Sri Lanka: How to clear the backlogs

The Sri Lankan judiciary is well known for the pending cases piled up in its closet, which, according to statistics available, is estimated to be around 750,000 cases as at September 2016, with the largest number of some 535,000 cases in Magistrates’ Courts.

by Maheesha Mudugamuwa-November 01, 2020

The Sri Lankan judiciary is well known for the pending cases piled up in its closet, which, according to statistics available, is estimated to be around 750,000 cases as at September 2016, with the largest number of some 535,000 cases in Magistrates’ Courts.

As per Ministry of Justice statistics reported in 2018, around 3,486 cases were pending in the Supreme Court, 4,817 in the Court of Appeal, 5,890 in Civil Appellate High Courts, 16,811 in High Courts, 167,945 in District Courts, 535,644 in Magistrates’ Courts, 5,048 in Labour Tribunals, 175 in the Board of Quazis, and 5,376 in Quazi Courts.

In addition, over 200,000 cases, usually civil in nature, are referred to mediation boards each year.

In a last-minute change made to the controversial 20th Amendment to the Constitution, the Government introduced the increment to the number of judges to the Supreme Court and Court of Appeal, which was later described as a measure taken to clear the backlog of court cases and to speed up the delivering of justice.

Under the amendment, the number of Supreme Court justices was increased from 11 to 17 and Court of Appeal judges from 12 to 20.

Nevertheless, the Government’s move was criticised by Opposition political parties who claimed that raising the number of judges was an important matter that should have been discussed.

They also claimed that with the ability of the President to appoint judges at his sole discretion, the new amendment would seriously change the composition of the courts.

While expressing concerns over the way in which changes were brought to the 20th Amendment at the committee stage, the Government’s move was welcomed by law experts who praised the decision, saying that it was a very timely and progressive.

They claimed if proper infrastructure was in place, the court proceedings and the delivering of judgments would be expedited.

Justice delayed is justice denied

Over many decades since independence, thousands of people dependent on the legal system have to bear the brunt of delayed decisions and denied justice, mainly due to the time that the judicial system takes to dispose of a case. It often results in the violation of a person's fundamental right to fair justice and a speedy trial.

One of the main reasons for the delays in the administration of justice, as explained by law experts, was the inadequate number of judges to hear the cases.

Globally, the unit of measurement is the number of judges in a particular country per million populations. However, the ratio of judges per citizen is severely low in Sri Lanka – 15 judges per one million citizens.

According to the statistics mentioned in the ceremonial welcome at the Supreme Court in March this year by newly appointed Supreme Court Justice Yasantha Kodagoda PC, Sri Lanka has a total of 336 judges and magistrates including justices of the Court of Appeal and the Supreme Court.

Thus, in Sri Lanka, the number of judges per million is 15. The US has 107 judges per million population. Canada has 75, England has 51, and neighbouring India has 20 per million population. The cadre of judges in the Supreme Court and the Court of Appeal was determined in 1978, at a time when Sri Lanka’s population stood at 14.5 million.

It is also stated that a total of 36 judges in the High Court are to retire by 2025.

That would be 50% of the present number of judges in the High Court.

These are judicial officers who have nearly 25 years of judicial experience and who have served the country with utmost dedication. It is unfortunate that the Supreme Court and the Court of Appeal will not receive the benefit of their judicial skills and experience. The position of senior officers in the Attorney General’s Department is similar too.

Furthermore, during 2010 and 2019, the allocation of public funds to the justice sector has never exceeded 1% of the total annual expenditure of the State. This 1% or less has been for both capital and recurrent expenditure of the entire sector.

Clearing backlogs

Few months ago, delivering a speech after assuming duties, Justice Minister Ali Sabry PC highlighted the desperate need to overhaul the judicial system to end backlogs and improve the procedures for anyone seeking justice.

He pointed out that land cases, for instance, take at least 20-25 years to get settled in the courts.

“In a case regarding the custody of a 10-year-old child, it will take 10-15 years to get it settled in courts. By that time, the child has grown and changed; sometimes the future of the child would have been destroyed by it,” he said.

The Minister also said: “The challenges we have to overcome are huge and they are not just challenges found in slogans.”

As he promised, the first step to speed up the trials and deliver judgments was taken last week with the increasing of the number of judges in the Supreme Court and the Court of Appeal.

Accordingly, the Justice Ministry is planning to clear the backlog of cases within three years.

Speaking to The Sunday Morning, a Senior Advisor to the Ministry of Justice U.R. de Silva PC noted that the Government’s objective was to clear the backlog of cases within three years.

In addition to the number of Supreme Court and Court of Appeal judges, the number of judges in the High Court and the Magistrate’s Court would also be increased, he said.

“We have the mandate from Parliament to increase the number of High Court judges as well. There is no necessity for the Ministry or the Judicial Services Commission (JSC) to increase the magistrate cadre because it is being conducted by the JSC, with the help of the Ministry, at present,” de Silva noted.

The first steps have already been taken by the Ministry, and further, there was a bill passed in Parliament to increase the number of High Court judges during the previous Government, de Silva said, adding that the JSC had already published advertisements to get more magistrates following exams.

“They have called for applications. So, they are going to have new magistrates. In addition, they have already given appointments to a number of judges a few months ago. Apart from that, the number of Supreme Court and Appeal Court judges has been increased. The High Court judges will be promoted and as a result, there is an opportunity for magistrates to get into the High Courts, as there will be vacancies. To fill all these things, they have formed a setup,” he explained.

He also noted in a meeting held with the Justice Minister last Wednesday (28), that it has been decided to improve infrastructure facilities that are necessary to expedite court procedures.

New courthouses

“We’re planning to establish 100 new courthouses islandwide as an initial step and also the President has given the green light to expedite the construction of a new court complex in Colombo which was delayed for many years,” he added.

In addition, the Ministry has also planned to appoint a separate person to do administrative work at courthouses.

De Silva stressed that at present, the judge of the respective courthouse has to handle all administrative things and he/she has to spend their valuable time to do administrative work as well.

Therefore, to release the burden on them and to enable them to focus solely on the court proceedings, the Ministry has decided to appoint a qualified person to handle the administrative work of the courthouses.

“It will enable the judges to focus only on the cases and judgments. If they wish to, they can even go for two sessions and expedite the hearings of the backlog of cases,” he added.

Furthermore, the number of staff members would also be increased with the establishment of new courthouses around the country.

When asked about the time period that they will take to clear the cases of each court, de Silva noted that the immediate target was to clear it within a year and the backlog of cases within three years.

“We have given a certain time period to the courts,” he added.

Furthermore, the Ministry, in collaboration with the United Nations Development Programme (UNDP), is going to launch a programme to distribute digital screens to the Government Analyst’s Department and the Judicial Medical Officers (JMOs) to enable them to give evidence from their respective offices without coming to the courthouses.

In addition, a total of 55 laptops would be distributed to courthouses to do the work regarding the remanding of suspects, without calling them into the courthouses, de Silva noted.

When asked about the exact number of judges that will be increased at the High Court and Magistrate Court levels, de Silva stressed that the JSC would decide the number of judges after discussing the matter with the Ministry of Finance.

Courtesy: Sunday Morning