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“Reluctance to adapt to change in our legal system”: CA Judge
(L-R) Justice Dhammika Ganepola, Justice Khema Swarnadhipathi, Justice Mayadunne Corea, Justice Neil Iddawala, Justice P Kumararatnam, Justice R Gurusinghe, Justice S U B Karralliyadde
The need to maintain judicial integrity and minimise the Law’s delays were emphasised during the Ceremonial Sittings held at the Superior Court Complex on March 24 to welcome seven new Court of Appeal (CA) Judges. This was the second Ceremonial Sitting for new CA Judges.
“I am answerable to the people of this country and also, I am aware that I am personally responsible for maintaining the high traditions of the judiciary. I am confident that I would be able to contribute my best to the upliftment of the prevailing judicial system,” Appeal Court Justice S U B Karralliyadde said in his address to the gathering.
In discharging the duties and responsibilities incumbent on Judges, they should look only at the letter of the law and the spirit of the law and nothing else, Justice Karralliyadde stressed. “Political, economic or social considerations, as opposed to legal considerations, simply do not enter into the equation. Judges should not achieve anything in accordance with popular wishes or favourations,” he emphasised.
“As judges, what we should keep in mind is that we can’t make the law, but find it or declare it. However, the way we arrived at a decision may be different from one another,” he pointed out.
One can expect a tremendous increase in litigation in view of the growth of population, and vast social, political, and economic changes over the decades, Justice Ratnapriya Gurusinghe remarked.
“The Judges of this Court are deeply concerned about the enormous difficulties and problems such as Law’s delays caused by this increased volume of litigation, and are determined to make every endeavour to find ways to overcome these difficulties,” he added. “I am very conscious of the trust and the responsibility that goes along with this office. I place great reliance upon the Bar, for I strongly believe that the cooperation between the Bar and the Bench facilitates the smooth functioning of the courts and administration of justice,” he opined.
“After spending years observing the Sri Lankan Legal System, I have come to realise that there is an apparent reluctance to adapt to change by all stakeholders in our legal system,” observed Justice Dhammika Ganepola.
He asserted that Judges must be open to the notion of evolution, both legally and technologically, thereby reducing any chances of delayed justice. All the while, they must contribute to the development of the existing law, expand its boundaries, while maintaining the highest respect for the pre-existing judicial norms and traditions.
“During my 27 years at the bench, I had a desire to close down orphanages which are now called children’s homes. Most of them reminded me of Jane Eyre and Oliver Twist,” said Justice Khema Swarnadhipathi.
She noted that a resolution has now been adopted by the General Assembly of the United Nations, setting out the guidelines for the alternative care of children. “The Cabinet of Ministers of the Parliament of Sri Lanka approved an alternative care policy in 2019. It is for us judges and lawyers either to give life to these policies or treat them as a Pandora’s box,” she pointed out.
Justice Swarnadhipathi stressed the need to be considerate towards children coming into contact with the Law because most have special needs which cannot be recognised through naked eyes. “I experienced this during my tenor at the special high court at Anuradhapura as I worked closely with Child Psychologists. It is essential to deal with such children under medical guidelines, for their minds work differently than others. Their imaginations run wild.They are multi-taskers. Wrong handling will damage them,” she warned.
“The world has now realised the importance of psychiatry in dealing with children, it is for us to decide what our Island’s future should be – prisons and more prisons, or inventors, leaders and great personalities,” she concluded.
A litigant comes before a Court of Law with a grievance as he/she considers it to be a last resort or a place of refuge, Justice Mayadunne Corea pointed out. “As such, a Court of Law is duty bound to accord a hearing to a litigant and consider the possibility of addressing and remedying their grievances, having heard all necessary parties, and based on a firm legal basis. In this regard, the assistance of both the Private Bar and the Official Bar is vital for the dispensation of justice by a Court of Law.”
The Fundamental Duties stipulated in Article 28 of the Constitution contain duties and obligations of every person in Sri Lanka, which could be considered moral obligations. Therefore, both the State and citizens have duties and obligations, he explained.
“This invocation of the corresponding obligation that accompanies the rights are co-related and have to co-exist for an ideal and law-abiding society to prevail. In the absence of this balance, evil will prevail,” Justice Corea added.
“There is no doubt that the greatest drawback in the administration of justice that troubles everyone in the country is the ‘Law’s delay’. No one can afford to simply ignore the justifiable concerns and frustration expressed many a time by the general public over the delay that has plagued our judicial system for many decades. True, that there are inordinate delays in the disposal of cases. Although it is understandable that dispatch is important, it cannot be at the expense of justice,” said Justice Prabaharan Kumararatnam.
Expedition however, should not be equated with hustle, he cautioned. “It should not lead to delivering abstract justice, but always be according to Law. The Irish philosopher Edmund Burke used to say that ‘study of Law renders men acute’. The acuteness also demands ‘clarity in legal expression that would in turn encourage citizen participation’. After all, ‘the role of the law and of the courts is to better the lot of mankind,” he observed.
In applying Information Communication Technology (ICT) to expedite cases, courts must be careful to minimise the digital gap so that due process and fair trial rights are satisfied, and access to justice on all matters is guaranteed, commented Justice Neil Iddawala. He noted that this includes respect for fundamental rights, judicial independence, principles of a fair trial, cyber security and protect the legitimacy of judicial proceedings.
“Online platforms can respond successfully to lockdowns and “social distances” but we need to remember that nearly half of the world population have no access to the internet, and with courts turning to digital tools to make access to justice possible during the pandemic, those penalised by the digital divide may be excluded,” he warned.
“The Law’s delays is a perennial problem in our courts, and to deal with delays and remedies in general, the judiciary can use the current situation to innovate ways in which online solutions can be used to resolve backlogs. This should also include reviewing, different levels of courts have been impacted differently and, if so, in what ways,” he further pointed out.
The backlog of cases in the Court of Appeal is alarming, Attorney General Dappula De Livera stated. He noted that this backlog needs to be addressed urgently and quickly, methodically and efficiently, and to deliver speedy justice and prevent the Law’s delays without compromising the quality of justice, thereby winning the confidence of the people.
“The Bench and the Bar have to get together to solve this problem. The increase in the number of Judges to the Superior Courts by the 20th Amendment to the Constitution and thereby the appointment of your Lordships and Ladyship is no doubt seen as a positive step in this regard,” he remarked.
“A Judge’s role is to serve the Community in the pivotal role of administering Justice according to Law. Judicial office gives that opportunity, and that is a privilege. Judicial office requires one to serve so and that is a duty. Freedom, peace, order and good governance are essentials of the society that we treasure, and they depend on the ultimate analysis of the faithful performance of Judicial duty. It is only when the people have confidence in the integrity and the capacity of the Judiciary, that the community can be said to be governed by the Rule of Law,” outgoing Bar Association of Sri Lanka (BASL) Kalinga Indatissa stated in his speech, welcoming the new Judges on behalf of the Bar.
He stressed that they had every confidence that the Judges will protect the very concept of the Rule of Law and the Constitutional Rights of the people. “We have no doubt that Your Lordships and Your Ladyship will deliver Justice in accordance with the Law and Your Lordships’ and Your Ladyship’s conscience,” he emphasised.
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