By Ashan Nanayakkara –

Ashan Nanayakkara

The history of mankind has always set finer examples how men of those years have successfully reacted to turbulent times, again and again. Either it may be pandemic, war, natural disaster or in any other dire straits people have lived so far. If historians’ reports are correct, Mohenjo-daro was boomed in Indu Valley Civilization after catastrophic flood of Indus River which inundated the most parts of Harappa city bringing an end to that colonization. Thus, “Up and down this world goes round, down, The world goes up and down, Up and down the world goes…”    

Though not that much Churchilian or ‘we fight them in beaches’ type, spirited speech; Boris Johnson’s (who is corona positive now) address to the nation on 25-03-2020 was remarkable. Instead of myriad of flamboyant words, even President Gotabaya Rajapaksa seems to have rendered note-worthy impact to tackle the situation in this crunch hour, by actions, thus far. Whereas had that been the ex-President (Sirisena, as all call him) who was famous to be as a moaning-Minnie, it would have been all mouth and no trousers. Therefore, during this pandemic time, Sri Lanka is doing, so far so good.  

Nevertheless, the question is, from here, whither to? Government have declared curfew in width and breadth of the Country. They have also notified to ‘stay at home’ policy to avoid contracting Covid-19 among its citizen. For the first time in history one can help to the word by sitting on before on your TV like a couch Potato. Additionally, the Government have earmarked, Colombo, Gampaha, Kalutara and Jaffna districts as high risk zones and imposed curfew until further notice; for other areas in the country it is planned to lift the curfew on Monday (29^th March) at 6.00am and have it again from 12.00pm. Hence, from the economic perspective, she is doing very bad and looming of a rescission in near future notwithstanding either we cope this pandemic or not. 

In this premise, a special revelation was made by the Government Medical Organization (GMO) on 24-03-2020 and highlighted that there may be a chance of about 19 000-people, who are, at the moment, under quarantine process, who are so fragile to be reported as Covid-19 cases in coming days, as they have one way or other way contacted with the current cases (number of them are by 28-03-2020, 106-patients). This finding was based on a research out by Johns Hopkins University – USA. Further, GMO have predicted that unless citizens of this country act according to the rigid advices that they have been asked to follow, the current figures of 106-infected patients will increase during 25^th March to 07^th April in thick and fast. Even the GMO fear the most is that if Sri Lanka cannot keep herself within its limits, the infected cases could multiple in numbers like zombies of ‘Resident Evil’ to its ‘threshold capacity’ and loose it out from our control.

Having faced to such a dreadful fate upon us, except the sheer labour and some common sense that most of the Service Personal, Doctors, Nurses, Public Health Inspectors (PHI) etc. extend by putting with their blood, sweat and tears, which are in fact yeoman sacrifice, Sri Lanka seem not to go forward from this calamity. Neither did her, even before this disease came!

When Sri Lanka was lagging behind, world has overcome so many bad patches in the history line. The world has become such a pleasant place to live due to some magnificent creations and inventions made by people in not-so-good situations. There were so many ways that courageous men have greeted disasters! For such examples, in the First World War – a doctor of Royal Army Medical Corps compelled to do the worlds’ first plastic surgery in 1917, canned food was invented by one France National called, Nicolas Appert under Napoleon era for the purpose of transporting food to soldiers and war affected people, the AK-47, officially known as the Avtomat Kalashnikova was invented owing to II World War, the mechanical ventilators used in health sector were started to use in masse due to Polio disease which marred during 1930s, the importance of Surgeons was recognized over Physicians only after ‘Black Death’ due to the practical value of the former, Land Rover Series I was made by British – Rover Company, aftermath to World War II during which period there was no demand for luxury vehicles due to recession and the difficulty of finding raw materials, accidentally found ‘Penicillin’ had also become most splendid creation in medical sector was only produced in industrial level for growing demand of those who succumbed to injuries in 2^nd World War, modern Computer, Radar and some vaccines like Rubella, Measles were also discovered in troublesome times when people were pushed against the wall. And the said list goes on. Thus, more often than not, world has progressed through such challenging times.

In Sri Lanka, only silver lining is, as it was discussed at the all party conference convened by the Prime Minister, held few days back that the Engineering Faculty of Peradeniya University has been requested to commence manufacturing, or explore the avenues of creating Ventilators in domestic level which are highly valuable more than Black Gold as far as saving the lives of those who have contagion with Covid-19 is concerned. Those who manufactured Sri Lanka’s first, all-electric super car, ‘Vega’, epitomizes that we as a nation is not in a scarcity of talents, skills and the technology; for a moment we need not to doubt it. Vis-à-vis, political patronage, is a proven failure in this Island nation. Thus, “We can”, “they can”, “President can”, Ranil cannot”, “Sajith is dump”, “JVP is capable of” are sham words. One common thing in our rulers is all have tested failed since independence. Thus, it is just the citizen and the individuals who have to spearhead. That’s about the Politics amidst this plague.

Of law and order, except the police personnel, which represents one arm of the legal system, who work burning mid-night oil whilst the Government have even cancelled their leaves, no other sector function in legal arena. The Judiciary, the one organ of the State has gone to a complete blackout (of course not just the Judiciary, the Legislature – the other organ of the State too). 

Although, initially, it was the order of the Judicial Service Commission (JSC) and Honourable the Chief Justice to take up urgent matters and give audience exclusively to the Advocates to prevent the litigants flocking to court houses in numbers, have also gone aborted after curfew was imposed in country wide. As a result, from the most apex court of the country – the Supreme Court, second highest court in the country, that is, Court of Appeal, High Courts of Provinces, District Courts and Magistrate’s Courts stopped hearing their cases hence forth. The cases which were supposed to have called in routine basis shall be given the automatic further dates which shall also be informed in due course. In short, cases are postponed sine die. The Judicial Service Commission (JSC) and Honourable the Chief Justice have ordered to the Magistrates to enterprise ad-hoc mechanisms by their own, as per the facilities that they possess and the work force they have in their court houses to take up special matters like, Bail applications, or any other urgent matters using electronic means, such as Skype, Whatsapp, Viber etc. Wherefore, it seems that except the Magistrates of respective areas who seem to have no such luxury of having such an enforced vacation, rest of the courts are filled with just empty chairs, and empty cells filled with rats.

Having said the Government declared that the entire country must work at home. Further, JSC too expected to dispose the matters during this curfew period by using day-to-day communications apparatus like, Skype, Whatsapp, Viber etc. Is this possible in this country?

It is the words of the His Lordship Justice Hon. Yasantha Kodagoda in his speech at the ceremonial sitting at his welcome as a Supreme Court Judge on 29-02-2020, that, for last 10-years, the Government have not increased a penny out of their annual expenditure to the Judicial sector. In the said outspoken speech, which is one of the most inspiring and visionary testimonial in recent history, a Judge made, in his or her first date of assuming duties, His Lordship went on to say that, “the efficacy of any system of justice is founded upon many factors, including the resources available for the justice system. These resources are manifold and can be classified into two groups namely human and material resources on the one hand and infrastructure on the other…”. Unfortunately, Sri Lanka lacks the second limb, viz, ‘the infrastructure’.

According to the list of Officers who work in the Judicial Service, there are about 234-first instance courts’ judges (including the most recent batch of Magistrates) in Sri Lanka. Hence, we can assume that at least there may be about 200 or more first instance courts (taking the fact that everyone does not presides) around Sri Lanka. (We do not have even a website to find how many first instance courts locate in the country. The said inference too was made by looking at the Seniority List of Judicial Officers in website which was updated for the last time on 27-02-2020). There is a website for High Court Judges in Sri Lanka, i.e. “High Court Judges’ Association” (). This website too LOOKS, not maintained by the Government; but by the Hon. Judges themselves (Association). Therefore there is no clue on how many High Courts are located nor the number of High Court Judges in this Country. If my memory serves me correct, in the aforesaid speech made by Hon. Yasantha Kodagoda, it was stated that there are about 75 High Court Judges in the country.  In terms of http://highcourtjudgesassociation.info/ there are about 16 Provincial Criminal High Courts and there are less number of Civil Appeal High Courts as well. If presume that all together there about 25-High Courts (Criminal and Civil) in the country, when it adds to the number of First Instance Courts, there should be about 225-250-court houses in Sri Lanka in addition to the Court of Appeal (which has 4-5 divisions at a given time) and the Supreme Court (which has 2-3 divisions at a given time). Adding about 30-50-Labour Tribunals too to this count, by and large, it is nearly about 300-court houses in this country that the Government have to concern about. But the Million Dollar question is have the Government concerned about developing the said 300 or less number of court houses in the Country up to date.

It has been found that the losses incurred in the infamous ‘Bond Scam case’ is sum of US$ 11-Million, the allegations leveled against Ex-CEO of Sri Lankan Airlines PLC – Kapila Chandrasena and his wife over an alleged bribe was about US$ 2 Million, Udayanga Weerathunga’s Mig-deal case, alone, is alleged to have caused a loss of more than US$ 07 Million to the Government of Sri Lanka. The 3-aforesaid cases are heard before the Fort Magistrate’s Court of Colombo. The worth of the rest of the cases at that the same court house may be 100-times or 1000-times more the value of the former cases. Do the quality of infrastructure of that court house match with the said figures of the crimes heard before that court house? 

It is regret to say that in a sunny day like today, inside temperature of that court house may be around 41-degrees. By using the heat of the inside of the court house one could easily bake a cake. (this is the fate of most of the Magistrate’s Courts in the country), the pedestal fan which stands nearby for the comfort of the honourable Magistrate supplies heated air which would feel that the judge is next to boiling old Volkswagen engine, the horseshoe type Lawyers’ bench is very old antique not cleaned after the day of that court house was built, the cell is peach black, in which only criminals and dogs can stay. No wonder this area is called ‘Slave Island’ and the Court stands for that name. This is the plight of all (most of) Magistrates’ Courts in this country. Irony is, these Magistrates silently bestow the highest standards of justice in these dirty court houses.

Not just the Magistrates’ courts, the highest court of the country has not updated their website since 17^th of March. When Lawyers try to file urgent Bail Applications in the Court of Appeal no one is their even to answer the phone (that is understood since the curfew lasts). But, it showcases how poor we are. Even when attempting to file the papers via online, there is no chance whatsoever in those websites to invoke such a mechanism. I am not talking about, a rural court house at Kuchchweli (in Trincomalee) or Kalwana (in Rathnapura) or Notchchiyagama (Anuradhapura); these are our top most courts.

With this status qua, if the Government expect to hear the cases via all modern technologies that is the biggest joke in the century. Working at home is just an old wives’ tale, to these kinds of courts. Distant-working is a dream which will never come true. Having a video conference and arguing a matter is a myth. All these demonstrate the sad state of affairs of the Judiciary in this country and how step motherly she had been treated so far. So the Government’ expectation of judges to hear hair splitting arguments of the Counsels and dispensed the justice via iPhone 11Pro or Galaxy A31 or some dumb phone is a mere illusion. That too, by the said judges, on their own way, by using their own means, by experimenting their own methods, by their own Data and Wi-Fi. Come-on. Is the Government out of their mind? To talk of work-at-home, did the Government fall from Christmas tree?

At past, Infants were delivered without doctors, patients were saved without penicillin, yet, one cannot expect, 40-years old 500 to 1000 pages of Partition matter be heard without having a single document in hand. Even, to give a hearing for a Bail Application, how does it possible to do justice without documents or the culprit himself present in courts. How is it the demeanor of that man observed by. Thomas Hobbs once said that, “It is not wisdom but Authority that makes a law.” Hence, although it is hard to swallow, what matters in law is, law in black white (or law in books). Without documents, without briefs, without files, without papers, without books, there is no law, there are no courts, there are no Lawyers. Hence, the state expect too much from their Judges, Lawyers and the litigants, having failed to do their (Government’s) reciprocal duty since independence. Albeit, it is pleased to hear that some of the Magistrates like Chief Magistrate of Galle – Hon. Harshana Kekunuwla went against the tide and by his free hand use the Skype and/ or Whatsapp to hear a case (or rather granting of bail), in Sri Lanka. But, I am sure this is merely a symbolic act done by the said Hon. Magistrate under tremendous difficulties. And I also am sure that such a hearing was done solely using the facilities enjoy by the said Judge in his private capacity; not anything given by the State. I do not remember Ministry of Justice initiated single project to turn our courts to an e-court house. Thus, so as school children stay at home in Sri Lanka, the Judges too idle.

In contrast, the respective Ministers to the Ministry of Justice have pursuit behind fame and burned our money for good for nothing vast projects to engrain their names on ceremonial plaques. One such example is constructing a new court complex in Ratnapura. If my memory corrects, the incumbent court premises was built in Ratnapura during Nanda Mathew’s time. It was constructed in lavish environment of greenly area with lot of spacious surround whilst keeping open air areas for ventilation and fresh air to come in to court houses freely. I have been once told by very senior Lawyer who practices there that the wooden ceiling of the court houses had been fully completed using jack timber (such a ceiling, at one court house, cannot be furnished today without spending less than 2-3 Million Rupees). The Court premises could accommodate for 2-Magistrate’s Courts, 2-District Courts and 1-High Court. Besides, the pleasant reception extended by those who practices there, a sitting judge can enjoy his tenure during the four corners of this court houses immensely. Having all the said luxuries in hand, it was outlandish act that the previous Government dismantled the said valuable artifact to a wreck by overlooking the correct priorities in the present day. It is estimated that for this Project alone Government have allocated about 200 Mn Rupees. This is an outrageous action by the then Justice Minister – Ms. Thalatha Athukorale. That is a project which was highly unnecessary. This superfluous project said to be initiated solely on whim and fancy of the said Minister where 90% of Lawyers of the Ratnapura Bar objected. In this backdrop, should it be wise had that resources were allocated to computerize the cases, and accommodate the e-access to all sort of cases in the Sabaramuwa Province. This sole decision of erecting a new court premises spending so much of money equals to ‘let them eat cake’ saga of Queen Marie Antoinette. In other words, our politicians, do not care if people are in the shit or what they actually ask for, or do not understand much about people’s shitty situation. This is an act of giving boats to carpenters. These are the tragedy of errors of our low-witted politicians commit. Having done these mockery of events by wasting frugal resources of this country or rather tax payers’ money,  by these rulers try to achieve their pity mileages, in turn, if they expect miracles to be done by their Judges and the Lawyers, and the litigants, only thing one can say is, ‘Physician heal thyself.

If that is the plight of the legal side, is there any way we could go one step forward from the current predicament. 

I remember, William Pitt Scargill in his book of “Tales of a Briefless Barrister” written one reminisces of a Barrister who had no cases at the early stage of his practice. The said writer narrated that, “The case never came into Court. The fee which I received with my brief I lost that selfsame evening at a rubber of whist. I therefore call myself briefless. But notwithstanding this, I am not weary of the circuit; it is a pleasant thing though not profitable. My legal knowledge is indeed evaporating, but I supply its place by other knowledge…” – “Tales of a Briefless Barrister”. Presently, it is no wrong to say that all Lawyers are briefless in the country. Thus, they could have good thoughts to suggest to the Government whilst they spend hours in front of the facebook, to develop the legal system in this country which is, in technological-wise as old as Methuselah. Following suggestions could be considered for implementation no sooner this pandemic is over. 

Here are some food for thought:

1. Accommodating Attorneys-at-Law to file their cases via online in the Supreme Court and the Court of Appeal when they invoke the original jurisdiction of those courts;

2. Accommodating Attorneys-at-Law to file their Affidavits, Written Submissions, Authorities and any other document via online in the Supreme Court and the Court of Appeal in Final Appeals and Revisions;

3. Upload Judgments and any other Orders via online in the Supreme Court and the Court of Appeal website in the same date;

4. Accommodate facilities of video chat, video conference only through those official websites without resorting to other apparatus like, Skype, Whatsapp, Viber etc. which would create legal issues of utilizing 3^rd party Apps for the purpose of court works in a Country without the express permission of those companies. Besides, even if the permission is granted, by using such electronic means such as Skype, Whatsapp, Viber etc. which are controlled and maintained by foreign proxy servers who are established in abroad. Thus the national security, individual privacy may be at a stake.

5. Deploy technicians (Engineers or those who have subordinate other degrees in technology) to maintain and update the said websites on daily basis; 

6. Launch a project of 1-website for 1-First Instance court. Given the fact that, there are about 300-court houses in the Country, a cadre of 300-Technicians will have to recruit for this endevour. Those who have Applied Science Degrees in Computer filed out of the 45 000-thousand Graduates who was given appointments, recently, could use for this project; 

7. In the first instance courts, the JSC could prepare a list of activities which can be done via the aforesaid website. For instance, filling of Motions online, filling of Commission Papers in Partition maters, filling of other papers in Testamentary and Land matters, a notice addressed to the Judge of an absence of a Counsel at a trial date, non-availability of the Permanent judge on a particular day, submitting of Courts’ Proceedings in that website within 7-days from the previous date of the matter (this would save so much of time and energy of the Instructing Attorneys and Litigants as most of the stenographers and typists take for a ride of the said parties promising the said documents be given tomorrow – that ‘tomorrow’ never dawns. Sometimes, Lawyers have to go 5-6 occasions to collect 2-3 pages of a document), filing of Petition of Final Appeals to the District Courts, permitting the Police to submit their further B-reports for the cognizance of the Magistrate etc.; 

8. In Traffic Cases, impose the fines and perfect those details on the said website and avoid such suspects being filling in the court houses;

9. In holidays, without troubling to Magistrates in respective areas by breaking out to their homes (since Saturday, Sunday and the Court Vacation are given as holidays), the Police could via video calls produce suspects and get the orders for further prosecution; 

10. Get the evidence of witnesses (specially for foreign nationals) who live in abroad via video calls without make it compulsory to such persons to come all the way to Sri Lanka by spending so much of wealth (unless there are compelling reasons to act otherwise);

11. Put up a digital display of sub judice cases at the entrance of the court house as and when the matter is taking up. This would avoid gathering of large number of masses inside the court house;

12. Fix CCTV Cameras in each court house and make sure to operate them in each court session. This will be highly useful to decide the contempt of court matters such as Galagoda Atte Gnanasara Thero’s incident took place at Homagama Magistrate’s Court, as well as to find the injustice committed by Judges against certain litigants; And, further, bringing new regulations to the issuance of those video footages to interested parties.

The above said proposals are struck up to my mind and there may be further plethora of new and better suggestions as well.

True that, not just the legal system, but also all the other sectors of this country have been in baptism of fire. Yet, if we could use these gloomy days as a blessing in disguise, at least, learn something just the way most of the turbulent times have taought us in the history of mankind. If we wise enough we could create a decade in a few weeks as V. I. Lenin said, “There are decades where nothing happens; and there are weeks where decades happen.”