opinion

Impact of legal delays

8 February 2019 - 263   - 0

The Law Delay is harmful to everyone; its implications are wide and far reaching. It impacts all parties involved in the justice delivery process, as well as people seeking justice and society at large.

 It was revealed recently that some cases take between ten to fifteen years to be concluded. According to case statistics of the Justice Ministry, the number of pending cases on 30 September 2017 was indicated as, in Supreme Court 3,783; in Court of Appeal 4,880; in Commercial High Court 6,126; in Civil Appellate High Court 5,974; In country’s 32 High Courts 17,143; in 72 District Courts 181,917 (Total 82 DCs, – 10 not included); and 399,591 in 80 Magistrates' Courts (Total 100 MCs, 20 not included). 

These statistics give a comprehensive picture of the magnitude of the problem. its enormous impact, one can realize without much apprehension; on the victims, accused persons, witnesses, and the society; the integrity of our justice system, the administration of justice and the institution administering justice; Police, Judiciary and the Prisons and Rehabilitation.

THE VICTIMS: As a consequence of law delay the victims are re-victimized. The delays can result in feelings of re-victimization.  Every adjournment means that victims must endure further worry and anxiety as every court appearance requires that they prepare to revisit the events surrounding the crime.  The accused person is confronted in court once again each time. The victims may have to travel long distances to get to the courthouse, incurring personal expenses. If employed taking personal leave for each appearance and still worse when the victim is a daily wage earner he/she goes without income for the day. This experience can be particularly devastating for victims. 

THE ACCUSED PERSONS: The stress of long delays on accused persons – who remain innocent until proven guilty – are also be significant. They may have lost the job, experienced damage to family life while in remand custody; their families are devastated and are worse when the accused person is the bread winner in the family. Have to spend a considerable amount of money on legal fees. Multiple adjournments and appearing before courts over and over again place additional cost and worry for the accused persons as well. If proved innocent, the lost time cannot be given back. There is no system of compensating in place.  

THE WITNESSES: Witnesses too have to undergo many hardships when they have to appear before court over and over again during a long period of time. Delay also have an impact on the quality and reliability of evidence since witnesses’ memory of the incident will be less clear as time passes. They too have to undergo similar hardships with regard to leave from work places and out of pocket travelling and other expenses add to their hardships.  
EFFECTS ON THE SOCIETY: People lose faith in justice system which fails to redress their grievances within a reasonable time. Manifestation of such frustration can take the form of violent path. When it is becoming costlier in terms of time and money people tend to believe that justice goes out of their reach. As a consequence of long delays the confidence of the people has, in the efficiency and fairness of the criminal justice system could be eroded. As the delay increases the connection between the commission of an offence and its condemnation weakens. Swift justice, which is seen as a powerful deterrent of crime diminishes when delays become too great.

FINANCIAL COST TO THE STATE: Another critical consequence of Law Delays is the increased remand population. The number of persons held in remand custody was always larger than the number of convicted prisoners serving in country’s Prisons. According to Prisons department’s published statistics; in 2017 the total prisoner population in prisons; in prisons department jargon; by “morning unlock,” (morning head count) number of convicted inmates (average) was approx. 8,500, while remand inmates averaged approx. 19,000; more than twice the number of convicted prisoners. It is a huge cost to maintain such a large number of remand prisoners; space to accommodate them, feed them, look after and guard them.  It’s a huge pressure on financial, human and physical resources of the Prisons department. The added cost involved in each additional court sitting and the Courts’ time is significant. 

ADVERSARIAL AND INQUISITORIAL SYSTEMS

It is the “adversarial” judicial system that followed in Sri Lanka. The “Adversarial” and “Inquisitorial” systems of justice represent two different means of conducting trials. The two systems differ to the role of the judge in an inquisitorial system, as the name suggests. The “inquisitorial” system involves a preliminary investigation conducted by an investigating magistrate and the pre-trial investigation will reduce the number of contested facts as a thorough review of the facts has occurred prior to the commencement of a trial. This system is more adept at identifying and investigating the relevant facts and ensuring that this is all taken into account when deciding to proceed with a trial. Thus it is thought to be a cost-effective means of dispensing justice. 
However, the question arises, whether it dispenses justice when an individual being tried in circumstances where his presumption of innocence is eroded. It is subject to criticism for its erosion of a fundamental principle of criminal justice; the presumption of innocence. A defendant in an “inquisitorial” system is only on trial as the investigating magistrate believes that the evidence suggests that he is guilty. As such, how is it that his subsequent trial can said to be taking place within the context of presumption of innocence when all those involved in the process know that the defendant is only there because the investigating magistrate was convinced of his guilt?
It’s imperative to find remedies with speed and fairness in dispensing justice. In the judicial process followed in Sri Lanka there are delays caused as a result of observing some mandatory procedures and preliminaries that are legally required. It imposes, but necessary, constitutional obligations to be observed; the legal rights and protections afforded to all persons charged with an offence. It’s the legal duty of the courts to protect them and to ensure that justice is done.
An “adversarial” system takes time, but protects against wrongful convictions by ensuring that the process is slanted in favour of the accused person in the belief that it is better for ten guilty men to walk free than for one innocent man to be punished. 
An important shift in attitudes among all stakeholders may be necessary to take collaborative steps in the belief that delays can be reduced and proceed more expeditiously guiding on how to make this happen. It can be seen; “Justice delayed” is “Justice denied.” Nevertheless, the remedy cannot be seen; “Justice hurried” is “Justice buried.”

RAJA WICKRAMASINGHE 
(The writer is a Srilankan residing in Canada)

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