The following is an extract of the speech delivered by newly-appointed Justice Sithambarampillai Thurairaja who has been elevated to the August Judiciary as a Justice of the Court of Appeal. Justice Thurairaja is a product of his alma mater Pussellawa Saraswathi Maha Vidyalam and St. Anthony’s College, Kandy.
Having been a member of the official Bar for nearly three decades and having engaged in my professional work in the original and appellate courts across the length and breadth of our country, I bring with me to the bench, the experience of being exposed to the numerous challenges that counsel, law enforcement agencies, litigants and victims face across the country. I trust that we, at the bench and at the Bar, could together continue our joint struggle to overcome the challenges faced by the system in the administration of justice.
I believe, as Sir Edward Coke, the famous compiler of the Institutes, noted four hundred years ago, “To speak effectually, plainly, and shortly, it becometh the gravity of this profession. Truth takes small delight with varnish of words and garnish of flowers.” I propose to do just and share briefly and bereft of frills, some of my views on how we could jointly leave the legal profession better situated than when we inherited it.
Whilst being brief, I am mindful of the cautioning of Lord Denning, “So long as a judge keeps silent, his reputation for wisdom and impartiality remains unassailable.”
"Another area where we can advance significantly is in the context of embracing technology. Electronic filing of documents and an electronic registry will ensure that we will not have situations of important documents mysteriously disappearing. "
I do not propose to engage in a discourse on esoteric jurisprudential concepts or labour at length on the importance of the independence of judicial office. With regard to this hallowed office and the independence therefore, it would be insulting if this august assembly needs reminding thereof. Allow me then to share with you some of my visions for a more efficient discharge of justice.
The single largest challenge faced by our profession is delay. From a moral or a rights-based perspective, delay is clearly detrimental and amounts to a gross violation of litigants’ and victims’ rights. Quite apart from the ethical issues with delay, there are significant direct and indirect negative implications to the profession and country as a whole due to delays. The World Bank’s Doing Business rankings for 2016, ranked Sri Lanka 161st out of 189 countries in the category of ‘Enforcement of Contracts.’ This is one of the worst rankings and we too have to take responsibility for this situation. What is the outcome of this low ranking? Why would an investor invest in a country where contracts cannot be enforced effectively? Why would a sensible entrepreneur risk tying up his capital in protracted litigation? Less investment has a direct impact on the amount of work for our profession. The delay in concluding civil litigation does not guarantee income for a lawyer, but precludes the flow of new work.
On the criminal side, a long delay in concluding a trial has a significant impact on the society at large. This could in turn be construed as lack of will or commitment to effective prosecution of crimes by the State. Such a view can have serious implications to the credibility of our judiciary and legal system as a whole, which in turn can have serious negative outcomes.
The most effective method of reducing delay in cases is for trials and hearings to be taken on a day-to-day basis. His Lordship the Chief Justice and their Lordships of the Supreme Court have set a good example in reducing the backlog by increasing the number of benches and streamlining the manner in which new cases are being heard. Their lead needs to be followed by all courts.
In the original courts there is no excuse for trials not being taken up on a daily basis. If our profession is serious about its commitment to professionalism and the interests of litigants and the State, it is imperative that immediate measures are taken to discuss with the Chief Justice and the Judicial Service Commission to implement day-to-day hearings in both criminal and civil cases, and indeed in appellate hearings as well. I can safely state that the judiciary and the Official Bar are ready and willing to take the lead in this regard; it is up to the Bar Association to demonstrate its commitment. I commend this matter as a matter for serious and immediate action to the President of the Bar Association.
"The World Bank’s Doing Business rankings for 2016, ranked Sri Lanka 161st out of 189 countries in the category of ‘Enforcement of Contracts.’ This is one of the worst rankings and we too have to take responsibility for this situation. What is the outcome of this low ranking? "
Having been involved in a supervisory capacity for a long period of time on cases involving minors, I must state that the delay in those cases has an inexcusable impact on the trauma that children face. Delay in these cases cannot be excused and urgent steps have to be taken in this regard.
I have been shocked to note, for instance, that cases filed under the Convention on the Civil Aspects of Child Abduction Act no. 10 of 2001 take several years to conclude notwithstanding the fact that our legislation has contemplated such cases being concluded within six weeks. Such delay is clearly traumatic for a child who has already been traumatised by removal from that child’s place of habitual residence. The delay perversely helps the parent who has abducted the child.
There is no reason why courts cannot ascertain from counsel and agree on time periods for the evidence of witnesses or for submissions well in advance of a trial or hearing. Counsel should be held to their time estimates, except in the case of the most exceptional circumstances. Setting time limits in advance helps counsel formulate their cases and strategy in advance and ensures that there is no unnecessary delay.
Equally important is for specific times to be allocated for hearings. It is discourteous for the bench to make attorneys and litigants await their case to be taken for hours on end. We are not dispensing justice based on a divine privilege, or doing favours to litigants, but exercising the judicial power of the people in terms of the Constitution. Respect for attorneys and clients is imperative when viewed from this perspective. These are hardly measures that are novel or revolutionary. It is disheartening to note that these measures are well entrenched in many judicial systems around the world and that we are much behind.
Another area where we can advance significantly is in the context of embracing technology. Electronic filing of documents and an electronic registry will ensure that we will not have situations of important documents mysteriously disappearing. Documents will be accessible to litigants, judges, attorneys and even the public. Obtaining copies of documents and issuing notices would be a matter of pressing a key instead of long delays and unnecessary dealings with members of the registries, whose valuable time could be spent on more pressing matters. The embracing of technology would also raise numerous legal issues in the context of evidence as well as procedure. But these are matters on which we would need to be proactive. For instance, we have to take proactive steps to ensure that we have procedures in place to deal with issues pertaining to digital forensics in the world of cloud computing, and especially the international aspects pertaining to the cloud. As greater amounts of data migrate to the cloud, various issues pertaining to privacy, security and obtaining of evidence arise. Coming late to the digital world enables us to leapfrog development milestones and avoid pitfalls faced by other jurisdictions. Judges, law enforcement authorities, investigators and lawyers need to be trained in these areas.
Resistance to change will at best make the judiciary largely irrelevant or more likely an impediment to achieving justice.
As the Chief Justice of South Africa Honourable Mogoeng Mogoeng stated at a symposium on rule of law;
“the judiciary is the third branch of government; the third arm of the State. There simply can be no State or government without the judiciary in a genuine constitutional democracy. To recapture the lost glory of a nation, the judiciary must be more alive to the enormous responsibilities it bears on its shoulders to contribute to the Renaissance of the country.”
I am mindful of these responsibilities as I assume my judicial journey today.
I am indebted to many people and institutions that have helped me on my journey in my profession. In my 28 years at the Attorney General’s Department, I have been exposed not only to the most wide and varied areas of the law, but also to extraordinary individuals, young and old, who work tirelessly to discharge their obligations. As the Attorney General reminded me a few days ago on the occasion of my farewell from the Department, all that the AG’s Department expects from a member who adorns the Bench is a commitment to discharge justice fairly. The diverse work that the Attorney General’s Department performs, provides the opportunity for cross-fertilisation of ideas and symbiotic development. There is no better place for a young lawyer to begin his or her professional career and it is important that the institution be fostered and given the necessary resources to continue to be a centre of excellence.