Sunday Times 2
Listing of court cases: UK versus Sri Lanka
View(s):Law and Order is affected by problems as well as the Judicial Function, apart from all that has been discussed before under this subject. The reason why this particular theme has now been taken up for further discussion is a recent report of proceedings before a Justice Committee in the UK. At its November 16, 2021 meeting, much of the evidence was given by Lord Chief Justice Burnett (LCJB) who adverted to many issues relating to the Judicial Function. Of these, only one particular issue termed ’Listing of cases’ is taken up for discussion, here.
In Sri Lanka’s context, calling and trial dates are declared as ‘listed’. Observations and other relating comments made in the UK Justice Committee meeting are relevant to Sr Lanka, too, especially with the moribund attitude of the Commission to Investigate Bribery or Corruption (CIABOC).
Since this exercise is then merely a comparison, each of the remarks made in the UK will be followed by parallel notes from SL, to enable corresponding assessment for Law and Order in SL. Since space is limited, only a few related issues will be discussed.
Listing strategies are varied in the UK, implying each court adopts different approaches to determine the next dates. This issue is then not merely a matter of consistency as a judicial task may entail, but involuntarily takes in other considerations which drive the decision. Such other factors may not be quite ‘judicial’. Much is then left unsaid.
It is idle then to term the listing exercise as a judicial function, in itself. In the UK, this assertion as a firm statement was intended to distinguish it from an administrative function. The implication is that judicial function is made by the Judges but the latter administrative function is by the Registrar. This difference is carefully nuanced that little else can be insinuated. In SL, the reverse is possibly the normal practice, and the cross implications flowing in either direction cannot be easily discounted. A judicial element and an administrative aspect are in truth contained in each other, theoretically and linguistically.
The grid reference in the UK, meaning that the cases are listed in the order of a grid framework, is possibly plausible. The idea projected is meant to exclude an administrative element within the judicial function idea. This is in the UK. In SL, such statement is made rarely.
On the other hand, however, the UK Justice Committee still accepts the observations of Lord Chief Justice Burnett when it recognises that UK Courts have nonetheless to follow judicial direction and policy, even when cases are taken out of the list at short notice. This means more than it says. That is the reality. The Justice Committee acknowledges that there are yet many ‘variables’ as the report terms it. Such it is then that, in the end, despite an honest effort to record observations duly, the odds facing such listing endeavour are heavy.
The conclusion reached is nevertheless promising when the Justice Committee notes that the need is to ‘keep the show on the road to the extent that has been possible’. The Justice Committee conceded this on the basis of the evidence of Lord Chief Justice Burnett that impeding factors as the Covid pandemic, physical incapacity, judicial incapacity, finance and other reasons hardly apply to the emerging problem. The matters, noted above, are an array of disconnected issues in the order of proceedings of a Justice Committee. But they apply more or less with listing which is even more directly related to Law and Order.
And into this mix in the UK, is added the factor of common law as perhaps means to improve on Justice which encounters these problems than through the statutory law, specifically, the reference in Justice Committee and the evidence of LCJB to family cases that these take up much time to deal with more serious crimes. A common law approach to family cases and a host of other minor cases is then but a suggestion that methods other than statutory law means may usefully be adopted. That line of attack on the problem was not discussed which can surely be to advance Justice as well as Law and Order.
In SL, such idea will entail a redistribution of the cases before court to authorities outside courts as conciliation boards etc. But plain power and related considerations will stand squarely in the way even to ‘keep the show on the road to the extent……possible’. ‘Delisting’ of cases in SL in this manner is thereby nearly unthinkable. Law and Order will have to wait somewhere along this road for some time to come.
(The writer is a retired Senior Superintendent of Police. He can be contacted at seneviratnetz@gmail.com)