The Legal System in SL: Reforms and Recommendations

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This research article analyses the legal system in Sri Lanka and therefore it can be categorised into the academic field of Law. The legal system of Sri Lanka is a complex and multi-faceted organism. On the one hand, there are the lawyers
– State Counsel who represent the Government at the time and Private Counsel who act for lay litigants. Those who reach particular eminence in the private practice of the legal profession, become President’s Counsel based on a combination of age, experience and talent.

This is the equivalent of the Queens Counsel conferment in the United Kingdom. On the other end of the spectrum, is the judiciary and the judges which consist of the Lower Courts, the Middle-ranking Courts, the Court of Appeal and of course, the Supreme Court of Sri Lanka, which is the highest Court in the land. Judges of the Supreme Court are the final arbiters on complex and important points of law. Their decisions bind all lower courts and all citizens of Sri Lanka. It is therefore important to understand and to critically evaluate how these judges are selected and the impartiality and objectivity they bring to their highly important job.

 A study of the Sri Lanka judiciary: Impartiality, appointment of judges and judicial structure

Sri Lanka’s judicial system is a combination of English Common Law, Roman-Dutch Civil Law and Customary Law. Statutes enacted by Parliament, form the primary source of law. The judicial system is defined in the Constitution as an independent pillar of democracy, with the appropriate level of checks and balances. The judiciary in Sri Lanka is a triangular court system
– the Supreme Court is the final and the highest court of law. The appellate courts consist of the Supreme Court, the Court of Appeal and the High Court.

One of the chief criticisms of the Sri Lankan judiciary is that the judges of the higher courts- the Supreme Court and the Court of Appeal are political appointments. The President of Sri Lanka is responsible for the appointment and removal of the judges of the Supreme Court. The Supreme Court judges are appointed with the advice and consent of the Constitutional Council. The Justices are barred from holding any other office without the consent of the President. The key role of the President in appointing judges of the Supreme Court, hinders the impartiality of the court and makes the court too, political. Reforms are needed to bring the process for appointing judges similar to the process for appointing judges in the UK Supreme Court, where judges are not politically appointed, and the appointment process is transparent and overseen by an independent selection panel.

The other worrying trend is political interference by the Executive in judicial matters. The most high-profile instance of such interference in the past, was the impeachment of the 43rd Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, which took place in January 2013. The impeachment was widely condemned internally and internationally as a politically motivated witch-hunt, which severely dampened public trust and confidence in the judiciary and fueled public anger at the political interference in the judiciary by the Executive. The Executive branch of the Government must be clearly separated from the judiciary, at all times. This ensures that judgements by the superior courts are delivered in a fair and transparent manner and avoids political favouritism and cronyism. In fact, the Supreme Court of Sri Lanka,has to be extremely cautious about appearing to be too political and being too deferential towards the Executive.

The lawyers and the legal fraternity

Legal practice in Sri Lanka, is broadly divided into Private practice and State counsel who represent the State in the Attorney General’s Department. The Bar Association of Sri Lanka (BASL) is an independent, democratic body which represents all lawyers practising in Sri Lanka. There are also private law firms which instruct counsel and perform independent work of their own. The first observation one would make of the legal profession in Sri Lanka is, the informality of the profession and the lack of a clear structure. There are far too many Attorneys-at-law qualifying in Sri Lanka and there are not enough firms or private lawyers to mentor or train young attorneys-at-law. Work is not consistent or fairly distributedand access to legal aid for the underprivileged individuals and/or families is non-existent. These problems when put together, create a difficult working environment for young lawyers and the progression to a partner or a president’s counsel can be non-meritocratic and highly political. In sum, the ‘legal scene’ in Sri Lanka is somewhat of a game with the lucky few from better families are at a huge advantage when compared to others who are less fortunate.

Conclusion

In conclusion, the legal system in Sri Lanka is in desperate need of reform. On the judicial end, the appointment process for judges is in need of change. On the lawyers’ end, there is a need to reform private practice, the number of new Attorneys-at-law who take oathsand to change and modify various systems in place, to ensure a more effective legal system. Ultimately, building a new model for Sri Lanka’s legal system requires engagement with all stakeholders- civil society, the ordinary citizens and the elected political leadership in order to steer Sri Lanka’s legal system on a new trajectory.

The writer can be contacted at [email protected]

By Sachin Parathalingam