Tuesday, 10 January 2017

Is The Bar Responsible For Perpetuating Laws Delays?

By Hemantha Warnakulasuriya –

Hemantha Warnakulasuriya PC

Hemantha Warnakulasuriya PC

When I was invited by the OPA to deliver a lecture on "Laws Delays", emphasizing on the Criminal Law, I reluctantly agreed as I felt that the seminars of symposiums have no effect in Sri Lanka except to make some noise and eat some refreshments and if it is a five star hotel, participate at the cocktails. Laws Delays and remedies if any, are forgotten or thrown into the dustbin. This happens in every sphere where seminars and symposiums are held for the edification of those who lecture so that in their resume they could include this. When you think of the history of the Bar Association, where I was involved from its inception how many seminars had been held on many important aspects and recommendations made I believe, you could fill a small room with the papers written by various experts. But nothing happens, nothing changes and we become active participants of Laws Delays which I now think is an utterly criminal act.

At this seminar, though I was requested by the convener of Committee to seriously address the issues concerning the Delays in the Criminal Law, I was determined to commit penance for the sins I committed in defeating the most progressive and precautious legislation which we knew as the Administrative Justice of Law which we all opposed. We were jubilant that we were able to defeat not only the Felix Dias's Law and Felix Dias himself. Now I know, and am convinced that even if the Government of the day due to reasons other than the plight of the poor litigant, the Bar would oppose any such progressive legislation. I as one time Secretary and its Deputy President of the Bar Association are equally guilty of this crime. That is why the Judicial Services Commission by Circular to impose day-to-day proceedings in cases which have been postponed for a long period of time. Of course, this will not help the cause of Justice or the cause of the poor litigants but, the JSC, was I am told overwhelmed by the number of petitions they received from the public complaining of long delays.

At the seminar other speakers were former Supreme Court Judge Mr. Saleem Marsoof and Mr. Nihal Jayamanne PC. Mr. Jayamanne was one time President of the Bar Association. When Justice Marsoof was addressing the seminar, Mr. Jayamanne whispered to me and said that Mr. Marsoof is spreading on to the path where he has chosen about the delays in civil litigation. When Mr. Nihal Jayamanne spoke, I had nothing to add as all three of us agreed on many points and wanted radical changes in the law, if one is seriously interested in curbing the Laws Delays.

Mr. Nihal Jayamanne former President of the Bar Association and former Chairman of the Law Commission said that, legislations which will expedite the procedure and reduce the technicalities will always be opposed by the Bar. He told me as the Chairman of the Law Commission, they recommended far reaching amendments for the procedure which were never even discussed by the politicians, far from being implemented. So it is necessary for us to reflect back on the one man who seriously thought of bringing sweeping changes to the Civil and Criminal Procedure.

At that time Felix Dias Bandaranaike was the Minister of Justice. He was one of the most powerful Ministers in the Sirimavo Bandaranaike Cabinet and was hated by a certain section of the Legal Fraternity because they felt that he interfered with their  profession and was trying to introduce barefoot lawyers and control the fees of lawyers.  Dr.  Jayawardena said, "Where we think that any proposed action of any Government is against the democratic rights of the people, or it is prejudicial to our profession, the Bar will not hesitate not only to express its views promptly but, to take action which it may consider proper to oppose any undemocratic move or one detrimental to the interest of the profession".

This has been the motto of our association since then.

I would like to ask the reader and litigants "What position should the Bar take when the Government in power takes action in the interest of the public and in the interest of litigants, to lessen their burden but, this action is detrimental to our profession?"  Sadly if the proposed legislation affects the profession and helps the litigants, the Bar would vehemently oppose it. Therefore, Felix Dias Bandaranaike, whom  in hindsight I consider  as one of the most intelligent, precocious , Ministers of Justice we had, who was ahead of his times, was painted as the devil that ought to be exorcised. He and his team comprising Dr. Nihal Jayawickrema, one of the most efficient and powerful Secretaries the Ministry of Justice ever had, were not only driven from political power, but were possibly punished by the political circus called the 'Presidential Commission'.

What had he done to earn the wrath of the Bar? He, as the Minister of Justice, and a politician from the rural Dompe, had an obligation to the people who voted him to power. As the Minister of Justice he had to ease the burden of litigation and laws delays and he wanted to tackle the back log of cases. Most common men think that the administration of justice only serves the rich, and not the poor.

The SLFP vote base, the rural masses, genuinely complained about the Laws Delays. This was not something new. Sir John Kotelawala, felt that there was an urgent need for legal reform, for the laws of the country to suite the local situation, which was quite different to what we inherited from our colonial masters. He appointed two Commissions, Justice Nagalingam to inquire into delays in the Civil Court and Justice Gratian to discuss the delays in Criminal Courts. It was Justice Gratian who was the first to recommend the abolition of the non-summary proceedings. That was his main recommendation.

Similarly, Justice Nagalingam made far reaching recommendations for radical reforms of the Civil Procedure Code. This Commission collected material from the entire island and was a compendium of the Reasons for Delays, and in fact I am told that the Nagalingam Commission had even drafted the Civil Procedure Code to be introduced in place of the present Civil Procedure Code.

What happened then? There was no Bar Association then. The Advocates had their separate organization called the 'Bar Council', and the Proctors had the 'Law Society'. I was also told that when it came to adoption of these reports, the Bar Council, headed by the Wickremanayake's totally opposed the recommendations of the Nagalingam Commission. The Wickremanayake's together with the Bar Council, opposed the recommendations and a similar fate fell upon Justice Gratian's Criminal Procedure Reforms Commission.

Today, sometimes we hear of convictions in a murder trial, 20 years after the incident. Laws delays are caused by people who refuse to accept any changes. In a changing world, changes are mandatory. We are inundated with laws which were enacted by our colonial master in the 1890s. Civil Procedure was enacted in 1889, Criminal Procedure Code 1899 and the Evidence Ordnance in 1895.

I remember the time when my  friend Nihal Jayamanne's father served in the Ministry of Justice for a short time. He was progressive in his outlook though he was a leading land lawyer in Sri Lanka. He was moved by the delays in the 'Adversarial System' of Judges in Sri Lanka and wanted to bring, 'Alternative Dispute Resolution'. Thus the 'Conciliating Board Act' was introduced by him. But, as usual, the legal fraternity and even some judges felt that this would ultimately dilute the powers of the group of non-lawyers and was discouraging.

But, later again, Felix Dias Bandaranaike introduced the Conciliation Boards, and strengthened the powers of the Conciliatory Board and today, statistics reveal that 50% of matters referred to the Conciliatory Board have been amicably settled. Thereafter, the Conciliatory Board was scrapped and the Mediation Board was introduced. Even today some members of the Board totally oppose the Mediation Board.

Similarly, when Felix Dias Bandaranaike, with the help of Nihal Jayawickrama, introduced the 'Administration of Justice Law' [AJL] and replaced it with the Civil Procedure Act, there was tremendous opposition. The opposition to these 02 Acts continued, until they were defeated politically. The AJL repealed the provisions relating to non-summary proceedings, held to decide whether there was sufficient material for an accused to stand trial in a higher court.

Naturally,  I was angry at the inception, as I had a fair number of junior lawyers, were involved in defending people who had committed murder. Though Non summary procedure was repealed, I, as a Criminal Practitioner, never lost my practice.

The civil reform, based on Justice Nagalingam's recommendation, was far reaching in its effects. One of the most important and far reaching laws that came into being was the AJL Act which got rid of the Fiscal, one of the most corrupt Institutions in the Administration of Justice.

The Summons was delivered by the postman and the acknowledgement which was sent with the summons was on a postcard to be filled and given to the postman. There was a Registrar who had to accept the plaint with the lists of witnesses and the documents. This dossier is served on the Defendant and the Defendant would then have to prepare his answers with all the documents and the Registrar would thereafter refer any contentious matter to the District Judge, which helped to settle most cases under the AGL without coming into protracted trial.

The Late Justice Souza, told me that as a District Judge he intervened and settled 65% of civil cases that were filed under the AJL that it was a resounding success. But the Bar opposed it. Even some judges opposed it. They were trying to make Laws unworkable. The Fiscals Officers resisted it. Most Registrars did not support the new laws. But in 1977, when the new UNP Government was elected, no one bothered to find out how to amend the AJL, so that whatever flaws were in it could be rectified.

In civil cases under the AJL, the Plaintiff will have to file his plaint with the documents and a summary of evidence with the Registrar. Then the Registrar will post it to the defendants and the defendants, when they receive the summons by post, there will be a 'postal delivery confirmation post card' which will have to be given to the postman. Thereafter, the Registrar will decide to send it to the District Judge who will examine the documents and will try to curtail oral evidence being led unless it is very important. It is easier when all the documents are available and it would facilitate an efficient judge to bring about a settlement.

This was working very well. There was efficient disposal of cases but with the election of the 'Darmishta Government' this was repealed and the same old Civil Procedure and Criminal Procedure, with some slight amendments, were re-activated.

The Prescription Ordinance was enacted in 1889 by our Colonial Masters. Section 3 of the Prescription Ordinance, states that if a land is possessed by someone for more than 10 years, he is entitled to ownership of the land. The reason for this legislation is not known to me. Maybe to prevent an absentee landlord and that the owners should be vigilant of their rights. But in the villages it has paved the way for any intruder and trespasser, or a village thug to forcibly occupy the land and own title by Prescription.

Mr. Melvin Silva an Advocate  friend of mine  who essentially practices in the outskirts of Chilaw and Marawila, told me that most land cases would disappear if Section 3 of the Prescription Ordinance was repealed. By this section, we are increasing the number of cases filed in the District Court as Sri Lankan people are one of the most litigious people in the world. This is what Lord Cameron observed. Sri Lankan citizens would pay heavy fees in order to establish their property rights.

My friend told me that one would feel that any licensee (a person who occupies your property with your permission and approval on condition that he is willing to vacate the land when the owner requests him), would do so and that if he refuses to vacate the land, all you need to is to go to court and file an action. Then, within a matter of time you obtain a writ to ejct him. But within no time, the owner realizes the long drawn out legal battle, the licensee's claiming that he has been occupying the land for so many years, and the license was given not by the present owner, or owners but his ancestor in title, and the answer filed in the case would reveal that he was not the licensee but his grandparents and that he by uninterrupted occupation is entitled to the land. The Licensee would not only claim the Defence or Prescription either to the whole land or at least a portion of it and invariably, plead that he has caused improvements to the land and claim compensation. Thus, the landowner would invariably enter into litigation with the licensee who was allowed to occupy a house at the pleasure of the owner.

In order to counter the plea or prescription, the Plaintiff will have to get involved in Laws of Prescription such as presumption of ouster and counter presumption of ouster. Is this justice? Where is justice to the owner who has on sympathetic grounds permitted his servant, his watcher to occupy his house and to look after his estate? There are many instances where the unscrupulous trespasser, in a litigation, would assert that his ancestors had come into an agreement with the landlord's ancestors who, according to him, had promised to give a portion of the land and plead prescription, for that portion of land. There have been many instances where the landlord is forced or coerced by the delay in litigation that he agrees to give the licensee a part of the land occupied by him.

Similarly, Section 66 of the Primary Courts Ordinance protects the trespassers. When a trespasser discreetly breaks the boundary fence of another and uses the gap he illegally created to proceed to his house, and when the owner having discovered the indiscretion of his neighbor and mends his fence, the trespasser files an action under Section 66 of the Primary Courts Ordinance, and the court will invariably permit the trespasser to use the path, which according to evidence, could easily be established as having being used for 2 months. Being frustrated by the order of the Primary Court, the owner files action in the District Court, requesting the District Court that he be entitled to his land free from any servitude, the trespasser will plead prescription and the matter will most probably end in the Supreme Court thus preventing the landlord from repairing his fence. If eventually the landlord is granted his prayer only his grandchildren or his children would be able to enjoy the fruits of the land.

Section 3 of the Prescription Ordinance, has that whatever the movable intentions of the legislature was at that time, today, it would appear the law of prescription is intended to grant legal rights to persons to commit illegal or unlawful acts in respect of other peoples' property. Therefore, the Law of Prescription in relation to land litigation, whether it is ejectment, boundary definitions, servitudes or partitions should be removed. Large volumes of land cases pending in courts will disappear from the role and the people will greatly benefit. We believe that if new laws are introduced to recover the possession of his land, where the person needs only to prove his title, and a law similar to the recovery of possession of State property or having boundaries defined by means of a commission, issued to the Surveyor and the Courts determine the boundary or the co-owner being able to have his co-owned land, partitioned without the harassment brought about by the Prescription Law, the people would be served better.

The Civil Procedure Code should either be repealed with a new code or it must be amended to permit pre-trial proceedings to be incorporated. The Plaintiff should be asked to file, with his plaint, all documents, including evidence of witnesses by way of Affidavits. Then the Defendants should be given copies with the dossier filed in Court by Plaintiff so that the Defendant would be in a position to file his answer and his cross claim, in the form of supporting documents and evidence by Affidavits. Similarly, replication would follow the same procedure. Thereafter the issues would be claimed and the roll judge, before whom these documents are filed, will narrow the issues and permit only a few witnesses to be subjected to cross examination. All documents, whether they are photocopies or machine copies, should not be objected to, unless one-side claims they are forgeries or the impossibility of proving the authority of the documents. If such objectionable documents are to be proved to be genuine or the objections are vexatious, a heavy penalty should be taken against the person who has taken such objections.

The Pre-Trial Judge ought to be a senior judge, quite conversant with the procedure and should endeavour to settle the matter, as he is privy to the information and to the issues that have been raised by all parties.

All objections are taken by parties on what we construe to be an archaic, anchoretic called the Evidence Ordinance and then whatever ruling that a judge takes, objection made purely to delay proceedings should not be permitted. When a judge makes an order on whatever grounds, and if the order is wrong in law, then proceedings must take place irrespective of the objections and conclusions a judge may be asked to deal with it, so that there will not be numerous appeals but only one appeal on all objections.

A few days ago, I was in the High Court, where the main prosecution witness had failed to attend Court on a number of occasions. The Prosecution had informed Court on the previous day that the case cannot proceed without the witness and after postponing the case for several days, the Court fixed the case finally to be disposed on the next date. The witness was absent again and the Court was unable to discharge the Accused  even if the Court is satisfied that the Witness cannot be apprehended or brought before Court, to proceed without the evidence of the witness being led. Though there is provision in the Magistrate's Courts to discharge an accused, if the Prosecution is unable to proceed with the case.  This discharge is not final.  The Prosecution, within one year, could bring  a fresh claim or open the case if the witness is available. Similar provisions must be brought into the procedure in the High Court.

Similarly, if the Accused cannot be apprehended, there is provision for the Attorney General to file indictment and proceed with the case and even convict the Accused in absentia. Prabhakaran could not be apprehended nor could summons be served on him. Yet the Attorney General filed indictment against him and he was convicted and sentenced to jail. But in the Magistrate Court only a 'B' Report could be filed and warrants be issued to arrest him, but no plaint could be filed against him. An immediate amendment to the  Procedure Code should be brought in to permit the police to file a plaint against the absent accused and convict him in absentia.

One of the important reasons for the delays is the Attorney General's Department, which is presently overburdened with work. The plight of a State Counsel could never be understood by a member of the Private Bar. Everyday a State Counsel, prosecuting in the High Court, will have to get ready for at least 5 or 6 cases. Thereafter, in the evening he will not only have to get ready for the next day's trial, but also study thoroughly the briefs sent to him by the office to  make recommendations whether indictment should be filed or not.  Every Friday, a Sate Counsel has to travel to Colombo and inform his superiors the progress of cases submitted to him for a ruling. This is a herculean task; no reasonably prudent man would expect the State Counsel to concentrate on cases without eating, sleeping or drinking and earning a well deserved rest, and make just orders after carefully analyzing and evaluating  the facts and the law.  Therefore, one way out of this is to decentralize the Attorney General's Department and recruit more competent members so that every judicial zone or district could be under a Deputy Solicitor General (DSG) and 3 or 4 police stations should come under the supervision of a Senior State Counsel like the District Attorney System in the USA.

Similarly, when a large haul of narcotics is taken into custody, it takes a long time for the Government Analyst to submit a report on the actual quantity. Like in the Fingerprint Department, if the Government Analyst could be strengthened with modern equipment to enable them to be  summoned to the spot and analyse the sample before the  Accused and the Investigation Officer. His report could be obtained immediately, there should be an amendment which would be admissible in court.

Similarly, all offences that could be compounded should be referred to the Mediation Board and the Mediation Board must be given additional teeth to summon parties to the Mediation Board and if they fail, to issue warrants to have them produced before the Mediation Board. Today, though a large number of cases are settled at the Mediation Board, yet a fair number of cases that are referred by Court are sent back to Court, as parties are advised by unscrupulous intermediaries not to go before the Mediation Board.

Finally, I would like to summarize the points raised by me to minimize the Laws Delays in our country, which I believe is a crime committed against humanity and Democracy, which might lead to the alternative:

Repeal or Amend the Civil Procedure Code;

Bring back the pre-trial procedure where parties are compelled to file their plaint and the pre-trial should be a complete package where the parties are compelled to file all the documents and evidence by way of an Affidavit.

and the Registrar should be a Senior Judge who will endeavour to bring about a settlement.

only highly contentions matters should be brought before a trial judge.

all objections taken by the Counsel, in the course of a trial, be addressed by the judge at the end of the trial. This would eliminate all unnecessary appeals in the midst of a trial or an inquiry.

Evidence Ordinance should to be amended to be permitted to lead secondary evidence of documents whether they are photocopies or machine copied, unless serious objections are taken by a party asserting that they are fake or forgeries and if they are proved to be otherwise, a heavy penalty should be imposed, on the person whose assertions is proved false.

Section 3 of the Prescription Ordinance should be repealed;

A provision, which is equivalent to the State Land Recoveries Ordinance, should be brought into to operation to eject unlawful squatters, licensees and other trespassers who occupy others' land.

The AG's Department be decentralized with a Deputy Solicitor General in charge of each District or Judicial Zone and a District Attorney be in charge of 4-5 police stations and investigations be conducted under his supervision. This will eliminate delays and corruption.

The Criminal Procedure Code be amended, to discharge an Accused if the Prosecution is unable to begin and conclude for want of witnesses.

Similarly, if the Suspect is absconding or had gone broad, the police be permitted to file a plaint and proceed to trial in absentia like in the High Court.

Mediation Board be strengthened, permitting an offence like grievous hurt, misappropriation and other offences with a monetary value of Rs.50,000/= or below be referred to the Mediation Board and the powers of the Mediation Board should be enhanced, so that the Chairman of the Mediation Board be issued with power to summon the parties or issue warrants to get them to come before the Mediation Board.

Debt Recovery Law be amended, so that the entire transaction, even running into Millions of Rupees be permitted to be recovered in the Magistrate's Court.

Government Analyst's Department be summoned, to places where heroin or drugs are detected, so that 'on the spot' the Government Analyst's Department could issue a certificate that it is Heroin or some other narcotic.

These are some random thoughts that came to my mind. Laws delays and the agony and the anxiety that litigants undergo is a crime. If these matters are not addressed, the people would lose faith in the entire judicial system. We must think out of the box. There may be various objections raised if these reforms are introduced, like most of the Members of the Bar Association were in the forefront in the abolition of AJL introduced by Felix Dias Bandaranaike. We, as juniors, supported this movement and we managed to re-introduce the Criminal Procedure Code with non-summary proceedings. But, the disaster had to be averted with an amendment to restrict the non-summary inquiry to record evidence of witnesses.

If there was a District Attorney, he would, with the concurrence of his Senior, file direct indictment in cases where there is tremendous interest among the public.

But, I believe that the most progressive suggestion was made by Mr. Nihal Jayamanne PC, when he said that in India, there is a very widely popular legal concept called 'the Advanced Decree', where parties to any contract go to Court and stipulate the conditions and the failure of any one of which is entitled to the other party, to obtain an 'advanced decree' and enforce the contract. For example, any person who leases out his premises and on proof of non-payment of the lease rental, as stipulated in the contract, the advance decree, that has been obtained, could be enforced and the defaulter could be ejected.

Similarly, there are many instances where people enter into Mortgage Bonds and other contracts that could be enforced on default, as the parties would have obtained an 'advance decree', before they even entered into a contract.

Laws Delays have threatened our Institutions for a very long time and if no remedial action is taken it would result in people losing faith in the system and would resort to Kangaroo Courts for Swift Justice.