News
Court of Appeal’s new President highlights dangers of law delays
Speeches made at the Ceremonial Sitting to Welcome
Justice Yasantha Kodagoda, PC who was appointed as the President of the Court of Appeal
Speech of Yasantha Kodagoda, PCPresident, Court of Appeal
The Attorney General,
President of the Bar Association of Sri Lanka,
I once again thank both of you for the kind words of appreciation and recognition accorded to me. I am humbled and encouraged by your sentiments. I pledge that I will continue to strive hard to work to the best of my ability and for the betterment of our country. I will serve the nation from now onwards through the adjudication of disputes, independently, impartially, neutrally, fearlessly and in terms of the law.
President of the Court of Appeal Yasantha Kodagoda, PC
We meet on this ceremonial occasion in the backdrop of very recent, exceptionally catastrophic and unfortunate events that have befallen our country and her people. I cannot allow this event to pass, without openly expressing my shock, dismay, sadness and serious concern at the tragic events of Easter Sunday and its aftermath. I unconditionally and vehemently condemn the perpetrators and their abettors for their barbaric acts of terrorism. No application or even a convoluted or erroneous interpretation of any religious faith can justify perpetration of violence and the killing of innocent human beings.
May those innocent Sri Lankans and foreign nationals who died, attain the supreme bliss of Nirwana, Moksha or reach Heaven. I grieve for the families of the deceased victims and pray for their early recovery from the devastating mental trauma they must be suffering from. I pray for the early and full recovery of the injured victims.
I express my confidence that the police and the tri-forces will expeditiously identify and apprehend all those responsible for the dastardly acts of terror. It would be important for the Attorney General to advice the police to bring detained suspects before courts of law as provided by law and for the Attorney General to expeditiously and successfully prosecute them, so that they could be punished through judicial pronouncements made in terms of the law. It is also important that effective preventive strategies be adopted and enforced, so that the security of the country and its people can be ensured. Let us also not forget the need to urgently provide meaningful reparation and restitution to the victims of the terror attacks.
As a note of caution, I wish to say that, it would also be important to ensure that, law enforcement and military responses are carried out strictly in terms of the law; that such measures are proportionate to the envisaged harm and are enforced in good faith and with due diligence. Even at difficult and extraordinary times like this when there exists a realistic and serious threat to national security, and the security of the people of our country is seriously endangered, it is necessary to ensure that the authorities respect the Rule of Law, recognize Constitutionalism, do not violate Human Rights and protect innocent people.
Even when terrorists seem to be inciting civilian communities to act against one another, and engage in retaliatory attacks, let us be resolute that, while ensuring that we will not allow the ugly face of terrorism to rise its head once again in our blessed country, all communities should necessarily peacefully co-exist in a free and non-discriminatory environment as provided by our Constitution. All communities must enjoy a parity of status, feel secure, and be able to enjoy fundamental freedoms.
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 equality 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.
However difficult, I am conscious that, my own personal conduct may also require some amount of modification to become compatible with norms and standards of judicial conduct. I hope my transformation to these norms will be swift and acceptable to you.
Let me now express a couple of views on possible reforms that may be carried out in our system of administration of justice. I will confine my views to matters relating to the Court of Appeal.
I am the 47th President of the Court of Appeal; a court that has been in existence for only 40 years. Out of the 46 predecessors, 31 of their Lordships have held the office of the President of this court, for a period less than one year. Some Presidents have served for less than even a month. On an average, the Court of Appeal has had a change of its President, once in every 10 months. 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 carryout 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 3 years. A term of 3 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 the year 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 matters, there are a number of matters that are over 10 years old. Nearly 40% of the matters have been instituted over 5 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 loose 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’.
It is my view that, the present cadre of Judges of the Court of Appeal which stands at 12, which was determined way back in 1978 when the population of Sri Lanka was 16.4 million, is wholly inadequate to efficiently and expeditiously administer justice by the Court of Appeal. Therefore, 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 of 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.
Finally, I wish to advert to the Rules of procedure applicable to the Court of Appeal. I believe that, a lot of careful though and consideration had gone in the development of the Rules of the Court of Appeal by their Lordships the Judges of the Supreme Court of yesteryear. These Rules have been developed to ensure uniform, fair and lawful hearings, and for the adoption of necessary procedure to facilitate proper administration of justice. Application of these Rules would also ensure expeditious outcomes. It is unfortunate that, some of these Rules have gone into disuse. I see no merit or justification in refraining from applying all the applicable Rules of the Court of Appeal. Particularly from the perspective of ensuring expeditious, efficient and fair administration of justice, there is a compelling need to apply and comply fully with the Rules of the Court of Appeal.
Therefore, I have suggested to my brother judges that from now onwards the Court of Appeal should necessarily ensure that the Court of Appeal Rules are strictly followed by all parties and by their Attorneys and Counsel. Therefore, it is likely that during this term, you will note my brother judges insisting on compliance with the Rules of the Court of Appeal. For those who have not been used to complying fully with the Rules, this second court term will be a period of transition. However, necessarily from the third court term, there will be strict adherence with the Rules, and non-compliance will be met with consequences as provided for in the Rules themselves. I believe this would result in a transformation of the culture relating to the service of Notice, hearing of applications seeking interim relief, filing of counter pleadings and written submissions and the argument of cases.
I thank you ladies and gentlemen for your presence, for having welcomed me and for the patient hearing. I invite all of you to meet me soon after these proceedings in the area near my Chamber and engage in a brief fellowship and to partake some refreshments. I wish you all the very best !
Dappula De Livera, P.C.
Acting Attorney General
Hon. Justice Yasantha Kodagoda President of the Court of Appeal, Your Ladyships and Your Lordships.
It is my privilege to welcome Your Lordship Justice Yasantha Kodagoda as the President of the Court of Appeal at this august assembly.
Having received Your Lordship’s Primary and Secondary Education at Ananda College, Colombo and being an outstanding Student and Senior Prefect, Your Lordship entered the Sri Lanka Law College in 1985 and was called to the Bar in 1988 as an Attorney-at-Law, and no sooner joined the Attorney General’s Department as a State Counsel in 1989. Your Lordship were promoted Senior State Counsel in 1999 and Deputy Solicitor General in 2005. In 2015, Your Lordship was appointed Additional Solicitor General and took silk as President’s Counsel in March 2015.
In 1998, Your Lordship obtained a Post Graduate Diploma in Forensic Medicine from the University of Colombo and in 2002 Your Lordship proceeded to the United Kingdom to read for a Masters of Law Degree of the University of London at University College London and obtained an LLM in 2003.
Since 1999, until Your Lordship’s elevation, for 20 years, Your Lordship functioned as Supervising Officer in the Attorney General’s Department and in 2017 was handed over the supervision of the all important cases investigated by the Criminal Investigations Department.
During Your Lordship’s career in the Attorney General’s Department, Your Lordship had attended several International Training Programmes, Conferences and Seminars on different legal subjects, abroad which are far too many to mention here.
Your Lordship has also presented several papers on legal topics at International and Sri Lankan Conferences and published articles in many Law Journals.
Your Lordship functioned as the Attorney General’s Counsel in the Commission of Inquiry in the assassination of politician and actor Vijaya Kumaranatunga, the Batalanda Torture Chamber which was known as the Batalanda Commission and the Inquiry into serious violations of Human Rights which was also known as the Udalagama Commission and the recent Inquiry into the Issuance of Treasury Bonds known as the Bond Commission.
Your Lordship has also served as a member of several Government delegations to the UN Human Rights Council and other fora and served as a member of a number of Government Committees and functioned as Legal Advisor to Law Enforcement and to the Financial Intelligence Unit and other Government bodies such as the Securities and Exchange Commission which is again is far too many to mention.
From 2005 – 2010, Your Lordship was the Director of the Institute of Advanced Legal Studies at the Sri Lanka Law College and a Visiting Lecturer to the Sri Lanka Law College, Kotelawala Defence University and Bandaranaike Centre for International Studies, the Police Higher Training Institute, Sri Jayawardenepura University, the Post Graduate Institute of Medicine and CIABOC.
One of Your Lordship’s recent notable assignments has been the designing of a comprehensive Training Curricula and the training of Junior Counsel recruited to the Attorney General’s Department.
Your Lordship served the Attorney General’s Department with distinction, dedication, and commitment for nearly 30 long years. Your Lordship was no doubt, always a valuable asset to the Institution.
The wide and extensive experience Your Lordship has gathered as a Counsel and Legal Advisor at the Attorney General’s Department for nearly 30 years will no doubt stand in good stead and enable Your Lordship to shoulder Your Lordship’s new role and responsibilities with confidence and ease and spearhead the court to serve the aspirations of the people in delivering speedy quality justice and upholding the rule of law.
Looking back at Your Lordship’s decision to take up judicial office and move from the role of Counsel to Judge, I would say it is timely as Sir Winston Churchill said; “Courage is what it takes to stand up and speak: Courage is also what it takes to sit down and listen” and more importantly to the position of President of the Court of Appeal in the context of the prevailing Law and Order situation in the country where there is serious threat to National and Public Security and Public Safety, where Democracy and its very Institutions are at risk of peril. Your Lordship’s entry to the court will strengthen and embellish and fortify the quality of justice delivered by the Court and be seen as a beacon of hope in the restoration of the Rule of Law in our Motherland in time to come.
I must emphasize that Your Lordship is well qualified and richly deserves to adorn this exalted office. It’s unique that Your Lordship’s appointment as President of the Court of Appeal was followed by the appointment of the Attorney General as Chief Justice which is the first in the history of Judicial Appointments where both positions have been filled in quick succession from the Attorney General’s Department.
Now the task is daunting, the challenges are innumerable. The country is in a state of public emergency where there is derogation from the General Law of the land and Fundamental Human Rights and the Rule of Law must be upheld and restored quickly and Law and Order maintained at all costs.
Human Dignity is at the core of Humaneness. Your Lordship’s Court will play a pivotal role in the whole restorative process and I must say that it is a big challenge but still surmountable.
Your Lordship is now bestowed with the onerous task of administering justice in the Court of Appeal.
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 instill 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 up by society. This is not the moment to elaborate on this. But I should say that Laws Delays is one of the main reasons for this system failure.
This issue has to be addressed by Lordship’s Court urgently and holistically. The Bench and the Bar have to get together to solve this problem.
I wish to assure Your Lordship the fullest cooperation in this endeavor and all other endeavors by Your Lordship’s Court to deliver quality justice to the people of this country.
At a time, the depression had hit America, like an earthquake destroying lives so totally, that the people had lost self-confidence, a man of power and vision, President Franklin Roosevelt who was crippled since 1921 when he contracted polio and lost the use of both legs, won the Presidential Election by a majority of 12 million votes winning 42 States against 6 and he took oath and addressed millions of Americans listening to their radios. This inaugural speech on 4thMarch 1933, was one of the turning points in American history, where he articulated:
“Small wonder that confidence languishes, for its thrives only on honesty, on honour, on sacredness of obligations, on faithful protection and unselfish performance. Without them they cannot live. Restoration calls not for changes in ethics alone. This nation asks for action and action now. Our greatest primary task is to put people to work. There is no unsolvable problem if we face it wisely and courageously”.
With this thought, may I wish Your Lordship a successful and fruitful tenure in this office, excellent health and happiness.
Address of Kalinga Indatissa, PC President of the Bar Association of Sri Lanka
His Lordship Justice Yasantha Kodagoda, President’s Counsel, President of the Court of Appeal,
Hon The Acting Attorney General, Mr. Dappula de Livera, President’s Counsel,
Their Lordships and Ladyships of the Court of Appeal,
Hon Judges of the High Court, District Court and Magistrates Court,
We are assembled in this Court this morning to ceremoniously welcome the recently appointed President of the Court of Appeal, Hon Justice Yasantha Kodagoda, President’s Counsel. The duty of welcoming Your Lordship on behalf of the Bar has fallen on my shoulders and I am deeply honoured and privileged to do so.
Your Lordship had an illustrious career at Ananda College, Colombo from 1971 to 1982. During Your Lordship’s entire career at this prestigious educational institute, which has made a highly significant contribution to the social fabric of this country, Your Lordship displayed high qualities of leadership. At school, Your Lordship functioned as a Junior Prefect, Deputy Head Prefect of the Junior Board of Prefects, a Senior Prefect and as a Senior Prefect Supervisor in 1982. Your Lordship was a member of the junior English debating team. In 1982, Your Lordship held office as the President of the Ananda College Buddhist Association.
After the successful completion of Your Lordship’s Advanced Level Examination, Your Lordship joined the Sri Lanka Law College in 1985 and was called to the Bar in 1987. Your Lordship served the pupillage in the Chambers of Mr. Ranjit Abeysuirya, PC and Mr. G. F. Sethukavalar, PC and after a brief period in the unofficial Bar, where Your Lordship had the opportunity of being attached to the Chambers of the late Mr. Ranjit Abeysuriya, PC, a former President of the BASL and Mr. B. J. Fernando, PC, Your Lordship joined the Attorney General’s Department on 1/2/1989. In 1999, Your Lordship was promoted as a Senior State Counsel and in 2005, as a Deputy Solicitor General. In 2015, Your Lordship was elevated as an Additional Solicitor General and in the same year, Your Lordship was conferred silk for the enormous contribution that Your Lordship had made to the legal profession.
Your Lordship’s long and illustrious career of 3 decades in the Attorney General’s Department has been an extremely productive and a fruitful one. Your Lordship has very successfully functioned as a Prosecutor, a Special Prosecutor, a Supervisory Officer, a consultant to the State, a Policy maker, a contributor to the enactment of several laws, and a much sought after advisor on many matters ranging from pure and simple Criminal Law to complicated issues of an international perspective.
During Your Lordships tenure as a member of the Attorney General’s Department, Your Lordship has functioned as an advisor to the Narcotics Bureau, Department of the Controller of Exchange, Securities and Exchange Commission, Insurance Board of Sri Lanka, Financial Intelligence Unit of the Central Bank of Sri Lanka and the Criminal Investigations Department.
Your Lordship’s contribution in coordinating the multi-disciplinary criminal and forensic investigation into the alleged existence of the Chemmani mass graves will be remembered for a long time. Your Lordship also functioned as the Attorney General’s Counsel in the Vijaya Kumaratunga Commission of Inquiry, the Batalanda Tortue Chambers and the recently concluded Presidential Commission of Inquiry into the issuance of Treasury Bonds.
On numerous occasions Your Lordship has played a highly proactive role internationally. While such occasions are too numerous to mention, I would fail in my duty if I do not publicly recognise the contribution that Your Lordship made as Sri Lanka’s representative in the anti-terrorism investigation, conducted by the Anti-terrorism Task force of Australia, and in 2008 by the Metropolitan Police of the United Kingdom. Your Lordship also functioned as the primary counsel involved in the drafting of the “Assistance and Protection of Victims of Crime and Witnesses Act”, No. 4 of 2015, and as a Chairman of the ICCPR drafting Committee of the National action plan for Human Rights. Since 2015, Your Lordship has functioned as the Secretary and CEO of the Presidential Task force for the recovery of stolen assets and proceeds of crime. In 2016-2017, Your Lordship functioned as a member of the Committee involved in the drafting of the new Counter Terrorism Act. In 1998, Your Lordship obtained a post graduate diploma in Forensic Medicine and Science from the University of Colombo. In 2005, Your Lordship obtained a Master’s Degree in Public International Law from University College London.
Your Lordship’s busy schedule of work has never prevented Your Lordship from making a significant contribution to the society. Your Lordship has been a much sought after resource person by the BASL and I am pleased to place it on record that Your Lordship was never hesitant in accepting an invitation to enhance the knowledge of our members. Your Lordship has, on many occasions presented papers on behalf of the BASL and the Government of Sri Lanka. Your Lordship has continued to be a delegate of the Bar Council and in such capacity, made a significant contribution to the activities of the BASL.
Your Lordship actively participated in the programmes of the Medico Legal Society of Sri Lanka.
Another significant contribution that I wish to recognise is Your Lordship’s involvement in legal education of this country. Apart from being a resource person, Your Lordship was attached to the staff of the Sri Lanka Law College and also functioned as the Director of the Institute of Advanced Legal Studies. Your Lordship also functioned as a visiting lecturer of the Police Higher Training Institute, Bandaranaike Centre of International Studies, University of Colombo, Sri Jayawardenepura, Kelaniya and the Kothalawela Defence University.
This Honourable Court, of which Your Lordship currently functions as the President, plays a very significant role in the administration of justice. In terms of the Constitution of the Democratic Socialist Republic of Sri Lanka, this court exercises jurisdiction over Appeals, Revisions and Writs. Articles 143 and 144 of the Constitution have vested in this Court, the power to issue injunctions and to hear Parliamentary Election Petitions. Apart from the Constitution, there are many other statutes which confer jurisdiction on this Court. Some of the provisions have undergone changes after the 13th Amendment to the Constitution.
Your Lordship will assume duties at a point when the peaceful multi ethnic society of Sri Lanka has been disturbed by the recent unfortunate events.
“Salus Civitatis Suprema Lex” is a maxim which is highly respected in any civilised legal system. This basically means that “security of a Nation and its people is of paramount importance”. What is more alarming for a Nation is the lack of accountability on the part of some who have preferred to ignore their public duty towards the people. The Bar takes a serious view of this fact, which in our opinion, is a breach of the doctrine of “Public Trust”. In this regard, The Bar would expect more vigorous and proactive decisions on the part of the Judiciary. The Bar has every confidence that the experience that Your Lordship has acquired during the last 3 decades will help Your Lordship to guide this Court towards this aspect.
Another challenging task that Your Lordship would face would be the elimination of the backlog of cases pending before this Honourable Court. The Bar on our part, will offer every possible assistance to Your Lordship in this regard.
On behalf of the Bar, I warmly welcome Your Lordship Justice Yasantha Kodagoda, PC on this occasion of Your Lordship’s assumption of Judicial duties as the President of this Court. 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.
The Bar wishes you good luck in the discharge of Your Lordship’s duties. May the Noble Tripple Gem protect you and bless you now and always. May the forces which rule the world, offer Your Lordship guidance throughout Your Lordship’s judicial career.
May Your Lordship be guided by the great words in Dhammapada, Yamaka Vagga Verse 2:
Manōpubbangamā dhammā
manōsetthā manōmayā
manasā cē pasannēna
bhāsati vā karoti vā
tatō nam sukhamanavēti
chāyā’va anapāyinī. (1:2)
Mind precedes all knowables,
mind’s their chief, mind-made are they.
If with a clear, confident mind
one should either speak or act
happiness follows caused by that,
as one’s shadow ne’er departing.