Justice delayed

Monday, 26 March 2018 00:00 -     - {{hitsCtrl.values.hits}}

The Government’s efforts to establish new High Courts trial at bar have returned public interest to Sri Lanka’s courts. Everyone who lives in Sri Lanka or has even been remotely associated with it knows the country’s judicial system needs a desperate overhaul but just how badly can sometimes come as a shock.

Justice Ministry statistics, reported by the media, indicate about 750,000 cases were pending in courts as at September 2016 with the largest number of some 535,000 cases in Magistrates’ Courts. The ministry says 3,486 were pending in the Supreme Court, 4,817 in the Court of Appeal, 5,890 in Civil Appellate High Courts, 16,811 in High Courts, 167,945 in District Courts, 535,644 in Magistrates’ Court, 5,048 in Labour Tribunals, 175 in Board of Quazis and 5,376 in Quazi Courts.

This number, staggering as it is, nonetheless does not adequately show the strain on people desperately waiting for justice. The numbers do not show the pain of the rape victim, the hopelessness of a murder victim’s mother, the businessman desperately waiting to repay debts and the child waiting for his inheritance. The system crushes all this humanity underfoot as it refuses to grind forward.

Governments for decades have tried to resolve this backlog by appointing more judges and in the latest effort attempting to get some courts to hear serious cases on consecutive days. The despondency of the judicial system has perhaps best been highlighted by the laggard progress of many corruption cases initiated by the Government. The frustration it seems has seeped upwards with even President Maithripala Sirisena acknowledging the depth of the bottlenecks and as a last-ditch measure announcing that he would appoint new courts dedicated to hearing corruption cases.   

New courts, whether they are implemented or not, do not take away the responsibility of existing judicial institutions. They do not solve the problem of a weak judicial system and provide redress overnight. Already over 200,000 cases, usually civil in nature, are referred to mediation boards each year. The courts or the police send the cases to mediation boards where over 40% of them are resolved, which one imagines must be a higher percentage than what the formal courts deliver. 

So in fact the numbers shown above are far lower because of the mediation system, which has been studied for duplication in other developing countries, which begs the question as to why Sri Lanka can get its mediation boards right but not its formal judicial system. 

In developed countries there exists one judge for every 50 people, on average. But the numbers are far less in Sri Lanka. While mediation boards are staffed by volunteers, the formal court judges have to be trained and usually give up a better paying career to become judges. The courts also judge far more complex and serious cases than mediation boards and therefore presentation, examination of evidence and interpretation of law takes a longer time. But if other developing countries can have functioning judicial systems it begs the question as to why Sri Lanka seems to be losing the battle.  

Political corruption cases aside, Sri Lanka is struggling to attract investment because it has both a complicated court system and no arbitration. The new Financial City being formulated by the Government would also function as an arbitration centre but it could be many years before it is set up. Until then Sri Lanka has to find a way to improve its law framework regarding investment if it genuinely wants to climb up the World Bank Ease of Doing Business rankings.

Better funding, training, more judges and simpler laws are essential. But timely implementation may be the most important thing of all.