"Injustice anywhere is a threat to justice everywhere"

A comparative study of the barriers of access to justice in Sri Lanka and the United Kingdom



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Kush Narendra Chauhan


by Kush Narendra Chauhan
University of East Anglia, Norwick, U.K.


As Martin Luther King Junior once said, "Injustice anywhere is a threat to justice everywhere" and it is this particular issue which served as the basis for my research piece. Whilst there may already be strict measures in place to ensure legal compliance and standards of fairness and equality, many groups in society are still deprived of such access to justice despite everyone being bound by the Law equally. This article therefore touches upon the limitations and extent to which justice is served in both the United Kingdom and Sri Lanka by analysing key barriers which affect this matter.


One of the most common barriers of access to justice is the ever increasing period of time it takes from the start of a case to the end. As William E. Gladstone rightfully said, "Justice delayed is justice denied" and this can impair justice in numerous ways; the wronged party may have to live with the wrong for longer, a criminal defendant may lose his/her job and may spend a long time without earnings until acquitted, and further to that, a criminal defendant remanded in custody may be in prison for a long time for an offence they did not commit.


As is evident, these consequences may have detrimental effects on the wronged individual however in actual fact that is the reality of "justice" in the 21st century. An Attorney of Sri Lanka said that "…any judge can go through the facts of a case within half an hour to one hour…yet some cases drag on for decades and even pass on to the next generation."


As reflected in the World Bank Doing Business Index 2013, Sri Lanka ranks at a position of 133 out of 185 economies in enforcing contracts. That is an estimate of 1318 days and this is largely affiliated with the time taken in the courts. In Sri Lanka, a major reason for this is said to be due to time being uncoordinated. As I have witnessed through various court visits in Sri Lanka, it has become clear to me how there lacks court discipline to a certain extent which is characterised by the weak time management system such as there not being an assigned time for a case to be heard. Instead, litigants must arrive at the courts early and wait for their case to be called.


On the other hand, courts of the United Kingdom have partially tackled this issue as lawyers are expected to provide the estimated time that may be required for each side to present their cases from which the judges are then able allocate a reasonable time. Whilst this system has proven effective for an efficient manner of dealing with case load, the United Kingdom also faces delay as being a major barrier of access to justice.


Cases heard in England’s magistrates’ court currently take more than 150 days on average to complete, with magistrates taking up to three times longer than that to deal with cases elsewhere in the country. Court closures and cuts in funding are amongst many of the reasons for delay with the government announcing to close 57 magistrates courts and two crown courts as a result of a 30% budget cut since 2010.


As a Justice Minister said, "The magistrates are stating the obvious. There are delays. We know that. We want to make sure delays are minimised if not eliminated completely, because it is important that justice takes place efficiently and properly and to make a system that is less stressful for all concerned." This therefore leads on to the question asking, "So what can be done?"


With the situation in Sri Lanka, it seems as though if the administration was organised, this would not be a problem. Accordingly if allocated times were prescribed for the hearing of each and every case, that would be one step into increasing the efficiency of cases. However a reform that applies to both jurisdictions is the opening up of more courts and recruiting more judges to deal with the backlog of cases. Though it is ironic how this can only be dealt with through resilience, patience and time!


Another barrier of access to justice that has become more predominant in our competitive world is summarised well by Barnabe Rich, "Honesty stands at the gate and knocks, and bribery enters in." Sri Lanka is recognised as a developing country and amongst its neighbouring countries, Sri Lanka’s growth has stabilised very much. It is further said that Sri Lanka has the potential to reach First World status within 20 years, but only if corruption is tackled.


In the United Kingdom, whilst all shades of political and professional opinion agree that bribery of the judiciary is either non-existent or infinitesimally rare, the statistics disagree. "Astonishing" claims have been made of corruption in the UK courts and a survey conducted in 2013 by the Global Corruption Barometer reveals that one quarter of people in the UK do not trust the judiciary.


To resolve this major drawback of the justice system, both the Sri Lankan and UK jurisdictions introduced legal aid. Legal aid refers to the welfare provision of assistance to people otherwise unable to afford legal representation and access to the court system. This targets vulnerable groups in society such as the poor safeguarding equality before the law and the right to a fair trial. However in recent years, in both the United Kingdom and Sri Lanka, people have started to question the effectiveness of legal aid and whether its purpose is in decline.


A human rights lawyer in Sri Lanka, claims that "people have lost faith in legal aid for many reasons." The salaries paid by the Legal Aid Commission of Sri Lanka are so inadequate that only retired lawyers or ill-trained juniors take up the position. He adds that this low salary is characterised by "The impression in Sri Lanka…that legal aid is for the poor and that the poor will be satisfied with anything you give them." For that reason, this effects the quality of output for dispute resolution from legal aid lawyers’ which correlates to little or even no justice served.


Contrary to that, in the United Kingdom, legal aid lawyers are paid well because in most firms, legal aid is an integral part of their work. However whilst this may be true, legal aid is also in decline in the United Kingdom due to the heavy cuts the welfare provision is constantly faced with. The coalition has already take £320 million out of the annual legal aid budget and it plans to remove a further £220 million every year until 2018. This has significantly reduced the areas of law which legal aid covers with family law being the most affected area. For example, you can only get help in private law family cases, such as divorce, if you can prove domestic violence.


All in all, after having critically analysed some of the key barriers of access to justice in Sri Lanka and the United Kingdom, it is evident how the barriers are largely the same but it seems as though the barriers are more widely endured in Sri Lanka than it is in the UK. This article has been written with the intention of raising more awareness of these key barriers in the hope that the Government of both jurisdictions actively reform the matter before it gets out of hand because ultimately, as said by Dr.Mohammed Abad Alrazak, "Denying access to justice, is injustice."


I would like to take this opportunity to thank the team at Godfrey Cooray Associates for their outstanding levels and service and hospitality served to me. I was never differentiated from my colleagues as an intern and was made to feel a part of the successful team. Whilst under the supervision of Godfrey Cooray Associates, I was given the opportunity to visit many of the courts such as the Magistrates Court, District court, High court, Court of Appeal and the Supreme Court. In addition, I learned about the Sri Lankan Constitution and made comparisons of the court structure and systems between Sri Lanka and the United Kingdom. Further to that, I was given the unique opportunity to draft a constitution and learn about intellectual property law also. I am forever indebted to them for the wealth of knowledge and experience I will be bringing back with me to the UK which will be paramount to my successes in the future. Most importantly, I am more than appreciative of Godfrey Cooray for allowing me this opportunity to shadow him and experience the day-to-day workings of a renowned law practice in Sri Lanka, since none of this would be possible without him. Finally I would like to specially thank Travellers Worldwide UK for organising this trip and for liaising with me really well whilst in the UK and in Sri Lanka.


Particular credit goes to Mr. Godfrey Cooray, Mrs. Annette Cooray, Mr. Ruwantha Cooray, Mrs. Ranusha Wijesinghe, Mr. Roy Fernando, Mr. Rukmal Cooray, Mr. Aravinda Fernando, Mr. Manesh Wevita, Miss Ruwanmalee Cooray, Mr. Sarath Athukorala, Mrs. Amelka Ranaweera, Miss. Vishmi Wickramarathne , Miss Jithmi Perera and Miss Nidumi Wijerathne.


 
 
 
 
 
 
 
 
 
 
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