President expands the Supreme Court by half

Acting under the new powers vested in him under the 20th Amendment which he introduced to the Lankan Constitution last month, President Gotabaya Rajapaksa, on October 29, sought to expand by half the present composition of 11 Lord Justices of the Supreme Court to 17, by nominating six members of his choice to the nation’s ultimate fount of law and justice.

This Tuesday, the Parliamentary Council, set up under the 20th Amendment to vet the presidential selection, gave its seal of approval as expected. Under Article 41A(8) of the 20th Amendment, if the Council fails to convey their observations within a week from the date of seeking such observations, the President shall forthwith proceed to make the said appointments.

This new power, which empowers the President to increase the number of Supreme Court judges from 11 to 17 and Appeal Court judges from 12 to 20 judges, was absent from the 20th Amendment Draft Bill sent to the Supreme Court for determination as to whether it vitiated against the Constitution and thus required a referendum or a two-thirds majority in Parliament or both.

It was only introduced to the 20th Amendment bill after the Supreme Court had delivered its legal opinion on the draft, giving the proposed amendments the all clear, with some reservations expressed over certain offending clauses as requiring a referendum which were dropped or duly amended.

Thus this special power, which has the effect of increasing the strength of the Supreme Court overnight by half, escaped Supreme Court scrutiny by seeing the light of day only at the eleventh hour when it was in the final committee stages, before the final vote was taken to embed it in the constitution.

In fact it has drawn much flak not only from the opposition but also from the International Commission of Jurists which declared:

‘These substantive amendments were not part of the gazetted 20th Amendment bill, the provisions of which were challenged before the Supreme Court by as many as 39 petitioners.

Sneaking in substantial changes at the last stage of the legislative process where there is no opportunity for public comment or judicial review is not consistent with democratic processes under the rule of law.’

The Sri Lankan Government’s reason to expand the appellate courts was that the backlog of cases so demanded extra judges to handle the work flow.

Undeniably there is the law’s perennial delay and invariably there is a backlog. But is the delay at the top only because there is a massive delay at the base, where many cases crawl at snail’s pace, with some cases even seeming to stagnate in courts of first instance, with lawyers quite content in getting fresh dates from complying judges? Isn’t this the reason that causes such a choking bottle neck at the top? Shouldn’t the Government have focused first on clearing the congestions in the decks below than rushing to make the judicial vessel top heavy?

Shouldn’t the entire hierarchy of the judicial system, from the first step to the last rung have been probed first and then determined whether the malady lies in the first and second tiers? Whether it is those plateaus that should be expanded and the strength even doubled to ease the jam? And not the widening of the elite inner circle of wise men and women at the summit, charged with delivering the quintessence of law and justice to a people whose only remaining hope in receiving justice is in the court of last and final resort?

For instance, how do Britain’s Law Lords cope? The Supreme Court is the final court of appeal for all civil cases, and criminal cases from England, Wales and Northern Ireland with a population of approximately 62 million excluding Scotland which has its own legal system and judiciary. It also hears appeals on arguable points of law of general public importance and concentrates on cases of the greatest public and constitutional importance.

Traditionally, when the House of Lords Appellate Committee heard cases, there were 12 Law Lords. Since 2009, when the Supreme Court was established, it retained the same number 12 as the maximum as the House of Lords had done for 133 years since the Appellate Jurisdiction Act of 1878.

Or for that matter, take America, which is approximately 150 times bigger than Lanka, with a land mass of 9, 833, 517 sq km compared to Lanka’s 65, 610 sq km, with Lanka just 0.67 per cent of America’s size. How does it’s Supreme Court, which is the final court of appeal to 50 states, and a population of 328m, function quite comfortably with only nine Supreme Court judges?

America’s Supreme Court judges do not retire. Under the Constitution, they hold it for ‘good behaviour’. They either resign or are impeached from office or simply die in office. The all-powerful American President does not have the power to add his own ideologically sympathetic judges to the bench when and if he thinks it necessary but has to kick his heels and patiently wait until a sitting judge breathes his or her last. The recent death of long standing Supreme Court judge the iconic Ruth Bader Ginsburg who died at the age of 81 of cancer, after 27 years on the bench, is an example.

The American Constitution places the power to determine the number of Justices in the hands of Congress. The Judiciary Act of 1869 fixed the number of Justices at nine and it has so remained at that figure of 9 for the last 150 years.

Then take neighbour India, the most populous democratic country in the world. India’s Supreme Court is the final court of appeal to 1.3 billion people, to 29 states and 7 union territories.

As the constitutional court of the country, it takes up civil and criminal appeals primarily against verdicts of the high courts of various states of the Union and other courts and tribunals. It safeguards fundamental rights of citizens and settles disputes between various government authorities as well as disputes between the central government and state governments or between a state government and another state government in the country. It is also an advisory court. It will hear matters which may be referred to it by the Indian President.

And how many Supreme Court Judges are needed to discharge these onerous duties of a country comprised of 29 federal states with a population 62 times the population of Lanka?

From an original bench of eight judges in 1950, India’s Parliament has gradually increased the number of Supreme Court judges during the last 70 years to meet the rising workload to just 34 Supreme Court judges in 2019.

It remains something of an enigma why Lanka needs 17 when neighbour India with a mega litigant base 62 times larger, makes do nicely with just 34? Why unitary Lanka needs so many while Britain, America and India relatively need so few?