Destiny had different plans for Tivanka

Chief Justice Sarath N. Silva PC, LLM, delivered the late President’s Counsel Tivanka Wickramasinghe Oration on “Civil Appellate High Court Jurisdiction,” at the Auditorium of the Bar Association of Sri Lanka (BASL) last week.

REMEMBERED: I thank the Bar Association of Sri Lanka for inviting me to deliver this oration in memory of late Mr. Tivanka Wickremasinghe, President’s Counsel. I have readily taken on this task due to the special friendship I have had with Tivanka and my high regard for him as counsel and a gentleman.

Tivanka took to the law following the footsteps of his grandfather and great grandfather, who were both in the legal Profession. He received his legal education in England and was called to the Bar from the Lincolns Inn in 1964 and enrolled as an Advocate of the Supreme Court in February 1966.

He was appointed as Crown Counsel in 1969 and served the Department of the Attorney General till 1977. He

 reverted to the unofficial Bar and soon acquired eminence as Counsel and was appointed as President’s Counsel in January 1988.

It was in the glory of this great achievement that he passed away in the well of the Ceremonial Court immediately after he had taken the oath and signed the papers as President’s Counsel.

The then Chief Justice, the Judges and the Bar were undoubtedly greatly moved by this tragedy, unique in our history, the life of which is recorded only of Sir.

Francis Bacon who in 1604 took his oath as the first Kings’ Counsel of the English Bar collapsed and died before taking his seat at the Inner Bar, that, it was decided to make a reference to Tivanka Wickremasinghe at a ceremonial sitting convened within a week, on 5.2.1988.

The proceedings of the Ceremonial sitting reveal the high esteem which the Bench and the Bar had of Tivanka Wickremasinghe. I would quote the following extract from the address of the Chief Justice which graphically states what took place as follows:

“It was only last Friday that all of us were assembled here to witness five Attorneys-at-Law taking their oath as President’s Counsel. Of the five late Tivanka Wickremasinghe was the third to be sworn in.

I recall a vivid picture of him beaming with smiles and joy taking his oath and signing his papers looking forward to a new chapter of glory and success open for him as President’s Counsel. But Alas! Destiny had different plans for him. It snatched him away from our midst without any warning.

Nobody who had a glimpse of him that morning could have even remotely had any premonition that the cherubic face would cease its smile for ever that morning itself and that no more would Tivanka Wickremasinghe be fighting doughty legal battles in the cause of his clients.

The sudden death of Wickremasinghe has removed from our midst a gentleman who always fought a clean battle and who added luster to the Profession.”

The fact that we are assembled 19 years later to pay our respect to the memory of late Tivanka Wickremasinghe shows that our impression of this great human being has remained steadfast.

The topic of this oration has been selected especially because of an important innovation we are in the process of making with regard to the hearing of civil appeals in the Provinces by the High Courts.

This includes Applications in Revision and Interlocutory Appeals as well. I would as a prelude, briefly set out the history with regard to the justice system in this country, particularly in regard to appellate jurisdiction.

Dr. A.R.B. Amerasinghe, a former Judge of the Supreme Court has in his invaluable treatise titled “The Legal Heritage of Sri Lanka.” Included an interesting section as to the Appellate Jurisdiction of the Monarch.

It is revealed that in ancient Sri Lanka we have had a elaborate system of administration of justice, spreading to different levels of hearing which served the needs of the People.

It was based on a initial decision at village level by an official known as “Gama Bhojaka” and thereafter an appeal to a provincial judge described as “Janapada Bhojaka.” Later, to a final appeal to the King himself.

The Mahavamsa records that there was a “Justice Bell” “Vinischaya Ghanta” which was tied to the head of the bed of King Elara, who ruled this country for 44 years and which could be rung by means of a rope that was tied to the palace gate by anyone who suffered injustice.

The system that we have now commenced with the Charter of Justice introduced by the British in the year 1801, which established the Supreme Court with two Judges; the Chief Justice and one other Judge.

This brought about for the first time a separation between the Governor who exercised Executive and Legislative power and the Courts which exercise Judicial Power. Thus a firm tradition of separation of power was established which forms the bedrock of the Rule of Law.

The Courts Ordinance that came into force on 2.8.1890 consolidated the laws with regard to Courts and their powers and established the Magistrate Court, the District Court and the Supreme Court.

This structure continued till the Administration of Justice Law was enacted in 1973, which established for the first time the High Courts in this country.

The High Courts thus established functioned in the respective zones throughout the country and were not vested with appellate jurisdiction but exercised only the original criminal jurisdiction hitherto exercised by the Supreme Court.

The next change came with the enactment of the present Constitution in 1978. It established for the first time the Court of Appeal.

The appellate jurisdiction hitherto exercised by the Supreme Court was vested in the Court of Appeal and the Supreme Court was vested with Constitutional jurisdiction and jurisdiction as the final appellate court.

A two tiered appellate structure was thus created with the first appeal to the Court of Appeal from any original court to be availed of as of right by an aggrieved party and a second appeal to the Supreme Court to be exercised only with leave to be granted in respect of substantial questions of law or where the matter was considered fit for review by the Supreme Court (Article 128 of the Constitution).

This innovation of the establishment a Court of Appeal to which all appeals then pending before the Supreme Court stood removed, brought about a delay in the process of disposing of appeals.

The fact that there was another appeal to the Supreme Court made it incumbent on the Court of Appeal to deliver considered judgments on all matters that were decided upon slowing down the pace of disposal to a point where the court accumulated a backlog of nearly 19,000 appeals by the year 1993 when I assumed office as President of that Court.

Several steps were taken over the years to relieve the burden of the Court of Appeal. Quite apart from the inordinate delay, the exercise of appellate jurisdiction by the Court of Appeal, based only in Colombo has other negative factors, they are

i) litigants from far removed parts of the country, from Jaffna to Hambantota, have to trek to Colombo for the purpose of their civil appeals, and;

ii) they have to retain Counsel in Colombo and incur a higher overall cost than at Provincial level.

Gradually steps were taken to transfer the appellate jurisdiction of the Court of Appeal to the High Courts.

The process commenced with the 11th Amendment to the Constitution effected on 6.5.1987, which amended Article 111 (1) of the Constitution by deleting the reference to the High Court as being a Court of original jurisdiction.

This paved the way for the High Court to exercise Appellate jurisdiction, in addition to its original jurisdiction.

The 13th Amendment to the Constitution effected on 14.11.1987 established Provincial Councils, as a measure of devolving power directed at a settlement of the ethnic problem and the ongoing conflict.

Article 154P of the 13th Amendment vested an appellate jurisdiction in the Provincial High Court in respect of Magistrate Courts and Primary Courts within the Province.

It also vested a writ jurisdiction in the Court with regard to matters set out in the Provincial Council List. Article 154P (c) left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could “exercise such other jurisdiction and power as Parliament may by law provide.”

It is in pursuance of this provision in the Constitution that the High Courts of the Provinces (Special Provisions) Amendment Act No. 54/2006 was enacted by parliament and certified on 28.12.2006.

This Act amends the previous Act No. 19 of 1990, which vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms of Sections 5 or 9 of the Agrarian Services Act.

Section 5A of the Act No. 54 of 2006 provides that High Courts established by Article 154P of the Constitution shall exercise Appellate and Revisionary jurisdiction in respect of judgments, decrees and orders delivered and made by the District or Family Courts, within such Province.

Generally, when a person wishes to seek redress from a judgment or order of a lower Court by appealing there from or moving a revision three questions have to be addressed. They are:

(i) What Court has appellate and revisionary jurisdiction in respect of the impugned judgment or order;

(ii) The right or status of a party to invoke appellate or revisionary jurisdiction.

(iii) The procedure including time limits in regard to the invocation of such appellate or revisionary jurisdiction.

Section 5 A of Act No. 54 of 2006 referred to by me previously vests in the Provincial High Court with a concurrent jurisdiction with that of the Court of Appeal in regard to appeals and applications in revision from District Courts within the Province. Section 5B provides that such jurisdiction has to be exercised “by not less than two Judges of that Court sitting together as such High Court”.

This is a significant safeguard introduced by law, so that these matters would be considered by a minimum of two Judges and where necessary three Judges if there is a division of opinion.

In order to activate this jurisdiction panels of two judges each have been appointed to all Provinces. To facilitate litigants and Counsel these panels will sit in different places in Provinces having a higher density of population. Thus the following appointments have been made:

Western Province (three panels)

1. Colombo 2. Gampaha 3. Kalutara

Southern Province (two panels)

1. Galle 2. Matara

Sabaragamuwa Province (two panels)

1. Ratnapura 2. Kegalle

Central Province: (one panel)

Kandy

Uva Province (one panel)

Badulla

Wayamba Province (one panel),

Kurunegala

North Central Province (one panel),

Anuradhapura.

Eastern Province (two panel)

1. Trincomalee 2. Ampara

Northern Province (one panel)

1. Jaffna 2. Vavuniya

Representations have been made to appoint panels for Avissawella in the Western Province and Batticaloa in the Eastern Province. We would accede to these representations depending on the availability of space and facilities.

Thus the first matter to be addressed as to jurisdiction is fully answered in the explicit provision contained in Section 5A(1) and the appointment of Judges as stated above. However, the jurisdiction is concurrent with that of the Court of Appeal.

The vesting of concurrent jurisdiction carries with it certain drawbacks of ‘forum shopping of a party to a proceeding going to a Court of his choice and to as to the manner in which pending appeals are to be disposed of. These matters are addressed in Section 5D of Act No. 54 of 2006.

Section 5D(2) empowers the President of the Court of Appeal in consultation with the Chief Justice to issue directions from time to time transferring pending appeals and applications in revision for hearing and determination by the appropriate High Court.

To be continued

Appeal Courts process expedited - Chief Justice

Sarath MALALASEKERA

SPEEDY ACTION: Action has been taken by giving the litigants the first priority and by facilitating a speedy disposal of appeals and applications both in Colombo and in the Provinces.

The measure of expedition that has been introduced could be seen from the fact that as at December 2006, there were only two courts at Colombo hearing civil appeals, whereas now three Courts in Colombo and almost ten Courts in the Provinces would be hearing such appeals, Chief Justice Sarath N. Silva PC, LLM, delivering the late President’s Counsel Tivanka Wickramasinghe Oration on “Civil Appellate High Court Jurisdiction,” at the Auditorium of the Bar Association of Sri Lanka (BASL) Friday.

The Chief Justice emphasised that if these measures can be implemented by the respective Judges, the members of the Bar and of course the litigants in the same spirit that we have planned and implemented the transition, the problem of delay at the appellate level which has plagued us for nearly quarter of century would be a thing of the past.

The event was organised by the Bar Association of Sri Lanka assisted by “President’s Counsel Tivanka Wickramasinghe Trust Fund,” to pay homage to the memory of the late President’s Counsel Tivanka Wickramasinghe.

BASL President Nihal Jayamanne, PC, former BASL President Upali Gooneratne, BASL Secretary Sunil Abeyratne, Treasurer Ms. Ramani de Silva and Assistant Secretary Dilushi Wickramasinghe were at the head table with the Chief Justice.

Judges of the Supreme Court, Judges of the Court of Appeal, District Court Judges, President’s Counsel, Colombo Chief Magistrate, Maligakanda Chief Magistrate, Colombo Additional Magistrates, close members of the late President’s Counsel Tivanka Wickremasinghe and senior and junior members of the Official and Unofficial Bar were among the gathering.

Dilushi Wickramasinghe, daughter of the late Tivanka Wickramasinghe, now in the profession, BASL Assistant Secretary is Trustee of the Trust Fund.