Inquisitorial vs Adversarial Systems of Litigation

Dr. A. C. Visvalingam-May 19, 2018, 6:55 pm 

A letter written by Ranjan Ramanayake, MP and Deputy Minister, to the SUNDAY ISLAND on May 6, 2018 raises briefly the very important issue of the superiority of the Inquisitorial System of litigation over the Adversarial System that is practiced in Sri Lanka. The Citizens’ Movement for Good Governance (CIMOGG) went into this subject in non-technical detail in an article titled TOWARDS A MORE PEOPLE-FRIENDLY SYSTEM OF JUSTICE that appeared in the ISLAND on December 4, 2010 and may still be accessed at www.cimogg-srilanka.org.

We said then that it was time to get Parliament, the Judiciary and the legal fraternity to address their minds to take steps that would give a measure of relief from the tortures to which Sri Lankan litigants are interminably subjected. We said that Sri Lanka should learn from countries that practise more efficient ways of speeding up litigation. It was recalled that the late Felix Dias Bandaranaike got several laws passed and implemented in or about 1973 to help accelerate litigation. However, the more inefficient and selfish of our lawyers, who we fear greatly outnumber their betters, got this progressive legislation repealed after J.R.Jayawardene came into power in the late 1970s.

In Sri Lankan litigation most of our lawyers keep "nibbling away" at cases because prolongation of the legal process enables them to get away with shoddy, piecemeal homework that is just sufficient to occupy 30-60 minutes of Court time on the next date. Our lawyers are also given to discrediting witnesses for the opposing side by producing "surprises" of various kinds that puts the rival counsel into difficulty on account of the unexpectedness of the "facts" presented. This kind of tactic is not encouraged in more just legal environments.

The procedures described briefly below are more relevant to civil litigation but criminal litigation should also follow a similar pattern although the latter would tend to be a little more complex because of the likely involvement of judicial medical officers, fingerprint experts, handwriting experts, government officials, police investigators, IT experts and the Attorney-General’s department.

The convention in certain superior legal systems is that a complainant sets out his (or her or its or their) Claim in detail with copies of the entirety of the relevant documentation relied upon by him, together with a full list of witnesses and the scope of the evidence that each of them would be giving. The respondent is allowed a fixed period of time at the end of which he must produce an Answer to the Claim made against him and also make whatever counterclaims there may be, together with a list of his own witnesses. The complainant is then allowed a fixed period of time to refute any of the averments made by the respondent. No surprises may be sprung later by either party on the other unless the inquiring judge is persuaded that such "new" evidence was not available at the outset of the litigation.

Once this is done, the lawyers for both sides are obliged to meet each other within a specified period of time (outside the Court) to list out the facts that both parties agree on, and frame issues jointly regarding the remaining contentious matters to be placed before the Court. Generally it happens that, during the course of these preparatory discussions, the parties agree, for good reasons, to dispense with the calling of certain witnesses listed in the Claim, the Answer and the Response. Similarly, agreement can often be reached on the admissibility or otherwise of the documents listed. The formulation of an agreed set of issues before coming into Court saves much time that would otherwise be wasted by the Court on intervening in this task. By adopting this procedure, the curtailing of time to be spent in Court would be enormous. Happily for lawyers, they would not suffer any great loss of earnings because there would be a substantial amount of productive professional time that would be required outside the Court to prepare the various documents and for the counsel to meet.

Another good practice relates to "dates" and postponements. For all practical purposes, the courts in "advanced" countries will not allow postponements - for example, "because my learned friend has a personal problem" or "May I stop at this point today?" All counsel are expected to make full use of the time allocated by the Court to conclude cases with maximum expedition.

At present, it is a mind-numbing experience to see dozens of lawyers, their clients and witnesses futilely sitting silently in the Courts while the judge deals with a host of routine matters before proceeding with the first inquiry. During the 30-60 minutes that an "instalment" of an inquiry occupies, virtually everyone in the courtroom is compelled to listen to matters of no interest whatever to them. After one inquiry is partially completed, similar things happen with the next inquiry, and the inquiry after that. The tens of thousands of hours that are wasted daily in this manner, and the cost to litigants and the economy is colossal and not very different in scale from the time lost by the public in the huge volume of slow moving city traffic on congested streets.

In the inquisitorial system, the unconscionable amount of time spent in recording the names, ages, educational qualifications, employment history of the contending parties and their witnesses, and recording them in the proceedings would be eliminated because all these would already have been furnished in the Claim and the Answer. Having read the Claim, the Answer and the Response, the Investigating Judge will question the parties on what he considers to be the key points at issue and not waste time on routine or irrelevant matters.

Turning our attention to another shortcoming, we may mention that, even before 2005, surveys carried out by independent groups had revealed that there had been a progressive erosion of public trust in many state institutions. This loss of confidence extended to the Judiciary as well. CIMOGG then called upon Parliament to enact a Code of Conduct for all judicial officers and proposed that the said Code should be based on THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT, which had been formulated by the Chief Justices of 31 countries from around the world.

About the same time, on account of certain incidents and facts considered independently by the Bar Association of Sri Lanka (BASL), its Council had decided to appoint a high-powered committee to draft a Code of Conduct for Judges. Needless to say, in typical BASL fashion, nothing useful ensued. It is CIMOGG’s not-so-hopeful aspiration that, as there are numerous lawyers in Parliament, they may get around to passing this proposed piece of people-friendly legislation. If such a law comes into force, adherence to the BANGALORE PRINCIPLES by the Judiciary would surely help to reverse "the progressive erosion of public trust" referred to above and lessen the tribulations that myriad litigants undergo every day?

Another matter of great consequence relates to the fact that, in most cases, a lower Court goes into a dispute and gives its decision, with its reasons. If either one of the parties considers it advisable to do so, it will refer the matter to the Court of Appeal, which will give its own determination with reasons therefor. Where the verdict of the Court of Appeal is deemed unfair by a party, that party could go to Supreme Court for a final word. However, there are certain types of cases, particularly those relating to Fundamental Rights, where the first reference is directly to the Supreme Court. In these instances, a sense of injustice is bound to be felt by the Petitioner whenever the Court mysteriously pronounces that "Leave to proceed is refused" without giving any indication as to the nature of the deficiency in the Petition.

This is grossly unfair to the Petitioner, the public and the Court itself. In the case of the Petitioner, he has no clue as to whether his application is refused on account of some technical default, or whether the Court is in possession of such other reliable information (unknown to the Petitioner and perhaps even the Attorney General) that it feels obliged to throw out the case. The crucial difference is that, in all the cases which come up from the lower Courts, the litigant has some idea of where his case fails and he has somebody (the Court of Appeal and/or the Supreme Court) to appeal to.

In contrast, when the Supreme Court makes an order, without giving at least one sound reason for rejection, knowing that there is no further appeal possible, it leaves a very uncomfortable feeling in one’s stomach. Although the Supreme Court may feel that it has done justice, it certainly cannot be seen to have been done. Therefore, we call upon Parliament to change the applicable laws and grant to citizens a less secret and more appealable procedure.

There are, of course, many other obstacles to achieving speedy and impartial justice for our citizens but, if at least a move is made from the adversarial to the inquisitorial system, Sri Lankan citizens engaged in litigation would benefit enormously.

(The writer is president of CIMOGG, Citizens’ Movement for Good Governance.)

acvisva@gmail.com