Uphold the supremacy of Constitution, Rule of Law | Daily News


Uphold the supremacy of Constitution, Rule of Law

Address of Supreme Court Justice Yasantha Kodagoda, PC delivered on February 28, 2020 in the Supreme Court on the occasion of the ceremonial welcome accorded to him by the Bar.

As I did on May 6, 2019, when welcomed as the President of the Court of Appeal, I once again pledge that I will continue to strive hard to administer justice to the best of my ability, in terms of the law, and fairly. As I have done during the past 8 months, I will serve our country by adjudicating the resolution of disputes independently, impartially, neutrally, fearlessly and of course in terms of the law. I assure you that justice will be delivered. I will at all times uphold the supremacy of the Constitution, the Rule of Law, abide by judicial ethics, and respect traditions of our judicial system and those of the legal profession.

Justice Yasantha Kodagoda, PC 

We meet on this ceremonial occasion in the backdrop of the very recent, exceptionally unfortunate and the tragic loss of a dear colleague and a much respected Justice of the Supreme Court, His Lordship the late Justice Prasanna Jayawardena, PC. His Lordship and I have been known to each other since 1988, when both of us were frequenting the chamber of the late President’s Counsel B. J. Fernando. We regularly met and engaged in our respective professional duties during the sittings of the Commission of Inquiry into Treasury Bonds. I have great admiration and respect for him. His demise brought about considerable personal sorrow to me, and a great loss to the judiciary of our country. I never thought in the wildest of my dreams, that I would ever be elevated to the Supreme Court sequel to his untimely passing away, and to fill the ensuing vacancy arising out of his demise.

Mr. Attorney and Mr. President, you may be aware of some of the measures I was able to initiate during my period as the 47th President of the Court of Appeal. With the passage of time, I assume you will be able to form a view of the suitability and efficacy of those initiatives. That is a matter for you to judge. I must place on record my deep appreciation for the unstinted cooperation I received from my brother and sister Judges of the Court of Appeal, all regular senior and junior Counsel and instructing Attorneys of the Court of Appeal, and the Registrar, his deputies and other staff of the Court of Appeal. If any of the initiatives that were put in place during my Presidency are to yield productive and sustainable results, it would be due to the cooperation I received from those three sectors, and the continuation of those initiatives by my successor.

As you would appreciate, the efficacy of any system of justice is founded upon many factors, including the resources available for the system of justice. These resources are manifold, and can be classified into two groups, namely human and material resources on the one hand, and legislative infrastructure on the other. I wish to focus your attention on the first – namely human and material resources.

As you would appreciate, Judges are an important and indispensable expert human resource of all judicial systems. An optimal number of judicial officers possessing requisite knowledge and judicial skills and upholding judicial etiquette, is a sine qua non of any effective judicial system. Therefore, I think it is necessary to consider whether Sri Lanka has a sufficient number of Judges to administer justice expeditiously. This is vital, because, insufficiency of Judges can only result in delays in the administration of justice.

Globally, the unit of measurement is the number of Judges in a particular country per one million population of that country. United States of America has 107 judges per 1 million population. Canada has 75, England 51 and neighbouring India has 20 per 1 million population. Researchers and jurists in India have commented that the Indian ratio is ‘dismal’, and needs to be increased to at least 50 judges per 1 million population in order to ensure the functioning of an efficient justice system. Including the 15 new Magistrates who will be reporting for work today, Sri Lanka has a total of 336 Judges and Magistrates. This includes the Justices of the two apex Courts. Therefore, in Sri Lanka, the number of judges per 1 million population is presently 15. I assume that the population to Judges ratio of Sri Lanka speaks for itself, and does not require any elaboration by me on its causal relationship with the existing delays in the administration of justice.

The cadre of Judges of the Supreme Court and the Court of appeal had been determined way back in 1978, at a time when Sri Lanka’s population was 14.5 million. The cadre of judges of these two courts has remained static, notwithstanding the population of our country increasing to nearly 21.5 million. This situation is compounded by the increase in the workload of these two apex courts. The forefathers of the 2nd republican Constitution are unlikely to have assumed the that the Fundamental Rights jurisdiction of the Supreme Court would annually attract approximately 500 fresh Applications, and that the Supreme Court would be called upon to exercise jurisdiction over approximately 500 Applications from judgements of the high Courts of the Provinces functioning as Civil Appellate I high Courts. This is in addition to the routine workload of the Supreme Court. The workload of the Court of Appeal is equally heavy. In 2019, the Court of Appeal received a total of approximately 1,500 fresh Appeals and Applications including 525 Writ Applications.

The prevailing situation relating to the cadre of Judges of the two apex Courts should in my view be considered from another perspective as well. Of the 79 Judges of the High Court presently serving the Republic, unless elevated to the Court of Appeal, 14 Judges are to retire within the coming 3 years. That is due to their reaching the age of retirement, being 61 years. A total of 36 Judges of the High Court are to retire by 2025. That would be 50% of the present number of Judges of the High Court. These are all judicial officers who have approximately 25 years of judicial experience, and who have served the country with utmost dedication.

That the apex Courts of our country would not receive the benefit of their judicial skills and experience, in my view is most unfortunate. The position of very senior officers of the Attorney General’s Department is also similar. Unless they are also accommodated on the benches of the apex Courts, legal advisors cum Counsel for the State and Public Prosecutors with approximately 30 years of yeoman public service behind them, with eminence in skills of advocacy and advanced knowledge relating to complex areas of the law, would have to cease to serve the State and retire at 60 years of age. That they will thereafter be compelled to lend their professional services to private clients, is also in my view most unfortunate.

Thus, I would respectfully express the view that, there exists a compelling need to assess and determine afresh the cadre of judges of all Courts of Sri Lanka. Should the number of Judges of all Courts including the apex Courts be increased along with necessarily a proportionate increase in the cadres of non-judicial staff of Courts, and the allocation of necessary logistical resources to the justice sector. Undoubtedly the efficiency and the productivity of the administration of justice system would increase in a tangible manner. This would result in the expeditious passage of cases through the courts system. Therefore, I urge that the relevant competent authorities give serious and responsive consideration to the compelling need to increase significantly the cadre of Judges of the two apex Courts.

I wish to now turn towards the second resource requirement of the justice sector — namely material resources. As you would appreciate, certain material resources are absolutely essential for the administration of justice. Procurement of necessary material resources including courthouses and associated paraphernalia, is conditioned upon the availability of necessary financial resources.

An examination of provisions and schedules of the Appropriation Acts of the last decade, illustrates a startling revelation. During the period 2010 to 2019, the allocation of public funds by the State to the entire justice sector has never exceeded 1% of the total annual expenditure of the State. This 1% or less has been for both capital and recurrent expenditure of the entire justice sector. This is the nature of the financial investment by the State to the justice sector. I assume you would form your own views regarding the sufficiency of that amount of money to run an efficient justice system.

I would respectfully say that, the scarcity of necessary financial resources exemplifies the standard of our courthouses, conditions of chambers and quarters of judges, virtual absence of computerized automation and application of technological tools, and the paucity of other necessary human and material resources that should be available to the justice sector. Unless there is a significant increase in the allocation of funds from the consolidated fund to run the third organ of the State namely the justice sector, I would think improving the system and making it efficient, would be a virtual impossibility. 

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