| Your Lordship the Chief Justice, Asoka de Silva, Hon. Attorney General Mohan Peiris, President's Counsel, Mrs. Ramani Kamalasabyson, Ladies and Gentlemen.
The Second Annual Oration comes at a time when citizens of the country are at the cross roads of or caught up in the cross currents of a multitude of events of all descriptions touching every facet of our lives. The list is long. The future, troubling.
It was probably because of that, or so I believe, that I was approached by the organisers of this function, a group of young and enthusiastic colleagues at the Bar, all learned, and invited to look into the crystal ball and to speak about the currents at Hulftsdorp Hill and divine the direction in which it will flow! A tough call and I was reluctant to take the assignment, considering the recent fate of soothsayers!
However, not to disappoint, I confessed that the direction the current will flow I know not - but at least I can talk about the direction they - the children of the future - will like to see it flow. A discussion ensued and the result is what I am going to speak to you about.
A Wind of Change.
In the month of Vaikasi of the Hindu calendar, corresponding to the period 15th May to 15th June, two momentous events took place.
First, the three decade old armed conflict ended.
Second, a decade old Sarath Nanda Silva Court came to an end with his retirement in June 2009
In an interview, the new Chief Justice, Asoka de Silva, had with the Sunday Observer of 19th July 2009 captioned "People need justice and fair play" he is reported to have said,
"The judiciary must be strictly impartial and above board. There will be no room for "gossip" and "telephone" justice during my tenure. I will not allow influencing of any member of the judiciary directly or indirectly and they will be severely protected from undue influence from political or any other influence or incentives. Judges must be of "good character" and standing before the people to be respected and believed by the public.
A judge should be careful in making public statements on the Bench and in public as it affects the people who are helpless to resist which will affect their life personally and professionally. I will treat the members of the judiciary impartially in promotions and appointments and offering scholarships and benefits. I will take collective decisions with my colleagues and Judicial Service Commission and management of "Funds Local and Foreign" will be handled by professionals and there will be transparency in all the dealings."
Inspiring words. But words once let out of the cage cannot be whistled back.
They are to be weighed and not counted. Is this then a "wind of change speech"? I asked myself. A battle cry for due process? A watershed moment in the struggle to maintain the rule of law? A turning point in judicial attitudes? If so what dividends are in store?
A water shed moment? Yes.
A turning point? Yes
Dividends ? Well, I cannot prophecy. But I told them I will endeavour to capture the spirit of the expectation and identify a few areas of legitimate expectation. The hoped direction of flow of the wind of change.
Speaking for myself the most inspiring words of the interview were the promise to "severely" protect the judiciary "from undue influence from political or any other influence or incentives." The reasonable expectation is that further erosion of the rule of law and the administration of justice by subjecting the judiciary to political pressures and undue influence and attempts at regime legitimisation by ethno-political justice will be brought to an end. It is a very strong commitment. Much to be acclaimed.
The Tissue of Justice
Since the Charter of Justice 1833, thousands of decisions of the Supreme Court have woven the tissue of Sri Lankan justice. The tissue of justice is a fine, thin, delicately woven fabric. It is to be zealously guarded and scrupulously cared for. No doubt a few missed stitches and some dirty patches are there but by and large, I believe, the fabric, once strong, has remained serviceable and not unsatisfying to our sense of how things should be.
In the forty three years that I have been in practice, I can at least attest to the fact that several fundamental norms and general rules have been recognised and established in the administration of justice. The Chief Justice in his interview clearly acknowledges this sub-silentio. They have stood the test of time. One would wish to see it continue without distortion.
But recently it would appear, tremors of instability have been felt and heard and there has been some apprehension as to future volatility. I would like to advert to just two of such apprehensions (given the constraints of time) which has engaged the attention of concerned citizens.
The Doctrine of stare decisis
The first and foremost is the importance of the principle of 'stare decisis' - meaning - "to stand by things decided". This springs from a principle which is embodied in another maxim - 'stare decisis et non quieta movere' - to stand by things decided and not to disturb settled points. The main object then of stare decisis is to ensure certainty and predictability of the law.
To follow the ratio decidendi of past cases is stare decisis. The practice by which effect is given to the doctrine of stare decisis,- is by what is called "rules of precedent". According to this rule, a court is bound to follow a decision by a court above it on the judicial hierarchy. The decisions of the highest court are binding on all courts of subordinate jurisdiction.
The question then naturally arises whether it means that the earlier decisions have a binding force, that once a point is decided it cannot be changed? Is the court not free to reverse its own decision if it finds that it is wrong? Or does it require the intervention of the Legislature to free it from the fetters?
It is a public policy rule that it is in the interest of the public that there must be an end to litigation and that a litigant who has obtained a judgment (the concrete decision) is entitled not to be deprived of the fruits of it without solid grounds. So that once a judgment is delivered, the court which delivered it cannot re-hear, review, alter or vary its own judgment, whether in fact or in law. It can only be done in appeal, subject to the court's power to clarify or to correct accidental slips or omissions. However if it is the Supreme Court, the matter is at an end.
The question being examined here is when, if at all, is a departure from the rule of finality of judgments permitted in law? The dilemma being to keep the balance between the need for certainty against the need for flexibility!
Insofar as our jurisdiction is concerned, past decisions indicate that it has been approached on the basis, firstly, that a court is not bound to follow decisions reached per incuriam and secondly that the Supreme Court has an inherent jurisdiction to make corrections to meet the ends of justice. The per incuriam rule is said to be but one ground under the rubric of inherent jurisdiction.
As I see it, the law on the subject is clearly "a wilderness of single instances". How does one advise oneself?
Naturally the question is asked, as for the future, should there be not some guidance on the matter, at least for the sake of "predictability", of the exercise by the Supreme Court of its inherent jurisdiction, given that under that jurisdiction the stare decisis is that it can re-visit its "final judgements".
Is the time not ripe for the Supreme Court to exercise its rule making power under Article 136 (1) (k) - namely as to "the binding effect of the decisions of the Supreme Court" and as to the finality of its judgments? Indeed that was the suggestion of Wanasundera J in his judgment in Walker Sons & Co (UK) Ltd. Till that is done the matter remains at large and my young and enthusiastic colleagues will have to grow a little older awaiting its arrival.
The Protection of Fundamental Rights
The second matter that I would like to advert to is the Supreme Court's jurisdiction in the protection of fundamental rights. Of the several jurisdictions of the Supreme Court, the most colourful, no doubt, is its jurisdiction enshrined in Article 118 (6) for the protection of fundamental rights. We saw its exponential growth during the reign of the former Chief Justice. Many were who praised it. Many were who criticised it. Where does the truth lie? I believe it lies in between.
In an interesting development, on the 3rd of August 2009, the Asoka de Silva Court affirmed the principle of finality of judgments in what is commonly referred to as the "Water's Edge" case- S.C. F.R. 352 of 2007. It also affirmed the breadth of the Court's power to grant relief and justified it on the basis that, - "Fundamental Rights applications are qualitatively different from other types of appeals heard before this Court and warrant greater latitude in their consideration and to grant redress in order to encompass the equitable jurisdiction exercised in these applications."
I find the use of the words “Fundamental Rights applications are qualitatively different from other types of appeals" intriguing, because the fundamental rights jurisdiction is an original jurisdiction and not an appellate jurisdiction. My young and enthusiastic interlocutors ask me if there is a hidden message in that passage. My answer - perhaps there is or there is not. Only future can tell.
Given that the jurisdiction focuses the Court's enquiry at the culpability/liability of the State for unlawful executive or administrative action and that the power of granting relief was stated in the widest possible terms - i.e. "……………to grant such relief or make such directions as it may deem equitable in the circumstances………………..", it is not surprising that the less "timorous souls" on the Bench led by the mercurial Chief Justice began to expand the frontiers of fundamental rights and in the process would appear to have re-written the jurisdiction as well.
The strict rules of locus standi of an applicant were relaxed and a person bona fide having sufficient interest could approach the Court, apparently not on behalf of himself , but on behalf of other persons, or as often claimed euphemistically "in the public interest". The public soon developed a syndrome of routine recourse to the Court for every perceived failure - past or present, of the State. The Court on their part came to believe that it is their judicial duty to intervene in such failures by making orders for correcting or improving State action. Sometimes taking over the functions of the executive.
There is no question that under this jurisdiction momentous innovations granting relief to the common and underprivileged and rights denied sections of our society-indeed large sections of our society -- have been achieved in measures never anticipated or ever known before. Those achievements have won the adoration, praise and gratitude of many an awe stricken citizen of the country. But one cannot be unmindful or blind to the fact that complaints of unlawful action against the State or State actions do raise disputed questions of fact. This is a matter of some considerable concern, because the Supreme Court does, as a matter of practice normally handle such questions of fact by affidavit evidence. This cannot be wholly satisfactory, because the proceedings not being adversarial, it offers a neat way out of the burden of proof on questions of fact.
Questions of credibility, hearsay and the like also loom very large.
Then again questions of adui alteram partem arise, especially in the background of the law that the decisions of the Court are final and conclusive, because "when the Supreme Court has decided a matter, the matter is at an end". - Fernandopulle v De Silva and Others (supra).
It is therefore not surprising that many people have feelings of disquietude and unease, for different reasons, based on different points of view as to the direction this jurisdiction can take in the future.
Not unreasonably, public interest litigation has become a major and prominent segment of the jurisdiction of the Supreme Court, and in the background of the pronouncements of the Chief Justice in his interview, that "People need justice and fairplay" there is a legitimate expectation whether time is not now opportune to expect answers queries such as , "What are the parameters of public interest litigation?
What is the permissible scope of judicial interventions in public interest litigation?
Can the jurisdiction exceed the established principles of judicial review?
Can it transcend constitutional imperatives?
Are there matters beyond the judicial sphere and competence of the Court to entertain in public interest litigation?"
I believe that these queries and concerns will have to be answered and apprehensions addressed in order that this unique fundamental rights jurisdiction may be preserved, strengthened and used with restraint as a bulwark against ethno-political repression and lawless disregard of statutory and constitutionally imposed duties by executive and administrative action of the State.
I thank you. |
E-mail