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Justice Ministry Secretary says reform has historically been piecemeal
"Those are the structural and institutional changes we are looking at – prison reforms, increasing the number of courthouses and judges, making mediation better, making the Government Analyst’s Department better, house of justice, and digitisation" Attorney-at-Law Shamir Zavahir[/caption]
Could you tell us about your current role at the Ministry of Justice?
I am the Co-ordinating Secretary at the Ministry of Justice and I work on the justice reform programme with the Minister. Essentially, we have a long-term plan and I came in to assist with running it because there’s a lot of moving parts. There’s a need to have all those parts working together to achieve a common goal. Up to now, the approach to justice sector reform has been very piecemeal – someone comes, says there's a problem here and tries to fix it. They approach it very fast and the end result causes more problems than it solves. This is a story of a lot of things. You bring in the change in law, but you don't give the opportunity or infrastructure to sustain it over a longer period of time. This approach has really affected the justice sector because just changing a law is only one step needed for something to actually work.
The current Minister and I are both from practicing backgrounds. I took it on when he asked because I felt there should be some contribution from us as well. We want to do something good here. So far, we are off to a good start. Primarily, this is my main area of focus – justice reform.
Justice sector reform is a wide and complex area. What is the Government’s approach to this topic?
There are a few key players in the whole legal process. There is the Ministry of Justice being the primary generator of laws, looking at the substantive practice of the law and laws relating to persons. There are also line ministries that bring in laws that are relevant for them. What we identified was that the role of reforming it is quite vast. It is not possible to do it with just the ministry. So we went to the Cabinet of Ministers and got them to approve the creation of a Special Project Unit, which has five committees: Civil Law Committee, Criminal Law Committee, Commercial Law Committee, Infrastructure Committee, and Digitisation Committee.
Each of those are headed by practicing lawyers who are experts in those fields. These committees have been given a two-year mandate along with comprehensive terms of reference showing where we want to be in the next two years. They have to guide the process with suggestions and advice on how to achieve reform in those areas – it is not a matter of merely changing the law. One aspect is bringing in new laws, another is amending, and the other is for infrastructure development.
Just because you have laws, unless there are enough courthouses and judges to run it, it will fall apart. All of these committees are working with us to fit all the pieces of this puzzle together and get to where we want in two years. It’s a moving process – you achieve things as you go along and we have asked these committees to identify short-term, medium-term, and long-term goals.
Why has justice reform been given such priority now?
Firstly, one of the key reasons behind this is the issue of laws delays. Sri Lanka has some of the worst rankings in some of the world. We take, on average, 1,318 days to enforce a contract. We are ranked 161 out of 189 countries for the enforcement of contracts. We are ranked fifth out of South Asia for the legal system. It shows that our judicial system – from an outside point of view – is just not working. We have this saying in Sri Lanka, “on average, cases take a generation to come up” and we need to fix that.
Another statistic that is really bad is that we only have 15 judges per one million population. If you take a country like Germany, it has 230 judges per million. Russia has 242. Our closest neighbour India, which has been criticised as having one of the worst ratios in the world, has 20 per million. We have 15 and it is horrendously bad. If you look at all these indexes, locally it is frustrating to do a case.
From the 20th Amendment, we wanted to increase the ranking of the judges; the judges per million. Again it's not a superficial ranking – the less judges you have per million, the more the workload they are burdened with. The number of Supreme Court and Court of Appeal judges have not increased in 40 years. But the population has exploded since then. All of these things contribute to this issue of delay.
From the point of view of an outsider, if you are an investor coming in, you don't want to come into a legal system like this and lose your money. Justice delays is one of the worst problems in our legal system and it is with that in mind that we proposed this Special Project Unit to the Cabinet and got it passed.
If you take child abuse cases; if it starts when you are 10 years old, it would take another 10 years for the case to be solved. Your reformative teenage years should not be spent in a court case. This is why this delay needs to be fixed.
How is funding allocated for the reforms?
Once it was passed, the Government approved Rs. 20 billion for the justice sector reform at the budget reform. This is the largest-ever commitment by a sitting government of this country towards reforming the justice sector. For digitisation reforms, the European Union (EU) has an $ 18 billion fund, through UNICEF (United Nations International Children's Emergency Fund). They are also helping with capacity-building as well.
In addition to the specific committees and increasing the judges, what other target areas are you looking at?
From the targets, the committees were one, and increasing the number of judges was the other, which we did with the 20th Amendment. And then we launched a House of Justice project. Hulftsdorp is over a 100 years old and it cannot house the current requirements anymore. So the plan is to have four dedicated towers, and this was launched last week. Basically we want to shift the magistrate court, high court, district court, registries, arbitration system, and the ministry – everything – into this custom-designed workspace. We laid the foundation stone last week at the six-acre land next to Hulftsdorp itself. That again was done with the intention of making everything more efficient – a custom building for digitisation. The Supreme Court and Court of Appeal will remain in the historic Hulftsdorp premises.
Along with the digitisation of courts coming in and the infrastructure, we have a plan that is currently underway to double the number of judges within five years. We also want to do things like make mediation as a more viable means of dispute resolution. We have the infrastructure for that as well – it just needs to be refined.
We are also very seriously looking at reforming pre-trial procedure. In foreign countries, there's a very efficient pre-trial procedure where you can dispose of most of the irrelevant arguments. That is already there in our law but it is not functioning the way it was supposed to. We have appointed a committee to look into that.
We are also looking at this concept called a small claims court. If you were to take any case in the district court or commercial high court, sometimes there might be a case worth Rs. 750,000 that might take two hours on a court morning and the case after that, worth Rs. 100, million might get postponed. There is no priority. We are looking at the option of having a separate small claims court so there’s a certain upper limit and the main courts won't be burdened with a variety of cases and instead, cases will be filtered.
The overcrowding of prisons, especially in light of the pandemic, has become a much talked about topic recently. How do you hope to tackle that issue?
We need to fix that and for that, we are looking more carefully at why some people are in prison. The modern approach is not that everyone is a criminal in a criminal justice system. Victims should be treated as victims and rehabilitated through means such as probation. You can't paint every criminal with the same brush. There are serious criminals and then there are victims of circumstance.
One of the things that the Minister talks about is differentiating between the users of certain substances and the peddlers. People like addicts need help. They don't need to be thrown in jail because they will be going in as a simple addict and coming out as a hardened criminal. You are making the situation worse then.
So for something like this, on one end you must reform the law. On the other end, the backlog of the Government Analyst’s Department must be solved since they are the ones who come up with the narcotic reports. We are working towards cutting down the lead time for a report to come down. We are working on capacity building and we are targeting a one-month turn around period, where once it gets down to the Government Analyst’s Department, the report would come back in a month. This ensures that the innocent aren't stuck in jail for a period of, say, six months, which is the current state of things. That is unfair and a violation of their rights. By May 2021, we want to target this situation as well.
Those are the structural and institutional changes we are looking at – prison reforms, increasing the number of courthouses and judges, making mediation better, making the Government Analyst’s Department better, house of justice, and digitisation.
How are you approaching the reform of specific laws, for example, the marriage law?
Our approach is to have a group of advisory committees allocated for reforming specific areas of the law. For example, rent law, debt conciliation ordinance, family law, etc. Within the sphere of these bigger committees, we have subcommittees, again headed by lawyers who are experts with terms of references who are tasked with identifying the problem and how to achieve something in a certain period of time. That is our approach.
We are looking at targeted reforms to areas of the law which have been in need of reform for a long period of time. We are supporting data protection law, with ICTA (Information and Communication Technology Agency) being the main player there and we are playing a supportive role. We are also supporting the Ministry of Youth Affairs, and looking at sports law. We are also pushing for cyberbullying and harassment laws. Currently, there is a law in the works looking at obscene publications. With technology coming in, the current laws don’t have allocations for these issues.
Another area is to make general marriage law more efficient and fairer. The civil process of a divorce is very old and based on three grounds. Children suffer because of the time it takes for custody. We are currently looking at how best the law can help people and not bar people from what they want.
We are currently in the process of passing or amending 40 laws – this is a constant process. The end-result we hope for is a speedier process for dispute resolution and a situation where we differentiate victims in an incident and where people have faith to approach the system without the perception that the law would take long for them to gain justice.
What challenges to digitisation are there in Sri Lanka?
The challenges are, in my opinion, the fact that it will require the co-operation of a lot of different players for it to work – from the litigant to the judges to the lawyers. It is a paradigm shift and I think the best way forward is to take it step by step and see how all the stakeholders respond. People will adapt – we are confident that if we bring it in, despite the teething issues, they will also want to learn. Digitally looking at summons reform and fines; all of the little things that take time are streamlined into a phone or computer to get it done.
For example, we are talking of digitisation. They talked of digitisation 10 years ago as well. The commercial high court got down computers and installed projectors, then spent on the equipment, but they didn't have the necessary IT staff or system to run it. So that is not used anymore simply because there was no procedure and process put in place to sustain it.
We have to look at solutions in the short term also. Covid-19 has fast-tracked this digitisation process because prisoners were not getting bail. We worked with the UNDP (United Nations Development Programme) and ensured that laptops were given for an online bail granting system so that the justice system still functions. Unlike any other sector, justice can’t come to a halt – you can't be stuck in jail because of Covid-19.