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No serious attempts have been made to detect the real cause for the Judiciary to become so lethargic and unfocussed and to deliver judgments for many cases after 10 to 30 years – Pic by Shehan Gunasekara
By Wasantha Galagoda
Sri Lanka, having an economy of $ 89 billion in 2018, is facing several challenges to resurrect the economy, mainly due to the dismal economic performance in the recent past. During the last four years growth rate of Gross Domestic Production has decreased from 5% in 2015 to 3.2% in 2018 and further reduction is expected in year 2019 to 2.6%.
With the beginning of change in style of governance since 16 November, the new Government is determined to achieve higher annual gross domestic production growth in the economy beyond at 6.5%, among other set economic targets to revamp the economy.
Factors of production, namely, capital, land, labour and entrepreneurship, are the source of generating and producing goods and services called ‘Gross Domestic Production’ and investments are the driving force in the conversion process of factors of production into goods and services.
It is a great challenge to the new Government under the prevailing economic conditions to accelerate the economic growth rate beyond 6.5% due to severe constraints in the full capacity of borrowings and savings, two of which are considered to be the creators of investments needed for growth in terms of economics.
The higher the investments, higher the rate of growth, and lower the investments lower the rate of economic growth. Given the prevailing adverse economic conditions, in order to accelerate current growth rate of 2.6% to 6.5% it is inevitable to deviate from traditional economic theories and practices and to concentrate on a dynamic economic model which can address the issue of high GDP growth with low investments. In this regard, I have developed a new economic model called ‘efficient factors of production model’ and it is being used extensively to identify economic problems and to suggest more effective methods to accelerate the economic growth and overall economy.
Therefore, it is very much needed to study economic activities and its behaviour using these novel concepts and ideas which can help to solve the dilemma of expecting more than doubled economic growth given the limited funds for investments.
If investments are being restricted due to inherent economic problems, it is very important to look for alternatives and to obtain the highest rate of return on any investments by choosing the best project out of several mutually exclusive projects. Therefore, it is needed to expand the available base of resources for production by identifying efficient and inefficient factors of production and taking immediate action to remove inefficiencies in the factors of production before using for production.
Factors which can be used without any hindrance are called ‘efficient factors of production’ and all others are called ‘inefficient factors of production’. Factors are expected to go through the external environment of political, economic, social, technological, natural and legal before being converted them into goods and services. In the process of transition, factors are expected to accumulate inefficiencies but degree of inefficiencies will vary from factors to factor, time to time and place to place.
There are two reasons for accumulating inefficiencies in factors. They are natural factors, i.e. drought, landslides, tsunami, floods, and wildfire, etc.
Other reason for inefficiency is ‘manmade barriers/artificial barriers,’ such as acts, rules, regulations, norms, governance, behaviour and social practices, etc. I have observed that most significant element in the external environment that would create more inefficiencies is the current legal system and its practices. Although, it could be the most challenging task, more than winning the war with LTTE, judicial reforms are the most useful and highly-beneficial area to be addressed in terms of wellbeing of the general public and bringing in rapid economic development.
According to available data, the number of cases that are pending in courts are estimated to be 750,000 and most of those cases are being held up in the process of litigation for several decades. There are some cases in courts for more than 40 years. Each case will have two parties as plaintiff and defendant and total number of litigants therefore would be above 1.5 million.
In some cases, especially land matters and testamentary cases, there can be more than three people for each side of the case. If it is assumed to be the average of two for each side, then total litigants would be three million. When compared with the total population of 21.6 million, it would be 14% and when compared with the household population, 16.2 million in 2018, it would raise up to 18% and when compared with labour force, 8.3 million in 2018, it will go up above 36%.
Labour represent two factors of productions and legal cases are involved in both tangible and intangible economic assets. As long as those assets are held up in Judiciary, no return or negligible return can be expected to the economy. For instance, if a bear land is in litigation process, it will not be used or allowed even to grow short term crops, such as, manioc, until it is being cleared probably after 20 to 30 years. So, the quicker the judgment, higher the return to the economy. GDP of Sri Lanka in 2018 was $ 89 billion and these goods and services are believed to have been produced from efficient factors of production, and therefore if we assume 10% assets are held up in the Judiciary then economy would have been affected by $ 9.8 billion and if it is assumed to be 33,1/3% then it could be a huge amount of $ 45 billion.
When compared with GDP to Government Revenue Ratio of 13% additional income that could generate from judicial reforms would be $ 1.3 billion to $ 5.8 billion. Therefore, it is worth to even to make judicial reforms even with a cost of $ 1 billion as there are multi-faceted benefits; With this reforms more than 1.5 to litigants and their family members, probably another three to six million and other dependants are financially, physically and mentally relieved; investors both local and foreign will have more confidence for new investments; reputation and goodwill and the potential income of the people in the legal profession and in the Judiciary will be enhanced; as indicated above economy will be drastically improved with unplanned incremental GDP in the range of $ 9.8 billion to staggering figure of $ 45 billion and unplanned incremental Government revenue will be in the range of $ 1.3 to $ 5.8 billion. It seems to be a good alternative solution to bridge the loss of tax revenue due to heavy concessions recently given to the general public and also not to depend on too much on IMF/World Bank/ADB loans with unfavourable conditions.
Therefore, it is paramount important to focus on judicial reforms so as to reach the above benefits.
Judicial reforms can take place in two stages and in the first stage it is only concentrated on improving financial and administrative process so as to deliver judgment within 1,000 days. And any amendments and changes done by the normal procedure of Judiciary will be continued. Attached proposal is only to guide and assist the first stage of reforms. In the second stage, replacement of acts and any laws will have to be done by a reforms committee headed by a panel of legal experts in the Judiciary.
Sri Lanka’s jurisdiction is mainly based on Roman Dutch law, since 1656 and English law since 1776. In addition, Kandyan law, Thesawalamei law and Muslim law are also applicable as personal laws.
Although there has been a rapid change of economic, social, political and technological environments of Sri Lanka, the judicial system has been lagging behind those other developments, thus creating an obstacle for rapid growth of the economy as a whole and also for individual’s rights.
There have been many articles from legal experts, especially in the Judiciary endorsing improvements done in the past and also for further improvement of same. Very often, it seems, they prefer international books, articles and experience in forming their opinion on our Judiciary. Regrettably, so far I have not seen any worthy article clearly identifying reasons for the undue delay in the Judiciary – which in some instances take more than 40 years to deliver judgments – and practical indigenous solutions to expedite the process within the Judiciary we have very eminent, highly-qualified judges and lawyers and also administrators; a well-established reputed legal system dating back to second half of 18th century; department and divisions to cover various activities in sequence in the litigation process with highly-skilled professionals and academics to match with any international experts and standards; buildings to handle cases, well-established supporting structures and people from other Government institutions, such as Land Registries, Surveyor General’s Department, Valuation Department, Department of Government Analyst, Judicial Service Commission, Police Department, Ministry of Justice, other ministries and departments.
There were many prominent legal experts in charge of important elements in the infrastructure of Judiciary and it is regretted to note that none of them have made any serious attempt to detect the real cause for the Judiciary to become so lethargic and unfocussed and to deliver judgments for many cases after 10 to 30 years. Simple answer given to this nagging question is that time schedule is irrelevant in deterring true and fair justice. Due to many reasons, this perception has been exploited beyond reasonable limit of tolerance. It should be noted that there is an inverse correlation between time taken for judgment and degree of value of such judgment in the eyes of litigants and their dependants, especially innocent party and also of the economy. Human life span is restricted to 100 years and is expected to enjoy each stage of childhood, adolescence, youth, mature and old life with maximum period of 20 years.
Therefore, it is well understood that more time taken for delivery of judgment, lesser will be the value of such judgments and beyond a certain point, it will become an injustice having “direct relationship” with time. So, the delay, greater the injustice meted out against litigants as well as of the economy.
“Reasonable time” has not been defined and it has become a subjective judgment of the decision maker involved in the litigation process and very often they are at liberty to take even very unreasonable time period to give their feedback which is mandatory to proceed with the case. Instead of giving a judgment which requires to be within 14 days, if it is dragged on for several years, the Judiciary itself will become responsible authority for violating human rights and fundamental rights of people. So it is the fundamental responsibility of all involved in the Judiciary to make the whole process of litigation to work with a defined time schedule.
They should be able to understand the importance of efficient and effective medical profession where treatments are expected to be given instantly as well as until a patient is discharged with utmost care and skills. Root cause for sicknesses mostly emanates from mental and physical stress and timely unfocussed Judiciary will be one of the main sources of creating such stress thereby causing further loss to the economy by way of high cost on health.
Very rarely, people and pressure groups, such as, NGOs and other independent social groups come forward to challenge the efficiency and effectiveness of the Judiciary. Owing to high respect for the Judiciary, and above all, mainly due to fear of risks involved in challenging its efficiency and effectiveness, most do not do so. Academics, economists, professional bodies and regulators are supposed to identify root cause of economic problems that are hampering economic growth, among other things. Once again, it is regretted to note that no one has made justifiable attempt to recognise the adverse impact of an inefficient legal system on our economy.
There have been many reforms in the past and efficiency and the effectiveness of those reforms will have to be judged, among other things, within the context of the speed at which judgments are delivered.
It is a common, well-accepted practice in the Judiciary for civil or criminal matters to deliver judgment after above 15 years. Very urgent writ issues are also being heard in the normal process and it will take above five years. In most of the cases by the time judgments are given either plaintiff or defendant or both won’t be there to hear the judgment. Sometimes, lawyers and others also won’t be there. It is a well-known answer in the Judiciary that due to increase in backlog of cases current cases are postponed even for more than five months. All lawyers involved in the Judiciary are not affected by postponing cases for five months or more and only the litigants and the entire economy is affected.
Like in other professions, people involved in the Judiciary are also vulnerable to all human weaknesses including favouritism and corruptions. Alarming and crucial factor is that the Attorney General, judges, court registrars, state counsels and other supporting staff are generally not responsible for not exercising due care and skills when making glaring mistakes and negligence of duties.
Due to the sacred nature of duties in the Judiciary, no other person, including the Auditor General, is allowed to quarry about delays, wrong judgments, favouritism and certification of incorrect reports and documentary evidence by officers in the Judiciary.
We have well-educated, competent lawyers representing Judiciary; well-established, centuries-old legal system requiring minor changes infrastructure facilities with the constant requirements for upgrading or introducing new resources, experienced supporting staff with more capacity for further development of skills, attentive Government, legally-qualified Prime Minister and Cabinet of Ministers and majority of litigants are also with good education. It is expected from all of them to contribute their due share so as to carry out the vision, mission and the objectives indicated in the Ministry of Justice smoothly. Unfortunately, there are no effective decision makers in the Ministry of Justice to determine whether their vision, mission and objectives are in fact being met from the current Judiciary.
This attached article is to focus kind attention of the President, Prime Minister, the Minister of Finance and Economic Affairs, Minister of Justice, Secretary to the Ministry of Justice and all decision makers in the legislature and in the Judiciary headed by the Chief Justice.
Most of the observations and salient points shown in the proposal are based on my personal experience as a litigant for more than 15 years and are expressed without any malice or prejudice and purely on good intention for improving the judicial system for the benefits of current and future litigants, investors, economy and the Government and last but not least all involved in the Judiciary.
TWO CORE ISSUES TO BE SOLVED IN THE JUDICIARY
Lack of time management to make judgments expeditiously
The main issue is not delivering of judgments within a reasonable stipulated time period – one to three years – to enjoy the benefits and to minimise economic losses, inconveniences, harassments and risk of threats for litigants as snail-paced court proceedings will take several decades to conclude. As a result, judgments are delivered after 25 years for some civil cases. Writs are being issued after five years, instead of within one month, for urgent matters. Criminal judgments are also delivered after 10 to 20 years for some cases where either accused or plaintiff are not living to serve the punishment or to get innocent victims, who had become accused, acquitted.
When compared with developed countries, which normally take less than one to two years, time taken in our country is unbelievable and eventually it would raise the question of ability of exercising “justice” in our Judiciary for the benefits of the population in a fair manner.
Unfortunately, we have no statistics to determine the total value of assets in our country, but Gross domestic production (GDP) in 2018 was $ 89 billion. Therefore, our country value definitely would be more than 20 times of GDP.
We have no information about age analysis of cases of 750,000 pending in courts and also not available total value of cases held up in the Judiciary. However, it would be a reasonable assumption to consider at least 10% to 36% of the total value is held up in the litigation in the form, loans, mortgages, land disputes, frauds, corruptions, divorce, homicide, intellectual rights and labour disputes, etc. This figure can be worked out to $ 10 billion to $ 45 billion. If these assets can be released from the litigation process within maximum of three years instead of 10 to 30 years then GDP growth can be increased effortlessly by 11% to 45% or more, without any equivalent savings/investments contribution from the Government or private sector.
The above point will reveal the importance of the revamping of the Judiciary for delivering true justice to the people and also to increase GDP and its growth.
Lack of accountability in the Judiciary
Law makers, implementers, administrators, monitors, judges, lawyers and others who are directly or indirectly involved in the Judiciary are not accountable for their negligence of duties, lack of due care and skill in performing their roles in the Judiciary at the expenses of valuable time, money, loss of income, loss of profit, loss of assets, loss of reputation, and other threats and risks of victims, litigants and the Government. As a result, some judges postpone cases for more than five months where writs are involved. Some judges postpone cases by five months when inquiry is expected to be concluded within two months from the date of objections.
Some officers in the Attorney General’s Department influence the Judiciary for personal reasons and fix innocent people as accused for cases which had already been “laid-by” by the courts until true accused was being produced to the court. Some officers in the department take the judicial freedom into their hand and make undue delays for their submissions to the court for several years without making serious efforts to attend to their work.
Many lawyers also make use of the judicial freedom to the maximum possible level and since they get paid for postponement of cases as well, they are encouraged to drag out the cases from the perspective of career income. Some lawyers are not prepared for the case and want a postponement by citing various unreasonable reasons. Some senior lawyers undertake many cases for the same date and then detail on their juniors to obtain another convenient date for the senior counsel. The opposing lawyers are also happy to see a postponement, as they are also benefited by postponing the case.
Many court registrars are merely doing a lackadaisical role of coordination and this is one of the serious problems for the long delay. Sometimes, they mislead judges who in turn make wrong judgments by relying on the wrong information certified by the registrar. Then to rectify the above mistakes litigants will have to appeal.
Because of the above errors, mistakes “don’t care” attitudes, negligence, fraudulent motives, and arrogance prevailed in the Judiciary, victims will be further penalised and none of them in the Judiciary is accountable for the loss and sufferings of victims. On the other hand, the Government will waste public money and the economy will be further adversely affected due to encumbrances attached to the economic resources – namely, capital, labour, lands and entrepreneurship.
What are the adverse consequences of the present Judiciary system due to above weaknesses?
As a result of the above fundamental weaknesses in the Judiciary, the following adverse consequences are inherent to the country and its 21 million people:
a. Victims have been further victimised and no relief for them for violation of human rights or fundamental rights by those involved in the esteemed Judiciary itself;
b. Blocking of usage of economic resources for economic development will hamper the GDP growth rate which is not bothered and also not accountable by any of the people in the Judiciary;
c. Unfocussed lethargic Judiciary will become a disincentive for local as well as foreign investors;
d. Waste of Government funds and valuable time of all involved in the Judiciary will not satisfy desired vision and objectives of the Judiciary due to lack of efficient, practically sensible time and objective focused Judiciary;
e. Further loss of public confidence in the Judiciary will be continued with an increasing trend thereby leaving more room for encouraging and continuing the illegal acts and crimes;
f. Wrongdoers are not prevented or discouraged but perhaps encouraged to continue their vices due to bail granting system and long delayed judgment for culprits;
g. Prospects for lawyers as a profession are being restricted as many people, knowing the fate of victims in the litigation, prefer suffering of injustice silently rather than resorting to aimless time consuming and costly litigation;
h. Piling of cases in court administration creating storing problems and difficulties in maintaining court records intact for longer periods;
i. Piling of cases to be heard within limited court working hours will tend to give less attention of Judges and also preference for longer postponement of cases at their discretion, probably to leave it in the hands of another judge, if sitting judge is expecting a transfer.
(The writer, BA (Hons), FCA, FCMA, MBA (Wales), can be reached via email [email protected].)
