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Future of litigation is in smaller, smart courts: Ali Sabry

04 Apr 2021

By M.U.M. Ali Sabry   The legal profession is one which has no equal. I say this because, there rests on the profession, and with it the Bar Association of Sri Lanka (BASL), a heavy responsibility to the citizens and to the country itself. It has a vital role in protecting the rule of law, maintaining the independence of the Judiciary and protecting the sovereignty of the country. This responsibility is not a passive one; it is a positive one where there is a need for the legal profession to be at the forefront of positive social change. To put this in context, as the First Vice President of the International Criminal Court, Judge Sanji Mmasenono Monageng, in a speech delivered at The Hague, on 20 November 2012 stated: “The rule of law and the proper administration of justice, of which an independent Judiciary and legal profession are prerequisites, play a central role in the promotion and protection of human rights.” This role has been universally recognised even by the United Nations (UN) as enunciated in Principle 16 of the UN Basic Principles on the Role of Lawyers. Lawyers therefore, form a core part of the judicial arm of the State. It would be easy to assume by its very wording that the judicial arm consists of judges and courts, but that assumption would be far from the truth. After all, what would be the use of the biggest courthouses or the best judges if the parties cannot be heard? Lawyers are by their very nature, officers of courts and on many levels, the gatekeepers to justice. The journal article titled “American Bar Association (ABA) Canons of Professional Ethics” published by the ABA, addressed this very important point. It stated: “The stability of courts and of all departments of government rests upon the approval of the people. It is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the Republic, to a great extent, depends upon our maintenance of justice, pure and unsullied.” Thus, the role of a lawyer is not merely one of representing or advising clients for payment. It comes with a high level of responsibility, an overriding need for ethical behaviour, a sense of justice, and national duty. There is an overarching need for the public to have confidence and trust that justice is dispensed from the justice system. In this context, the legal profession has a duty to instill and maintain this public confidence and trust in the system. Looking at the rich history of the legal profession in Sri Lanka, we can be proud of its independence, its contribution to legal jurisprudence, and the persons who have come from it over the decades. We have produced world-class lawyers, jurists, and judges and have contributed at a disproportionately high level to international law considering the size of our profession. It would be easy to rest on these laurels and reminisce, and also to be content with the legal profession and the justice administration system as it currently stands, but I believe that we need to have a serious reality check. As I have mentioned before, the average time to enforce a contract in Sri Lanka is 1,318 days, we have been ranked 161 out of 189 countries for the enforcement of contracts; our legal system is ranked fifth out of eight in South Asia; land, partition, and testamentary cases on average take a generation to be settled; a criminal trial takes on average nine-and-a-half years to conclude in the High Courts; and a criminal matter on average will take a year to be fixed for appeal and three to four years for the said appeal to be completed. We are all very aware that the underlying issues in delay, amongst other matters, is the sheer number of cases before courts, and the massive backlog which in turn has resulted in litigation stagnating. At the end of 2019, there were a total of 766,784 cases pending in our courts, and we had approximately 350 judges to hear these cases. Let us ask ourselves the obvious question – how on earth is an individual judge supposed to manage such a case load? Even if they were to work 16 hours a day, seven days a week, there would be no logical way to get through this backlog within any reasonable period of time. The outdated laws and the lack of appetite for innovative steps and technological advancement have only served to make matters worse. This overburdening of judges is reflected in our score on the “judges per one million population” index. Countries such as Russia have 242 judges per one million population, Germany has 230 and Thailand has 68. India which has been relentlessly criticised for its low number of judges has 20 per million. And our number? 15. Just 15 judges per one million population. This is a reflection of how much of a monumental and humanly impossible task we are expecting our current Judiciary to achieve. These indicators are not just an academic exercise – they reflect the ground reality of the current state of the administration of justice in our country. On a domestic level, the results are quite obvious – how many times have we advised clients at consultations that they need to be ready for a long-haul case, and in response to the question “how long?”, we have replied “years”. We have been within this system for as long as we can remember, so much so that the fact that a case takes years, or the fact that the dates between two trial dates is months does not seem the least bit abnormal to us. We have become desensitised to the plight of our litigants and we do not feel the sting unless it is one of our own personal cases. This level of delay and inefficiency are not only inconvenient and unfair to the citizens; they have far reaching implications for the future of this country. Investors are apprehensive about trusting their money in a place with a high risk of loss in the case of a dispute. Market research of the region prior to any investment would result in investors flocking to the countries high on these indexes, thus we are losing in the long term and we are losing big. Our neighbours understood this early on and started their own competitive drive to rank higher on these indexes and bring the issue of delay and inefficiency of the justice system under control. Take Pakistan for example – in 2018, they were ranked 147 in the Ease of Doing Business Index. By 2019, they managed to get to 136. However, from 2019 to 2020, they jumped a staggering 28 places and were ranked 108. This is a clear display of how commitment, focus, and drive towards fixing the legal system can result in unthinkable results within a short period of time. India too has been taking some dynamic strides in its modernisation drive. It adopted electronic filing early on during the pandemic and has commenced a push for digitisation of its judicial administration system. In terms of corporate or connected litigation, the Ministry of Corporate Affairs has digitised its entire process and database to the extent that certified copies of company documents can be obtained through an online process which is admissible evidence in court. The UK is establishing online courts which initially was due to the pandemic but will most certainly continue to develop and grow. They also started night sessions for court hearings to clear the backlog. In the last few years, Chinese courts have seen rapid developments in online dispute resolution platforms, specialised internet courts, and the wide use of artificial intelligence (AI) across the case management and adjudication process in civil and criminal proceedings. They have also adopted other new technologies such as distributed ledgers, blockchain, and smart contracts solutions which have been developed and rolled out in specialised courts. Over the course of 2019, the Estonian Ministry of Justice developed and piloted an AI software to hear and decide on small claims disputes less than € 7,000. This is the rapid level at which other countries have progressed whilst we are still at a stage where cases in the District Court get postponed on multiple occasions, sometimes over a year, because summons had not been served on the post office so that an employee can give evidence on one postal article receipt to establish that the letter of demand had been sent. Is that not, for the lack of a better word, absurd? Ever since I have taken over the office of Minister of Justice, one common issue is that most of those I meet, across the social and economic spectrum, have a complaint about a case which has been pending for years. The Ministry is inundated almost every day with letters by litigants from all over the country, complaining about laws’ delays. We have been comfortable with the status quo for decades, and it is time that we realised that the status quo is just not working. Not only is it not giving any positive results, it is actually dragging us backwards by destroying the public trust and confidence that is a prerequisite for the judicial administration system of the country to function. We must find a way out of this. It is time that we in Sri Lanka take a page out of the books of these countries. It is encouraging that over the last few months, we have taken steps towards achieving this. The e-hearing rules issued by the Supreme Court (SC), the provisions made for e-filing, as well as the adoption of giving bail online by the Magistrate’s Courts are important steps in the right direction. This, however, is not going to be enough. It is vital that we look at a complete structural change from end to end and roll it out in a targeted and efficient way. We have to stop looking at the legal profession as one which exists solely for the sustenance of its members, but as one which plays a much more important role as a public-centric body which is driving the justice system forward – one which is ready to innovate, evolve, and take the right decisions at the right time to create a paradigm shift in the administration of justice. This shift should not be merely one which is a marginal improvement of numbers and statistics – it should be a shift which is felt at the ground level, one where litigants feel that litigation will bring them justice, and it will bring it to them faster than before. Hence, it is a priority of the Government to roll out a holistic solution to this perennial problem of laws’ delays and to resolve this issue. One which would be a game-changer is to put in motion a practical strategy to take a massive leap in the efficiency of hearing cases. Sri Lanka has close to 800,000 pending cases at the moment and there is no strategy for them in terms of the time to conclude. We have to bring in a practical timeline for the disposal of a case and work backwards and put the pieces of the puzzle together to achieve that goal. The future of litigation is in smaller smart courts which can in parallel hear a multitude of cases in a single location, whilst also allocating specific time slots for cases to avoid unnecessary delays to the litigant and lawyer. In pursuance of this, we are determined to double the number of judges within the next five years. As you are aware, the House of Justice project was launched a few weeks ago, and we hope to have the first tower constructed within a short period of time. Pre-trial procedure is to be streamlined and revamped so that it would serve a key factor in cutting down litigation time. The establishment of a “Small Claims Court” is being planned and debt conciliation and mediation are being considered as mainstream solutions, working in tandem with the courts. One of the vital reforms that are coming in is digitisation and court automation which is currently at the procurement stage. There has also been key progress made over the last few months. The increase of SC and Court of Appeal Judges was the first such increase in over 40 years. Justice sector reform has been allocated a record Rs. 20 billion from the Budget which reflects the largest-ever commitment by a government towards the reform of the justice sector. Just earlier this week, I was informed by the Government Analyst’s Department that the backlog of outstanding reports numbering approximately 8,000 had been cleared in the four months, even in the midst of the pandemic, due to a multi-pronged approach which we have introduced since then. The measures taken include increasing the cadre, working on two shifts, digitising the expertise from other institutions and dedicated supervision by a sector specialist. What this shows is that with commitment, a steely will, and the ability to get out of your comfort zone, unthinkable results can be achieved within very short periods of time. We should no longer think of fixing this system as a long drawn out, arduous process for our successors to deal with – we have to think of it as something we are capable of doing here and now. It is time we looked at moving away from our all too familiar 9.30 a.m. or 10 a.m. start in court where everyone sits around waiting for the case to be taken up. This is just not sustainable anymore, and it seriously cuts into the lawyers’ and litigants’ productivity. We should not be afraid to innovate and think out of the box in terms of how we can solve the issues that are being faced – it is time that we look at case management and the allocation of time slots for hearings. It is time that we hear cases online and embrace technology to shorten delays in matters such as the serving of summons and the proving of documents. We must think about reforming our legal system as a whole to be more technological – from sharing calendars to determine the dates of a hearing to the maintenance of records – we need to reduce the dependency on manual processes. It is time we adopted procedures and techniques such as skeleton arguments to cut down the time taken for a hearing. These are all steps that other countries have taken, for which they have been rewarded with judicial administration systems that have pushed their countries forward. My question to you is, if Singapore, Malaysia, South Korea, and so many others can reinvent themselves, why can’t we? These reforms will be far reaching, and if they are seen through, will permanently change the landscape of the profession and this country. We need to make this happen, and for that we need to work together towards this common goal. The process may not be a walk in the park, and it would certainly have some initial creases that need to be ironed out, but if we can commit to what is needed to be done, I am certain that we can pull this off. I am aware that the best of ideas and progress can fall into abeyance if you have to swim against the tide, which is why I hope that the bar and its members will co-operate with us to achieve this. The road to make these changes may test our will, may require us to get out of our comfort zone, go that extra mile, and commit to breaking the status quo. Let us be remembered as the generation of lawyers and judges that took this country to the next level and the ones that put our justice system on the map. We have the opportunity to make the paradigm shift, and we must go for it with our heart and soul. Let us get this done.   (The above article is based on a speech made by Minister of Justice President's Counsel M.U.M. Ali Sabry at the 47th Bar Association of Sri Lanka Convocation held on 27 March)

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