Speaking at the induction of the President Elect of the Bar Association of Sri Lanka during its 32nd Annual Convocation, the Chief Justice of Sri Lanka warned that the judiciary could become a laughing stock and that delays in adjudication may result in people seeking alternative means of justice. These delays were an apparent reference to the court of appeal’s backlog of cases, which cannot be completed for the next 8-10 years. The chief justice attributed this to the failure of successive governments to decentralise the court.
The warnings made by the country’s chief justice need to be taken seriously, particularly as they pertain to all aspects of Sri Lanka’s justice system–the judiciary, litigants and lawyers. The 8-10 year time span needed for the completion of the backlog at the Court of Appeal is only one facet to the problem of delays. In its 2000 appraisal report, the World Bank notes that a delay of five years or more is routine in Sri Lankan court cases. In actual fact, it is commonly accepted that criminal cases can take much longer while civil cases may take up to 20 years or more.
What is most significant about the chief justice’s remarks is that delays can undermine the judicial process itself, including the legal profession. Defects in the justice system will be picked up by politicians, who will then exploit them to their own advantage. Pressure may be put on officials who are meant to act impartially in facilitating the judicial process. A close look at the approach adopted by politicians regarding various legal developments in the past several decades indicates that politicians try to circumvent the issue of delays by limiting applications made to the courts. This may partly explain the severe limitations placed on judicial review. The knowledge that political opponents can exploit court delays to interfere with the implementation of legislation is enough motivation to subvert the legal process altogether. Any consequent damage to the country’s legal democratic process may be presented as inevitable.
As a result of such subversion, individuals may begin to seek alternative means of justice. The two most likely of these are violence and bribery. With regard to violence, there are numerous instances where persons have resorted to murder or assault as a means of settling criminal or civil disputes. This usually requires the assistance of the underworld and criminal elements, which then replace courts as the means of adjudication. Bribing judicial and legal officers to subvert the judicial process is another way to settle cases. In particular, bribery can be used to speed up cases that may otherwise take much longer to resolve. This will mean a lesser reliance on lawyers. On the other hand, some lawyers may in fact participate as middle men in such corrupt deals.
Other consequences of delays are the fear and intimidation of witnesses. The present conviction rate in criminal cases is four per cent, largely attributed to witnesses not turning up in court or going back on their evidence under duress. The significant number of witnesses and victims who have faced severe threats are enough deterrent for others not to speak out. Without witnesses, there is no basis for judicial intervention.
Delays in adjudication will also greatly affect both lawyers and judges. When a judicial officer perceives that his efforts for justice will most likely be defeated due to delays in the adjudication process, he will naturally become frustrated and even cynical. He will realise that these delays may produce a result contrary to what is desired. These frustrations are expressed through statements such as that made by the chief justice. This can be followed by taking short cuts to justice, including calling for settlements and giving suspended sentences, which will in fact favour the criminals, not the victims of crime.
Lawyers will feel the brunt of the delays. Their relationship with their clients will become strained by their hollow explanations regarding the inordinate delays in the court process. For a litigant seeking redress, the state’s failure to take adequate measures to ensure speedy justice is incomprehensible. To her, it will be the lawyers, the court or the opposing party engaged in a scheme to deny her justice. If a client is told that chances of the case finishing in the near future are minimal, he may no longer wish to pursue the course of justice, which may result in his lawyers not being paid. To prevent such circumstances, lawyers may resort to unethical solutions to their client’s problems, outside the judicial process. This will inevitably result in the disgrace of the Bar, as noted by the chief justice, which in turn may result in the judiciary becoming a joke.
The Asian Human Rights Commission (AHRC) therefore urges the government, the opposition and civil society to consider the problem presented by the chief justice with utmost seriousness, and take urgent action to end all delays in adjudication in Sri Lanka.
