What Sri Lanka can learn from the Australian legal system?
Delivering the keynote address at the ‘Lawbiz Symposium’, Supreme Court Justice Prasanna Jayawardena - President’s Counsel shared an impressive method to improve Sri Lankan economy. He contemplated establishing ‘an effective and reliable legal system’ which could attract investors and traders to our economy. However, he was of the view that such an effort would require careful study of a comparable jurisdiction, which has achieved a reduction in court time. In search of such new ways and strategies, which could be adopted to the Sri Lankan Judiciary from a comparable legal system, Daily Mirror conducted an interview with a Barrister of Australia, Alan Moyle (LLB, BEc, GDLP, LLM, DipIPL), who has forty years of professional experience and was also a guest speaker at the ‘Colombo Lawbiz Symposium’ organised by the Colombo Law Society.Following are the excerpts.
Q What is your basic understanding about the legal knowledge that the Australian general public have?
They have a confidence in the legal system. But, sometimes people criticize judges too.
Q If I may disturb you, in order to criticize a judge those people need to have a sufficient knowledge on their legal system and law. So, does your education system in schools provide sufficient legal knowledge to students?
There is education and awareness to a considerable level about how our constitution and legal system are structured. Australia is a federation and each state has its own constitution and a parliament, and at the top of them, there is a federal parliament and a federal constitution, therefore, children learn about those basic things in schools.
Every year, lawyers in Australia will have to get a practicing certificate. There is also a compulsory professional indemnity insurance, which means that if lawyers get sued by a client then everybody has professional indemnity insurance
There are law reform bodies to look into issues in prevailing laws in Australia
Q From where do children start learning them?
Their learning of legal studies initially start primary school and gradually in high school and those who prefer legal studies for higher education, they get a lot of time to study about the court structure and how it works.
Q That means in general, they have a fair knowledge on their legal system, right?
Yes. I suppose they have an idea about how it works.
‘Delaying of cases did happen in the past in Australia, where we had cases dragged for years. But now the Australian legal system does not really let that happen’
The documents are filed in Australian courts electronically. There is a case management system so that the case can be heard quickly. Even in some cases, if the witness cannot be present in court judge might be prepared to hear them online through video call.
Q There is a saying that ‘no other place like Sri Lanka for a lawyer to practise’. May be people say that because of the freedom that lawyers in Sri Lanka actually have or perhaps for the reason that there is no independent body to scrutinize the practice of the lawyers? Can you say anything on that?
I think I am not in a position to comment on that since I don’t have a very good knowledge about the Sri Lankan legal system.
Q Tell us about that situation in Australia...
In Australia there is a legislation that lawyers have to comply with, in order to regulate the legal profession. Every year, lawyers will have to get a practising certificate. This certificate has to be renewed every 12 months and we pay a fee for that. There is also the compulsory professional indemnity insurance, which means that if lawyers get sued by a client then everybody has professional indemnity insurance. Level of that insurance varies but there should be at least a minimum level of insurance.
"The clients can complain to an independent body (like an ombudsman) and it will look into it and see whether the lawyer’s charge is disproportionately high. Then that could be a subject for a court action against the particular lawyer by the client or the regulatory body will take actions against that lawyer "
Q Are there any restrictions in your country on how lawyers should charge for their services?
There is no restriction on what lawyers can charge except for market forces such as more experienced people tend to charge more and less experienced people charge less. Some areas in law, there is a lot of competition among lawyers, while some areas don’t have such competition.
Q Is there a payment scale for the lawyers?
There was such thing before, but now there are no set fees or scale of fees anymore, because it was said that it was anti-competitive for lawyers to compete with each other and therefore the previous fixed scales of fees was abolished. Now people are charged on hourly base and or a set fee for a particular case of work. Lawyers can also charge based on time if they want to (monthly or for a particular milestone in the case).
Those are the two ways that lawyers mainly charge and sometimes there might be a success fee for winning the case while there could be some cases that lawyers carefully enter into the ‘no fee no win’ cases as well.
Even though, there is no restriction on how lawyers should charge on clients, certainly clients can complain to an independent body (like an ombudsman) and it will look into it and see whether the charge is disproportionately high. Then that could be a subject for a court action against the particular lawyer by the client or the regulatory body will take actions against that lawyer.
"If you fail to fulfil procedural requirements on time, then judge can made a ‘cost order’ against the lawyer personally to prevent delaying of cases"
Q With the technological advancement in the modern world, can you educate us on how the Australian legal system has evolved over time?
We have a British based legal system, where we have constitutional monarchy, that queen of England is the queen of Australia even though not actively doing anything. Each state in Australia has a court system while there is a federal court system because the federal constitution divides on the responsibilities of states and the commonwealth of Australia. So, over the time the court system has evolved with technological advancements.
The documents are now filed in courts electronically. There is a case management system so that the case can be heard quickly. Even in some cases, if the witness cannot be present in court judge might be prepared to hear them online through video call. And also for some procedural hearings, rather than solicitors coming to the court, judge might say let’s have a telecommunication conference to smooth up the process. The Australian legal system uses these technological advancements to speed up the process. Even, barristers are allowed to use their i-pads, laptops and phones in the court.
Q How about the freedom of press for the legal sector in Australia?
Actually, the press is allowed for most matters that are taking place in open court, but recording is completely prohibited. And also sometimes there are ‘suppression orders’ on media preventing coverage of certain cases. Even though usually media oppose that these suppression orders are there because sometimes, for instance, in a rape case, when news reports carry that news during the trial it might have a negative effect on the minds of the public since they will assume that he is guilty even thought there is a saying ‘one is innocent until proven guilty’, so that can do a lot of damage to that person’s reputation. If that person is found guilty at the end of the case then normally the suppression order will be lifted so that media can report about it.
"There is also compulsory mediation to try and settle cases before they get to trial. Even though, cases may not necessarily settle in mediation, it will help to quicken the court process by reducing listed court cases"
Q When it comes to the aspect of delay of cases in Sri Lankan legal system, many people accuse lawyers as responsible since they come up with various reasons to drag the case. Is that the same scenario in Australia?
This delaying of cases did happen in the past in Australia, where we had cases dragged for years. But now the Australian legal system does not really let that happen. There are procedural requirements to speed up the resolution of cases. One of the things that the legal system does is that if you do not comply with the procedural orders that are made by the judge then the court will cost against the lawyer not against the client.
If the judge in a procedural stage says that you have to file these documents within a certain time period and you fail to file them on time, then judge can make a ‘cost order’ against the lawyer personally. That compels lawyers to go through that procedural stage quickly without further unnecessary delay.
There is also compulsory mediation to try and settle cases before they get to trial. Even though, cases may not necessarily settle in mediation, it will help to quicken the court process by reducing listed court cases.
In the court trial, firstly the two parties usually get together and decide on their witnesses in the case and how long it will take to conclude proceedings with them. Then, they go before the judge and reveal the approximate time period that they will take for trial. Then judge will usually ask them how many days that the trial may take place and accordingly judge may fix extra days within a certain time period in order to maintain the continuity of the trial.
Q How does the Australian legal system play its role in the context of policy making?
Sometimes judges make comments on the cases if the law needs to be reformed. There could be cases where the judge may think the outcome of the law is unsatisfactory even though it is the prevailing law.
"Australia is a federation and each state has its own constitution and a parliament, and at the top of them, there is a federal parliament and a federal constitution"
Q So, are you saying that those opinions of judges are being heard by the politicians?
Not always, but sometimes politicians respond to them. On the other hand, there are law reform bodies in each state, which look into bringing new laws as well as the need of reformation to the prevailing law. There are actually some laws that came out from these law reform bodies and public agitation like environmentalists. Sometimes these law reform bodies will look into existing laws that have expired.
Q Can you contemplate how the young generation of Australia see the field of legal studies?
It is interesting. Actually I always get asked by young people that whether they should study law or not. I respond to them, saying don’t do law just because parents tell them or the students think that they can make a lot of money or to pursue a job with status in the society. I ask them to do law if you are passionate about law.
"There is a case management system so that the case can be heard quickly. Even in some cases, if the witness cannot be present in court judge might be prepared to hear them online through video call"
Q Is there an authority or any kind of an institution that conducts productive researches on the Australian legal system in a statistical nature?
The law reform bodies do that. If there is an institution of judicial administration, which looks into a lot of statistical details about cases such as how quickly cases are resolved, how long the trials have gone, etc.
Q Very recently Daily Mirror reported about two famous suspects, who were in remand custody, over the controversial financial scam. After being brought to the courts in morning by the Prison officers to produce for the magisterial inquiry, the suspects were not given water or food until 3.00 p.m. The Prison moved as reasons saying the delivery of lunch packets was late. Any comments on that?
As Justice Prasanna Jayawardena mentioned, in his speech at the ‘Lawbiz Symposium’, about the reforms that were brought in to the Pakistan legal system recently, I can tell you a story in Pakistan. When the new Chief Justice was appointed a few years ago in Pakistan, he got a letter from a prisoner who was in remand. Letter said “Dear Chief Justice, I have been in jail since several years and I am just wondering when my case might come to the court”. The new Chief Justice thereafter immediately ordered this guy to be produced in the court. Then the judge asked what the case was against him and subsequently found out that this person was in remand longer than the maximum punishment for what he was charged for, despite whether he was guilty or not. Then the Chief Justice immediately ordered to release him. That shows how some legal systems were in a napoleon state, which really should not have happened.