For almost all Sri Lankans, the very thought of going to a court is so daunting that we don’t do it, even when we have what we believe to be an open and shut case. Courts, judges, lawyers, policemen, court registrars, bailiffs… all of these are terrifying indeed to the average Sri Lankan. Laws are too complex and cases drag for decades. Sri Lanka’s sputtering legal system is a key contributing factor to the breakdown of our society, as legal redress is hard to come by for life’s many challenges. The Government has appointed a Deregulation Commission to simplify existing laws and regulations, a dire need for the economic and social development of Sri Lanka. It’s not just our laws. Unless a concerted effort is made to develop an effective administrative structure in our courts, there will be little change in the system. The failure to effectively plan and execute the scheme of court managers or to take forward its vision are obvious examples. We take a look at some of the practical areas that are currently stifling economic, developmental, and social activity among ordinary Sri Lankans. Take a walk through any courthouse in Sri Lanka and we can see long lines of people waiting without a guarantee of a full hearing outside the courtroom. The method of judiciary must be simplified. For delaying matters without justification, lawyers must be penalised. It is not in the interest of the nation. A strong judiciary is not required by any politician or bureaucrat. Vigilantism continues to thrive in the absence of speedy justice. Corruption is widespread as well. People choose a police officer or a judge to bribe instead of going through a trial.   Cases take too long There are cases going on that began in the 1970s, nearly 50 years ago. Hundreds of thousands of cases are languishing for decades, the vast majority of them land cases or cases related to drugs. The current situation is alarming, you would lose a lot of money or sanity before you win or lose the case. So you have a judgement call whether you should or should not move through courts. A full reform is desperately needed in the judicial system.   Ridiculously low compensation The entire system of fines and compensation needs a massive overhaul. Fines and compensation should be high in order to act as a deterrent to aberrant behaviour. But a policeman can kill a man and get away with compensation of only a few lakhs; that too likely to be paid by the State. Civil penalties are similarly ridiculously low.   Too many exceptions: Kandyan, Muslim, and Thesavalamai Kandyan Marriage and Divorce Act, Kandyan Succession Ordinance, Jaffna Matrimonial Rights and Inheritance Ordinance, Thesawalamai law, Muslim Marriage and Divorce Act, Muslim Interstate Succession Ordinance… Why do we have such a jumble of different types of laws? It simply defeats the “One Country, One Law” principle when various segments of the population are considered more privileged or less privileged according to their religion (Islam) or according to a now defunct kingdom that their ancestors lived in centuries ago (Jaffna, Kandy). The Kandyan Law, the Thesawalamai Law, the Muslim Law, and the Laws of the Mukkuvars, the Chetties, the Parsees, and the Paravar, were some remarkable laws during those periods, but are now outdated. The Kandyan Law was further developed with a complex structure that reflects Buddhism, Hindu laws and customs, Maurian and Sakyan customs, other Indian customs, and various other laws and customs brought into Sri Lanka by the original Sinhalese. The Thesawalamai was known as a law that the Malabar immigrants from India brought. They subsequently changed with strong influence by the Hindu law, by immigrants from India. Muslim legislation and the laws of Mukkuvars, Chetties, Parsees, and Paravars were also recognised as laws for particular groups at that time.   Impossible divorce laws Around the world, people in civilised countries are allowed to freely marry and divorce. But not in Sri Lanka. You could be married to a person on death row who massacred a hundred people; but you can’t divorce him/her. That’s because you’re only allowed to divorce if you can prove actual adultery (good luck with that); impotence at the time of marriage (which can obviously only be applied for a short period after marriage); and malicious desertion (there’s a long procedure for this which can take years). Meanwhile, a whole different set of very restrictive laws apply to Muslim women, making it nearly impossible to divorce their husbands, as they come under the Muslim Marriage and Divorce Act. Despite many years of campaigning and various committees examining the situation, nothing has changed. A key issue is the fact that divorce is “fault-based”, which means the law requires that the cause of divorce should be the faut of the husband or wife. Thus amicably agreeing to go their own separate ways is not at all easy. There is some relief in the ability to legally divorce after seven years of separation; or by obtaining a court order for separation and waiting for two years before divorcing. But in these too the grounds for separation are fault-based. Our divorce laws also don’t protect children very much during a divorce, and matters are exacerbated by divorce cases taking years as with other types of cases.   Equality for women If Chandrika Kumaratunga walked into a Cargills and tried to buy a beer, she would be liable to be arrested. She may have been President of the country, but she can’t legally purchase alcohol. This is a country where her mother Sirimavo Bandaranaike became the world’s first head of government some 60 years ago. However, any woman could simply ask a man to buy alcohol for her. This law is just simply stupid. So are a lot of other laws that restrict women. We simply need to apply the principle of equal rights and change all these ancient nonsensical laws. While we’re at it, let’s bring in quotas for the employment of women at all levels of the economy shall we? Our last week’s column deals with a lot of these issues. The Government failed to respond to the several recommendations of the UN Committee on Elimination of Discrimination against Women (CEDAW). These involve questions regarding the safety of victims or witnesses and the exclusion of women in various constitutional consultations and mechanisms for transitional justice. With regard to the Government’s efforts to overcome structural challenges and prejudice to law enforcement, it still has to be taken in order to ensure that women and girls, including those who have been subjected to sexual or domestic abuse, have access to the judiciary. There hasn't been any significant progress in changing Muslim women's laws on marriage and divorce inequalities.   A better method to get rid of outdated laws At present, once Parliament passes a law, we are stuck with it forever; unless Parliament gets around to amending it, which takes forever because they are too busy throwing chilli water at each other. So you can have laws that are vastly outdated, many dating back to pre-independence times, or conflicting with other existing laws. There is a slight power given to the Supreme Court to examine a bill before it is passed in Parliament, but that is hardly sufficient. In more progressive nations, the judiciary is given power to strike down laws that are inconsistent with the rest of the legal regime.   Vagrants Ordinance This is probably the most abused law in Sri Lanka and is used by misogynistic policemen (see our column last week) to abuse 52% of the population. A woman can’t be standing or walking down the street without running the risk of being arrested and charged for “vagrancy”. It’s also used against young couples for “offences” such as holding hands – don’t even think about hugging or kissing.   Fundamental rights cases should extend to the private sector Fundamental rights form a sacred chapter in our Constitution, which is intended to keep us safe as individuals. But then, why is it enforced only against transgressions by the state sector? After all, a person’s fundamental rights can be violated by another person or by a non-state organisation. At present, violations by non-state actors must be taken up as civil cases, which often run for decades. Or they fall under criminal law, which we all know is almost completely ineffective due to bureaucracy and corruption within the legal system.   Criminal negligence laws Sri Lankans use the term “accident” far too freely, and don't even recognise the term “negligence”. But when the Ceylon Electricity Board (CEB) or the National Water Supply and Drainage Board (NWSDB) or the local authority digs a hole in the pavement, fails to cover it up, and a person falls in and breaks his leg, then that’s negligence that someone should be held accountable for. At present, all you can hope for is to file a civil suit against the organisation.   Election laws to enable Sri Lankans overseas to vote No one knows for certain how many Sri Lankan citizens are working overseas; the estimates run from one million to two million. What we do know is that not a single one of them can vote in any election. With Sri Lanka scheduled to have some type of election every 20 months on average, it’s not financially practical to return home to vote. The Government of Sri Lanka needs to legitimise laws to allow the exercise of their vote at national elections. In addition, in line with the Strategic Plan of the Election Commission for 2020-2024, it is imperative that sweeping changes be made to electoral laws for a range of improvements to the voting system including the revision of deposits, an earlier date for those who cannot vote on election day, and a three-monthly reform of the electoral roll, which will give youth the right to vote when they are 18.   Make courts processes user friendly and courtrooms less frightening Why in the world do our courts need to look like medieval dungeons? Can we have a nicer environment please? After all, you don’t need to frighten people to death, even if you’re going to give them the death penalty? This is especially so now that Covid has forced upon the legal system a digital situation where Sri Lankan magistrates and judges have been conducting a significant amount of judicial work online. Why not make it all more user friendly and less daunting? We need to take advantage of the user-friendly nature of many digital services to replace tedious impersonal systems, including the use of interactive voice-response systems.   Strengthen democracy At present, Sri Lankan voters have very limited democracy due to the following two reasons: Most political parties are not democratic within themselves and the nominees put forward at elections are decided upon by one person or a few people who control each party. Voters thus have limited choice because party leaders have already narrowed the voters’ choices. Voters are required to vote first for a party and then from among the nominees of that party. In a true democracy, voters would be able to choose candidates from multiple parties. This means that nominees from larger parties have a huge advantage of decades-old branding and huge funding. Funding of political campaigns is completely unregulated. It is therefore most likely that candidates who promise to support narcotics dealers, industrial mafias, and foreign governments would have the largest funding for publicity.   Practical solutions

• Change or discard all of the impossible laws that we have referred to in this article
• In all cases, impose a maximum number of postponements for each side, for example, three for the plaintiff and three for the defendant/respondent
• Postponements should be limited by time. i.e. the next date of the case should be one week away; not six months away
• Impose a maximum time period for a case, for example, two years. Any judge who takes more than this should be penalised with black marks on his career record
• Set a quota of female judges to put a stop to the male domination of the judiciary
• Appoint a Public Relations Office at each courthouse, where ordinary citizens can obtain guidance on whom to meet, how to meet them, and on proper procedures to follow
• Amend the Constitution to allow the judiciary powers to strike down laws that are inconsistent
• Separate the land cases, which are the majority of cases, by appointing a different stream of the judicial system to hear them. Free up the District Court, High Court, and Court of Appeal. This will streamline all other types of cases
• Require all political parties to have a democratic system of nominations
• Change the election laws to allow voters the choice of multiple parties
• Allow Sri Lankans overseas the right to vote
• Require political parties to fully disclose sources of funding and expenditure for election campaigns

 

©️ Niresh Eliatamby and Nicholas Ruwan Dias (Dr. Nicholas Ruwan Dias, BSc, MSc, PhD, and Niresh Eliatamby, LL.B., LL.M., MBA, are Managing Partners of Cogitaro.com, a consultancy that finds practical solutions for challenges facing society, the environment, and all types of industries. Dr. Dias is a digital architect and educationist based in Kuala Lumpur, Malaysia [ruwan@cogitaro.com.] Eliatamby is an author, journalist, and educationist based in Colombo, Sri Lanka [niresh@cogitaro.com])