The lack of proper administrative structure headed by a Chief Executive Officer (CEO) is one the most important reasons for the current poor status of affairs in the Judiciary – Pic by Shehan Gunasekara
By Wasantha Galagoda
Why has the judicial system become so unfocussed, lethargic and unpopular and take time to deliver judgment after more than 25 years?
There are more than 25 reasons for the above situation, and those 25 reasons considered to be significant are given below:
- Lack of result-oriented, visionary, chief executive officer/chief registrar with required qualification and experience to cover the entire finance, human resources, and general administration effectively in the Judiciary.
- Lack of proper administrative structure headed by a Chief Executive Officer (CEO) is one the most important reasons for the current poor status of affairs in the Judiciary. As a result, no single person in the Judiciary is responsible for legal cases in the Judiciary from the inception to the conclusion of the case, and therefore, no quick overall valid, accurate and complete information is available in the judicial system about cases, assets, people, other vital information of lawyers, litigants and other stakeholders to determine overall importance of the Judiciary. This information is needed by various Government and private institutions, to determine the integrity and honesty of individuals and their wealth, their suitability for public key positions, their source of income to determine possible tax evasion and also to determine new sources of income in the form of revision of fees, charges, penalties. Most importantly, this is the very reason for not detecting frauds, mismanagement and misdirection of court cases, poor Human Resource Management and the Finance Management in the judicial system. This situation prevailing in the current Judiciary can be compared to a plight of group of people boarded into a ship without a captain to sail to Bombay within a day. Ship is floating, not sailing, people are under the impression that ship is sailing to Bombay. When they realise that they have boarded in to a ship without the captain, it is too late for them to come out from the ship, except for a very good marathon swimmer prepared to take high risk. Hence, they have to be on the ship until ship is reached to Bombay probably after having been floated and more than sailed to many ports, depending on the climate, before reaching to Bombay. Therefore, it is very important to appoint a dynamic and able captain to carry the passengers to Bombay with the pre-planned time schedule and also to bring those Colombo bound passengers waiting in Bombay port to reach Colombo on time.
- Lack of ‘hierarchical case management system’ in the Judiciary: At present court cases are being reviewed only by the sitting judge in the court and registrar will be responsible for maintaining files with relevant documents to be made available for the hearing of the case. Overall review of files from higher authority in the administration is not done on a regular basis and as such cases are being handled without the undue delays being noticed, among other things.
- Lack of review of cases even within each court at least once a month to determine undue delays and shortcomings is one of the most important reasons for dragging out cases.
- Lack of proper systems, procedures and control in line with the latest developments in the information technology and communication technology: At present, courts run independently without a proper system of summarising and analysing all cases on regular basis to provide management information and other information. There is no way of monitoring efficiency of each court due to lack of a proper management information system. By introducing a computer system together with latest communication facilities to integrate the entire Judiciary, the overall performance of administration can be improved drastically. It will help to eliminate unwanted delay, fraud, corruption and also will provide an opportunity to deliver high quality judgment.
- Lack of effective system for monitoring of performances of judges, officers of Attorney General’s Department, Solicitor General’s Department, all court administrators, and other stakeholders: At present, many officers in the Judiciary who are enjoying the judicial freedom to decide the extent, and timing of their involvement in cases are not being properly monitored by the system, as none of them are accountable for concluding cases within a reasonable time. Therefore, on many occasions they are at liberty to decide the date and time for their involvement or sending submissions or fixing the date for next hearing or judgment. Once the proper administration is installed this problem can be solved.
- Lack of effective systems, procedures and control in the Judiciary for regular revisions of Ordinances, Acts, Codes and other Guidelines used in the judicial process, so as to be in par with internationally recognised efficient judicial systems: Issuing of summons has become one of the main reasons for unwanted delay for conducting trials. This is apparently because of following the same old systems recommended in 1890s or before by the British and Dutch. New communication systems developed especially after 1990s must be used to minimise time required for informing parties to attend the court. Hence, all old Acts and Ordinances should be revised immediately with a view to expediting of the hearing of cases. Some of the provisions in the Civil Procedure Code, Criminal Procedure Code, Penal code and other statutes are not appropriate for the current environment from the perspective of prevention of frauds. Therefore, constant review of all statutes should be done to improve them, mainly for the purpose of reducing time for various steps and actions and also to prevent frauds and corruption. E.g., there is no legal requirement to place signature of buyers in a deed of transfer. Any person can make use of this provision to hide the true ownership of any property bought fraudulently or to avoid taxes. Legally, it is not required to indicate the NIC number in any deed. These simple improvements will lead to lesser number of cases.
- Lack of proper instructions to fix a time period for hearing different types of cases in court by higher authorities: At present, there is no system of introducing a time schedule for each activity involved in cases. Because of the complex nature of many cases it is not possible to fix an exact time to conclude a case. But, “a tentative date plan” for cases can be prepared by the administration. This tentative time schedule should be forwarded to the approval of judge who should consult lawyers involved and approve it. Thereafter, it can be used as a guide to monitor the progress of case. Non-monitoring of time involved in cases which are in progress and concluded by any independent authority with a view to improving time for current and future cases. This matter will be solved to some extent once the time schedules are introduced in to the case management system.
- Lack of proper systems to allocate responsibilities for the roles various stakeholders in the Judiciary. Failure to obtain reports and correspondence within reasonable time from Government analysts, Land Registrars, Attorney General’s Department, Criminal Investigation Department and other Government organisations is another reason for postponement of cases unnecessarily. Therefore, each divisional head should be held responsible for producing required information on an agreed time schedule. Frequently, judgments on murder cases are given decades later. Probably by then, the accused is no more there to be punished and whole exercise could be a waste of time and money for the Government and also for the victims.
- Lack of proper systems to link time and objective-focused judgments with career promotions, incentives, etc. Once a timeframe is fixed for a case, judges should be directed to be within the time limit. To evaluate each judge’s performance, all details of cases handled by him should be made available to the higher authorities by the Chief Executive Officer/chief registrar. There should be a promotion and incentive scheme for the judges depending on their performance.
- Unnecessary burdening of judges with administrative tasks that could be entrusted to the court registrar to save valuable time for concluding case proceedings expeditiously. At present, administrative functions pertaining to the case is handled personally by the judge. If summons have not been served, the judge will grant another date probably after three to four months to serve the summons again. This type of administrative job easily can be handled by the court registrar under the direction of judge, while allowing the judge’s valuable time to concentrate on the facts of the case.
- Lack of proper training and skill development programs for judges and administrators to enhance their knowledge, efficiency and power of observation.
- Lack of communication skills, especially in English language has also become a hindrance in expediting the legal process. Hence, it is necessary to recruit a head of human resources under CEO to develop skills and knowledge of judges and the administrative staff. Specialised areas such as commercial matters should be delegated to judges having competency in finance and management.
- Internet/e-mail laptop and smart phones for judges and administrators are not available to obtain and share information. It is also very important to provide internet facilities and emails for all judges and administrators to download any relevant cases from an organised international library, internet, etc. as and when it is needed.
- No online library facilities for judges and the court registrars are available. Action should be taken to set up a Sri Lankan law library to provide any case related information expeditiously. When setting up of a law library, all previous judgments and case proceedings should be organised in such a manner to trace relevant similar cases within a few minutes from the mobile or laptop computers of Judges. This will also help all lawyers to obtain relevant case details quickly and to encourage them for asking earlier dates rather a postponement of cases. Although, it is a challenging task, dedicated computer experts with knowledge of the law could handle this task probably within one year with a team of data entry operators and programmers.
- Inadequate time for hearing cases due to allocation of more free time for judges. Judges are enjoying more free time in the form of court vacations in addition to normal holidays. Court vacation for foreign judges were there in the colonial times to allow them time to visit families in England or Holland. However, given the current crisis situation in courts, this matter will have to be reconsidered. However, if judges effectively utilise allocated time for hearing of cases from 8:30 a.m. to 12:30 p.m., then the effective time can be increased substantially. At present, many judges start work between 9:30 a.m. to 10 a.m.
- Non-availability of method of two shifts per day in courts: Although it is a novel concept for Sri Lanka, this will help to lessen the adverse impact of the above (n), and also to provide more job opportunities for judges, lawyers, and administrative staff while giving more opportunities for current lawyers with lesser number of cases. It is possible to consider “a system of two shifts” from 7 a.m. to 2 p.m. and also from 2:30 p.m. to 9:30 p.m. This will help lawyers, litigants and Government officers to make use of time effectively.
- Lack of an Administrative Tribunal to minimise work load of higher courts and to grant relief for victims within one month: At present, no Administrative Tribunal is in force effectively to determine the appropriateness or inappropriateness of decisions taken by various Government officers. Therefore, many unsatisfied parties seek a judgment in the form of writs from a higher court, such as High Courts, Court of Appeal or Supreme Court, to determine whether the officers have acted in accordance with the powers and authority given in the relevant statute. Writs are expected to be given priorities over others and when the courts get overloaded with many such types of writs unnecessarily, judges are at a loss to prioritise the important cases from others. This leads to judges holding on to writs for more than two to six years, thus causing further injustice and immense loss to the victims. Sometimes, if an eminent lawyer is involved, his influence would allow the case to be dragged on. Therefore, it is important to establish an Administrative Tribunal to interpret unsatisfactory decisions of Government officers before sending it to higher courts. The Administrative Tribunal should operate independently and should comprise of experienced retired officers preferably in the same ministry, department and/or profession and three members of them should confirm or reject the decision of the Administrator within a maximum of 30 days from the date of receipt of complaint to the tribunal. Either party will then have the right to appeal to Court of Appeal, if not satisfied with the decision of tribunal. With this process, it is possible to eliminate involvement of valuable time of higher courts and also it will help to receive immediate solution to the victims with the least amount of suffering, pain and financial loss. As a result, the higher court can make final decision for other cases within a maximum period of four to six months as is done in Germany, Japan, Singapore and Malaysia.
- Non-implementation of quasi-judicial authorities already approved by Parliament: For example, Agrarian Development Act No. 46 of 2000 required to set up Agrarian Tribunals but so far not implemented although it is more than 15 years from the due date of establishment. However, no one is responsible for these delays and negligence of duties.
- Lack of concern about the litigants, general public, economy and the country by all involved in the judicial process in the true sense of professionalism: This is an unfortunate inherent quality in the Judiciary. Many of them treat accused as well as litigants as culprits and ignore the urgency of concluding of cases, as they are at liberty to perform independently and without being monitored effectively of their duties. Hence, it is inevitable that personal preference is applied over objectivity. Therefore, time limits and plans are not seriously considered in the judicial system for conducting and concluding legal cases. This practice of deferring of court proceedings is probably linked to the fundamental principle of allowing judges to study the case comprehensively so as to make a fair and valid judgment. Unfortunately, this concept has been manipulated to the extreme end in Sri Lanka. There are instances where more than 25 years have been taken to give decisions, especially in land disputes, thus making the victims further victimised at the expense of Government funds and resources. These delayed cases are not being valued in terms of economic loss to the individual victims, the economy and also to the Government. Those judgments are neither fair nor valid, for many of the victims are not living at that time the judgment is given. Further scrutiny of action and behaviour of judges will reveal many reasons for the long delay of court proceedings and judgments. The victim’s financial and economic situation is not considered when postponing cases, even though the victims are further victimised by unwanted postponement of trials or delivering judgments. In some instances, judges don’t read the relevant laws in fixing such long days. Some judge’s disregard laid down procedures and also relevant Acts concerning time period. This is very noticeable in Labour Tribunal (LT) cases which are supposed to conclude within six months. Some judges lack the technical and financial knowledge and therefore it takes more time for them to understand the nature of the case. As far as lawyers are concerned, many lawyers are of the misperception that longer the delay, better the economic benefits for them; hence, they encourage postponement of cases for months as they get paid for just an appearance for the case on pre-agreed basis of fees. In some instances, when lawyers are not in positions to be ready with the arguments, especially when they know that early trial would end their case soon, they purposely ask for long dates and sometimes they exploit genuine provisions in various Ordinances to drag out the case unnecessarily. In many occasions, judges allow those unreasonable requests of lawyers, mainly due to lack of focus or undue influence mainly at the expense of victims. In some cases, court administrators are being unduly influenced by some errant lawyers causing deliberate misplacement of documents or to deviate from the accepted court practice. In some instances, Administrators certify and submit documents and information to mislead the judges who eventually make wrong judgments based on them. Finally, victims will have to make an appeal and to waste a longer period in courts, as neither the judge nor registrar is accountable for their action in the eyes of victims and the general public. It is an offence if proper due care and skill is not being exercised in the performance of duties by professionals and decision makers, but it is not strictly applicable to those involved in the judicial process. Judges can be negligent, inefficient and biased while ignoring due care and skills in conducting proceedings and the only alternative available for victims is to appeal against the judgment. This causes further burdening of the Government and further victimisation of litigants. No effective system is available for reviewing judge’s action and to guide them. In many land cases as well as criminal cases, when judgments are given after 15 to 30 years or more, the parties, complainant, and defendant/accused, involved in the case are no more and all those who had initiated and conducted the case in the Judiciary are no more. Hence, the current system has miserably failed to provide the justice for those who deserve it. This has caused the general public to form a negative opinion against the entire Judiciary.
- Lack of adequate resources in the Judiciary to provide effective service to the general public:
1.Lack of integrated computer system to facilitate sharing of knowledge, control of any deviation from defined procedures and to provide management information and external vital information on time, etc.
2.Lack of usage of new methods of communication: Further improvement in methods of communication can be developed by introducing latest available facilities, such as teleconferencing, e-mail, SMS, Skype, video recording of court proceedings and using of cloud storage and pen and other latest devices for storing vital details and court proceedings. Former Chief Justice Sarath de Silva has confirmed that $ 21 million has been borrowed from Asian Development Bank someday prior to March 2007 to develop the Infrastructure in the Judiciary and that included introducing of Video recording and other communication development. However, it is not visible in any court.
3.Lack of reference books, case records and various judgments of similar cases for immediate scrutiny will force judges to delay decision making or to make inappropriate decisions, thus, causing immense hardships for genuine victims due to wrong/inappropriate judgment coupled with undue delay.
4.Poor condition of court premises; Most of the courts are not properly maintained. Repairs are not done and the internal office environment is not properly maintained thus causing difficulty for judges and the staff to concentrate on work effectively.
5.Inadequate training, knowledge enhancing programs for administrators and judges will have an adverse impact on the final judgment of any case. Therefore, it is very important to implement proper human resource development program.
- Lack of proper guidance for litigants in the Judiciary: At present, litigants very often become victims of lawyers when they hand over the case. Due to lack of proper registers of lawyers specifying their specialties, it is not possible to find the right person for the job. Some lawyers are in the habit of increasing fees without having any prior agreement. Some lawyers never provide any guidelines concerning future court procedures. Many of them don’t issue receipt for fees; sometime they charge for their juniors as well. There are no proper instructions or guidelines available to the public/victim to understand the basic rules in the court and action plan that they intend to follow from the beginning to the end of a case. Some lawyers charge unbelievable fees which are more like ransom rather than professional fees. Hence, it is timely to set up an independent legal division under the CEO which will provide well organised professional service to the general public at a reasonable fee. They should also develop a desk to provide basic legal guidance to court proceedings and possible time period involved, etc., as a service. However, this unit can be run as a profit generating centre without burdening the Government while providing efficient service to the litigants, preferably at a reasonable fixed fee for a case and also making an assurance for speedy court proceedings within a specified time period.
How to implement judicial system to deliver judgments within maximum of one to three years
Vision, Mission and Objectives:
- Vision: To be the most efficient judicial system in the world that would provide independent, sensible and time-focused judgment for victims and all at large
- Mission: To provide objective and time-focused fair judgment which would help victims to minimise losses pain and sufferings while eliminating economic losses; and also to strictly eliminate or discourage occurrences of social unrest, injustice, vice and other harms in the society as a whole and thereby helping the Government to minimise waste of economic resources.
- Main Objectives – Judicial System:
1.To provide independent, fair, sensible and time focused, unbiased judgment for victims after having completed comprehensive, time and objective-focused trial
2.To develop and improve the judicial administration so as to provide any operational, financial and other information to judges, court administrators, higher authorities in the hierarchy, Ministry of Finance, other relevant ministries, litigants and all stake holders on time to facilitate their decisions making and which would develop skills and competencies of all involved in the Judiciary;
- To provide fair allocation of funds to meet objectives;
- To look for new sources of income so as to minimise the dependence on the Government for funding to run the administration efficiently;
- To implement incentives schemes and other benefits for the Judiciary
1.To eliminate economic losses and wastage and assist economic development by removing legal barriers attached in movable, immovable, tangible and intangible assets involved in litigation as expeditiously as possible
2.To eliminate negative perception about the judicial system and to create a positive mind in the general public to encourage them to use it for protecting their rights without suffering silently
3.To develop a friendly and useful working environment for all involved
4.To be recognised internationally as one of the vibrant judicial systems in the world
How to implement judicial reforms
- Obtaining preliminary approval from the President, Prime Minister and the Minister of Justice, Chief Justice and the Attorney General to consider the above proposal seriously and to appoint a committee for further study and to make final report within one month.
- Approval from the President, Parliament, Prime Minister and the Cabinet for judicial reform proposals an on urgent basis.
Implementation of approved proposals
This process includes:
- Convincing of decision makers by the reform committee:
a)Eliminating fear and resistance of lawyers who feel that efficient judicial system will have an adverse impact on their source of income.
b)Eliminating fear of genuine and honest judges who feel that more work would be involved due to pressure for time bound trials which are strictly monitored from the higher authority in the hierarchy.
c)Eliminating fear of genuine and honest court administrators and administrative staff who feel that they are overloaded with time-bound work pressure without being adequately compensated.
- Recruiting of experienced qualified and efficient team leader/CEO having wisdom and forthrightness with an able support team to undertake the overall reform with the unwavering support and blessings of the Government and the Minster of Justice.
- Entrust CEO to handle the judicial reform process in consultation with the reform committee:
a)CEO should report directly either to Chief Justice or President of Judicial Service Commission or Secretary to the Ministry of Justice or chairman reform committee. Overall court administration will be entrusted to the CEO and all court registrars will report to him with regard to finance and administration.
b)Major judicial reforms should be completed within one year and therefore, the reform committee should meet once a week.
c)The CEO should take immediate action to recruit supporting staff under the CEO which should include head of IT, head of HR, accountant, case management co-coordinators, preferably lawyers to liaise with Magistrate Court, District Court, Labour Tribunal, High Court, Commercial High Court, Court of Appeal, Supreme Court, AG’s Department and other relevant institutions, accounting personnel, computer programmers and system analysts.
d)The CEO should employee legal experts to obtain their opinion and forward same to the committee for final decision for recommending any changes of prevailing laws and statutes.
e)The CEO should liaise with Attorney General’s Department and Solicitor General’s Department and other relevant institutions to give legal effect.
f)The CEO should initiate for setting up of an online law library to be implemented within 12 months.
g)CEO should introduce an effective case management system and a management information system using the latest information and communication technology.
h)The CEO should prepare budgets and cash forecast and monthly accounts of the total program of reforms.
i)The CEO should recommend new sources of income from the Judiciary and to new systems, procedures and control for further continuous improvement.
j)The CEO should look after training and human resource development of the Judiciary.
k)The CEO should form a Government owned company/firm to provide professional time- focused legal service to the general public at a reasonable fee.
lThe CEO should ensure final implementation of the judicial reforms within two years.
(The writer, BA (Hons), FCA, FCMA, MBA (Wales), can be reached via email [email protected].)
