CA President Justice Kodagoda on reforms to administration of justice

Delivering the inaugural speech at the ceremonial sitting held last Monday at the Court of Appeal (CA), the 47th and newly-appointed CA President Justice Yasantha Kodagoda expressed his concerns over reforms that could be introduced to the administration of justice, particularly to the CA. 

Justice Kodagoda delivered his inaugural speech in two parts -- the first in Sinhala and the second in English. The second is as follows:  

“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 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. 

• At the beginning of 2019, the total number of pending matters plummeted to 4,051
• Cadre of judges in CA should be  increased by a meaningful number 
• Purpose of administration of justice will be futile if people lose faith in the system

“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 (AG) to advise the police to bring detained suspects to court as provided by law and for the AG to successfully prosecute them, so that they could be punished through judicial pronouncements made in terms of the law. It is also vital 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 reparations 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 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 the authorities respect the rule of law, recognise 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 we will not allow the ugly face of terrorism to raise its head once again in our blessed country, all communities should necessarily, peacefully coexist in a free and non-discriminatory environment as provided by our Constitution. 

“For three decades, I have served the Executive branch of the State and have now moved to the judiciary. 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 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 fora. 

“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.” 

Constitutional Amendment enabling a serving SC judge to be appointed as CA President for a fixed term of 3 years 

“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 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, 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 CA President is invariably appointed as a judge of the Supreme Court. Although 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 resu lt 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 CA President 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 CA President.” 

Preventing delays and expediting proceedings

“Let us now look at the caseload of the Court of Appeal. As at January 1, 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 CA, during 2018, 2,345 matters had been concluded. Thus, as at the commencement of 2019, the total number of pending matters plummeted 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 before. 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 anyone 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 could not 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 law’s delays. We must now get into an ‘implementation phase.’ ” 

Increasing number of judges at CA 

“It is my view that the present cadre of judges in the Court of Appeal which stands at 12, which was determined way back in 1978 when the population of Sri Lankawas 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 in 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.” 

Strict implementation of CA rules 

“Finally, I wish to advert to the rules of procedure applicable to the Court of Appeal. I believe that a lot of careful thought and consideration had gone in to 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 onward the Court of Appeal should necessarily ensure 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 would 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.”