The Economy & The Law’s Delays

By Basil Fernando –JANUARY 29, 2020

Basil Fernando

In July 2013, the Island published an article entitled ‘Justice in slow motion corrodes Sri Lanka’s economy’. Six and a half years later it is worth revisiting. Nobody in authority seems to have been paying attention to the important content of this article. In terms of the law’s delays, the situation is now much worse than in 2013. One of the concluding remarks of this article is worth restating: 

A “lawyer” mindset can lead to attempting solutions based on “rules” and “dictates”. The economist’s approach would revolve around aligning incentives and designing smart coordination structures. Perhaps it is time to let the economists approach this problem.

The above statement shows that the analysis contained in the article was an understatement even in 2013. In fact, in the Sri Lankan context, a lawyer’s mindset does not even think in terms of rules and dictates. Essentially, the approach is to exploit the delay for their own benefit and not to resist them in any manner. In fact, on several occasions, when the issue of limiting delays and ensuring speedy/timely justice came up, the main resistance came from certain sections of the lawyers. They made several excuses, such as by saying that attempts to quicken the process of delivering justice may collide with the right of litigants to choose a lawyer freely. This meant that good lawyers are few and that, for the benefit of the clients, the courts should adjust themselves to the conveniences of these lawyers. Therefore, if the laws delays have corroded the economy, one of the responsible agents is that section of the legal profession that resists any changes regardless of the impacts of delays on the economy and society as a whole.

A justice system is an integral part of the economic and social systems of a country. If the justice system undermines the economy and society, it is a very fundamental problem affecting the survival of both. When changes are resisted on the basis of personal benefits, it means that such benefits are given preference over the interests of the economy and society as a whole.

Any effective critique of the law’s delays should examine why the protectors of the economy and society have allowed such delays in justice, which are counterproductive to every aspect of production and distribution of goods. 

The issue of the law’s delays is not a matter that is primarily in the hands of the judges. Space needs to be created by the executive and the legislature in order that the judges can exercise a firm position in ensuring speedy justice for the proper functioning of the economy and society. In the past, the judiciary has made attempts to take some administrative measures to deal with the problem of delays. However, when the objective causes resulting in delays are not addressed, mere administrative measures cannot resolve the problem. In fact, those who are opposed to speedy justice find many ways to undermine the effective implementation of such administrative measures. 

In the article referred to above, several references have been made to the situation in Singapore. What was achieved in terms of speedily dealing with cases was undertaken by the executive itself. Whatever other serious limitations of the Singaporean system are, it has to be admitted that, from the point of view of efficiency, Singapore’s economy has made significant achievements. The executive wanted an efficient system of justice, particularly to enable the economic system to function well. This determination was lacking in Sri Lanka from the 70s up to now. The economy has in fact become a victim of arbitrariness. The arbitrariness is boosted up by the inefficient system of justice, including delays in adjudication.

Such delays also affect the economy from another point of view: that is, it disables the country’s criminal justice system. It makes the work of the investigations into crimes a virtually futile task because delays undermine the work done. It has even been established by a parliamentary standing committee in 2017 that the average time needed for a criminal trial is 17 years. 

There are crimes directly related to the economy. If these crimes are not dealt with a proper legal mechanism, the economy virtually cannot function for the benefit of the country as a whole. In fact, the damage done by those who engage in crimes related to the economy do a much greater harm to the society as a whole than those who are ordinarily referred to as criminals.

Efficiently dealing with economic crimes is, once again, a task that can only be done by the executive in particular, and the legislature. In Singapore, as well as in Hong Kong, strong measures were taken in order to recognize and to deal with economic crimes. In fact, the investments that were made in developing the investigative mechanisms against crimes related to the economy far exceeds the investment made to run the ordinary criminal justice system through the police in general. Laws were improved, and new units and departments were developed with specific areas of expertise.  Massive educational campaigns were undertaken to support the work of these units and departments. 

The article referred to above mentions, Warren E. Burger, a former Chief Justice of the U.S ‘once observ[ing that a sense of confidence in the courts is essential to “maintain the fabric of ordered liberty for a free people.’

This quote restates a position that is well known. 

The building of this confidence cannot be done by judges alone. Space needs to be created to enable judicial wisdom to be exercised and that needs the active cooperation of executive in particular, as well as the legislature. 

During the last 50 or so years, the executive has not demonstrated a determination to improve the people’s confidence, including the confidence of the business community, in the proper and efficient functioning of the system of justice. The 1972 and 1978 constitutions demonstrate an attempt to undermine the administration of justice for reasons that are best known to the drafters. While various amendments were sought, the core problem of ensuring a healthy balance in terms of the separation of powers was not considered a priority. In fact, for the executive, the opposite was the priority.

It is the executive that has the duty to put the house in order. In fact, it is said that a Sri Lankan delegate sent during President JR Jayewardene’s rule to Singapore to observe the secret of Singapore’s success was told by Lee Kwan Yew, the Prime Minister, to tell the Sri Lankan president to put his house in order. 

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