A CASE OF NATURAL JUSTICE
Dr. Dayanath Jayasuriya outlines the imperatives of the legal fraternity
Compiled by Isanka Perera
Q: How has the legal profession evolved over the last decade or so?
A: There have been several major changes.
More women have entered the profession through private practice and the corporate sector, and several have joined the Attorney General’s Department as well as the judiciary.
There has been a significant increase in the number of those acquiring postgraduate qualifications or diplomas. The LLM, MBA and postgraduate diplomas in intellectual property and anti-money laundering laws, as well as compliance and commercial arbitration, are some of the more popular programmes out there.
The legal fraternity also has to grapple with new issues in areas such as electronic commerce, mergers and acquisitions, foreign investments and commercial arbitration.
However, we do have very competent lawyers who can compete with the best in the world.
A few members of the profession left the country for varying periods of time to work with UN agencies or serve as members of the judiciary in countries such as Fiji and the Seychelles. On their return, they have been able to share their experiences with younger colleagues.
Some members have even contributed to the volume of legal literature by publishing books, monographs and articles – an activity that was hitherto confined to a few in the academic world. Senior members have been playing an active role in conducting training courses for lawyers who have recently joined the profession.
All these changes have had a desirable impact on the quality of our legal professionals.
Q: Is it important to restructure the legal system to ensure speedy redressal of cases?
A: Delays in the administration of justice have been a perennial problem that has been studied by several committees in the past. Some of the recommendations have been implemented partially but not to an extent to make a significant impact on the backlog.
There are considerable delays not only in concluding civil and criminal matters before the courts but also in arbitration proceedings. In civil matters, stamp duty is not related to the value of damages claimed; and consequently, frivolous actions – for defamation in particular – are filed.
Reforms must address the current system of invoking the jurisdiction of courts and management of caseloads. We need to look at innovation in selected jurisdictions and adapt what appears to be suitable. Registrars of courts should be empowered to go beyond their traditional roles.
The Administration of Justice Law that was introduced in the 1970s led to a number of changes to minimise delays. It prescribed time frames for the filing of pleadings together with documentation to support averments in the same.
This reduced any opportunity to request long dates to file answers, counterclaims and so on – and postponements were discouraged.
However, the system didn’t gain popularity among practitioners.
Lawyers must also take responsibility for some of the delays. Busy practitioners often seek postponements due to a clash of commitments in different courts. Day-to-day hearings are difficult to arrange as the schedules of these lawyers don’t provide for much flexibility.
Q: How do you view the state of the judiciary in Sri Lanka at this time?
A: From a comparative perspective, the Sri Lankan judiciary has – with a few exceptions – maintained a good reputation for its independence. The constitution provides for clear procedures for the appointment and removal of judicial officers.
During the regime of President J. R. Jayewardene, the chief justice and some other judges came under attack with stones allegedly being thrown at their residences, and their chambers in the court premises being locked.
The first lady chief justice was unceremoniously removed from office and subsequently reappointed for a day. The appointment of Chief Justice Mohan Peiris was deemed to have been ineffective and he was not reappointed under a new president.
We also had controversial Chief Justice Sarath Silva who later sought an apology from the public for delivering a judgement favouring certain politicians.
These are a few blemishes on the otherwise impeccable record of the judiciary.
Promotions overlooking seniority or rank tend to lead to speculation that the government in power has more confidence in certain judges. Unfounded allegations of partiality have been dealt with as contempt of court with the option of imposing jail sentences.
Q: And last but not least, how do you view the efforts of the legal fraternity led by the Bar Association of Sri Lanka (BASL) to support the people’s movement – the aragalaya?
A: In the past few months, the BASL in particular has taken a definitive stand against repressive measures and adopted a unified position on protecting individuals’ rights to peaceful protest.
An impartial and fearless legal fraternity is a sine qua non for the enforcement of law and order in line with the principles of natural justice.
An important initiative of the BASL has been to draft amendments to the constitution with a view to ending the stalemate between rival political parties over proposed constitutional amendments.
The interviewee is a President’s Counsel