charindra chandrasena  00:06
Hi Dana. Hi

Dhananath Fernando  00:06
Jari. Hi

charindra chandrasena  00:07
Nikini.

Speaker 1  00:09
Hi hi. Hi.

charindra chandrasena  00:10
So Nikkini is a is a new face to us, but not a new face to the

Dhananath Fernando  00:16
Sri Lankan audience. Yeah, Sri Lanka audience. Yes. Not that

Speaker 1  00:19
famous, but

charindra chandrasena  00:21
So we we convinced Nikini to come on today as our sort of guest appearance, and there's a particular reason for that, which is that we are going to talk about a lot of legal issues today, and Nikkini is an attorney at law, so and she has she has worked in this space, so tell her she's

Dhananath Fernando  00:49
co-hosting another TV programme. She's co-hosting another TV show. She can she's bilingual, so yeah.

charindra chandrasena  00:54
She's bilingual. Oh yeah, bilingual. Yeah, yeah. So I can speak. I mean,

Dhananath Fernando  01:03
you can speak two languages, and you know it's a different speech. Ah,

charindra chandrasena  01:08
yes, that's true. That's true. So, bilingual nikoni, nikini. When you say

Speaker 1  01:15
bilingual, it's like Tamil, Singh. Hello, yeah, it's fine.

charindra chandrasena  01:18
So just to start start off, Nikkini, a discussion that has been gaining momentum over the past few weeks and and months has been this issue of the AG and the efficiency of that related process, the attorney general, the and the related process, and whether there is a need for a public prosecution office. Just to start off, a public prosecution office is one which is separate from the Attorney General's Department, which handles the prosecutions that are currently being handled by the Attorney General's Department, it's established in several other countries, and it is an independent office, which means the same structure or the same mechanism that is behind, say, the appointment of the police. I mean, the IGP and several other officials, which is the independent commissions. There would be an independent body which is appointed, which is divorced and free from political influence. So, just to just to get a deeper understanding of it, Nikini, let's start with why a public prosecutor's office has come in around the world over the past few decades, what was the goals behind it?

Speaker 1  03:05
Right now, if I give a brief understanding about the this public prosecutor thing, now several countries have several, you know, several things like several, like if you say if you take USA, they have a public prosecutor office and they have attorney generals department office and the attorney generals there will get elected by the people of that country, so they represent a party we call political attorney general and we have another sector of attorney generals in the world we can say they are purely legal, right? Purely legal attorney general only carry out the function of a legal officer, but there are other countries where there is attorney general who will get elected by the people's votes. So then he will he or she will have a term, say four or five years, and at the end of that term, people will see whether this person has carried on the proper function, whether enough indictment have been given to the courts, whether people have been prosecuted enough, then only that person will get elected.

Dhananath Fernando  04:08
Okay, Nikiri, quick question: How do public appoint? Is it like a voting? Like voting.

Speaker 1  04:13
So then USA they have district attorney system, and there the there there is a problem actually because then the person who is coming forward will represent the party itself, and the person that the so the people see okay he is coming from this party, I'm gonna vote for him, and he'll be the attorney general. But they are mainly he or she will say guide the government, make give advice with regard to government principle will be the legal officer of the government per se. But I mean, having said that, they will also have that some powers with regard to prosecution. That is why they are very concerned. USA they are very concerned how many indictment have been placed in Sri Lanka. We don't have that, but. At the same time, it's very disadvantageous because see now if I come from my party, I will not prosecute members of my party. Now, if we take the same now, then we have the pure legal attorney general who will be the main legal officer of the government. There normally there are three roles we take. Say three roles of a attorney general. This is

Dhananath Fernando  05:24
you mean sorry, sorry to interrupt. This is the current setup that we have. Current setup

Speaker 1  05:28
we have. Okay. Now in Sri Lanka, what we have is there is attorney general who get appointed by the president, and there is a constitutional council who has to approve it, and he the attorney general role actually it's a it's a constitutionally recognised power. He or she will get elected, and if you want to remove attorney general, you will have to get the approval from the parliament at the same time after report from a commission. So there are some provisions to safeguard the independence of the attorney general's department, but having said that, now we come now the Attorney General Department has three roles. I said, A G. If I tell you like simple words, A G is the legal advice of the government. Lana is the government, so government mean minister, all the secretaries, all the people who are working different institutions. So whenever they get the questions with regard to legal matters, they will go to attorney general's department. Say IMF or the any any sort of agreement, they will go to attorney general's department. At the same time, say many of when we file a FR fundamental right case, it's a must to include attorney general's department as a respondent. So, if I'm filing a case against a minister for violating my fundamental rights, if I'm filing a case against the IGP of this country, then I have to make Attorney General's a party. So that means Attorney General will be the main person who will represent those parties, government? So in all the writ cases, basically, on it's not a must to name attorney general in a writ matter as a respondent. But practically, what happens is when a writ case is filed against a state official, they will go to attorney general's department. So then there is that role where the legal office, being the legal office of the government, then we have the other role where they provide necessary legal expertise with regard to legal drafting and agreement per se. And there is the not the the main important part where we come to speak on the public prosecutor part. That is with regard to the prosecution part. Now in Sri Lanka, if I have a, if I'm say I want to make a complaint with regard to offence, so there are few simple ways. One is we I go to police, I go to police and file a complaint, and then police will carry down the investigation. If it's a minimal offence, police will say fact report the fact theft okay I will police will file the charges in the magistrate court itself and police will carry down all the prosecution

Dhananath Fernando  08:09
right

Speaker 1  08:10
but if it's a major crime say say murder say sort of then we have the corruption issues those matters it is the police who carry down the investigation. It is the CID who carries down the investigation. But at the end of the investigation, all the files will be sent to Attorney General.

Dhananath Fernando  08:34
Right.

Speaker 1  08:34
He he is the person who will charge, who will file indictment in the High Court. Now, say there is a child abuse case in Jaffna, I or a rape case in Jaffna. So he or she will obviously go and make the complaint in Jaffna police station. But at the end of the investigation, the file will come to the Colombo Attorney General's Department. There are officers of the attorney general's department in the like those areas, but the main body is there. So obviously, file comes practically. Also, this happens. The police officer we come with the file to the attorney general's department to handle. What we practically see in courts is even to send this file to attend the general department. They take six or one year, more than one year.

Dhananath Fernando  09:25
What do you mean? More than six months

Speaker 1  09:27
or one year?

Dhananath Fernando  09:27
Wow!

Speaker 1  09:28
Because magistrate will ask why why we haven't you refer this to A G? No, you know we didn't have the we are going to we are still compiling the file and we need time to compile the file. So it takes two three vertical.

Dhananath Fernando  09:41
So you mean six to one year after the investigation is completed?

Speaker 1  09:46
After the investigation is six to 166 months to one

Dhananath Fernando  09:50
year. It

Speaker 1  09:51
can take more than that. I am we are handling several cases. That's in Kalambu Kurudu at the police station, right? So Kurudu at the police station. Yeah, now they have to. The magistrate asks, "Why don't you refer this to a FMEs department? Because it was with regard to public property case. So then there were two instances. When I say two instance, two court appearance that comes after three months.

Dhananath Fernando  10:16
Right.

Speaker 1  10:17
So one is in January, one is in again in April.

Speaker 1  10:20
Those two instances, police came and said we are still in the process of collecting all the documents. So there is that issue with regard to prosecution angle of the attorney generals. And at the same time, being the legal officer of the ministers, being the legal officer of the government secretaries and everyone. Will you take actions against the person that you are defending? That is the main issue here. That is the UN and also UN. There was a sort of a report on Sri Lanka where they suggest that we need to take action with with regard to the separation of attorney general's department and the public prosecution, or sort of create a system among from ourselves

charindra chandrasena  11:09
to address this. So Nikki, now the the problem of that conflict of interest is actually at the heart of this debate. Now, how have other countries? Before we go into what Sri Lanka can do, what are the international best practices that we can look at? Like for example, the UK has a different model to the through Australia and then to the US like that. What are the main models that you can sort of highlight?

Speaker 1  11:41
Australia, Japan, Denmark. Those are the main countries we can give the best example of having a public prosecutor system, where there is an attorney general's department who gives being the legal office of the government. But at the same time, there will be a public prosecutor department. There will be a director of the public prosecutor. He'll be the head, and there'll be other like it'll be divided, really decentralised. There'll be a office in Japan. Now there'll be office in Mahatra. There'll be office in Hambanto. The district-wise, we can decentralise. So Japan is one of those countries which has an efficient legal system. Also, they don't take time like us. It's like I sell inefficiency and also the independency. So the those are the main matters that we have to resolve. So the Malays also they are now trying to introduce this system of public prosecutor system. They are still under the line. So in countries like Japan, Australia, Denmark, they are actually doing fine.

charindra chandrasena  12:44
Right. So the other the counter argument to that is that now the AGS department has, I would say, two main roles. You mentioned all the roles, but I'll say two main roles when it comes to this, which is being the legal advisor of the government and being the chief prosecutor, so the argument is when the chief prosecutor part is removed from them and put into a different office, are you not undermining the AG? So, I'll I'll pose that question directly to you. Yeah, is it undermining the AG or not?

Speaker 1  13:27
It is somewhere. It is somewhere because then now the say Attorney General Department say the Attorney General under the Criminal Procedure Code he has a vast powers. So whenever he wants, he can call a case that is pending in magistrate court. Give me the report. I want to peruse the report. He has vast powers under that, even under the criminal procedure code. So those powers will then now be. If you are talking about a public prosecutor, that will be shifted to another institution.

Dhananath Fernando  13:58
Right now,

Speaker 1  13:58
now the say, if I am the current attorney general, but attorney general, I will not like it. And also, there is another concerns. Actually, we have to address them as well because now there are state councils who are good. Like they are the actually the we normally take them. They are the brilliant legal officers of this country. Now they have joined attorney general's department, thinking I am having a good prospect here. We are talking about a huge, there is a huge number of officers who are there, state council, who are station country and like country mother everywhere. Now they enter this profession. They enter the attorney general's department thinking at the end of the day, I might be the attorney general. I'll end up being the solicitor general, and I'll have a huge power. As a person, also I'm targeting that. So by introducing this at this juncture, they might feel sort of scared also. It's very reasonable. If I'm saying if I. Fivers there. I would say no, no. I don't like this. Now, then the government will have to take a decision whether whether they are gonna recruit new people to the this the prosecution office or whether this the prevailing number of people will be separated. People will not like to. Sometimes they don't like to be called as the public prosecutor. There is there is a sort of a stigma. Not I don't know. It's not still here in Sri Lanka, but in other countries they still have. You can if you if you are from the department, you have that sort of a. It's a privilege. It's it's a thing that's given with that when you call public prosecutor, say now if you have been stationed in Hambanthara, you will be stationed as a public prosecutor for a long time. You might not get those prospect as it is now in the attorney because you have the opportunity to come to court of appeal in Sri Lanka. You will be stationed in Supreme Court, and you have you know after being a attorney as officer, you have the prospect of being appointed as justice of the Supreme Court and to the Court of Appeal. So those things needs to be addressed, I think. So can I ask

Dhananath Fernando  16:11
fundamental also now for for this to be quite attractive, if I may ask, if it's shareable, like what's the financial incentive? Because I mean, as a lawyer who appears for many clients, I'm sure. I mean, from the little that I know, if you are a good lawyer, probably. I mean, I don't know. I'm not saying it's like infinite, but I mean, the ability to earn is quite high. But at the Attorney General's department, what options do you have?

Speaker 1  16:35
They have a good package, but not up to say after five or six, seven years in the practice, a private bar member would earn more than them. But are having said that, there are people who actually like that

charindra chandrasena  16:51
because the entitlement, the long term career prospects are much greater. Much greater, right? You can you can proceed up to the AGs level

Speaker 1  17:01
and to the CJ level, the CJ

charindra chandrasena  17:02
level. I mean, Supreme Court judge level and then CJ level, Chief Justice. So it's the world is your oyster, really. You know, if you're if you are willing to put in the power

Speaker 1  17:13
on, not about the money off. It's the power that you get with if you are a state council in a say in a high court in a rural area. All the OICs, all the people comes and salute you. You don't get that. We are the private practitioners. We don't get the OIC doesn't come and salute. That's why

charindra chandrasena  17:29
private practitioners earn more money to compensate for that. But then I want to I want to move to you for a little bit now. Just now from what Nikkini was saying about the delays in this process and also the lack of independence. How much of an economic impact does it have? Because the obvious things I can see are in terms of, say, business sentiment and business confidence, which also includes investor confidence, really about a justice system that will protect their businesses and investments, and and and maybe in terms of the image of the country as well abroad about about trade and and and those international diplomatic deals, would you dwell on that? And also, if there's anything that I've missed out on,

Dhananath Fernando  18:29
so I think, sorry, we have to also get to the context. If you recall, when the IMF did that governance diagnostic report, that this is independent public prosecutor offices is one of the main recommendations. And again, we have to remember that our country, throughout the economic crisis, the narrative was there was a massive anti-corruption. I mean, there's a corruption element in it, and these are very high-level corruption cases. Sometimes the government, the ministers, I'm sure we all aware, like the health ministers incident, and there has been so many issues that the politicians and the government has involved. So for that, for economic development, there was a narrative. Okay, we have to, I mean, you know, minimise the corruption which is happening at the top level if we were to move forward. So in that front, I think this is a key element. Also in the you call the market sentiment because okay, now there's some present at the same time, maybe Nikiri can shed more light onto this. That from the from the way that the case has been filed or prosecuted, there has been some irregularities has been pointed because of that. Some people have gone scot free because

charindra chandrasena  19:33
technical issues with the with the prosecutions. Absolutely

Speaker 1  19:37
indictments. Yeah. So

Dhananath Fernando  19:38
so on that front, so then there was, I mean, not questions, but in terms of the trustworthiness of the system, there has been questions raised. So, and definitely, it is going to because the judicial judiciary system is one of the key indicators for any investor. If you look at what why Port City is because, I mean, you have a separate. System when it comes to resolutions, conflict resolutions under the post area because the current system is quite I would say you know time consuming, less efficient. Even I think the former justice minister Ali Sabri mentioned a criminal case will take about 10 years according to him when he was the justice minister, and I think if we all know what's if the if the land case, what's the context? So I think to avoid that conflict and to make the process efficient, this is quite important. But I'm not sure actually the technicalities like because the same issues can prevail in I mean with the public prosecutor office as well, it will, it will, as you said, like it will divorce the the conflict. But in terms of operational inefficiencies, if the file takes like three to six months, I'm not sure how we are going to solve it with the public prosecutor office. And also, when you say independent, I would also like to bring the fact like how are we going to finance them independently? Because ultimately, if it is you know from the treasury or from the minister of Ministry of Justice, you can always meddle with how you allocate budgets and all that to basically slow down the process. So how to make it financially independent? For an example, like places like Securities Securities and Exchange Commission. Now they are they are they are getting financed through the stockbrokers, so they are paying a fee to get them regulated. Now it's not like government allocating money. So likewise, that's something that we need to consider when it comes to the public prosecutor office, which is also quite remote. But for investors, this is critical.

charindra chandrasena  21:42
Nikhni, so on the public prosecutor's office, there was a cabinet paper submitted, and the cabinet approval was granted. This was seven, eight months ago. Yes. Now, in May 2025. I don't know whether any progress has been made on that front, as far as I am aware,

Speaker 1  22:05
so the main person who is the chair of these committees, Justice Jasanta Kuboda, the President's Council, who is the current, who is the current Supreme Court judge, and along with him there is Attorney General and there is Solicitor General in that committee, and also the secretary to the Minister of Justice, and also the president of the biosafety. So all the main bodies in Lake League as well, they are there.

charindra chandrasena  22:32
Yeah. When you say committee, you mean this committee

Speaker 1  22:35
which is appointed to see the implementation with regard to the public prosecutor. So they are there now. As far as I know, they have met for like they have had several meetings and they are coming to a final conclusion or they are trying to coming for a final report. I think what they will do is they will come up with recommendations how we can proceed. But the the what happened was the attorney general's department they have a sort of their own association, and they release the statements with regard to this, with regard to this public prosecution implementation and the proposed implementation, and there they somewhat objected to it. So I'm thinking even the attorney general who is there in this committee will have some concerns with regard to this implementation, and he will not, might not actually consent to it at this juncture, and he will obviously raise concerns. Like I said, how we are gonna divide the officers who are currently there, so they will not like it. So then, of the government, are they gonna recruit new people when you are taking recruiting new people? So one of the disadvantages of having this public prosecutor is though it's efficient, it costly because you will have to have each public prosecutor in that area, like Yapan and all these areas. So they will have their own offices, own staff. Now, now the current situation is there is a high court or a state council in high court of Hijaffna. He will only have about Narachi, say one helper with him. That's it. No office, nothing like that. Only him, and there are maybe maybe two state council, maximum three. Right, right. But when you speak about this public prosecutor thing, you will need to have an office there. It's who will have a clerk, who will have a type piece, everything there. How even to get get a document type now in the current situation, you'll have to come to the Columbia National Department, not the State Council. He himself or herself will have to do all the paperworking and do get it done. So that concern is there. How they are gonna come up with this like implementation, and that will also have to suit with our system also. What I am thinking is like we'll have to come to a middle ground here, not. Like we won't be able to say like go into a harsh sort of a separation with this attorney general's department and the public prosecutor, but we'll have to have an independent body that is given because all these people from from ages they've been telling that we need to have this. So at least maybe to have attorney general's department itself being divided into categories. That maybe they are. Other

charindra chandrasena  25:29
countries would have had the same concerns. Yes, Nikki, and they have overcome that. You know, whether it was done 20 years ago or whether it was done recently. Like you mentioned, Malaysia is still in the process. There are other countries which have done it a long time ago. They would have all had this concern because the the the initial one, the original one in most countries was the AJ department.

Speaker 1  25:53
Yeah, we have to start from somewhere. Yeah, we have to

charindra chandrasena  25:55
start from somewhere. So I don't know why these concerns are, you know, have such impact in Sri Lanka when all the other countries have found a way around it, right? Like in the UK, and and and correct me if I'm wrong place, but the AG has a level of level of influence over the the public Department of Public Prosecution (DPP) but the level of influence, like in many things in England, it works on convention. Like for example, how everything has to go to the king and the royal assent. When the queen was there, also royal assent, the king or queen can deny, reject, reject it, but it's never done because they stay out of executive matters. So, like that, lot of things in the UK are driven by convention. But I'm saying, why can't Sri Lanka find a way? And we'll move on from this point afterwards. But just, just no, actually we can.

Speaker 1  26:59
I'm not saying we can't. We are in a good time now. We are having this discussion. We are. We have understood our problem now. We have have right. We know this is inefficient. We know there are some problems with regard to the independence because we have not in the present. I mean, take the past. There have been fires which has been staying in the department for longer than five years, right? So this is we are talking about high influential matters, high cases of like being corruption and all. So there is a problem with regard to that. So we need to have an independent body, like Danana said. It's very important when we are thinking about this to have that commission, the the the person who's appointed be be actually be a free body, independent body, not from not governed by the government, not doesn't have the power to do mingle with the institution, like say like a supreme court judge. So they need to have that so stability. Say, if you are appointed, you'll be there until this time. You won't be removed. You can't be removed. So, those provisions need to be there. So, I'm. I. I think it's very high time to bring this, and they will bring it. Like there is discussion. There'll be some opposition, obviously, because if I am, I'm gonna get affected by this, me being persons like we take all subjective. I will not like it. Yeah,

charindra chandrasena  28:27
as they say, turkeys don't vote for Christmas. So if if it affects you personally, then you are not going to correct. But okay, I want to move on from there to our proud Independence Day coming up tomorrow, right? So it's a day of national pride. Although that national pride over the last few years has, I have, it's probably the lowest I've seen it. You know, due to the economic crisis and this social media memes about you know that we wish the British had not left because it would have been better. All of that, right? So the public sentiment, I think, in terms of national pride, seems to be at the lowest stem, and then that's also supported by our national cricket team, which which just keeps getting hammered and hammered and hammered, and and so it's a level of national humiliation with the team, especially buying

Speaker 1  29:26
them, buying them there. That time you completely, that

charindra chandrasena  29:29
time completely. So all all that considered, it is still the Independence Day. It is still our national day, which which should be celebrated accordingly, but I want to focus on some of these hangovers that we have, some of these relics that we have from the colonial times, and and for this discussion in particular, I want to focus on economy related. Legislation, okay. Can you, Nikki, to start us off, point out a few of these legislation that we have right now?

Speaker 1  30:09
So basically, that were

charindra chandrasena  30:10
from the pre-independence period.

Speaker 1  30:12
Yes. So we were governed by kings, right? We had the king's rulings and kings, whatever they say, it was the law. Then we have the people under the ruling of Dutch paper. So they they came and they introduced Roman Dutch law, but they didn't bring any statutes acts per se. It was English who British came to Sri Lanka and they actually introduced their own statutes, which were there in England at the time. So taking from penal code, criminal procedure code, and then take a good example of the goods ordinance, which was enacted in 1883. Asila ordinance, ordinance means it it's king who gives it ordinance, right? Aknya in Singhaling, so that that is still there in Sri Lanka, and we have not amended. There are few amendments, but we have not come to a good like new act because now we are talking about goods like we are in a market where goods are being circulated and we buy and there are many concerns with regard to current context because the digitalisation everything is there. So it's high time for us to bring a new enactment or do something with that, but for like two or three decades, we are not done that. So those problems are there. So like I said, the goods ordinance, even the criminal procedure code, there are several amendments. Though it was introduced, there have been several amendments up until last year. They have actually done good amendments with regard to those, but still, if you go through the penal code, there are some enactments, some sections which are being introduced to us by the British people. There are some sections who say you can't rebel against the king, so there is no king in the country now. But still, it's there. Likewise, there are some still there are sections which are being introduced by English people, British people to govern their us the Sri Lankans who were under them, who who didn't have any independence or who didn't have any democratic society at the time, right? We didn't have the option to choose who rules us, so that is the so now from

charindra chandrasena  32:25
from from an economic point of view, what are the ones that are the most pressing?

Speaker 1  32:31
So bills of exchange, like I said, I could not tell you that the partnership pact is 1890, not 1990. So 8090, the partnership pact. So that is also very colonial. Say 1890. Yeah,

charindra chandrasena  32:45
1890.

Speaker 1  32:46
Yeah, 1890. Yeah, that is

charindra chandrasena  32:47
135. Yes, 100. So

Speaker 1  32:50
the partnership act. Then we have like say partnership pack. It does have a very economical thing because that that's how you run down a partnership. So we are still governed by the obligations which are mentioned there. So also the prevention of fraud ordinance that's 1870. Now I'm not mistaken. Still it was introduced by this thing, British people. But it has some still it is very applicable. It is applicable now. What has happened in court is and with regard to law is that now the court has done nipa. They have interpreted these legislations and introduce new concept because in Sri Lankan context we have the sort of stare decisis principle where whatever the high court says, it'll be government. It'll have an impact on the lower courts. So supreme courts, code of appeals, they have interpreted law to match the current context. So in a way, we have overcome some of the problems that we had that time. Now, even with regard to electronic transaction act, it was introduced 2000 only 2005 or six, if I'm not mistaken. So, so before that we didn't have any option of doing a contract through email. It was not recognised. Now it is recognised, recognised under electronic transaction. You can do a contract via email. So prior to that it was not recognised now. Even with regard to making a payment through a say card or debit card, recently it was introduced 2022. There are some regulations with regard to say mean pay. We have all these digital wallets and everything. Now they have some regulations where you want you have to go to an central bank. You have regularity authority. We have to register that. So those things now they have actually come into the this thing economically. Like like I said, those with regard to lab matters, there is still a problem because mainly those are still governed by Roman bachelor. Even. Regarding divorce, we are yet to introduce a system of consensual divorce. So we have both parties agree. Okay, we want a divorce and we get it. They are gonna bring the amendment. There have been some discussion, but still there are parties who say no, no, we do should not bring it because this is against our tradition. It'll lead to the floodgates. They think they're still one of the main cases that we face in Colombo. All whatever the like number of cases that we get for a day in a court house, most of the cases are news

Dhananath Fernando  35:38
cases. And sorry, the customs ordinance, which is a main barrier for our global trade,

charindra chandrasena  35:45
exactly,

Dhananath Fernando  35:46
and everyone wants exports to grow, more competition. But the the customs ordinance, which is 1869, so again coming from pre-British era. So that's the thing. So

charindra chandrasena  36:00
this now we had the doing business index now,

Dhananath Fernando  36:03
yeah, and

charindra chandrasena  36:04
one of the I mean the legal system of that country is also factored in to the rankings. Dana just just explained to the viewers why the legal system cannot be divorced from the economy when it comes to businesses, investment, the entire macro picture.

Dhananath Fernando  36:27
I'll I'll try to simplify. It's like cricket, majari. In cricket, regardless of the talent of the players, it works on the rules of the game. Like I mean, when the umpire says start the match, you start, and there's a you know there's a crease that you cannot I mean there's a definition for what's a no ball is what's a white ball is and what shots that you can play and how to score a run and all that so that's the legal system you know when you have a that's that's what is important that the legal system has to be efficient every one should know it and it has to be reasonable and fair. And then you can, when you have that system very clearly defined, then the intensity of the game can be improved. Then players can play accordingly. And there are umpires who I would refer to as like anecdotally, like the judges, who will as long as they can. You

charindra chandrasena  37:18
know how somebody can get out. You know what a no ball is. It's very clear.

Dhananath Fernando  37:23
Absolutely. If you recall, Chari. Now before this third ampere business came in, and like now you have like very sophisticated technology. You know you have the reviews and all that. Before that, can you recall like how many times that you know we say like the ampere hora and because ampere that the the the outcome of the game has been changed. Exactly. Even in the big matches, this is the main thing. You know, you always say referees. You know, referee was one-sided, or like he, you know,

Speaker 1  37:48
they always fight now. But now

Dhananath Fernando  37:51
cricket has, if you recall, like you know now, yeah, everything drastically changed, right? Because you have the review, you have the option, and it's and everybody trusts trusts exactly. Everybody trusts the system. Yeah. So, so that's what the that's the importance of it. Like cricket, or like it could be in any game. Like even in other games, like we do football, everything there are these TMOs and all that. Where you basically check and you can get the camera view, and the the the final result is more, you know, based on facts and figures, and you know, but

charindra chandrasena  38:24
but having the having the laws and the rules in place, Dana is one thing.

Dhananath Fernando  38:28
Yeah,

charindra chandrasena  38:29
implementation application is another thing. Absolutely, in a country like Sri Lanka, can we actually get to a situation where the biggest businessman in the country is served with the same spoon as the budding entrepreneur.

Dhananath Fernando  38:44
No, I mean it's a it's a long journey. I'm not the best person to comment on the efficiency, but what I see is I recall again there was an attempt on digitization of codes, and also the truth is no offence to any legal professions. No, there's also it's a you know how shall I say sometimes the inefficiencies are incentivized, right? Now for an example the the the the same example Nikiri brought out now if the attorney general's department takes like three to six months, in a way it's incentivized the lawyer who appears for both sides, right? Because you charge for your appearance, so I think it's a there's an incentive incentive issue. It doesn't mean that the lawyers should not be paid when they appear. You have to fix it at the attorney general's side. But again, the the incentives are lopsided, where the efficiency doesn't really come in. So I think we have to look at overall reform, but it's a very tough one. I think this is moving in snare space, but I mean it's worth that at least it's moving forward to to some level because you don't also have any other substitution. Like I mean, if the lawyers don't appear like who else, right? You know, because also the doctors, the lawyers, they have some level of. Bargaining power because of the nature of the profession. It's all over the world. So those are the things that I would see. But it's critical that we improve the efficiency. In my view, actually, if you improve the efficiency, the lawyers will also get benefit. For an example, we did something. I think Tiran is the best person to comment on the land front because still the lawyers' intervention is needed to deeds and all that, so the lawyers will not actually the you call the you call that not not republic will not lose out because they can charge the whatever the rates like you know a commission or like a percentage of the value, so they will not lose out. You cannot really bring move them out from the system, but if you have a clear legal system with higher efficiency, that will increase the number of cases.

Speaker 1  40:51
And then

Dhananath Fernando  40:52
you can, at the moment, I think it's nobody is going to win because the court case is delayed. So as a result, for the notary public to you know sign the deed or like whatever the thing. It takes time, but if you clear it now, you get more and more transactions taking place, which is beneficial to everybody. Now,

Speaker 1  41:08
actually, under the current chief justice, he is trying to bring up more regulations put into digitalization because from Supreme Court now they now we have a system where we can go to the Supreme Court website and obtain all journal entries, which was not there. So he's trying to bring up all the case files into the website. Like I mean, what minimum I want, I can go and peruse if I'm a lawyer. So that those things are coming, but in a in a rate right. But having said that, like say now the money recovery. Actually, if I'm giving you example, so like basically, if if you're specifically with other businesses, if I get defaulted by a payment, I'll have to file a money recovery action. So recently, I mean, 2024 before this government came up, there was a very how can I say very diabical enactment, which meant mean that if there is a financial, you know, previous to this, it says civil procedure court. If I am a plaintiff, it says with regard to mandatory actions, I can file a matter where the defendant is or where the course of action arises. So normally, all the financial institution they filed action in their own sections. Like if it's a transaction happened in Halawata, they will go to that. If it's a transaction happened in Mahara or Mahatara, they will go to that relevant courthouse. There was an amendment which was brought in 2024. They are now under civil procedure court, the plaintiff can file action where they are now say so the all the financial institution in Sri Lanka are based in Kalambo, right? All the financial institutions are based in Colombo. So now they don't have to go to Jaffna. They don't have to go to Matara. They can file all the actions in Colombo District Court. Now we are facing a huge crisis in Colombo District Court because for the number for a day we are all the financial institutions are filing number of cases in Colombo District Court. So you will only get one court date for a one year, so if I file a case today in District Court of Colombo, I will get a date in somewhere in September, October, and that is the date that you will get for that whole year. We can't like now. Now I can't criticise the system. I can't criticise the judges. I can't criticise the lawyers because it is a it is a sort of amendment which was brought by the parliament. Now they actually going to change it. Now, now why that amendment was brought? It was brought. What I'm thinking was there was some influence from the financial institution because they wanted, they thought it'll be quicker if they can. It'll be easier for for them to have the all the cases filed in Colombo, right? But now it has bring another whole set of problems because now all these we call it DMR cases, money recovery cases have been pending for ages. But now say if it's above 50 million, obviously it will go to the commercial high court in Western. If it happen in Western province, it will go to the Commercial High Court, which is established in Colombo. So they are more expedited. The court, it's a courthouse where I take more cases, give prominence to the litigants. That's a good system that we have in commercial high court case. So, but the problem is there, like money recover. It's a huge problems.

charindra chandrasena  44:44
Yeah. Okay. So before we wind up, there's one more thing I want to get your thoughts on specifically

Dhananath Fernando  44:51
recover all the legal issues. Yeah,

charindra chandrasena  44:53
exactly. So tastes like a cold day. Yeah, cold day. Yes. So right now there's a. A discourse growing about the occupants safety bill, right? I think I've got it right. It's the occupants, yeah, protection of occupants bill, 2025. So, in that, the approach is mainly from landlords who say what we were able to do earlier to deal with non-complying tenants, we can't do any more under this. And famous example is if I'm renting Dana's land or his apartment, or whatever. If I'm not paying him the the rent amount, then he can, after a warning or a couple of warnings, disconnect my water supply. Now the landlord can't do that. So your thoughts? Yeah, so it's

Speaker 1  46:03
all now. It's a myth, as in it's there. It it was a possible option where you go and disconnect the water supply and so forth. But it was against the law even now. This is still a bill. This is not enacted. This they have only put the draft out. So even now, the current law under current law, you can't do that. You can't do that. But to safeguard the landlord rights, we we these people actually do know about this enactment, which was introduced in 2023. There is a act called dispossession of the procession of the properties given under the lease. So, if you are a landlord, if you have a rent house, if you have a registered lease agreement, if you have a registered lease agreement with duly stamp, then easily, if your tenant doesn't pay a one single instalment, one single instalment. That's a breach of the contract. Please, then you can go to Supreme Court of that area and file a case where on the first day itself, when the matter is supported in the district court, the court will give you a nice order. So on the first day, say okay, I'm giving this order. The person must equip the property, but he will give he'll be given one chance to appear and show course. If he doesn't show good a sufficient ground, say I paid, not that I'm not paid. So if the tenant comes and show no, I've paid here all the payments. Then that's a good ground. If not, court will obviously on that day itself make that nice eye order. We say nice eye mean temporary, temporary order absolute. So that system will not get affected by this new act.

charindra chandrasena  47:50
So so can can can you know not having money is not good cause show cause.

Speaker 1  47:56
No, not that is not a good doubt. Yeah, or you you can't even ask for a further time. Nothing like that. Not having money that my my family got affected. One of my family member died. Those are not good. On only good ground will be that I have paid, or the other party has default, or the party had breached terming the contract. Those are the only sufficient draft, which will be regarded by the court. So this enactment, the the one they are going to bring out, will not affect that enactment. Will not get affected affect that enactment. There is a sort of a vague sort of a area in the current draft, whether it will affect somewhat until three months or so. But for that also, I think they are trying to bring up at the parliament committee stage. They are going to bring up some main months to say that it will not affect the existing 2023 act. But having said that, our people also do a sort of a wrong thing. That is why now when I give you a house on rent, we don't like to pay stamp duty. We don't like to pay government.

Dhananath Fernando  49:14
Okay.

Speaker 1  49:14
So what we do is we go. We say, I don't know. I am sure about you. Why don't we? We don't have to sign anything. I'll give you. Otherwise, it will get in. May we have to pay taxes also. So they are trying to go around the law. So when they try to go around the law, what happens? See, you don't have a proper document which you can go and execute. So obviously, even you may be able to disconnect his water. You may be able to disconnect his electricity, but you won't be able to dispossess it if you don't have agreement, which is duly stamped and where you have paid your stamp duty, right? So that problem will anyway, right? And also, even if you disconnect his electricity. Of the water, he can go and lodge a complaint in the police. So those complaints are entertained by the police, and then those both parties will be asked to come to the police station, and you will say you'll be advised, okay, you can't disconnect his water. If you want, you can go and file a case in district court, and if you don't have a registered agreement, you will have to. There is a case that is a separate kind of section that is for the ejectment. There is a case sort of a another genre actually case. So there it won't be filed under this 2023 new act. It will be filed filed under the general law. Eject one case. Those cases will go for 10 law more than that.

Dhananath Fernando  50:47
Masterclass on rent, and if you are planning to, you

charindra chandrasena  50:52
know, no, that's quite interesting, and all of this actually still plays into the the economy and the incomes because these lands are leased out by people obviously with a certain level of income, and and if they are watching this show, then then they might actually gain some some insight into without believing what's on social media the actual situation that it doesn't you know prevent you from taking certain actions. It doesn't mean that after three months the tenant has lifelong tenancy or anything, right? That no matter what he or she does,

Speaker 1  51:27
even under the rent act, which is there, now the rent the tenant has more rights under the existing mall.

Dhananath Fernando  51:34
Right.

Speaker 1  51:35
Not the 2023 the lease act, but we are talking about the rent act, which is there currently, from which they are trying to bring up the amendment. Under that, you can go to the rain board in Sri Lanka. You have the other option of going to the rain rain board. So when you go to rent board, they are the tenant can actually stay for a longer time. But if you are if you have a registered lease agreement, like I said, there is a easy provision. There is an easy way that you can go to courts directly.

charindra chandrasena  52:03
Right, very interesting. We have come to the end, Nikhini. But before we wind up, Dana has a has a message. Ah, yeah, yeah. So please

Dhananath Fernando  52:14
subscribe to Advocata and become an Advocata Insider. We provide exclusive analysis on exchange rate, vehicle markets, land market, and I mean many other areas that you can make investment decisions. And by becoming an Advocata insider, you also support on improving economic literacy among fellow Sri Lankans. And this content is purely brought you free of charge thanks to our Advocata Insiders, and it's 12,000 rupees a year, 1000 rupees a month, and you can become an insider. There are multiple packages, so consider becoming an Advocata Insider so you can support. And also, Happy Independence Day!

charindra chandrasena  52:54
Happy Independence Day to everybody watching, and Happy Independence Day to the two of you as well. But specifically, I want to thank, especially Nikini, for taking the time to be with us today, and you know, really enriching the programme with your legal insights. Happy to join

Speaker 1  53:10
you guys

charindra chandrasena  53:11
because it's it's an interesting perspective because all of this plays into the the economy and and you know people's money matters, financial matters. Okay, we are done for the day. Thank you, Dana. As always. Thanks, Shari. And we shall see you next week. Happy Independence Day.


Transcribed by https://otter.ai