8 Com BGer, B0@80 _ arias sLLSpyemsct sri BAR ASSOCIATION OF SRI LANKA BA No, 169, Mhinds Mawatha, Colombo 12, 01200, ri Lanka, Tel: +94 11 2447134, +94 11 2331697, Fax : +94 11 2448090 E-mail: basl lawnei@gmail.com Web: www.basl. ik aS Ce Des 24" October 2016 His Lordship the Chief Justice Chairman, Judicial Service Commission, Colombo 12. Your Lordship, JSC CIRCULAR ON EXPEDITING OLD CASES We write further to the meeting had with your Lordship and members of the JSC due to certain matters of practicality, needing urgent addressing. Many members of the Bar have raised serious concerns regarding the practicability of the circulars of the Judicial Services Commission, sent to the Judges of the original courts and the High Courts on expediting cases instituted over a period of five or ten years. Having examined the provisions of the circulars and the report of the Committee, the Bar Association of Sri Lanka wishes to place before Your Lordships certain salient concerns which will arise if the circulars are implemented from the 1* of November 2016. Whilst the Bar is deeply appreciative of the support Your Lordships have extended towards the Bar and whilst welcoming the initiatives made to ensure speedy disposal of cases, it is the view of the Bar that in the interests of justice, the circulars should be modified and should not be implemented in its present form. It is imperative that relevant stakeholders including judges of original courts and the High Courts as well as lawyers practicing in the relevant fields and other stakeholders be consulted on the practicability of the provisions of the circulars. The Bar remains conscious that the expeditious disposals of cases are a hallmark of an effective justice system. However in doing so it is equally important that speed must not result in an adverse impact on good administration of justice. It is important that efficient and speedy disposal of cases be done while ensuring the quality of justice. Depa Pon ——eetay tenn! est ory Bt alagaratnam, PC Salyarers, —AmalA.Randeniys noo S.Oharmaratne ‘Raja Hathurusinghe‘The Bar identifies the following adverse effects if the new circulars are brought into effect immediately, requiring judges to conduct day to day trials: 1. In District Courts and Magistrate’s Courts where there are several dozens of trial cases, many of them over ten years or five years, taking up a few cases a day to day will be unworkable and will result in the vast majority of cases being added to the backlog. Newer cases, some of which may be resolved early will be postponed for lengthy periods. 2. Witnesses will be required to be present in Court almost daily until their evidence is concluded. This will result in both witnesses and litigants being compelled to waste time in the court precincts for several days during the trial, and incurring unbearable expenses and also result in a loss of income to them. Witnesses and litigants travelling to outstation courts may not be have accommodation to stay overnight and may be unable to return home and come the next day and will be greatly inconvenienced. 3. There will be increased litigation costs as a result of official witnesses such as surveyors having to be summoned day to day , resulting in additional fees having to be paid to them by the litigating parties. 4, __Litigants will be compelled to pay professional fees of the lawyers of their choice on a day to day basis resulting in a massive increase in the cost of litigation. Many litigants are monthly or daily wage earners who will be unable to meet legal fees charged in one stretch payable for several days. As such wealthier clients will be placed at a greater advantage than those who are of average means or having a low income. 5. Official witnesses such as Police Officers and Doctors who travel to several courts throughout the country on several days will be greatly inconvenienced. They cannot possibly remain in one Court for several days until their evidence is concluded. 6. If the trial is taken up day to day proceedings must be available to parties. If a contentious issue arises during cross examination on evidence already given then proceedings need to be perused. Currently stenographers take weeks if not months to provide the proceedings of a case. 7. Especially in civil cases parties may need to canvass an important interim order in a higher court. The Civil Procedure Code gives litigants the right to make applications for leave to appeal from interlocutory orders and taking up a trial on a day to day basis without consideration of this factor will deprive litigants of a right given to them by law.10. 1". 12, ‘Members of the legal profession have currently arranged their diaries for the next six months. Suddenly requiring them to take part in day to day trials is unreasonable since they already have undertaken professional commitments in other Courts on other days. Such other Courts may not grant postponements because a counsel is held up in a day to day trial in a parallel court. Some lawyers will be compelled to return their briefs resulting in the litigant being deprived of the services of a tawyer of their choice. Lawyers will be compelled to block out the entire period of the day to day trial and require litigants to pay fees for the whole period. For an unforeseeable reason if the cases are postponed the lawyers will have not accepted work for the rest of the days. Itis impractical to require a judge to conclude a case and deliver a civil judgment within two months and a criminal judgment within one month and at the same time requiring a judge to deliver a stipulated number of judgments for the year. This will result in a deterioration of the quality of judgments since judges will give priority to speedy disposals rather than dispensing justice. It would be unreasonable to judge the performance of a judge on the number of disposals and penalize judges who fail to write a certain number of judgments in contested cases. This provision fails to take cognizance that in certain courts there are only certain types of cases where few cases are contested or judgments are required to be given (example motor traffic cases, excise cases, co-operative cases and divorce cases), We apprehend that judges will be motivated to go in for quick disposals at the expenses of justice. For instance it will be quicker to dismiss a partition action for the failure to identify the corpus rather than painstakingly examine the deeds and the pedigree in order to finally divide the land among the parties. Taking away discretion of judges and imposing on them a rigid process in implementing the circular / circulars would be impractical. ‘The Bar is of the view that without effectively developing and upgrading existing systems merely directing judges to dispose of cases within a time limit is unworkable, While time limits could be regularly used to expedite major phases of complex civil and criminal cases, the Bar does not believe the setting of arbitrary time limits will do justice and in fact such time limits may be contrary to the provisions of the Civil Procedure Code and the Criminal Procedure Codes.Time limits should be established early and tailored to the circumstances of each case, firmly and fairly maintained, and accompanied by other methods of sound judicial management.The Bar will within one month forward to Your Lordships a comprehensive set of proposals to be considered in resolving the complex issue of laws delays. Until such time the Bar proposes a few interim measures which could be given. These are 1. that in cases of older cases closer calling dates be given for procedural steps and trials be taken up initially every other month and if the case remains unconcluded fixed the case once a month. 2. The number of stengraphers and typists be increased in every court in order to expedite the preparation of proceedings, An audio recording of the proceeding could be available to the litigants on the same day. 3. Judges should be encouraged to have a pre-trial conference and parties encouraged to narrow down the contentious issues and where possible the provisions on admissions to be used. Considering the above we are kindly request the implementation of the circulars be postponed or interim lea directed to permit discretion / flexibility to the judicial officer. gone at) OZER) — pear Geoffrey Alagaratnam, PC President Bar Association of Sri Lanka