Justice Chitrasiri moved away from traditional moorings - Attorney General

Sarath Malalasekera

The Attorney General President’s Counsel Mohan Peiris addressing the ceremonial sitting to welcome the new Court of Appeal Judge Justice K. T. Chitrasiri said, “Sir Muthuswamy in his convocation address in 1882 in Madras University said, “The Court of Justice is a sacred temple. The Judges presiding over it, though men, the humble instrument in the interest of truth, must enter this holy edifies with holy thoughts and with worthy actions to their faith and to their country.”

The Attorney General said Justice Chitrasiri will recollect that the power you are called upon to exercise in the name of your sovereign is a divine power. Justice Chitrasiri’s achievement in both academic and non academic field has been exemplary.

Attorney General Mohan Peiris said:

Sir Gerard Brenan, the Chief Justice of Australia, suggested that, accepting judicial office and remaining in it, partly depended to a sense of community service.

It has been observed tat a Judge’s role is to serve the community in the pivotal role of administering justice according to law. Your office gives you that opportunity and that is a privilege. Your office requires you to serve and that is a duty.

No doubt there were a number of other reasons personal and professional for accepting appointment, but the Judge will not succeed and will not find satisfaction in his or her duties, unless there is a continual realisation of the importance of the community service that is rendered.

Freedom, Peace, Order and Good Government, are the essentials of the society we treasure and depend in the ultimate analysis on the faithful performance of the judicial duties. It is only when the community has confidence in the integrity and capacity of the judiciary that the community is governed by the rule of Law.

Knowing this, you must have a high conceit of the importance of your office for when the work loses its novelty, when the case load resembles something very burdensome, when the tyranny of reserved judgments palls, the only permanently sustaining motivation to strive onwards is in the realisation that what you are called on to do is essential to the society in which you live.

Justice Chitrasiri, you have been identified as one who has possessed the necessary judicial skills and qualities and therefore appointed to be Judge and as part of an elite. I do not of course mean and elite demanding social rank. I mean an elite because of your pivotal role with your brothers in securing a peaceful and free society governed by the rule of Law.

It might to well to remember that membership of this elite is no passport to any easy lifestyle.

Your Lordship’s contribution to the development of International Communication Technology Law is significant.

In 2000, you were responsible for the implementation of the computerization of the day-to-day work of the District Court of Colombo with the assistance of the Asia Foundation.

In 2004, Your Lordship actively participated in implementing the reorganization of the Court system, case management and implementation of automation conducted by the Judicial Reforms Project funded by the World Bank.

In 2005 and 2006, you functioned as a consultant for the restructuring of the Companies Registrar’s Office, more particularly in the automation of the systems in the Office of the Registrar of Companies.

In 2008, Justice Chitrasiri facilitated a significant departure from the entrenched practices and procedure of receiving evidence by permitting the introduction of video conferencing to record evidence from a location outside the country.

In the same year, you took even a boulder step in braking away from the traditional moorings of technicality by permitting the reception of short messages via mobile telephony as evidence.

“I would be remiss in my duties if I was not to make reference to the noteworthy statistics with regard to the institution of cases and the disposal of such cases since 2005 in the Commercial Court, as it is only a reflection of the sheer dedication and hard work that has put in during your tenure as a Judge of the Commercial Court.

The institution of cases in 2005 from 327 increased in 2008 to 683. The disposal of such cases in 2005 from 279 rose to 412 in 2008.

It is a matter of proud record that since the creation of the Commercial Court in 1996 till 2008 that 4561 cases have been filed signalling a growing increment of the institutions every year of which 3583 cases were concluded, leaving only a 975 cases for final determination.

The statistics as I said, simply demonstrates the confidence the public has reposed in the procedures of the Commercial High Court, which can be substantially attributed to the handwork and focus of both of the Judges of the Commercial Courts and the untiring efforts of the Bar and in particular the Civil Law practitioners of this Court.

The Commercial Court procedure have clearly demonstrated that if there is a will to dispute speedy and quality justice, that there is definitely a way.

May I take this opportunity to comment to Judges of the Court of Appeal and to the Chief Justice that it might well be opportune to consider the enhancement of the territorial jurisdiction of the Commercial Court to other provinces or the creation of similar courts in other provinces having regard to the rapid growth of commercial activity in the provinces and consequential disputes which would attract the jurisdiction of the present Commercial Court if not for its statutory limitations.

Justice Chitrasiri’s desire for judicial activism has been manifest in the recent judgments of the Commercial Court, in the cases of Gnanachanthiran Vs. the Commercial Bank, the Kewood Industries Insurance Corporation case and the Orient Electric Systems (Pvt) Limited Vs. Seven Venture (Pvt) Limited, in which one clearly observes an yearning to move away from the traditional moorings of technicality.

In the search for what is practical and right for the society in which we live, Your Lordship’s observations with regard to Section 120 of the Evidence Ordinance with regard to competent witnesses is an indication of a searching mind that would be slow to follow precedent for the sake of the doctrine at the expense of what is right.

Justice Chitrasiri’s observation in the Kewood Insurance case which dealt with substantial questions of law pertaining to an insurance claim was noteworthy as it examined the fundamentals and was centered round the issues of the abandonment of a right by a estoppel, the validity of terms on the ground of unreasonableness, the validity of conditions which are impossible to fulfil and finally the validity of conditions which lead to suppress the law of the land.

A hallmark judgment centered on the reasonableness and practicality which society is crying out for.

We at the Bar, are confident that Justice Chitrasiri’s appointment to this Court would renew and re-think the approaches and bring to bear an order that would effectively deal with contemporary issues in current times having regard to contemporary developments in the world at large,” the Attorney General said.