5 March 2019 12:10 am Views - 3591
Speaking on a wide range of issues including the laws delays and the sustained cry by the public against the legal system as it is today, Indatissa shares his views on how progress should be made and the measures to be taken under his leadership. Excerpts:
Q I believe this is the first interview you are giving to the press since the assumption of duties as the President of the Bar Association of Sri Lanka (BASL).
Thank you. Yes, this is the first interview I am giving since assuming duties.
One thing you must understand is that the legal system in this country started in 1801 when the British Introduced the Proclamation -the Charter of Justice. The British set up a proper mechanism under which the administration of justice would take place. Since 1801 there have been several situations in this country where we have gone through changes in the administration of justice. For example, in 1831 the Courts Ordinance then came the early part of the 20th century where several changes took place, then came independence in 1948, then 1972 when we became a Republic. When the Republic situation was created we did away with our Right of Appeal to the Privy Council. Also, the Judicial Structures changed- where the National State Assembly was created for a very short period. Then the 1978 Constitution was brought and so on so forth.
But nobody speaks of the protection that is accorded by the Rule of Law in protecting the Rights of Individuals and by and large by the judiciary as an institution administering justice. By this I am not for a moment trying to say that everything is perfect. If there are problems we have to identify them and address them and the Bar during my period will certainly take these steps.
Q But, those who are attempting to protect the system fail to understand that the system is inherently flawed. For example, the Magistrates Courts or Traffic Courts which is the main point of meeting between a common man and the Court system, we see massive issues with regard to the procedure, process, delays- the entire gamut of the failing of how the system works is laid bare?
The entire problem is that all segments which are involved in the administration of Justice must come under one umbrella. It is sometimes difficult because of the process in this country, to blend some of these institutions with the other. For example, the Ministry of Justice plays one role and the Police play another. If it is a narcotics suspect, the authorities play another role and so on and so forth. What is apparent is that they are scattered everywhere. There is no collective effort. Now if you see, these Rights oriented Laws came into being in the last three decades. Even though the Laws were passed by Parliament time and time again there was no collective effort to bring them all under one umbrella. That is where the problem is. Now everything depends on the individual who sits in judgment and the proactive effort of that individual. Everybody can’t be a judge. It is Gods choice- that is what we learnt 30 years ago. So he has to play that role keeping in mind that the primary objective is delivering justice to the people. It is not about the Lawyers or any other arm but delivering justice to the people.
I don’t agree 100 % with the perception that there is no proper system in place. There are problems in the system. But what you have to understand is the system, by and large, has protected the people, barring isolated incidents
Q Give me practical steps which the BASL would take to address the situation under your leadership?
Now one of the things I intend to do is that I want to have continual meetings and engagement between the Bench and the Bar and other agencies involved in the process. Generally, the BASL doesn’t have the benefit of giving training to its members. The Attorney Generals Department the Judiciary and other arms are given specialized training. As I said earlier, take the Government Analysts department: it takes a month of Sundays to obtain the report. Now, whose fault is it? It is the failure of the system, I totally agree. There must be a period during which this report is submitted to Court or to any other arm. This is just one example. If the report isn’t given then you lay by the case, of course with Bail conditions imposed. When you do that, the rush within the court is reduced. It is not right that people have to come to court for 4- or 5 years until justice delivered. The Bar Association has to play its role and I am going to play that role and I hope and pray for a proper Executive Committee and a Bar Council who will think properly along these lines. One of the things we have to do is to identify points where delays take place.
Delay in a system of Justice causes a lot of problems for the people. You take the Court of Appeal and the Provincial High Court. These Courts are inundated with Writ Applications. What is a Writ? A Writ is where you question the discretionary authority of a public servant. So the escalating Number of Writ applications has demonstrated to me that the Public Servants do not know how to make decisions. One of the things we want to do is to hold discussions, lectures, training and other educational activities for public servants which would help them in taking these decisions in a proper and lawful manner. During the last three decades, the backbone of the Public service has been skewed. We must educate them to not be scared in taking decisions, and not be scared of political authority, but to make decisions properly.
Q But are these concrete steps you propose taking? Is this just rhetoric?
No of course not. I have proposed these to the relevant authorities and it is in my campaign also. The issues in the legal system have to be tackled with the support of parliament. Lawyers play their role, but give us an opportunity to play that role. These educational programmes at different levels of the public service have to be done. If you educate the public service as to how to make decisions it will by the workings of it itself, help ease the delay and the workload on the court’s system. If there is a decision that is blatantly malicious and wrong, taken by a public servant on the insistence of a Political Authority, the Judiciary can impose surcharges: That in itself, again would be a deterrent on the authorities against taking such decisions.
These are ways and means through which we can help the proper functioning of a judicial system because it has to be looked at as a whole- not in isolation.
QThere is a clear issue however, in case management. From the Magistrates Court right up to the Supreme Court where I think has it the worst- any litigant will tell you that there is a massive issue which obviously results in the delays. This has got nothing to do with the law but rather logistics. Wouldn’t the Bar Association get involved in trying to rectify this?
There is ample training on case management- I have met some of the judges who manage their cases in terms of what has been taught. Case Management has to be taught from top to bottom. You can’t have case management systems without the Bar. The Bar has to be involved. Up to now I know, the Bar has not been invited or contacted to participate in these. That is a big problem. The Bar is also a part and parcel of the system- it is not only the judiciary and the Official Bar. The unofficial Bar also has to assist. I have met a lot of people who complain of simple things which are not corrected. I think there must be a uniformed process where all judges have to be told what time to sit- what is the first session and what time the second session should go on till etc. There must be a uniformed system.
Q One of the thorny issues that have come by during the last few weeks is about the Constitutional Council and the appointment of judges.
I have no authority to make a comment- because whatever opinion that I give will be taken by the media to say that the President of the BASL said this. At the moment I am not going to make a statement on that. Anything said on the issue will be following a collective decision which would go through the Bar Council and the Executive Committee first after which we will be making it public.
Q But as the President of the BASL don’t you think, that a set process, a uniformed process should be put in place for the appointment of judges- that such could not be done according to whims and fancies of any party? Or according to an non-prescribed mechanism?
There must be a system where an identified mechanism and process is put in place
Q And in lieu of this process, what would you be proposing?
I think that it is a matter for the BASL to consider. The Bar Council can make its proposal. I won’t have an individual opinion on this. It will be discussed and debated- there are so many lawyers who have a lot of experience. They will have their own vision which may not align with my ideas. We are concerned and naturally, we have to be concerned. Any discussion would reflect the decision of the Bar which will come through the Executive Committee.
QAren’t you taking the easy way out. You have stepped in at a tumultuous time, where there is no permanent President in the Court of Appeal and there is a fissure between the Executive and the Constitutional Council regarding the appointment
You leave this issue aside, there have been instances in this country where the position of the President of the Court of Appeal has been left vacant for certain time periods. Sometimes in the Supreme Court, the Chief Justice has not been appointed. These leave a bad precedent. An appointment must be made immediately upon the retirement or elevation of a judge. That is my view.
QMoving on to another issue which came up with a Chinese firm providing legal service. You were vocal about it and cited the Intermeddlers with Suitors Ordinance. Don’t you think that the citing of a Law enacted in 1895 and amended in 1917 and the fact that we are relying on something like that in this modern age is symbolic of the archaic nature of our system?
If you are worried about the year in which the Intermeddlers with Suitors Ordinance was passed then you must be worried about the Evidence Ordinance also
QI am..
It is not the year that it was passed. You may disagree but the Evidence Ordinance is one the most beautiful and profound pieces of legislation. Now I have promised the electorate that I would be appointing a committee to go through all the existing laws. In my manifesto, I have said that I would be appointing committees comprising Senior Lawyers and junior Lawyers to assist them in making recommendations to the existing laws. Once we make our recommendations to the Government and make it known that they are done following a constructive and consultative process, then the people will know the role of the Bar. The Bar has to be proactive. We can’t wait till some people pass legislation. We have to be an integral part of that process. I will tell you when some of these laws are passed especially with regard to the commercial aspect, the industries are never consulted. Now to answer your question, the Intermeddlers with Suitors Ordinance is old, yes, but there is a provision under which you can prosecute. I am not aware of the current status of the application before the Supreme Court ( with regard to the Chinese firm). But in my opinion, what they ( the Chinese firm)were trying to do was wrong. The real issue is that there is no regulation and monitoring. The Bar itself requires monitoring. That is one of the issues that has come up.
QI think you hit the nail on the head Mr Indatissa. Isn’t the real issue, the need for a regime of regulation, which will help overlook and oversee these things-a system in which Sri Lankan lawyers can learn from foreign expertise.
Tell me one other country which has allowed for this?
Q Singapore.
In Singapore the concept is different. Singapore didn’t have natural resources so they wanted to make it a commercial hub. That is why they invited all people to help with their systems. But in our case, our legal system is different from the system in Singapore. The concepts and thinking are different. You cant take one example and say do it here. We have a very sound legal system which has evolved for over 215 years.
Q But even the EU, they learn and take the expertise of other jurisdictions
How can you compare them? ( with Lanka). I am a proactive and progressive person. Yes, the law has to develop. That can be done by steps taken within the curriculum of the students, by measures taken with regard to the Continuous Professional Development to be introduced to all the Lawyers and number three by introducing strict regulatory mechanisms as far as the legal profession is concerned.
Laws are for people. Lawyers are there and have a duty to dish out the best service before you. To dish out the best service, you need to be equipped. If you are not equipped for whatever reason then you can’t give that service the client requires from you. That is why I am going to spearhead a massive educational programme.
Q Why I brought this up is that even the fathers of our legal system which introduced laws say for example against touting and champerty ( sharing of fee in the event the suit succeeds), have today done away with them. Today advertising for legal services is permitted and many advanced legal systems allow for a Contingent Fee ( no win no fee system). All this within some framework of course. The English Legal system did away with this ban against advertising in 1986. 33 years later we are still holding on to these archaic symbols. Doesn’t it show where we as a system really stand?
I don’t agree with your concept of Touting. No amount of touting should be allowed. I came from a village and anon-legal background. I had the desire and passion to be a lawyer. Even today I get up at 4 in the morning, I read for one hour and write for one hour. All my books are intended to be used by members of the Bar. Learning has no limits. Especially in the context of the development we have seen in the last three decades, every minute you will be learning. Touting is only for weak people who can’t stand on their feet. Champerty is allowed for in certain countries. I am a progressive person but the basic problem we have is allowing for a block fee for the success of a certain case in an unregulated system will give rise to a lot of issues.
QSo the issue really is the existence of an unregulated system isn’t it?
Yes. First, you regulate then you open up.
Q So you agree on Mr Indatissa that world over, that these mechanisms have been put in place while we are still holding onto a colonial hangover which even the colonisers have done away with?
No we are not holding on to a colonial hangover. I would still say that the traditions we inherited from the British are good because our profession is based on traditions and values. In our system we respect seniors, and the seniors also must know to respect the juniors. The problem that we have is- the institutions which are involved in the administration of justice are scattered. There is no collectivity. You can’t go on like that. Secondly, there is no regulatory system for lawyers. It has to come in. Once you introduce the regulatory system, once you identify the role of a Lawyer properly and his duties then you can start looking at the changes you are talking of. I will not agree to tout, but a percentage fee or advertising must happen in a regulated system. It happens in England. But not without regulation. The first thing is regulation if not there will be chaos.
Q So the problem is regulation. What steps will you be taking during your presidency toward this?
We must move towards a licensing system. Within the next three months, you will see what we are going to do. For example Inquiries against Lawyers and Judges if any must be dispensed with speedily. Everyone will have to make a collective effort to set the standards.
Q The reason for bringing these questions up- is because to me they are symbolic of the arcane and archaic nature of the system as it stands today. With regard to technology, how we use technology, the thinking, the process and procedure of the system is all archaic. For example, the Commercial High Court of this country no less has no digital database. Does not all of this really show that this system is dilapidated and is about to breakdown?
I agree with you that technology is not being used. I agree with you that we must set up the structures. I agree with you that since technology is available there must be maximum utilization of technology to the advancement of the system. What is arcane, archaic and traditional are not always intertwined. In a profession of 21,000 people, we must identify what is best. I totally agree with you on your thinking that we have to change. How you can change, the period of time it would take is another issue. In my opinion, there has to be a serious attitude change. That attitude change is the beginning of the changes you and I are talking of. The introduction of these attitudinal changes must come from the institutes of learning themselves. We must embrace modernity.
Q Coming to the final part of the interview, one of the big issues is the unregulated nature of the entrants to the Law profession. Large numbers of students from unregulated institutes which have been granted the green light by the Council for Legal Education for various reasons- some of which I have written on a long time ago – gain entry into the profession. There was a committee appointed to look into these by the Bar Council itself and after a process lasting two years they have come up with a comprehensive report. Are you going to take this toward implementation?
Now I can’t answer the question in the abstract, but I will tell you this. I have been a teacher for 33 years. I have taught students from different institutions. The report was compiled after a proper study. The problem has been that the Council of Legal Education has surrendered its authority to the University Grants Commission. Any University recognized by the UGC is recognized by the Council. We must collectively address this issue and the Bar will play its role. The Bar will now play its role in collectively identifying the teaching mechanism, the standards, the teaching methodology and then decide what is best
Q But aren’t you answering in the abstract. All of this has been done by the previous committee
Yes they have done it. I will take it forward with modifications if necessary.
QThere are foreign universities recognized by Sri Lanka which offer degrees not recognized as Qualifying Law Degrees in their countries of origin.
They have to go. They have to go out. As I said there has to be a further study which will not take much time. Already the bulk of the work has been done by the Committee chaired by Mr Ali Sabry and I can ask the same Committee to continue and help us. As far as institutions which are passing out people without proper standards are concerned, they will have to go. They can’t be recognized anymore.