Sri Lanka’s courtrooms have seen little change during several decades, in which time the country advanced to middle-income ranks and formed deeper economic links with the rest of the world. Surely courts have become fairer but the justice system is notoriously difficult to navigate for litigants, its laws and statutes are outdated and its physical and human resources require updating.

Sri Lanka’s courtrooms have seen little change during several decades, in which time the country advanced to middle-income ranks and formed deeper economic links with the rest of the world. Surely courts have become fairer but the justice system is notoriously difficult to navigate for litigants, its laws and statutes are outdated and its physical and human resources require updating.

When you took over as Minister of Justice, you looked at reforming over 100 laws that were not updated for 400 years. And investors constantly talk about how delays in our legal system have been an impediment for them choosing Sri Lanka as an investment destination. How do we overcome this? And what is the progress of those reforms that you initiated a few years back?

Ali Sabry: We always had a good independent judiciary, compared to the region. But its functionality and effectiveness have been debatable. We always highlight a couple of emblematic cases to point out how strong our judiciary is.

But on the ground, the law’s delays have been a perennial problem. Somebody was telling me 60 years ago also, that the issue the legal system faced was the same. When I was appointed justice minister there were several reports funded by the World Bank and others highlighting these issues, but no concrete action has been taken. Everybody knows what the problem is and the solution too was clear.

What the system of justice required was a coherent reform program. When I took over the justice ministry, due to my being a lawyer and being involved in the Bar Association too, I knew I could rely on my colleagues in the profession. So we devolved a mechanism and had five sub-committees appointed. I understood there was a lack of judges, lack of court horses, we hadn’t updated our technology and our laws were outdated. We identified these areas and formulated a holistic plan. I made a presentation to the cabinet, identifying five areas: infrastructure development, digitalization of the courthouses, criminal law reforms, civil law reforms, and commercial law reforms.

Digitalization had been on the agenda for eight years, and in the last five years, the budget of 500 million was made available by the treasury but had been returned as there was no planned action. We got all the experts, established these subcommittees, and went through the whole process, which took one and a half years. Unfortunately, once we are awarded the work, we don’t have the $20 million for digitizing Sri Lanka’s courts. We aimed to start with 100 courthouses.

Digitalization needs to be at the forefront of the changes. During Covid, the supreme court of appeals and some of the other courthouses adapted to the challenge somewhat. But I would say, the judiciary could have done more, they could have been more proactive. Some of the lawyers too, my colleagues, were not technically savvy or were unwilling to go through that process.

The other reforms entailed subcommittees identifying the laws which need to be reformed and experts from those areas were handpicked and given the task of drafting the new laws. For example, recently they have gazetted some amendments relating to notaries, the power of attorney, and the notary ordinance. We have worked on 99 laws.

We are also introducing two courthouses, one is a small claims court. For anything less than $10,000, without going through this cumbersome process, like in many other countries we will have a small claims court.

Another area we have overlooked is the pre-trial area. We will introduce a pre-trial court, just like in other countries. Also to be introduced is something called an investor court when the investment in question is over Rs100 million whether local or international. We also increased the carder in the Supreme Court, the Court of Appeals and Magistrate Courts. Unfortunately, these economic troubles were unforeseen, the extent of it, so everything has come to a standstill.

But many of the law reforms should go through. The cabinet secretary told me that 82 new laws had gone to the cabinet level. That means, seeking drafting permission or reform permission. Apart from that, there is another group of laws, which are being looked at but not yet presented to the cabinet. An overhaul is very important, that is, the number of judges, the number of courthouses, the digitalization and laws reforms. Unless a holistic view is taken, you can’t significantly improve the system.

This reform is necessary for the country’s economy and rule of law. What is the point if you rent your house for six months and have to litigate for 10 years to regain control? For example, one law we are introducing addresses the leasehold rights recovery process, similar to debt recovery laws applying to banks. You file a summary procedure at courts and they have to show cause. Otherwise, a decree nisi will be given. Within six to 12 months, you should be able to recover the property, which now takes 15 years or so.

But none of those things will be successful unless there is a paradigm shift on the part of the lawyers, the judiciary, the government and the public itself. Some meaningful steps have been taken but it is for all of us to take it over to the next level.

So paradigm shifts are required. Saliya, what is the Bar Association doing to equip their members to undertake that shift?

Saliya: One of the key areas is legal education and continuing legal education. We have seen that continuous legal education is fairly ad hoc. One thing we are trying to introduce is a CPD (Continuing Professional Development) programme as many other professions have done. In some countries, you have to have certain CPD points to renew your license. Over the years we have not been used to that. After you take oaths there is no legal requirement to update yourself.

We have constituted a committee to examine this and we are trying to go ahead. Ultimately the decision has to be made by the Supreme Court. They will have to make rules for that purpose, but we are looking at a more structured system. Already have introduced a district-wise continuous legal education programme which we have put in place.

The other aspect we propose is to look at the changes for the future, for instance, the Colombo Port City. A neglected area, or one in which very few lawyers are involved, is the securities market. Our legal education also needs more progress. Law colleges and universities have to change.

As far as the Bar Association is concerned, we are trying to focus on the CPD. We must remember that the Bar Association is not a regulatory body. The regulatory body is the Supreme Court and ultimately the Supreme Court that will establish a framework for that purpose.

There is one thing that investors always talk about that is how long it takes to enforce a contract. Is there anything that we can do to make this move faster or create more predictability for contract enforcement?

Ayomi: It’s a wide area, you could talk about the lack of legal infrastructure, the backlog of cases and so on. But I want to focus on two points.

I’ve recently seen judges go through two programs. One is on arbitration training, which benefited from foreign expertise. I saw the immediate use of knowledge in court. I think that knowledge upgrade even for judges is invaluable. We are talking about future-proofing so to have a program, like in other jurisdictions, where the judges have accreditation and a regular requirement to upgrade their knowledge, is invaluable in looking for consistency, trust building in enforcement, uniformity, and so on.

Another area relevant to this discussion is commercial mediation. Sri Lanka was one of the first signatories to the Singapore Convention, which is the commercial mediation convention. We are yet to enforce that convention into law here. The results in Singapore are heartening. Most commercial disputes need to go into mediation. 75% of the disputes that go into mediation are settled. That has the result of releasing and freeing, at least for commercial disputes and enforcement of contracts, some space for the matters of enforcement that go into court.

We have signed the Convention. We have to enact a law and train mediators. I think that would help in bettering the enforcement of contracts.

But I want to come back to something that Ali Sabry was talking about, and a solution in many parts of the world, which is digitization. Digitization goes beyond virtual court hearings or having digital documentation. It can include scheduling, payment of court filing fees, and so on. Are we looking at that aspect as well in digitization?

Ali Sabry: The digitalization we envisage is a very comprehensive one. The conceptualization took us eight to nine months, and we had experts advise us on that. We also had the JSC (Judicial Services Commission) and the ministry’s technology committee too was involved. We studied several global models that were working well. Ultimately the project was awarded to a consortium which included the current Malaysian technology provider; as the Malaysian court system is understood to be an effective one.

The bidding came down to two vendors. One was the Singaporean model, which was very expensive. The Malaysian one was more affordable and almost equal in its technical capability. I think they chose the Malaysian model because it was very comprehensive.

This contract includes this holistic upgrade of the whole system, scheduling, e-filing, hearing cases and oral submissions. All those things are possible. It depends on how you take it. When I was justice minister we introduced the Covid special provisions act which enabled online hearings in the first place. The mechanism is available but you need to take the initiative also.

But unfortunately, these economic troubles have delayed digitisation. But a thing we did was; to not discontinue the consultant who had done some work. Had we sent them back we would have had to start from zero, again. We continued that work and it has come to a certain level. I expect that whatever we can afford, we will pick it up from that point onwards, and award a tender to continue it. Because this system has been tested in other jurisdictions and matches the aspiration of what we want to be.

Saliya: The younger members would be ready for this digitisation. But there is a gap between them and the senior members of the profession. But having said that, we have to take initiative and give leadership, we have to get it going.

Some of the senior lawyers in Malaysia told me that court hearings went digital during Covid and have continued to hear cases virtually. People have adjusted. In Dubai, they decided to go paperless and there is no choice. Changes will have to be gradual. However, if we wait for everything to fall into place, then things might not happen.

During the economic crisis and in the early part of Covid the courts stopped. My view was that courts should not stop. As the Bar Association, we wanted the courts to function. In certain places, where digital facilities were available, certain courts tried to go online. You need the will to do it and all stakeholders must have that will.

There are workarounds. For example, in other parts of the world practitioners who don’t know technology are paired with younger people who are in university and who know technology.

Ali Sabry: We are planning something similar. We were talking to the Bar Association and wanted the apprentices and the interns to help do that.

It’s possible, but as the others also say, we need the will to commit to going digital from this day onwards. everyone has to fall in line. I had this huge question mark about online banking, but Covid forced us and I don’t think I can live without it now. It’s all possible.

Saliya: Our banking sector is a good example where the change has happened rapidly. Another good example is the passport office. We know that in the 1990s the passport office was not so methodical, but quickly it changed and it runs efficiently.

Ali Sabry: Even Sri Lanka Customs is almost paperless. We expected resistance from the wharf. But, no, they were also ready for paperless work. The importers and exporters were also ready, but it was the banks that were not ready. We thought the banks would be the first segment to say, we are ready. Now it’s working. It’s just that you need somebody to take that initiative.

Ayomi: Even the economic crisis can be seen as an opportunity. The Bar Association is right in saying go to court. We’ve seen several international arbitrations at the firm with witnesses in one place, and lawyers in another place. They have functioned well. We have some arbitrations where we in Sri Lanka are driving it by organizing the IT side. At the firm, we are not particularly IT savvy, yet the resources are available in the country.

We were talking about an overarching effort to make digitizing work. At the sa

me time, there’s much to be done more on a local level too. Take for example the land registries and the registration of movable mortgages. Now, when we are asked if an immovable asset is mortgaged, we have no means of saying yes or no, because the land registry is not digitized. So there is scope for looking at small local projects that can be meaningful. To be able to say whether an immovable asset is secured or not secured would be invaluable.

Likewise, if you ask us for a particular law, and it has to be an official version of the law; our official version of the legislative enactments is 1956. So if a normal man on the road wants to look up a law, yes, they can Google it and look for a PDF, but an official version is not available, there are private versions. Another localized effort could be an official version of all of the laws and regulations in one database, searchable and updated.

We can look at an overarching broader digital development but also smaller localized digital efforts that would have far-reaching benefits.

Saliya: We also need to deregulate simple things. For example, at courts, if you want to get a certified copy and make a payment, you cannot get the copy until the next day. Now, there is no logic to it. But that is how it is. We have to look at things to simplify matters rather than complicate them.

Ali Sabry: One of the biggest problems at courthouses is evidence production. If you go to a court in Kandy, things are lying all over the place. But if you go to Gampola it’s all very neat. It’s all the approach of the judge. He finds the way and the time to do it. At the end of the day, it’s all up to the individuals, until a system is put in place.

It’s about giving leadership. For example during Covid, the Mount Lavinia court was perfectly working. The lawyers there, and the Bar Association branch there took leadership and there were proactive judges there and they were seamlessly working.

Local initiatives are crucial. I’m with Ayomi on that. However, for real change, decisions must be made at the JSC level, the ministry level and with the Bar Association getting involved. I don’t think there will be an assistant transformation without all that.

Saliya I want to discuss the access to justice and the cost of litigation, which is quite high. So unless you have a lot of money or are extremely patient, you can’t see a case through. How do we address this?

Saliya: One issue is in criminal law. For access to justice, we have assigned counsel. But we have to concede that there is a huge gap. If you’re well off and have the money, you’re better defended. Not only in Sri Lanka. All over the world if you are defended by a public defender you stand less chance.

Having said that, we do need to recognize access to justice as a fundamental right. There are no quick-fix solutions. In other countries, there is a duty cost of the provision to accept certain legal aid work. Unofficially it happens here but there is no system here.

But the law’s delay is one thing that deprives people of access to justice. If you take a land case or a partition case, it may take so many years to resolve. That is something which needs to be addressed. But I see even digitization addressing that because the process becomes quicker.

Ayomi: And also the small claims courts endeavour that you mentioned.

Saliya: One problem is there is a gap between the litigants and their knowledge. You need to simplify the process. Unfortunately in our courts, we are centred on the judge or the lawyers. But ideally, you need to centre the attention on the litigants. If you come to Hulsdoft an ordinary litigant will not be able to find their way even within the courts. And in the long term, it’s better for the legal profession that the focus is on the litigant because they get greater access to justice. When cases are heard or disposed of quickly there will be more work for lawyers too.

Ali Sabry: Some other countries have tied the CPD with a little bit of legal aid. That probably is one thing in the medium to longer term to introduce. Today we have a legal aid commission but is it effective enough?

Ayomi, another aspect that concerns investors is property rights. That includes things like intellectual property and immovable property. How do we create a culture of respecting property rights?

Ayomi: On intellectual property, we have a fairly good legal framework. Certainly, for efficiency, there can be digitization, on e-filing, which is fairly obvious.

On land property rights, we have had the Title Registration Act of 1998. It’s almost 25 years since its enactment. But there is a lot of work to be done to give effect to the title registration. It’s a question we get every time an investor comes into Sri Lanka, ‘how can I be sure that I own this land?’ So we have a process whereby we trace a chain of titles. It’s not ideal, I think it’s a must that the title registration law is given effect. I understand that a lot of work has been done, but the project has come to a standstill due to a lack of infrastructure.

We were advising on the Colombo Port City and one of the opinions we gave relates to ownership of land, where you can quite easily get it into the title registration system. We have a lot of public land in and around the country. There are different aspects of title registration, but the public lands can be dealt with separately and registered. As I said, the legal framework exists in this case and most others. We just have to give effect to it.

Investors say that one of the most corrupt and inefficient parts of the legal system is the registrar’s office. How do we reform this?

Ayomi: Digitization. Because that gets rid of a lot of this nonsense in the hands of an individual and that will improve efficiency too.

Ali Sabry: That’s correct. When you remove individuals from a process, this is straightforward. In a system like in Singapore, you don’t need to wait for building approval to start construction. You apply and start construction. If they find your application is wrong, your architect will be held liable. Here the approvals take two or three years. As a result, people are willing to pay 25-30% more for the land when it comes to approval.

There are pilot projects on digitalization we have started. Nihal Fernando, a President’s Council, is looking at the digitization at the company registrar’s office.

Saliya: One of the key issues is corruption. While digitization can address it, it cannot eliminate it. If it’s digitization of courts you have to bring the court staff on board. Unless you don’t bring them on board, people will not implement it at ground level.

I think it is worth studying how it was done at the passport office. If I remember in the 1980s and 90s passport offices were quite corrupt places. How did that change? Digitalization probably helped in it. And I also think you should give people incentives if they meet certain targets, but make that official while you clamp down on bribery.

For example, to execute a decree, you can give a period of 24-days. But you have a fast-track method where the person officially pays more, as we do with the passport. Out of that extra revenue, you can pay a portion as an incentive. But you do need to also punish people for corruption, a carrot and stick approach.