Court of Appeal's new President highlights dangers of law delays
The newly appointed President of the Court of Appeal Yasantha Kodagoda, PC, has stressed the need to expedite hearing of cases and delivering judgments, as law delays may lead to litigants being frustrated and exhausted, and, eventually, losing faith in the entire system of administration of justice.
He underscored this judicial responsibility while speaking on the occasion of the ceremonial welcome accorded by the Bar on Monday.
Excerpts of the speech;
“For three decades, I have served the Executive branch of the State, and have now moved to the Judicial branch. This movement, I now understand requires a considerable change in the way in which I have been thinking, approaching issues, applying the law and conducting myself. In the resolution of disputes through adjudication, I have to apply the law, and where the law provides, apply principles of justice and equity.
"Executive policy of the State is no longer criteria that will govern my decision-making processes. In my mind, policy of the Executive and the best interests of the State will have to be replaced by legislative policy and principles of law.
"The rights of the individual will weigh equally with the rights of the State. I am also conscious that I must now adhere to a different set of work ethics, duties and responsibilities. I understand that, I must not engage in verbal forms of advocacy from the bench or elsewhere, and my advocacy, if any, should be confined to the body of judgments and included in well-structured and measured formal statements made in appropriate forums.
"You would undoubtedly agree that, such a short period of time, is totally inadequate for a President to effectively manage and administer the Court of Appeal, provide leadership and carry out necessary reforms. Presidents of this court have had to serve such a short period of time, because, whenever a vacancy in the Supreme Court arises, the President of the Court of Appeal is invariably appointed as a Judge of the Supreme Court.
"Though this practice has perfect justification, it results, as I said before, in frequent changes in the Presidency of the Court of Appeal. Such frequent changes result in abrupt changes to the management and administration of the Court of Appeal, and causes neglect and stagnation of developmental activities.
"Therefore, I suggest that, consideration be given for the enactment of a constitutional amendment to enable a serving Supreme Court judge to be appointed to sit and function as the President of the Court of Appeal for a fixed term of three years.
"A term of three years would enable the President of the Court of Appeal to fully understand the internal workings of the court, identify challenges, plan, muster necessary resources and effectively manage the court in a stable and efficient manner. Such a change in the system would not affect the career progression of serving justices, including the justice appointed to function as the President of the Court of Appeal.
"Let us now look at the caseload of the Court of Appeal. As at the 1st of January 2018, 4,923 matters had been pending in the Court of Appeal for adjudication. During 2018, 1,473 new matters were instituted and re-listed in this court.
"Due to the sheer hard work of my brother judges and the cooperation extended by regular counsel appearing before the Court of Appeal, during 2018, 2,345 matters had been concluded. Thus, as at the commencement of 2019, the total number of pending matters came down to 4,051. That is a reduction of the backlog of cases pending by 800 per annum.
"Of these, there are a number of matters that are over 10 years old. Nearly 40 percent of the matters have been instituted over five years ago. Most appeals that come up in the Court of Appeal relate to cases that were previously heard in criminal and civil courts for over a decade. Particularly civil appeals relating to land disputes. Those litigants by now must be both frustrated and exhausted. I would not be surprised if they have already lost faith in the entire system of administration of justice.
"You would agree with me that, this is not a situation any one of us could be content with. The whole purpose of administration of justice would be rendered futile, if people lose faith in the system, particularly due to inordinate delays associated with the administration of justice, and if litigation is associated with or results in exhaustion of financial resources. The value of litigation would be completely eroded, if a litigant cannot reap the results of litigation within a reasonable period of time and certainly during his lifetime. Regular practitioners of this court would be conscious of the number of times matters come up for substitution of parties, since litigants have died in the fullness of life.
"If this is the actual situation, we cannot any longer be complacent. We cannot only engage in deliberations. We need to identify root causes, develop appropriate remedial measures, and expeditiously implement such measures. It is now time for us in the legal fraternity to cause the implementation of practical solutions to the problem of laws delays. We must now get into an ‘implementation phase’.
"I propose that, the cadre of judges of the Court of Appeal be increased by a meaningful number. Ideally, the Court of Appeal must be in a position to constitute ten divisions of the court comprising two judges each. Such a number of judges would be sufficient to bring the backlog of cases pending in this Court within reasonable control in a few years time. That would enable fresh and urgent cases to be heard and concluded expeditiously. The ideal situation would be where a case instituted in this court is heard and the judgment delivered within a year.”
Also addressing the ceremony was the newly appointed Attorney General, Dappula De Livera, P.C. He said:
"The backlog of cases is a perennial problem. It has to be addressed urgently and quickly, methodically and efficiently and to deliver speedy justice and prevent laws delays without compromising the quality of justice.
"As for the Criminal Appeals a good cursus curiae should be created. There should be consistency and uniformity in approach. There ought to be a strict sentencing regime created for serious crime in order to instil fear of crime and deter society. There is a cry for the re-imposition of the death penalty today. This will not be necessary if there is a uniform and consistent strict sentencing regime in place in all the courts in the country.
"Lord Denning once said: 'Punishment is the way in which society expresses denunciation of wrong doing; and in order to maintain respect for the law, it is essential that adequate punishment is inflicted for grave crimes and should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else….The truth is that some crimes are so outrageous, that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.'
"Law and Order is in crisis today and that is mainly due to the reason that the criminal justice system has failed to deliver adequately and face up the challenges faced by society. This is not the moment to elaborate on this. But I should say that Law Delays is one of the main reasons for this system failure."
Bar Association President Kalinga Indatissa, PC, said the elimination of the backlog of cases pending before the Court of Appeal would be a challenging task.
“We have every confidence that Your Lordship would steer this court in keeping with the highest standards of Judicial ethics, and with impartiality and without any fear or favour,” he said
(The full speeches are
available online at www. sundaytimes.lk)