Legal aid is not an exercise in charity - Justice Sarath de Abrew

COLOMBO: Justice Sarath de Abrew, Judge of the Court of Appeal in his speech, at the ceremonial sittings on Wednesday said:

"First of all let me associate myself with all the sentiments expressed about Justice Balapatabendi and Justice Rohini Perera. Let me also thank you for the kind and generous words spoken about me which would serve as a source of inspiration in the years to come.

I am privileged to be a member of the superior courts of Sri Lanka which has been adorned in the past by so many illustrious and eminent judges which has given our country a rich judicial heritage. I am also acutely aware of the onerous duties and responsibilities cast on me in the future and shall devote myself to perform my duties to the best of my ability.

In order to successfully accomplish the above, I take this opportunity to solicit the fullest co-operation of the Official Bar and the Unofficial Bar.

I have given deep thought as to what message I should convey to you today. Drawing from my experience as a career judge during the last 25 years, I have decided to highlight to you the Constitutional provision that "all persons are equal before the law and are entitled to equal protection of the law".

Article 13 (3) of our constitution also provides that "Any person charged with an offence shall be entitled to be heard in person or by an attorney-at-law, at a fair trial by a competent court".

We must examine as to how this concept of equality before the law works in actual practice. During my tenure at Ampara and Hambantota as High Court Judge I have seen people accused of grave crime from rural backward areas, having already exhausted their financial resources in facing the Non-Summary inquiry, crestfallen and dejected, and unable to retain counsel, place their entire fate in the hands of the court, where the most junior member of the Bar is invariably assigned to defend the accused.

In such situations one may question whether these miserable people receive equal protection of the law and also whether they are given full benefit of the Constitutional right of being defended by a competent attorney-at-law. If the question is asked from me I would perhaps say no. This is where the importance of Legal Aid comes in.

Speaking at an annual convocation of the Bar Association no less a person than His Lordship, Justice G. P. S. De Silva, then Chief Justice of our country remarked that to a poor man "equality before law" is a meaningless phrase. His Lordship went on to remark "this is an area in which the profession itself could make a more positive contribution. The question is essentially one of access to justice. An effective Legal Aid Scheme will immeasurably strengthen our justice system."

The message I wish to highlight here therefore is that legal aid is not an exercise in charity, but there is an imperative moral and constitutional obligation for the State to ensure that each person receives equal protection of the law.

Those who are affluent enough and financially sound, will retain lawyers to advice them. But if there is to be good governance, the litigants at all levels, regardless of their economic and social circumstances must be able to successfully defend and enforce their rights.

Therefore the Bar Association Branches islandwide should always be mindful of this fact and assist the Legal Aid Commission to open up branch offices in order to ensure that lack of financial resources is not a handicap for the poor litigant to receive equal and vigorous protection of the law.

The second message I wish to highlight to you is the importance of upholding the Rule of the Law. During my judicial career I was unfortunate enough, perhaps more than any other judicial officer, to witness at first hand the results of complete breakdown of the Rule of Law.

In Trincomalee during the 1982 riots I have seen numerous people killed and set on fire on tire pyres. I have seen fleeing people brutally attacked and killed and their bodies sprayed all over fields around Trincomalee.

In 1988-1989 during the height of the insurrection I have seen 52 bodies of people killed and tied to lamp posts in one day on the main road between Tangalle and Hambantota. In 1997 I was unfortunate enough to witness the massive destruction caused to life and property by the Dehiwela train Bomb explosion.

These episodes have left an indelible mark on me as a judicial officer, stressing the importance of upholding the Rule of the Law. The Bench and the Bar should work as one unit in upholding the Rule of the Law at any cost.

In our system of justice the Bench and the Bar are components of one unit. The impairment of one invariably affects the other. Therefore the Bench should uphold the rights and privileges of the Bar, while equally the Bar should safeguard the prestige and reputation of the Bench.

The question of Laws Delays is another vital aspect that should engage the attention of the Bench and the Bar. We are all aware that the backlog of cases in the Court of Appeal has reached alarming proportions. We must all devote ourselves individually and collectively to do whatever within our means to reduce this backlog.

I am informed that an innovative computerized case tracking system installed in 1994 by the then President of the Court of Appeal and present Chief Justice His Lordship Sarath N. Silva has enabled the reduction of the backlog from 19,000 cases to 10,000 cases within two years.

As one of the new judges of the Court of Appeal I wish to extend my whole hearted support to our present President Justice Balapatabendi in his endeavour to clear this backlog to whatever possible proportion.

With the advent of the proposed Provincial Appellate Courts and with the increase in cadre of the number of Appeal Court Judges in the future, I am sure we are taking a step in the right direction in addressing this problem.

With this novel idea of decentralisation, the influx of cases to the Court of Appeal in Colombo could be minimised, thereby better enabling the judges in Colombo to tackle the backlog. Not only so, after the decentralisation the poor litigants in every nook and corner of the country would have easier access to the law in litigating their appeals and writ and bail applications.

Therefore I take this opportunity to enlist the support of the Official Bar and the Unofficial Bar to whatever novel methods and innovations that are contemplated in reducing the backlog in the Court of Appeal and to afford easy access to justice to poor litigants islandwide.

Speaking about myself, on this occasion I remember with great affection my late father, who was a retired Deputy Commissioner of Buddhist Affairs, who guided me dutifully and affectionately during my formative days and my early judicial career.

Had he lived I have no doubt that he would be the happiest man today. I must not also fail to mention with gratitude Dr. Nissanka Wijayaratne, former Minister of Justice, a very close friend of my father who was a fatherly figure and a great source of inspiration in my life.

I also remember with gratitude my teachers at S. Thomas' College, Mt. Lavinia who taught me the importance of methodical hard work with a sense of responsibility. At school I was inculcated with the qualities of being truthful and fair in our dealings and also to accept defeat in the proper spirit. I must also thank Senior Attorney the late A.C. (Bunty) De Zoysa under whom I apprenticed and practised.

I still remember appearing as a junior in several criminal trials where I had the privilege of witnessing devastating cross-examination of witnesses on the part of my senior Mr. A. C. De Zoysa which captured my imagination. I must also thank the Attorney-General's department for the training and confidence bestowed on me during my career as a State Counsel which went a long way to assist me in my judicial career.

In fact in the very first case I handled on behalf of the Attorney General I was pitted against Mr. E. R. S. R. Coomaraswamy who was a leading member of the Bar at that time. This case Bazeer vs Attorney General is now reported in the New Law Reports of Sri Lanka as an authority on the question of Judicial Notice. Such was the exposure we received as young State Counsel at that time in the Attorney-General's Department which went a long way to build our confidence and fortified us to appear against the best of Counsel of the day.

Last but not the least, I remember with gratitude the guidance and assistance rendered to me during my career by the former Chief Justice Hon. G. P. S. De Silva, former Supreme Court Judge Justice Priyantha Perera and the present Chief Justice Hon. Sarath N. Silva who were all my former seniors in the Attorney-General's Department.

I take this opportunity to also thank other members of the Judiciary who helped me with words of encouragement and advice during my judicial career. I also wish to express my gratitude to the members of the Bar and the Court Staff of the several Courts I have served islandwide for their assistance and support during my career.

I must also mention with gratitude my former classmates at S. Thomas' College and also my former colleagues at Law College who continued to support me with words of encouragement especially during troubled times.

Finally I must thank my mother, my wife and daughter who are all present here today for all the understanding, sacrifices, encouragement, love and affection extended to me right throughout my career.

In conclusion I must thank everyone present here this morning and all those who sent me messages of congratulations and gave telephone calls for their support."