On taking office, the New Chief Justice of Sri Lanka Preethi Padman Surasena recently declared his intention to digitize the judicial systems as a matter of priority, in his bid to improve the effectiveness of the system. In my view, this is a laudable move as digitizing the judicial systems may be a necessary corollary to reforms and may serve as a catalyst in improving the efficiency of the system.

Digitization will be helpful in the discharge of justice, in cutting down delays involved in searching for judicial precedents, etc., and in initiating and implementing contemplated procedural changes.

However, I believe that more difficult to implement procedural changes are required to overhaul the judicial system. There must also be radical attitudinal changes in the ranks of the legal profession and among the judges, to ensure that judicial systems are common man oriented rather than ‘elite’ oriented. Such radical reforms are required to cut down on the delays manifested in the form of close to a million court cases pending at various levels of judiciary.

I used to admire the forthrightness of Mr. Naganada Kodituwakku, a lawyer himself, when he used to address the procedural issues of the current judicial systems and his proposed solutions to those issues put forward during his political meetings, when he aspired to contest the presidential election. Of course, some of his extremely aggressive opinions challenging the judicial system earned strictures from the Supreme Court.

It is common sense that with the enormous backlog of pending court cases in Sri Lanka, innocents may continue to remain in remand jail, while culprits may be at large on bail. Ownership of several properties would continue to linger in doubt for years, causing untold hardships to the real owner of the property.

Mr. Kodithuwakku used to mention that one area which needed closer attention was the working hours of the courts – both in terms of hours per day and days per year. I learnt from a Singaporean-based Insurance forensic expert that he used to give evidence in court till about 8 pm in the night. Such practices of working into the night would expedite the hearings and help clear the backlog, to some extent.

Another serious complaint is the indiscriminate postponing of the hearings too often. The common impression is that cases are often postponed to fit into the timetable of the lawyers rather than that of the litigants or judges.

I am not a practising lawyer to judge the correctness or otherwise of these impressions formed in the minds of litigants. However, I contrast this with the situation in Singapore where I was told the pressure is on the judicial officers to complete cases on time.

Sri Lanka’s Judicial Service Commission, an independent body, is charged with the responsibility to provide a judicial system that meets the needs of the common citizens. The huge backlog mentioned earlier makes it clear that the Judicial Service Commission is not fulfilling its constitutional obligations. They might have their reasons for it, but it is up to them to solve it, sooner than later. A detailed analysis of what procedural aspects need to be examined to remedy the situation is beyond the scope of this writeup.

It must however be made clear that the above-mentioned defects do not in any way detract from the need to digitize the system. What is sought to be stressed is that even a successful digitalization IT project can do little to add real value for the citizens.

While we embark upon undertaking such a project involving huge expenditure, whether out of our own funds or borrowed funds, it is fitting to look at other issues of equal or greater importance if we are to realize the sought-after objectives. 

Initial idea in 2005 

I recollect the initiatives for digitizing or computerisation, as it was known those days. The judicial system was discussed first during the period of Chief Justice Sarath N. Silva.  I do not know who initiated the idea, but I remember participating in discussions with some senior lawyers regarding this. I suggested to start with a modest system to ensure proper implementation rather than seeking to implement a sophisticated system that people with less exposure to IT will find difficult to use and developers find difficult to deliver. 

But people wanted a sophisticated system advised by IT techies who had no experience in implementing systems, especially in a very large government organization. A vast number of people are involved in these systems and one person’s mistake is enough for the system to fail. 

Given the country situation at that time, especially availability of funds, it was no surprise that it did not move forward during that period. 

ICTA initiative – 2017 

Some activities did take place during 2017 when ICTA called for tenders for the study of the court system and formulation of requirement for digitalizing the judicial system. The project duration was 12 weeks and the budget was LKR3 million.

In the objectives, one could see that stress was on the IT aspects and very little on procedural aspects and process reengineering. During the pre-bid meeting, I brought to the attention of ICTA  that 12 weeks duration and LKR 3 million budget was not sufficient to complete the project.

Processes need to be well defined and it is not a case of duplicating what happens in the current manual environment, but conceiving a re-engineered process well suited for a computerised environment without compromising system objectives and reliability.

More importantly, it should be buy-in from the stake holders, by getting them involved in the conceptualization and formulating of the re-engineered process. Twelve weeks was not enough at all, I argued. I suggested a time frame of one year and a budget of LKR 15 million. But ICTA was adamant. 

The tender was awarded to the IT arm of an audit firm, who have never implemented an enterprise system successfully. Their approach of consulting is to suggest an ‘International Software’ to play safe. I have seen serval projects fail with this approach; but still, it continues.

My company was disqualified in the technical bid, despite the fact that our team included legal experts, practising lawyers and IT experts with enterprise software development and implementation experience. 

I asked for the evaluation report to be made available to us under RTI. The document was not given but a discussion was held, and we were told that our proposal presentation was not good. We were told we could have just ‘copy and pasted something’ and we would have been qualified. I did not want to pursue the matter further, as our company had a business relationship with the then managing director of ICTA and escalation could lead to possible conflict of interest. 

I was able to get a copy of the summary of the project report presented on project completion. I tried to get the full report and found it to be very difficult. The cost estimate was around LKR 3 billion for the system. 

The report suggested buying a system already developed and adapting it. I remember the same audit firm suggested such a solution to a local franchise of a multinational insurance company  a long time back and the solution was a mess. This was against the advice of the IT head of the parent company, who said the insurance business is so different in each country, and a solution of one country will not work in another country. 

USAID initiative – 2017 

Almost during the same time that ICTA put out the tender for study, USAID submitted a tender for the development and implementation of the court system for Sri Lanka and I believe participation was restricted to some extent and only two US firms participated in the bid. 

A representative of one of the bidders, who participated in the pre-bid meeting of ICTA believing that we should get the ICTA tender, approached us to be their partners as they needed local support.

I have known how these firms work, and I insisted that partnership was possible provided that the major part of development will be subcontracted to us. I was sure the project would not be successful, with pure IT developers and nobody would be bothered about the failure, neither USAID nor Sri Lankan government officials.

I have seen millions of donor funds from institutions such as USAID, UNDP and other NGOs, and loans funds from ADB on IT projects where funds are expended with no benefits at all. 

The company who wanted work with us lost the tender. 

USAID initiative – 2021 

The 2017 USAID project was not going well and USAID called for tenders for additional services, which I believe was primarily to support the vendor of the initial project who was facing cost overrun. Again, the company with whom we were working for the 2017 tender, bid along with us for these additional services, minus software development. Despite the 2017 tender not going well, this was awarded to a 2017 Project contractor. 

Anyway, the project was not successful even after seven years and was abandoned after a pilot project in Kandy, I was told but I am not sure. I am sure the US disbanding the USAID would have been a relief to the 2017 Project vendor. 

Government initiative – 2021 

During the same time, the Government put out tender for a project to digitize the judicial system on the same basis as the USAID tender. 

The Procurement committee had looked at the 2017 ICTA project report on requirements. They found the report had serval holes but engaged the same organization to develop the requirements again.  I am not sure about the cost. 

I cannot comment on the correctness and completeness of the requirement as I have not seen it. Knowing the organization, I believe it would have been copying the manual system with use of technology of various activities. I doubt it would have been correctly reengineered with a well architecture requirement to build a reliable system like an engineering blueprint. I stand to be corrected. 

My attempt to obtain the report was not successful. The total budget for the project was LKR 20 billion and for the software system LKR 6 billion. 

The tender was awarded to a company at LKR 4.5 billion, a company that could not develop a simple finance system for their own organization and spent several hundred million rupees to buy a German product and implement it using outsourced company from India. But the Judicial system, they were willing build and implement. What a surprise?

At least this time, procurement was headed by a professional with enterprise development experience. But he alone could not have ensured things were right.  Thanks to ‘Aragalaya’, LKR 20 billion was saved.  

Major issue 

In civil engineering, a tender for construction is preceded by architectural specifications followed by design drawings and then the tender is called for construction with BOQs. The client knows exactly what they want, and construction contractors know exactly what they must build and deliver. But it is not so in the software tender. When the tender is awarded, neither the client nor the contractor knows what the outcome should be. The only difference is, in civil engineering when the project fails and construction collapses, lives are lost. In software as such, nobody is bothered. 

UNDP initiative – 2025 

UNDP has put out a tender to quote for a judicial system. The quote was expected to be submitted in two weeks and later they extended the deadline. The system is to be delivered in 10 months. The requirements were explained in a few sentences, with more focus on the technology to be used. 

A project that could not be completed in seven years is to be completed in 10 months. The only difference is that old cases will not be included in the project completion, and only new cases will be handled by the system. How long will it take for the system to handle a complete live cycle of a case to verify the system operation? 

There is no mention of the use of the study done by ICTA, spending LKR 3 million initially and later additional expenses by the  Technology Ministry and Justice ministry. 

Conclusion 

If we had attempted may be in 2006 to build a simple system, implemented it and kept on enhancing it through experience, we would have had a modest judicial system by now.

I am not sure whether the 2021 Initiative of the Technology/Justice Ministry project of LKR20 billion is cost justifiable compared to part of it being used elsewhere even within the judicial system to get better returns. Given the history of IT projects in this country, the risk factor on this investment is very high. 

A major hole in the whole process is for criminal cases, because without digitalising Police complaints and investigations one cannot make judicial system effective.

I assume that Chief Justice must have made the statement based on the UNDP Project. If so, I wish him good luck in his endeavour to digitalise the juridical system. I hope I am wrong in my doomsday predictions.