Urgent need for justice reforms: Digitalisation can lead the way

In 2021, a three-year plan targeting digitisation of courts was implemented to make the judicial system more efficient. Digitisation of the courts would mean a more streamlined process of court hearings – Pic by Shehan Gunasekara

By Tiffahny Hoole and Sumhiya Sallay

The Supreme Court in the 1994 case of Jayasinghe v AG correctly asserted that ‘justice delayed is justice denied’1. While the very apex of the justice system recognised that delays in court proceedings hinders litigants’ access to justice, there is a major backlog of cases in Sri Lanka.

The entire court process from the point where a case is taken up to court until its final verdict is an extremely time-consuming process. The operation of a country’s legal system significantly influences several components of its economic development; such as the optimal allocation of resources and the increase in total factor productivity2.

In 2021, a three-year plan targeting digitisation of courts was implemented to make the judicial system more efficient. Digitisation of the courts would mean a more streamlined process of court hearings. 

Shortcomings of the Sri Lankan legal system

By the end of 2019, there were 4,767 pending cases to be heard in the Supreme Court, while 6,813 were to be heard in the Commercial High Court3. In the speech delivered by the present Minister of Justice in the 47th Annual Convocation of the Bar Association, it was stated that a total of 766,784 cases were pending at the end of 2019, with approximately 350 judges to hear those cases4. The situation was only exacerbated in the wake of the COVID-19 pandemic. With periodic lockdowns consequent to seasonal outbreaks of COVID-19 cases, both the Supreme Court and Court of Appeal suspended proceedings5. 

The increased backlog of cases prior and during the pandemic is attributable to the very nature in which the justice system operates. Sri Lanka’s court procedure and practice has been heavily reliant on in-person proceedings, physical filings and production of documents and evidence respectively6. A system too archaic to withstand any external shocks such as natural disaster, fires or more specifically a pandemic.

Ease of Doing Business: A point of discussion 

The continuous delay in court proceedings over the years is one of the key factors which contributed to Sri Lanka’s low rank in the World Bank’s ‘Ease of Doing Business’ index7. Contract enforcement is one of Sri Lanka’s worst performing pillars in the index, as it ranked 164 out of 190 countries in 20208. The average time period required to enforce a contract stands at 1,318 days9. In comparison, New Zealand, which topped the index, takes 216 days10. The Minister of Justice further stated that market research prior to any investment would result in flocking to countries with higher indexes, concluding that we would be losing ‘big’11.

With the data highlighted by the index, in conjunction with prolonged lockdowns, the Minister of Justice soon realised that the backlog in cases had reached saturation. Speedy resolution in litigation is a prerequisite on foreign investments12. Thus, with the aim of administering the public’s access to justice, major reforms are finally underway.

Reforms: Future of court procedures in Sri Lanka 

Upon comprehensive studies conducted in 2017 and with the assistance of the ICTA in Sri Lanka, the Ministry of Justice embarked on a court automation and digitisation project13. In the recent budget speech of 2022, the urgent need for reform was highlighted by the Minister of Finance. Following this, a proposal to allocate a further Rs. 5,000 million towards this cause was presented14. 

The COVID-19 pandemic brought to light how far behind Sri Lanka is in terms of judicial digitised systems. Many countries were able to quickly recover post-COVID as they already had systems in place to shift to virtual court hearings. However, courts and other dispute resolution mechanisms such as mediation and arbitration in Sri Lanka, were far behind. 

Prior to the commencement of this project, digitisation in court proceedings was being experimented in selected courts on an incremental basis. In November 2020, the ‘Virtual Courthouse Program’ was pioneered by the Commercial High Court in partnership with the Sri Lanka Telecom and the Colombo Law Library15.Similarly, a key person interview conducted by the Advocata Institute brought to light the efforts made by the lawyers in the Courts of Mount Lavinia to transform court proceedings to an entirely virtual platform. 

In response to the pandemic, reformation was witnessed on an incremental basis. Finally, operations of virtual court hearings were formerly recognised by the Coronavirus Disease 2019 (COVID19) (Temporary Provisions) Act No.17 of 2021, subject to the condition that physical hearings cannot be held16. 

Nevertheless, by taking into account the complexity and gravity of court procedure, it was understood that reform needed to be holistic. Accordingly, digitisation is not limited to virtual court hearings but also envisions the registration component of the judicial system. This includes scheduling, managing documents, recording proceedings, etc. 

Furthermore, payment of court filing fees will be shifted to an online platform. In respect of court hearings, reformation is two-fold; the first phase is a pilot project which covers 18 courthouses within the Colombo district17. The second phase is expected to implement court automation procedures across 100 courthouses in Sri Lanka18. In the interim, existing online platforms such as Zoom and Google Meets will be utilised for this purpose.

A major challenge going forward will be data security and privacy. However, the issue of security already exists even with physical documents and in-person court hearings. Documents are tampered, stolen or even damaged. Witnesses may be coerced to perjure in or outside court. Thus, moving towards an online platform will circumvent the damages caused to case documents such as a fire similar to the recent incident in the Supreme Court Complex19. In order to minimise the concerns raised, the Ministry of Justice has partnered with professional expertise in the ICT sector to build a data protection and data security plan and develop remote data storage facilities20.

The long-term benefits of digitisation

In the long term, digitisation and automation will make the litigation process far cheaper. Litigation in Sri Lanka is known to be a very expensive procedure. Instead of requiring a hundred page document to be submitted to each judge on a panel prior to the case hearing, litigants would now be able to send a pdf through an online portal. Electronic delivery of paper documents would also speed up the filing procedures21. Rather than having to commute all the way to a district court that is outside one’s residence, litigants are able to participate in court hearings through Zoom.

Reforms in the justice system play an essential role in restoring the confidence of investors. A representative of the World Bank in the Legal Department highlighted that encouragement of Foreign Direct Investment is at the forefront of Government thinking behind legal reform22. In the wake of the pandemic, it is pivotal that the State prioritises and ensures such essential reforms do take place so as to attract foreign investors. Justice is only delivered in the absence of delay. 

(Sumhiya Sallay is the Programs Executive at the Advocata Institute. She can be contacted at [email protected]. Tiffahny Hoole is a Researcher at the Advocata Institute. She can be contacted at [email protected])

(The Advocata Institute is an Independent Public Policy Think Tank. Learn more about Advocata’s work at www.advocata.org.  The opinions expressed are the author’s own views. They may not necessarily reflect the views of the Advocata Institute.)

References:

1 Jayasinghe v AG [1994] 2 SLLR, https://www.lawnet.gov.lk/wp-content/uploads/2016/11/005-SLLR-SLLR-1994-V2-JAYASINGHE-V.-THE-ATTORNEY-GENERAL-AND-OTHERS.pdf, last accessed 1 December 2021. 

2 Marilene Lorizio, ‘Efficiency of Justice and Economic Systems,’ Innovation and Society 2013 Conference, IES 2013, ScienceDirect. Procedia Economics and Finance (accessed 5 May 2020)

3 Ministry of Justice, ‘Case Statistics of Sri Lanka – 2019,’ https://www.moj.gov.lk/images/pdf/Statistics/Case-Statistics-2019.pdf, last accessed 1 December 2021. 

4 ‘Rolling out holistic solution to perennial problem of laws’ delays,’ The Island Online, 29 March 2021, https://island.lk/rolling-out-holistic-solution-to-perennial-problem-of-laws-delays/, (Accessed December 1, 2021).

5 ‘Due Process and Preparedness for Public Emergencies’ (Verite, June 2021), https://www.veriteresearch.org/wp-content/uploads/2021/07/VR_ENG_RB_Jun2021_Due-Process-and-Preparedness-for-Public-Crises.pdf (accessed 1 December 2021).

6 ‘Due Process and Preparedness for Public Emergencies’ (Verite, June 2021), https://www.veriteresearch.org/wp-content/uploads/2021/07/VR_ENG_RB_Jun2021_Due-Process-and-Preparedness-for-Public-Crises.pdf, (Accessed December 1, 2021).

7 ‘Economy Profile: Sri Lanka | Doing Business 2020’ (World Bank Group, 2020), https://www.doingbusiness.org/content/dam/doingBusiness/country/s/sri-lanka/LKA.pdf (accessed December 1, 2021).

8 ‘Economy Profile: Sri Lanka | Doing Business 2020’ (World Bank Group, 2020), https://www.doingbusiness.org/content/dam/doingBusiness/country/s/sri-lanka/LKA.pdf (accessed 1 December 2021).

9 ‘Economy Profile: Sri Lanka | Doing Business 2020’ (World Bank Group, 2020), https://www.doingbusiness.org/content/dam/doingBusiness/country/s/sri-lanka/LKA.pdf (accessed 1 December 2021).

10 ‘Economy Profile: New Zealand | Doing Business 2020’ (World Bank Group, 2020), https://www.doingbusiness.org/content/dam/doingBusiness/country/n/new-zealand/NZL.pdf (accessed 2 December 2021).

11 ‘Rolling out holistic solution to perennial problem of laws’ delays,’ The Island Online, 29 March 2021, https://island.lk/rolling-out-holistic-solution-to-perennial-problem-of-laws-delays/ (accessed 1 December 2021).

12 Sarath Wijesinghe, ‘Laws delays, lawyers’ delays or system delays?’ Sunday Observer, 3 January 2021, http://www.sundayobserver.lk/2021/01/03/impact/laws-delays-lawyers%E2%80%99-delays-or-system-delays (accessed 1 December 2021).

13 Rohan Samarajiva, ‘Failure in the Core Business: Administration of Justice,’ Echelon, 7 May 2021, https://www.echelon.lk/failure-in-the-core-business-administration-of-justice/ (accessed 1 December 2021).

14 Ministry of Finance ‘Budget Speech 2022,’ https://www.treasury.gov.lk/api/file/91c69189-9b2f-4ab2-8e90-53213a60cddd (accessed 1 December 2021). 

15 ‘Due Process and Preparedness for Public Emergencies,’ (Verite, June 2021), https://www.veriteresearch.org/wp-content/uploads/2021/07/VR_ENG_RB_Jun2021_Due-Process-and-Preparedness-for-Public-Crises.pdf (accessed 1 December 2021).

16 Coronavirus Disease 2019 (COVID-19) (Temporary Provisions) Bill, 8 June 2021, https://www.parliament.lk/uploads/acts/gbills/english/6219.pdf (accessed 1 December 2021). 

17 Ministry of Justice, ‘Pre-Qualification for Design, Supply, Implementation and Maintenance of a Court Automation System for Judicial System of Sri Lanka,’ https://www.moj.gov.lk/images/pdf/2021/Prequalification_Document_Final.pdf (accessed 1 December 2021).

18 Ministry of Justice, ‘Pre-Qualification for Design, Supply, Implementation and Maintenance of a Court Automation System for Judicial System of Sri Lanka,’ https://www.moj.gov.lk/images/pdf/2021/Prequalification_Document_Final.pdf (accessed 1 December 2021).

19 Ifham Nizam, ‘Scary fire in Supreme Court complex ground floor, but no big harm’ (2020), https://island.lk/scary-fire-in-supreme-court-complex-ground-floor-but-no-big-harm/ (accessed 1 December 2021).

20 Ifham Nizam, ‘Scary fire in Supreme Court complex ground floor, but no big harm’ (2020), https://island.lk/scary-fire-in-supreme-court-complex-ground-floor-but-no-big-harm/ (Accessed 1 December 2021).

21 ‘Technology for Court Efficiency,’ OECD Library, https://www.oecd-ilibrary.org//sites/40c8c1fb-en/index.html?itemId=/content/component/40c8c1fb-en#boxsection-d1e5561 (accessed 1 December 2021). 

22 Amanda Perry, ‘An Ideal Legal System for Attracting Foreign Direct Investment? Some Theory and Reality,’ American University International Law Review, Volume 15, Issue 06, https://core.ac.uk/download/pdf/235401967.pdf (accessed 1 December 2021).