By Tiffahny Hoole and Sumhiya Sallay
The Supreme Court, in the 1994 case of Jayasinghe v. AG, correctly asserted that “justice delayed is justice denied” (1). While the very apex of the justice system recognised that delays in court proceedings hinder litigants’ access to justice, there is a major backlog of cases in Sri Lanka. The entire court process, from the point where a case is taken up to court until its final verdict, is an extremely time-consuming process.
The operation of a country’s legal system significantly influences several components of its economic development such as the optimal allocation of resources and the increase in total factor productivity (2).
In 2021, a three-year plan targeting digitisation of courts was implemented to make the judicial system more efficient. Digitisation of the courts would mean a more streamlined process of court hearings.
Shortcomings of the Sri Lankan legal system
By the end of 2019, there were 4,767 pending cases to be heard in the Supreme Court, while 6,813 were to be heard in the Commercial High Court (3). In the speech delivered by the incumbent Minister of Justice at the Bar Association’s 47th Annual Convocation, it was stated that a total of 766,784 cases were pending by the end of 2019, with approximately 350 judges to hear those cases (4). The situation was only exacerbated in the wake of the Covid-19 pandemic. With periodic lockdowns consequent to seasonal outbreaks of Covid-19 cases, both the Supreme Court and Court of Appeal suspended proceedings (5).
The increased backlog of cases prior to and during the pandemic is attributable to the very nature in which the justice system operates. Sri Lanka’s court procedure and practice has been heavily reliant on in-person proceedings, physical filings, and production of documents and evidence respectively (6); a system too archaic to withstand any external shocks such as natural disasters, fires, or more specifically, a pandemic.
Ease of doing business: A point of discussion
The continuous delay in court proceedings over the years is one of the key factors which contributed to Sri Lanka’s low rank in the World Bank’s “Ease of Doing Business” index (7). Contract enforcement is one of Sri Lanka’s worst performing pillars in the index, as it ranked 164 out of 190 countries in 2020 (8). The average time period required to enforce a contract stands at 1,318 days (3.61 years) (9). In comparison, New Zealand, which topped the index, takes 216 days (0.6 years) (10). In his speech, the Minister of Justice further stated that market research prior to any investment would result in flocking towards countries with higher indexes, concluding that we would be losing “big” (11).
With the data highlighted by the index, in conjunction with prolonged lockdowns, the Minister of Justice soon realised that the backlog in cases had reached saturation. Speedy resolution in litigation is a prerequisite on foreign investments (12). Thus, with the aim of administering the public’s access to justice, major reforms are finally underway.
Reforms: Future of court procedures in Sri Lanka
Upon comprehensive studies conducted in 2017 with the assistance of the Information and Communication Technology Agency (ICTA) in Sri Lanka, the Ministry of Justice embarked on a court automation and digitisation project (13). In the recent Budget 2022 speech, the urgent need for reform was highlighted by Minister of Finance Basil Rajapaksa. Following this, a proposal to allocate a further Rs. 5,000 million towards this cause was presented (14).
The Covid-19 pandemic brought to light how far behind Sri Lanka is in terms of judicial digitised systems. Many countries were able to quickly recover post-Covid, as they already had systems in place to shift to virtual court hearings. However, courts, and other dispute resolution mechanisms such as mediation and arbitration in Sri Lanka, were far behind.
Prior to the commencement of this project, digitisation in court proceedings was being experimented in selected courts on an incremental basis. In November 2020, the “Virtual Courthouse Programme” was pioneered by the Commercial High Court in partnership with Sri Lanka Telecom and the Colombo Law Library (15). Similarly, a key person interview conducted by the Advocata Institute brought to light the efforts made by the lawyers in the courts of Mount Lavinia to transform court proceedings to an entirely virtual platform. In response to the pandemic, reformation was witnessed on an incremental basis. Finally, operations of virtual court hearings were formerly recognised by the Coronavirus Disease 2019 (Temporary Provisions), Act No. 17 of 2021, subject to the condition that physical hearings cannot be held (16).
Nevertheless, by taking into account the complexity and gravity of court procedure, it was understood that reform needed to be holistic. Accordingly, digitisation is not limited to virtual court hearings but also envisions the registration component of the judicial system. This includes scheduling, managing documents, recording proceedings, etc. Furthermore, payment of court filing fees will be shifted to an online platform. In respect of court hearings, reformation is twofold; the first phase is a pilot project which covers 18 courthouses within the Colombo District (17). The second phase is expected to implement court automation procedures across 100 courthouses in Sri Lanka (18). In the interim, existing online platforms such as Zoom and Google Meet will be utilised for this purpose.
A major challenge going forward will be data security and privacy. However, the issue of security already exists even with physical documents and in-person court hearings. Documents are tampered with, stolen, or even damaged. Witnesses may be coerced to perjure in or outside court. Thus, moving towards an online platform will circumvent the damages caused to case documents such as a fire, similar to the recent incident in the Supreme Court Complex (19). In order to minimise the concerns raised, the Ministry of Justice has partnered with professional experts in the ICT sector to build a data protection and data security plan and develop remote data storage facilities (20).
The long-term benefits of digitisation
In the long term, digitisation and automation will make the litigation process far cheaper. Litigation in Sri Lanka is known to be a very expensive procedure. Instead of requiring a 100-page document to be submitted to each judge on a panel prior to the case hearing, litigants would now be able to send a pdf through an online portal. Electronic delivery of paper documents would also speed up the filing procedures (21). Rather than having to commute all the way to a district court that is outside one’s residence, litigants are able to participate in court hearings through Zoom.
Reforms in the justice system play an essential role in restoring the confidence of investors. A representative of the World Bank in the Legal Department highlighted that encouragement of foreign direct investment is at the forefront of government thinking behind legal reform (22). In the wake of the pandemic, it is pivotal that the State prioritises and ensures such essential reforms do take place so as to attract foreign investors. Justice is only delivered in the absence of delay.
References:
- Jayasinghe v. AG [1994] 2 SLLR, https://www.lawnet.gov.lk/wp-content/uploads/2016/11/005-SLLR-SLLR-1994-V2-JAYASINGHE-V.-THE-ATTORNEY-GENERAL-AND-OTHERS.pdf, last accessed 1 December 2021
- Marilene Lorizio, “Efficiency of Justice and Economic Systems”, Innovation and Society 2013 Conference, IES 2013, ScienceDirect. Procedia Economics and Finance (accessed 5 May 2020)
- Ministry of Justice, “Case Statistics of Sri Lanka – 2019”, https://www.moj.gov.lk/images/pdf/Statistics/Case-Statistics-2019.pdf, last accessed 1 December 2021
- “Rolling out holistic solution to perennial problem of laws’ delays”, The Island Online, 29 March 29 2021, https://island.lk/rolling-out-holistic-solution-to-perennial-problem-of-laws-delays/ (accessed 1 December 2021)
- “Due Process and Preparedness for Public Emergencies”, (Verite, June 2021), https://www.veriteresearch.org/wp-content/uploads/2021/07/VR_ENG_RB_Jun2021_Due-Process-and-Preparedness-for-Public-Crises.pdf (accessed 1 December 2021)
- Ibid.
- “Economy Profile: Sri Lanka | Doing Business 2020”, (World Bank Group, 2020) https://www.doingbusiness.org/content/dam/doingBusiness/country/s/sri-lanka/LKA.pdf (accessed 1 December 2021)
- Ibid.
- Ibid.
- “Economy Profile: New Zealand | Doing Business 2020”, (World Bank Group, 2020) https://www.doingbusiness.org/content/dam/doingBusiness/country/n/new-zealand/NZL.pdf (accessed 2 December 2021)
- “Rolling out holistic solution to perennial problem of laws’ delays”, The Island Online, 29 March 29 2021, https://island.lk/rolling-out-holistic-solution-to-perennial-problem-of-laws-delays/ (accessed 1 December 2021)
- Sarath Wijesinghe, “Laws delays, lawyers’ delays or system delays?” Sunday Observer, 3 January 2021, http://www.sundayobserver.lk/2021/01/03/impact/laws-delays-lawyers%E2%80%99-delays-or-system-delays (accessed 1 December 2021)
- Rohan Samarajiva, “Failure in the Core Business: Administration of Justice”, Echelon, 7 May 2021, https://www.echelon.lk/failure-in-the-core-business-administration-of-justice/ (accessed 1 December 2021)
- Ministry of Finance “Budget Speech 2022” https://www.treasury.gov.lk/api/file/91c69189-9b2f-4ab2-8e90-53213a60cddd (accessed 1 December 2021)
- “Due Process and Preparedness for Public Emergencies”, (Verite, June 2021), https://www.veriteresearch.org/wp-content/uploads/2021/07/VR_ENG_RB_Jun2021_Due-Process-and-Preparedness-for-Public-Crises.pdf (accessed 1 December 2021)
- Coronavirus Disease 2019 (COVID-19) (Temporary Provisions) Bill, 8 June 2021, https://www.parliament.lk/uploads/acts/gbills/english/6219.pdf (accessed 1 December 2021)
- Ministry of Justice, “Pre-Qualification for Design, Supply, Implementation and Maintenance of a Court Automation System for Judicial System of Sri Lanka”, https://www.moj.gov.lk/images/pdf/2021/Prequalification_Document_Final.pdf (accessed 1 December 2021)
- Ministry of Justice, “Pre-Qualification for Design, Supply, Implementation and Maintenance of a Court Automation System for Judicial System of Sri Lanka”, https://www.moj.gov.lk/images/pdf/2021/Prequalification_Document_Final.pdf (accessed 1 December 2021)
- Ifham Nizam, “Scary fire in Supreme Court complex ground floor, but no big harm” (2020), https://island.lk/scary-fire-in-supreme-court-complex-ground-floor-but-no-big-harm/ (accessed 1 December 2021)
- Ibid.
- “Technology For Court Efficiency”, OECD Library, https://www.oecd-ilibrary.org//sites/40c8c1fb-en/index.html?itemId=/content/component/40c8c1fb-en#boxsection-d1e5561 (accessed 1 December 2021)
- Amanda Perry, “An Ideal Legal System for Attracting Foreign Direct Investment? Some Theory and Reality”, American University International Law Review, Volume 15, Issue 06, https://core.ac.uk/download/pdf/235401967.pdf (accessed 1 December 2021)