This Sri Lanka Rule of Law Assessment was requested by USAID/Sri Lanka and completed under a contract with ARD, Inc., from January through March 2010. Principal researchers were Richard B. Hoffman, Barry Walsh, and Sam Makkan, advised by Mark Silva, Director, Democracy and Governance, USAID/Sri Lanka. Messrs. Hoffman, Walsh, and Makkan are independent consultants. Following preparatory meetings and document review in January, field research was conducted in Sri Lanka from February 2 to 19, and a report draft submitted to USAID/Sri Lanka on March 12, 2010. In addition to a review of primary and secondary documentation and journal articles, the team relied heavily on in-depth interviews with Sri Lankan and foreign experts for data, insights, and opinions about Sri Lanka’s efforts to develop a working rule of law.
The main findings are well known to Sri Lankan legal experts and practitioners. Sri Lanka’s rule of law development suffered from more than a quarter-century of internal civil war between the government and the separatist Liberation Tigers of Tamil Elam (LTTE), which only ended in May 2009. The government was victorious but large sections of the country—primarily in the north and east—remain devastated.
What are often described as the rich sources of Sri Lankan law—the Roman-Dutch system of civil law initiated during 16th century Dutch rule, almost two centuries of British common law, centuries-old legal traditions of both the Sinhalese and Tamil populations, Islamic law based on the Quran as followed by a small Muslim population, and the law of the Kandy kingdom that ruled much of Central Sri Lanka until 1815—have also resulted in tension between these systems and serious issues of legitimacy caused by lack of openness to both the Sinhalese and Tamil languages throughout the country.
Courts are encumbered in delivering effective justice by long-term procedural complexities (civil and criminal procedure codes in essence date to the 1880s and British rule) common to South Asia and resulting in extreme delays. Court cases in Sri Lanka and other South Asian nations often take more than 10 and even 20 years to be completed. Emergency regulations have placed authority to proceed in many criminal cases exclusively with the AG. Police prosecutors in Magistrates’ Courts lack the professional capability of state counsel from the AG’s Department who prosecute in High Court and the appellate courts. Bail is permitted by statute but is often denied in practice; as a result, the majority of prisoners in many jails are being held awaiting trial “on remand.”
Even though representation provided by the Legal Aid Commission (LAC) has been expanded, many defendants still lack effective counsel. Lawyers appointed directly by judges often do not have necessary training or experience to provide adequate representation. The assessment team was told there was a lack of sufficient interpreters for courts in many locales, especially for Tamil interpreters in the north and east.
Judges receive inadequate judicial education, both upon appointment or on a continuing basis. Legal education suffers from reliance on rote learning and lecturing without requiring student participation or provision of advocacy training. The team has thus far been unable to obtain any statistics on caseloads or case activity in all levels of courts—the first such experience in the recollection of team members who collectively bring experience in analyzing justice systems in 15 countries.
Use of technology in courts and justice agencies is limited to an old computer system in the Court of Appeal and use of data processing system in Colombo District Court purely for docketing, excluding provision of management reports.