Laws delays, lawyers’ delays or system delays? | Sunday Observer

Laws delays, lawyers’ delays or system delays?

3 January, 2021

Justice delayed is justice denied is the famous adage by ‘’Lord William Gladstone’’ on the legal system. This an old and worldwide issue that needs attention still in the main agenda in the modern society.

Sri Lanka is not the only country that suffers from laws delays due to various reasons. When the legal system paralyses, the other parts of the system follow suit leading to a slow decay and a grinding halt of the system in the end.

Laws delays are rampant in Sri Lanka. It takes decades (15 to 25 years) for rape, murder and major crimes to reach the trial stage with the witnesses being dead or unable be traced.

When rape cases are taken up for trial, the victims are matured and married and the evidence is shattered with investigating police officers and government officers being dead or unable to be traced on transfer.

It may come to a stage when litigants prefer to resort to other means to resolve their disputes as litigation is so expensive and time-consuming, proving the village adage that ‘’those who resort to litigation destroys themselves.’’

Civil and partition cases are the most time consuming that some partition cases are delayed up to 30 years with litigants part with the rest of the property for legal expenditure.

The causes of many crimes in villages are based on land disputes and personal reveries that have escalated due to delays and mismanagement of the system in operation.

The famous story of ‘Sinidu’, by Lenard Woolf - the civil servant and writer during the colonial ere, is a case in ‘Baddagama’ in ‘Wallasmulla’. It is a sad story due to the ignorance of law and the legal system, which has not changed much since then.

The ’Vinodes’ case in India of the murder of five-year child took 22 years with 36 witnesses to testify. It is almost the same in Sri Lanka. In the UK, there is a backlog of 63,000 cases, according to the Law Society Gazette, but they are improving fast using modern technology and methods.

In Sri Lanka, five members of a family were convicted of murder recently for an offence committed in 2009. Examples are numerous.

Litigation in Sri Lanka is expensive and complicated with a mixture of Roman Dutch, English and personal laws. We must have a simple law for all understood by all, instead of obsolete legal systems, such as the Penal Code introduced in the 1800s. The UK is keeping pace with the new trends when we still cling onto the systems inherited by them.

Backlog of cases

There are around 750,000 unresolved cases in the Magistrate’s Courts, with 3,486 cases pending in the Supreme Court, 4,817 cases pending in the Court of Appeal, 5,870 in the Civil Appellate Court, 16,811 in High Courts, 167,945 in District Courts, 200,000 on pending mediation and in labour tribunals and arbitration trials, with 11 judges per one million.

Laws delays have an impact on crime and disturbances in society with losing the trust on the system which has an impact on the economy and trade when traders are disturbed with no quick solution on the resolution of their disputes with the most expensive and complicated commercial High Court not accessible to the trader.

Speedy resolution in litigation is a pre-condition and a prerequisite on foreign investments. Lawyers and the legal system plays a pivotal role in development and business.

Lawyers, the Law College, the BASL and the Ministry of Justice are the main institutions on the administration of justice. Lawyers are a product of the Law College - the only professional training institution in Sri Lanka (there are around 18,000 lawyers in Sri Lanka who obtain mandatory membership on admission before the Supreme Court managed and Administered by the Council of Legal Education headed by the Chief Justice.)

The Ministry of Justice is headed generally by a lawyer who masterminds the conduct of the judicial system and administration, also plans and involves in appointments and strategies with the AGs Department, Judiciary, Legal Draftsman, Court and Office (court offices only and not ‘courts’) administration.

Reputation, power and conduct of the Minister of Justice depends on his personality and management skills of the process of delivery of justice to the citizen offering a fair, independent and effective system of justice. The Ministry of Justice had been a traditionally inactive and inert institution with less attention by the public and the governance until Felix Dias Bandaranaike, a brilliant lawyer, orator and a Minister made the Ministry powerful

The Administrative Justice Law Act 44/1974 was enacted to help poor litigants for speedy disposition on the USA model introducing pre-trials short modern methods of serving summons to make the system of administration simple to the common man who was empowered for personal representation.

Unfortunately, people did not understand him (Felix) well and did not appreciate and the admirable attempts on legal reforms.


Digitalisation, serving summons documents and transferring files via email, what’s app and modern techniques transferring files via net, hearing cases on zoom, messaging on SMS instead of outdated Fax machines and many more changes are in the right direction.

The BASL is now rejuvenated with many zoom conferences and seminars in addition to being modern with the able young Secretary of the BASL, advised and backed by the President of the BASL, who should be in the forefront of the campaign on expeditious disposition of cases for which the common man is entitled to and eagerly awaiting for. Citizen expects more involvements and interactions from the BASL, Legal Profession and the Legal Aid Commission funded by the state.

Prevention of laws delays

By passing arbitrary judgements does a man become wise? “A wise man is the one who investigate both right and wrong, ‘’Dhammapada.

Judges are a main component of the system of administration of justice in any country. Judges are protected by the constitution to be free and independent.

They are politically insulated, who are responsible for ultimate decisions on life and property and protection of personal and property rights and the rights of the citizen with the highest expectations of justice and fair play. They must be temperamentally suited for the responsibility thrust on them.

Some judicial officials, especially in the minor judiciary, are unsuited to be judges. It is necessary for them to go through a rigorous training period as in other countries.

Legal aid is not a favour but a human right where the citizen is entitled to a fair hearing for a reasonable and affordable fee.

One of the main reasons of laws delays is the cost and complexity of litigation and combination of legal systems, such as Roman Dutch Law, personal laws, English law and international/traditional law and conventions. It is the duty of the BASL and the profession to find ways to make law simple for the common man and assist the legal aid system as in the UK where the litigant is entitled to the services of the QC.

There should be changes for the judge to intervene as in a civil system where the Judge takes a main role also encouraging mediation and settlements with a system of prehearing. In expeditious disposition of cases, the judge’s involvement/leadership is paramount.

The Judge plays a main role in the delivery of justice and prevent laws delays.

Some judges are smart and fast, but if they have a common approach with targets by the Judicial Service Commission to follow guidelines, the results will be overwhelming.

Way forward

Laws delays are a pain on the citizen awaiting a peaceful and conformable life due to no fault of himself, where many external factors are responsible for the agony. Lawyers should be educated, committed, concerned on the community and abide by the rules and customs on practice and procedure, Judges should be fair, educated human beings, act professionally with judicial temperament.

The legal system should be clear and understood by all equally as the citizen is presumed to possess the knowledge of law and procedure. The court system and the staff should be efficient and free from bribery and corruption. There should be speedy disposition of cases provided at affordable expenses and free legal aid for these who cannot afford to.

Confidence and trust on the Judiciary, legal profession and the court structure is paramount. The system, including supporting institutions on reports, information need to be provided at the time for the inquiring process. Are lawyers and their conduct a part of the problem? Partially yes! It is time for them to realise the expeditious disposition will help them, the profession and the nation in the long run!

Improving language and IT skills of the professionals is also of great importance. The system should run smoothly with the documents, reports, the support and cooperation of the staff and statutory bodies. The Ministry of Justice is playing a pivotal role as the provider of services and decision maker in appointments, policy making decisions. The success depends on the understanding and commitment of all parties who should act together for the betterment of society.

(The writer is a Solicitor in England and Wales, former Ambassador to the UAE and Israel, former Secretary to the Bar Association of Sri Lanka and President of the Ambassadors’ Forum)