REFLECTIONS ON SRI LANKA’S LEGAL SYSTEM AND THE JUDICIARY

How the legal profession changed in the last 10 years or so

BY Dr. DAYANATH JAYASURIYA P. C.

There are several major changes that can be noted. Firstly, more females have joined the profession- they are in private practice or in the corporate world. Several have joined the Attorney-General’s Department as well as the judiciary.

Secondly, we find that there has been a significant increase in the numbers acquiring post-qualification degrees or diplomas. The LL.M.; MBA as well as post-graduate diplomas in intellectual property law; anti money-laundering; compliance; or commercial arbitration are some of the more popular post-qualification programmes. The profession is challenged to grapple with new issues in areas such as electronic commerce, mergers and acquisitions, foreign investments and commercial arbitration, just to mention a few areas. We have very competent lawyers who can compete with the best in the world.

Thirdly, a few members of the profession have left the country for varying periods of time to work with UN agencies or to serve as members of the judiciary in jurisdictions such as Fiji and Seychelles. On their return, they have been able to share their experiences with younger colleagues. Fourthly, some members have contributed to the legal literature by publishing books, monographs and articles, an activity that was hitherto confined to a few in the academic world.

Fifthly, senior members have been playing an active role in conducting training courses for those who have recently joined the profession. All these changes have had a desirable impact on the quality of our legal professionals. Restructuring the legal system to ensure speedy redressal of cases

Delays in the administration of justice have been a perennial problem that has been studied by several committees in the past. Some of the recommendations of these committees have been implemented partially but not to an extent to make a significant dent. There are considerable delays not only in concluding civil or criminal matters before the courts but also in arbitration proceedings. In civil matters the stamp duty is not related to the value of damages claimed and consequently frivolous actions for defamation, in particular, are filed.

Reforms must address the current system of invoking the jurisdiction of courts and the management of the case load. We need to look at innovations in selected jurisdictions and adapt what appears to be suitable. Registrars of courts need to be empowered to go beyond their traditional role. The Administration of Justice Law introduced in the mid-1970s provided for a number of changes to minimize delays. It prescribed time-frames for the filing of pleadings together with documentation to support the averments in the pleadings. It reduced the opportunities for asking for long dates to file answers and counter-claims etc. and postponements were discouraged. However, the new system did not become popular with practitioners.

Lawyers too must bear the responsibility for some of the delays. Busy practitioners often seek postponements due to the clash of commitments in different courts. Day to day hearings are difficult to arrange as the schedules of these lawyers do not provide for much flexibility.

The state of the judiciary in Sri Lanka and possible threats to its independence From a comparative perspective, the Sri Lankan judiciary has, with few exceptions, maintained a high reputation for its independence. The Constitution provides for clear procedures for the appointment and removal of judicial officers. Under the regime of the late J. R. Jayewardene, the Chief Justice and some other judges came under attack with stones allegedly thrown at their residences and their chambers in the court premises being kept locked.

The first lady Chief Justice was unceremoniously removed from office and subsequently reappointed for a day and the appointment of the Chief Justice Mohan Peiris was deemed not to have been effective and he was not reappointed under a new President. We also had a controversial Chief Justice, Sarath Silva, who later sought an apology from the public for delivering a judgment favouring some politicians in power.

These are some dark spots on an otherwise impeccable record of the judiciary. Promotions overlooking seniority or rank tend to lead to speculation that the government in power has more confidence in certain judges. Unfounded allegations of partiality have been dealt with as contempt of court with the option of imposing a jail sentence.

Efforts of the legal fraternity, led by the likes of the Bar Association of Sri Lanka, in supporting the people’s movement

There are good signs of the Bar Association, in particular, taking up a definitive stand against repressive measures. During the past few months, the Association has taken up a unified position to protect the rights of individuals for peaceful demonstrations. An impartial and fearless Bar is a sine qua non for the proper enforcement of law and order in accordance with principles of natural justice. An important initiative of the Bar Association sometime ago was to draft amendments to the Constitution with a view to ending the stalemate among rival political parties over proposed constitutional amendments.

Adapted from Jayasuriya, Dayanath “A Case of Natural Justice”, LMD, July 2022, p. 80.