SRI LANKA: An awakening to the delays in Sri Lanka’s adjudication process

March 15, 2005

A Statement by the Asian Human Rights Commission

An awakening to the delays in Sri Lanka’s adjudication process

The Asian Human Rights Commission notes a slight awakening in the Sri Lanka legislature to the delays in the adjudication process in the country. Such delays virtually negate the very purpose for which the adjudication process exists: to maintain the rule of law.

This awakening, albeit slow, is manifested in two proposed laws which are now under discussion. The first is the 18th Amendment to the Constitution. The second is the conclusion of proceedings relating to serious criminal charges within 90 days.

The 18th Amendment is for the purpose of creating appellate courts in places outside of Colombo, where they currently exist. The idea is to create more court locations and judges for the appellate court and to make it possible for them to sit in provinces where access to courts for litigants may be easier and less expensive. The possibility of increasing the number of judges and court premises has been mooted for some time as a necessity for dealing with the overload of cases that are causing considerable delays in the court system. The implementation of provincial appellate courts, therefore, is an attempt to resolve this problem.  In spite of other political considerations that might exist, the 18th Amendment is valid in itself, as the increase of the number of courts and judges is imperative if the issue of delays is to be resolved.

The criminal justice system has arrived at a virtual standstill with a mere 4 % conviction rate and the failure of witnesses to appear in court in 85% of cases, due to fear of the alleged perpetrators. The power that perpetrators hold over witnesses is due in large part to the long years of delay in the adjudication process. A witness protection programme does not exist. Even if it did, it would be impossible to maintain such a programme for cases that take many years to resolve. To provide the necessary services for witness protection for extended periods of time in terms of personnel and material resources would be enormous and impractical. The cost of such an exercise would be exorbitant and the stress of such a system would weigh too heavily on the law enforcement agency. Thus, effective witness protection should accompany a speedier adjudication process, such as the 90-day limit for the disposal of cases, which has been implied.

The speed of the adjudication process will also depend heavily on the manner in which the Attorney General’s Department deals with the overload of cases.  Presently, the filing of a case with the Attorney General’s Department can take anywhere between one to three years – and sometimes even more.  At the High Courts, the average wait is between two to five years. It is not possible to resolve this issue without an increase of personnel at the Attorney General’s Department nor without additional High Court judges being appointed and court premises being found.

Much can also be achieved in the speeding up of the adjudication process by introducing computers and training persons involved. As it is now common practice to computerise documentation relating to adjudication in many parts of the world, it is time for Sri Lanka to do likewise and to reap the benefits of this.

While there is ample material available regarding the speeding up of the adjudication process, what is absent is the making of necessary decisions in order to implement it.  This decision making process begins with the legislators of the country.  It is they who must provide the necessary legal framework for the expansion of the court system.  It is also they who must approve the necessary funds for the realisation of this aim.  The critical function that needs to be exercised by the legislators cannot be replaced by anyone else.  However, how the legislators exercise such functions depends very much on their party’s policies.  If parties do not have a policy towards the resolving of adjudication delays, then there is very little that legislators can do to resolve such an issue.  Thus, it is the duty of political party leaders and their members to arrive at an agreement on the measures necessary to speed up adjudication and to pursue the realisation of such measures through the legislature.

None of the country’s present problems will ever be resolved without achieving a reasonable degree of success in the speeding up of the judicial process.  The Sri Lankan model of governance is a law-based one.  However, when the law cannot enforce itself due to its own inner contradictions – such as the extreme delays that exist in Sri Lanka – then the entire social system cannot function.  A dysfunctional legal system means a dysfunctional society as a whole.  At the core of this dilemma is the issue of the law’s delays.

Such dysfunction within one aspect of Sri Lanka’s administrative system transcends into other areas as well. The issue of tsunami relief work is attracting global criticism. The world is at a loss as to why aid and available funds are not reaching those who most require it. Such confusion, however, ignores the dysfunctional element that exists within all of Sri Lanka’s administrative mechanisms; be it aid, the law, or any other area in question.

The measures currently being taken to speed up the adjudication process are a welcomed move. Though they fall short of fully rectifying Sri Lanka’s judicial delays, they are a positive first step in attempting to do so. The current delays are destroying the right to justice in Sri Lanka. If the legislators can acknowledge this fact and make attempts to overcome it, then there is hope that the problem is not beyond control and that the delays can be reduced.

Document Type : Statement
Document ID : AS-28-2005
Countries : Sri Lanka,