or Thajudeen case, time can becomes a crucial factor!

      • 0
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        The cases you refer are cases of rarity and not the norm yet the exception. It is undisputed that the delays in the administration of justice causes grave injustice to the litigants. Just to reiterate it is time apt to embrace digitalization to expedite judicial case management and witness evidence. This prevents the unnecessary risks associated with the transport of accused in custody to courts and I need not elaborate on the number of incidents that has taken place.

        Well on the point of Marxism, I disagree. what is wrong with Marxism? In certain aspects it is better than tyrannical behaviour under the guise of political democracy.

        • 0
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          perera,
          I won’t contest the first para but about your question, “What is wrong with Marxism?”, my short response is, “Everything is wrong!” 1. The “Philosophical” claim that it is a materialistic theory is wrong. B’cos any theory based on value judgement – profit is “bad” b’cos it is exploitation – automatically fails to be qualified to become materialistic. “Profit is bad” is a preferential claim; not universal fact! Such claims are OK for religions; but no for materialistic science.

          2. The “Theoretical” claim that price must depend on the labor or the principle of Labor Theory of Value (LTO) not only is now replaced by “supply & Demand” (this concept didn’t exist when Marx developed LTO) but is impossible to practice in the modern complex global trade system.

          3. From “Practical” aspect, all the nations that experimented with Marxism have either given it up (Russia, China, Vietnam or stay as failed autocratic states (N Korea, Cuba).

          Marxism is nothing but a failed effort to apply Hegel’s model developed to explain the progress of knowledge over time into political economics. But, today nobody believes Hegel’s claim that knowledge or any human activity for that matter, follows a linear path to progress as Hegel surmised. Even the term “Progress” has no natural meaning; it is only a human concept with a very limited meaning defined by selected “criteria”.

          Sorry, but I have to stop here before the word limit of 300 exceed!

          • 0
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            I beg to differ from your thought provoking response based upon the existential prejudices developed against Marxism mostly by the neo liberals. To be honest neo liberals embedded with the capitalist orientations have brought in the destruction of our traditional institutions. They are responsible for political tyranny under the guise of national security and protectionism based on existentialist pro capitalism. I hope you understand that Marxism is more than an intellectual tool for mainstream commentators but it is operating in the midst of neo liberal existentialism to be a political tool in the modern day. I am saddened to see that you are still caught in das capital or Hegalistic thought of the yester year. But the modern day emphasis on Marxism is based on a perennial discovery of the Marxist thought to make it relevant to the signs of the times and offer much more than what was offered in early 20th century. It is also not supposed to be a socialist Disneyland but continues to present a willingness to present a vision for the future. This is what is known as revitalized Marxism to defeat the evils of neo liberal political acquiescence.

            • 0
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              Thank you, “perera”. I have no problem with these comments of yours.
              .
              It is a real relief to be able to say something nice!
              .
              Regards.

              • 0
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                There we go, the sentiments of the self appointed trustee of human expression! . Notwithstanding that, point taken.

            • 0
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              perera,
              Your reply is nothing more than a collection of fancy but meaningless words. “revitalized Marxism” only means “old wine in a new bottle” and nothing else. Instead you must at least say:
              1. The ten basic demand stated in the 1848 Communist Manifesto are either given up or replaced with with something else.
              2. How does your “revitalized Marxism has eliminated the philosophical, theoretical & practical errors I outlined earlier.
              Are suggesting that you following Chinese & Vietnamese model meaning keeping one-party political system (no freedom of speech) with sickle & hammer hanged in the office buildings while practicing free trade system?

              I’m not caught with Das Capital but there no is Marxism without it. If you say “revitalized” then your responsibility is to explain how the “revitalization” deffer from your ‘Bible”. Failing to do so means either you don’t know the philosophical & theoretical basis of Marxism or you’re simply trying to avoid an embarrassment. Why is so difficult mention in point form what your reforms are?

              I heard the other day AKD promising to restate the pension scheme for Gvt employees if elected. Does this mean abandoning the private sector?

              • 0
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                Unfortunately today is my day to sell some apples. You receive my response on Monday then you will taste and see how good my ignorance is.

                • 0
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                  perera,
                  Sell some apples but you won’t be a Marxist any longer if make a profit.

          • 0
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            D.P.
            As a person, the Marxist, Prof. Kumar, is a good person. I don’t believe that you are taking the debate to that angle. Then, though Marxism died long ago, it has not made any better yet. As long as Marxism is not making any better itself, how a good Marxist (in other words a person good in Marxism) would appear?
            Further, when lemons are only sour, how a farmer who produces sweet lemons would become a good farmer? Isn’t that something is wrong in his farming, if his lemons are sweet? (Or rather are they really lemons).
            A dead lawyer may stop robbing the clients thus he turns into a good lawyers(need not to become more proficient in law), but the dead Marxist would go only silent.

            • 0
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              Mallaiyuran,
              No, I didn’t wish KD’s death! I also knew Marxists with extremely good personalities. My issue with them is their efforts to keep the wrong theory alive. Just look at the mess a small group of students creating in our universities. What if KD and his NPPM pave way for GoRa’s win? Those are real life issues; not mere intellectual issues!

  • 0
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    useless talking about it as nothing will be done about it in good old srilanka
    we cant send the politicos home so how can we do the same to judges and regulators

    • 0
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      KUMAR DAVID!
      I know of a friend of mine who is awaiting his FR Verdict for the past
      3-1/2 years He had addressed letters to the Chief Justices and the Attorney General, but no response has been forthcoming. In desperation, it appears that he has sought the assistance of RTI to ascertain the reason for such a long delay.
      Appointing Lay Judges will be a good move, where ever feasible and prevent the appearance of lawyers in’Law Enforcing Authorities’ like CMC, UC, Condominium Management Authority, Consumer Affairs Authority and the like. For the lawyers who appear in these law enforcing authorities, it comes under ‘Any Other Business’ of their agenda as they live on “Dates” and consume ‘quite a lot of it’ at the expense of both the Respondents and the Defendants.

  • 3
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    There was a Supreme Court judge who famously said “Lawyers exist on dates, like the Arabs”. He used to occasionally call up long delayed cases from the lower courts and hear them and give verdicts expeditiously.
    All lawyers hated him and most boycotted his funeral.

    I was charged in the ‘traffic court’ at Narahenpita for “speeding” in the nineteen seventies, and was surprised to see the very same policeman who stopped me on Galle Road at 10 pm & accused me, functioning as the “court sergeant”, He told me a dozen times to “put a motion through a proctor” and kept putting my case file at the bottom each time the case was called. I told him that I will complain to the judge, and finally he allowed my case to be called. The judge on hearing my designation in public service and seeing my twenty year old car told me “You can go home” with a smile – No Charge.
    He obviously knew what was happening.
    Now, the situation is much worse it seems.

    • 2
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      I know a piece of litigation that was taken up on only four sittings plus two for submissions and verdict, but spread over 7+ years and 30 + court appearances.
      *
      The medical business is no kinder.
      I know of a recent case where a patient had to chase after the specialist to 3 different hospitals for post-surgical consultation; that was a week after he kept the patient waiting for him for 4 hours well into the night before he arrived for the operation that lasted a few minutes.
      These professions thrive on our misery and nearly all the professionals treat us like dirt.

  • 1
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    The only persons who speak highly of lawyers are other lawyers. They pat each other on the back and use flattering phrases like ‘Learned Friend’ and ‘Eminent Counsel’ when referring to one another as nobody else would do that.

  • 3
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    It will take another 200 years to do this..

    • 0
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      yup, at the end of the next 200 years, the country called Sri Lanka will be divided into two seperate parts by two electric walls on either side and in between you will see the sea connecting Pacific and Indian oceans!!! How GREAT is that?

  • 0
    1

    Two thing may speedup the process and lessen the cost for the clients.

    1). Allowing the MCC to electronization of Judicial system.
    2). Importing Indian Lawyers under ETCA to increase the competition to the current lawyers.

    In reality MCC’s improvement and implementing ETCA will boost the economy’s size thus will benefit to the current lawyers while making things easy for clients.

    • 0
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      Mallung
      Can you please explain what “electronization” means.
      I have heard of computerization and digitization, but this sounds like new technology.
      *
      I wonder why Karunanidhi asked GGP to appear for him, with all the expertise available around him.

      • 0
        1

        Savams,

        “I wonder why Karunanidhi asked GGP to appear for him, with all the expertise available around him.”

        That is because you are though jack of all trades; masters of nothing, so don’t know to use google. Get your own dictionary man!

        (Snake knows the track of snake. GGP doesn’t needed any explanation of was underlying behind Karunanidhi’s case)

        • 0
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          Can you please do your Google on “electronization” and come up with a definnition for the benefit of humanity (or name your personal dictionary of unheard of words).
          Who asked GGP for an explanation?
          Mallung brains, the comment was on Indian expertise.

      • 1
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        “Can you please explain what “electronization” means.”

        Hehe, this is the Dravidian way, invent new words and claim the old ones come from Tamil.

  • 1
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    Dear Prof. Kumar David,
    .
    These are precisely the things that Nagananda Kodituwakku has said that he will get attended to.

  • 0
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    Oh what a synchronicity, as the situation is quite similar if not the same here. The following is my most recent follow-up to the ACIC Australian Criminal Intelligence Commission & IBACK independent broad-based anti-corruption commission before reading Prof’s KD’s piece. I will enter a two-part posting due needing to conform to the 300-word cap.

    On the ongoing injustices and criminalities of almost all the intimidatory regulatory bodies appointed by the government.

    1. For the 2nd time in two decades, I have been further victimized by a dishonest & corrupt double-crossing lawyer Ajai Thapliyal, the AFP, the local police, the VCAT, the Vic LSBC & its fidelity fund, the JSC, the Vic Ombudsman. It is all over the same matter of the corrupt and the primarily self-serving purchase process and ongoing negligent and many repeated refusals to repair recurring faults by Mirvac the developer cum builder that dawned on me through the VCAT legal process about my home at Mulgrave. These regulatory bodies are failing to uphold the truth and act fairly by the victim and are 90 to 95% of the time intent in serving the developer, builders, Tradies and professional classes practically as a welfare institution for them whilst further victimizing and trying to criminalize me.
    2. The whole matter is like a “domino-fall like chain effect” due to the many failures as one body fails me, I go to the next or the other due the failures of this other I keep going to the next port of call and all the way to all these bureaucracies that are primarily self –serving to avoid work as well as due to other systemic failures amounting to criminal conduct of the bureaucratic staff. They chose to believe those with wealth, power and influence and not an ordinary person like me.

  • 0
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    On the ongoing injustices and criminalities of almost all the intimidatory regulatory bodies appointed by the government.

    3. This is also partly due to inconsistencies and contradictions in the rules and legal Acts as well as due to these bureaucracies taking an open partial and partisan stand to favor the business and merchant class. Things have not changed over the last couple of decades. I suspect this would be similar to the pending banking royal commission recommendations as well. Even as the former Vic Legal Ombudsman, Vic legal professional tribunal and the Vic Professional Standards were amalgamated into the Vic LSBC. It will be mostly a token, nominal and farcical with the same if not similar bureaucracies and staff being subservient to corrupt power & authority to survive & thrive in their employments with the least regard to the survivor victims.

    4. Please help in any way you can and will with these issues that seem to me to as systemic and personal to me and others like me that I have shared my experiences repeatedly over a community private radio station call Australian Tamil Broadcasting Corporation (ATBC) stating that its far better to suffer injustice in this most livable city than to seek redress that causes even greater injustices to a survivor-victim who in all probability will be further victimized by the legal & judicial systems. The media like the 60 minutes and 4 corners too are re beholden to the government for its advertising revenue that they continue to ignore my appeals like Vic Premier as well that Australia is going go lower than once 7th then 9th and now to the 13 rankings in corruption index of Transparency International unless ACIC does something to arrest it.

  • 0
    0

    There are murder trials which go on for over a decade and sometimes two decades. In any developed country the process is co9mpleted in a year or less. As the retired judge said lawyers like dates just as the Arabs. Judges also postpone cases at the flimsiest excuse. Land cases drag on for over three decades when the original litigants are dead and gone.

    No effective legislation is possible with the parliament which is a den of thieves mostly lawyers. They will never try to curtail the exorbitant charges of lawyers and the inordinate delays. Media never highlight the delays of the judicial process for fear of being hauled before court. Judiciary system is quite effective in dealing with any case of criticism of the judicial system. Sometime back when the government started giving government guaranteed deeds, it was the lawyers who were against it.
    Poor people who wait for justice in simple land cases having to wait for decades to get a ruling have no one to complain. What a pathetic state of affairs. It is better to appoint lay judges like in the UK to break the vicious cycle where lawyers rule the judiciary. Justice delayed is ceratinly justice denied.

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