“Audience before the Supreme Court should be exercised with greater responsibility”

Following is the address delivered by Judge of the Supreme Court Justice Sathya Hettige, PC, at the ceremonial sittings on 23 June 2011 in Colombo:

Her Ladyship the Chief Justice, Hon. Attorney General and Mr. Aziz, President of the Bar Association, thank you Hon. Attorney General and Mr. President of the BASL for your considerate words. I accept the sentiments and accolades expressed with great humility.

May I take this opportunity to express my sincere and most heartfelt appreciation to everyone who sent messages of congratulations on my appointment. It is with much love and affection that I remember my late parents who would surely have been the two happiest people to have witnessed this momentous occasion. 

Special occasion

The ascension to the apex adjudicatory arm of the State is a special moment not only for the individual concerned but the Bench and the Bar as well. It is not only because it is one of those rare occasions where a congregation of the legal fraternity appears to be of one mind. It is special because it is an occasion where the legal fraternity as a whole reaffirms its commitment to remain a fraternity, a cohesive group and partners in the business of effective administration of justice.

In an adversarial system, which tends to insulate judges, it is not often that judicial officers can share their reflections on the system within which they work. On the other hand, overburdened judges can hardly have the luxury of reflection on such matters, unless necessitated by circumstances.

Having had the privilege of serving in the official Bar for three decades prior to assuming responsibilities as the President of the Court of Appeal, I believe I continue to be aware of the needs of the members of the Bar, whilst understanding the constraints faced on the judicial side. Since my appointment as President of the Court of Appeal, I have been forced to ponder over more efficacious methods of case management, by the sheer enormity of the caseload borne by the Appellate Courts. 

It is my firm belief that the resolution of delay, the single most maligned aspect of the judiciary, requires a multi-pronged approach, involving not only the Bench and the Bar, but the legislative and executive arms of Government as well. In addressing this issue it is well worth to note that the law’s delay is not a recent phenomenon and was ranked just above the “insolence of office” by the Prince of Denmark in his famous soliloquy.

Transformative times

These are transformative times and particularly conducive for a collaborative effort to reduce the delays encountered by us. These are indeed times of dramatic and drastic changes in the socio-political and constitutional structure of Sri Lanka.

We have just witnessed the end to one of the bloodiest and turbulent times in our recent history. The fact that security considerations can now take a backseat means scarce resources can be utilised for much needed development. 

We have also witnessed this dividend being paid in the form of long-term physical infrastructure development. Expressways, airports, ports, and power plants, the building blocks for the development of the nation are being put in place at a breathtaking speed.

The next logical step is to improve the foundational building blocks, or intellectual infrastructure, at an equal pace. If not, one would be faced with the ironical situation where a person from a remote village would be able to visit Colombo for his long-standing case on a smooth and speedy highway and return empty-handed as his case is re-fixed for another date for want of time. Or from an economic standpoint, an investor deciding not to enjoy the benefits of international airports and ports because commercial disputes cannot be resolved speedily.

Legislative contribution

As far as legislative contribution is concerned, I firmly believe that the Apex Courts should be given the opportunity to develop the law by focussing on a smaller number of cases. At present the Supreme Court has 870 fundamental rights cases pending. For the year 2010 alone, there have been 669 FR cases that have been instituted. These figures reflect only the Fundamental Right cases – to this, appeals and revisions applications have to be added.

Now consider those figures in the light of the US Supreme Court, where less than 100 cases are heard in total in a year. The Supreme Court of the United Kingdom, the former House of Lords, had similar figures. These are jurisdictions with populations several times more than ours and have far more litigation than we do. The contrast is therefore of far greater significance.

Audience before the Supreme Court ought to be a privilege that should be exercised with great responsibility. Overseeing the issuance of indictments and reviewing routine transfers in the public service can hardly be the most efficient usage of the Supreme Court’s time. The Supreme Court is neither a glorified labour tribunal nor an uber Magistrate, but the ultimate arbiter of judicial disputes.

I have referred to this before. But I believe it is worth mentioning again. I read recently about the work of the Supreme Court Institute Moot Court Programme at Georgetown University. The Supreme Court Institute conducts practice sessions to allow lawyers to prepare for oral arguments before the US Supreme Court. In fact, during the October Term of 2007, the institute provided assistance to counsel in 97 percent of the cases before the Supreme Court. 

Strikingly, counsel who availed themselves of this service were not only new practitioners to the Supreme Court, but even seasoned practitioners. It is the effort and the concern that is taken prior to appearing before the superior judiciary that I commend to your attention. The seriousness with which appearance before the Supreme Court is taken is certainly noteworthy.

A Court taking up only a very limited amount of cases is not likely to take kindly to postponements. The deliberation will be of a significantly higher standard and the preparation of counsel will automatically and exponentially be increased.

It is in this context that a proper system of case management has to be formulated to streamline and manage the increased case load.

I am well aware that such a decision would not be very simple and that as with the Civil Appellate High Courts, likely to encounter teething troubles. This is where the executive needs to contribute, by increasing the number of High Courts and providing adequate training to the judges. 

Training of judges

Training of judges and providing judges with up-to-date resources is a prerequisite not only for the efficient dispensation of justice but to safeguard the independence of the institution. Not only should we harvest the benefit of the significant experience that we possess within the country but we should look beyond our shores to enhance our capabilities.

As the famous American Justice Oliver Wendall Holmes observed: “The life of the law has not been logic but experience.” As judges we know that logic is often a malleable tool in the hands of the experienced craftsman and that principles can be moulded to substantiate many a conflicting proposition. But to do justice and to dispense it effectively, it is important to know of the consequences of our actions. This is where learning lessons from the experiences of other more mature jurisdictions would benefit the people we serve. I am of course mindful that the lessons of one region cannot be superimposed on another without regard to the socioeconomic and political landscape of the regions. Nevertheless, these experiences would serve as useful guides when issues of similar nature come before us.

It is in this context, that as President of the Court of Appeal, I arranged for vastly successful training programmes for Court of Appeal judges last year, with programmes held in Geneva, Singapore, Stockholm, Finland and Australia in a variety of modern and increasingly relevant areas such as intellectual property and telecommunications regulatory matters. 

A competent and well-resourced judiciary is the foundation upon which justice can be dispensed efficiently. For this, the judiciary, particularly the apex judiciary, requires competent research assistants and technological assistance, with access to data bases even beyond our shores. Having a formalised judicial clerkship or internship, for those students who are exceptional in their legal studies, will pave the way for institutionalising the process and providing a merit based system for young lawyers to gain opportunities.

Technological support

Another important resource required is technological support. This is another area I have looked at during my tenure in the Court of Appeal. The importance of having an automated system is manifold, reducing issues with manipulation of case records, increasing transparency and reducing space, while increasing efficiency tremendously. One of the significant delays in our system is the preparation of briefs. A fully-automated system will make that bottleneck obsolete.

In this regard I note with pride that I was able to conduct the soft launch of the automation project in the Court of Appeal in June this year, and we will see the benefits unfolding over the next few months. The project addresses the following aspects at present

(a)Installation of the required IT infrastructure.

(b)Implementation of a court calendar display system

(c)Introduction of an electronic case management system

(d)Introduction of an electronic case filing system.

The system may also be extended to the Supreme Court in due course in consultation with Her Ladyship the Chief Justice.

All of the above, namely, resources for training, increased courts, support staff and technology, require the assistance of the executive and legislative branches of Government. Such support should be formalised, adequate, sustained and should not be reduced to ensure the continued independence of the institution.

Cooperation between Bench and Bar

Of course, all of the above measures would come to naught without the unstinted cooperation between Bench and Bar. I have had the utmost cooperation from the Bar in my endeavours to introduce measures of streamlining cases and hearing procedures and I have no hesitation that such measures will continue and will be developed further.

My fellow Judges at the Bench have been no less cooperative, responding splendidly to my decision to create two more divisions of the Court of Appeal to handle the backlog. Their Lordships sat alone in the new divisions created and their expeditious disposal has caused a dramatic reduction in the number of applications for acceleration. I am indeed indebted to their unstinted support.

In the words of Lord Hailsham, Lord Chancellor of England the judiciary is “something like a priesthood”. William Taft, the Chief Justice of the United States of America wrote that the “Chief Justice goes into a monastery and confines himself to his judicial work”.

A career in the judiciary is therefore a reclusive affair and the stringent standards that we set ourselves limit our discussions. On the other hand, it is important to note that the famous Oliver Wendell Holmes advised judges to “share the passion and action of [their] time at the peril of being judged not to have lived”.

In striking a middle path between the strict ascetic and not losing sight of the times, our judicial system provides for events such as this where we may share our visions for a shared future, and I hope that the views expressed by me are received in that context.

Mr. Attorney and Mr. Aziz, your kind sentiments were most generous and are deeply appreciated. Given your respective association with the Attorney General’s Department, such sentiments have singular significance. Permit me to express my gratitude to the institution that laid the foundations and moulded my career for three decades. It is with pride that I take my place amongst the many officers of the Attorney General’s Department who have adorned this Apex Court.

Moral grounding

A judge is guided by his moral grounding in as much as his legal grounding. In this regard, I have drawn great inspiration and guidance from Buddhist philosophy and thought, which I believe has shaped my conduct on the Bench. 

I think it appropriate to share with you verses 256 and 257 of the Dhammapada which reads, in translation, “He is not thereby just because he hastily arbitrates cases. The wise man should investigate both right and wrong. ” “The intelligent person who leads others not falsely but lawfully and impartially, who is a guardian of the law, is called one who abides by the law (dhammattha).”

In ‘Human Rights and Religions in Sri Lanka – A commentary on the Universal Declaration of Human Rights (UDHR),’ published by the Sri Lanka Foundation, in dealing with Article 8 of the UDHR relating to the right to an effective remedy, the Buddhist tradition is described in the following terms: “When a dispute arises, the king (or other judge) is expected to ‘pay equal attention to both parties,’ to ‘hear arguments of each side and decide according to what is right.’ Throughout the investigation, the judge is expected scrupulously to avoid the ‘four avenues to injustice’ (cattari agarigamanani – Anguttaranikaya). These are prejudice (chanda), hatred (dosa), fear (bhaya) and ignorance (moha).”

It is through scrupulous consciousness and mindfulness that a judge can guard against these four avenues to injustice and I trust I will be able to continue to do so in this Court as well.

Allow me to say thank you to my wife, Mali, my children Vindya and Dinu (who is currently out of the country), my son-in-law Asanka, my brothers and my dear friends who are present in this august chamber to share this day with me. I would like to especially thank the venerable clergy for their kind presence. I would like to also take this opportunity to thank the Registrar of the Supreme Court, current and former, and also the Registrar of the Court of Appeal for their support and fullest cooperation extended to me.  I am indeed grateful to you all for being present at this ceremonial sitting and deeply humbled. 

May the blessings of the Noble Triple Gem be with you!