SRI LANKA :Absurdities arising out of delays in litigation

SRI LANKA :Absurdities arising out of delays in litigation

A group of people at a workshop identified the following as the basic adverse consequences of delays in litigation:

• It changes the way litigation is conducted and encourages exchanging favors, as well as lying.
• It encourages using criminals and other third parties to settle disputes.
• Many judges preside over the same trial before its completion.
• It has caused the development of serious political and social tensions.
• The parties to the litigation suffer considerable financial losses.
• It increases the possibility of destroying evidence and harassment, and even the assassination of witnesses.
• It causes people to lose faith in the judiciary and the law.
• Women encounter particular pressures, including sexual harassment from various agents involved in the process.
• Serious criminals are allowed to move freely among the people.
• The witnesses gradually become discouraged and fail to be present at trials.
• There are ever-increasing loads of files, which gradually worsens the situation of delay.
• The inability to form reasonable expectations about when decisions will be made about matters in dispute.
• The corruption of the legal profession.
• The spread of corruption among the all the staff at the courts, and even the creation of opportunities for corruption by some judges.
• The spread of cynical attitudes regarding courts and the litigation process among the people, thus creating demoralization.
• The undermining of democracy and the rule of law.
• A significant loss of time for experts and government employees who are called upon to give evidence only to have the case repeatedly postponed.
• Good governance principles being undermined as a result of the loss of expectation of justice.
• The failure to deter crimes through effective punishment of criminals.
• A greater possibility of witnesses dying and thereby the loss of important evidence.
• The family disputes arising out of prolonged litigation.
• The serious undermining of institutional integrity.
• The devaluation of the very idea of justice.

Many of the issues listed above are self-explanatory. However, it is worth commenting on a few salient points from the list.

Prolonged litigation creates a culture that encourages lying. The long years between the commission of a crime and the disposal of the case provides immense opportunities for unscrupulous litigants and lawyers to engage in many forms of manipulation, which in turn favor those who engage in falsehoods rather than who are honest and state only the truth of what they know. The types of manipulations and tricks used are varied. For example: a particular party that is aware that it has a weak case will want to delay the trial as much as possible, with the expectation that, at some point or the other, the opposing party will get tired and will not appear in court. The victims of crime, who already suffered from serious emotional distress, particularly in the cases of rape, murder, and similar crimes, may often find it difficult to repeatedly come to the courts for many years. As a result, criminals can slowly get to being acquitted due to discouragement among the complainants or other witnesses.

After an aggrieved party becomes tired out due to delays, they often arrive at settlements, even in very serious crimes. For example, rape victims can be offered money in exchange for abandoning their rights. In some instances, the prosecutors may offer trivial punishments if the accused is willing to plead for a lesser crime than the one with which they are charged. An example of this is the granting of suspended sentences for very serious crimes, including rape.

There are many other more shocking forms of manipulation, such as the alleged loss of files, and the loss of other important documents and material which would work adversely against a particular party. For an example, in cases of fatal accidents, an insurance company may claim that the files relating to the particular vehicle involved in the crime no longer exist and, on that basis, claim that there is no proof of the existence of the an insurance contract relating to the relevant claim, or that there was no insurance cover during a particular time.

Another issue worth noting is that when the same case is heard by several judges, the judgement is written by the last judge, who, on some occasions, has not heard any of the evidence. One of the basic principles relating to assessing the credibility of witnesses and the weight of evidence is completely set aside. Often, a single case can be heard sequentially by five judges or more before the completion of a trial. Besides the inability to view the demeanor of the witnesses, there are other problems: the final judge, who writes the judgement, is unable to appreciate vital aspects of the trial or can even be misled by some unscrupulous lawyers who, in their submissions, give a version of events which are not at all supported by the actual evidence led in court. For example, in a case where there was clear medical evidence of about particular injuries, supporting the claim of the complainant, the defence lawyer in his written submissions stated that there was no such medical evidence. The trial judge wrote the judgment based on the defence lawyers submission and, on that basis, acquitted the accused. The case has now been pending before the appeal court for several years.

The most serious criticism that can be made against prolonged trials is that they fail to realize the very purpose of litigation. In fact, by creating a situation where lies prevail, the whole exercise reduces itself to an absurdity. When most serious crimes, such as murder, rape and many other forms of violations of life and liberty, are reduced to this absurd situation, it reveals the very tragic plight of human beings living in such a society.

# # #

The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.

© Scoop Media