Court’s primary duty to ensure Constitutional greatness

Sarath Malalasekera

“It is my privilege and pleasure to welcome Justice Asoka de Silva as the Chief Justice of the Supreme Court, move particularly at a time so crucial in the history of our Nation and the Judiciary as a whole, when we cannot but look to the future in a spirit of true reconciliation between the Legislature the Judiciary and the Executive and between the diverse Nationalities in our Nation with a view to ensuring for all of us a free united and Sovereign Sri Lanka,” said Attorney General President’s Counsel Mohan Pieris at the ceremonial sitting held to welcome the new Chief Justice Asoka de Silva at the Supreme Court Complex on Thursday.

In order to ensure success of the social welfare programs, the State assuming considerable power for the regulation of economic activity of private individuals and groups for the greater benefit and interest of society at large.

The system may not be to the liking of the judges trained in the western school of thought, but we must endeavour to appreciate our limitations in the context we are placed. It is said that the Courts are the guardian of the Constitution in interpreting executive acts and the people are the masters of the Constitution, the Attorney General said.

The Attorney General emphasized that there is no higher duty or greater obligation upon the Courts than ensuring the Constitutional greatness bestowed on every citizen irrespective of race, creed or religion.

He said, the motto of St. Anthony’s College, Katugastota, where Chief Justice received education is ‘Lux de coelo’ meaning ‘Light from Heaven’. It might interest you to know is the 2nd Chief Justice which your alma mater has produced. The 1st being the Chief Justice, Victor Tennakoon.

It is in this confidence that we approach Chief Justice’s appointment today. That will infuse and shower upon our legal system greater light which in your religious tradition would draw from the heavens above.

The Bar wholeheartedly welcomes new Chief Justice’s appointment as the Chief Justice of this Court.

Chief Justice’s Contribution as a member of the Superior Courts is a move that is a ample testimony of these qualities and has in no small measure contributed to the legal literature of this country by your pronouncements particularly in the fields of Public Law.

As I said before, Chief Justice is a proud product of St. Anthony’s, Katugastota, one of the leading seats of learning in the central Highlands of this country in which institution, has had an outstanding career in both academic and non-academic activity.

It is a matter of record that Chief Justice Asoka de Silva was a brilliant student in recognition of which was made a Prefect, a Sportsman par excellence, which I can personally testify to when Cricketing skills, more particularly as a bowler, who terrified the so-called good batsman, has been witnessed by me with gloves on, behind the wickets.

It is this spirit of Sportsmanship that Chief Justice has clearly drawn in aid in your career in the Attorney General’s Department and in the Superior Courts. For Chief Justice believed in that salutary principal that no matter whether one wins or loses, that what was important was whether one played the game.

The Chief Justice having entered the University of Colombo, obtained the Bachelor’s Degree in Law and called thereafter to the Bar as Advocate of the Supreme Court in 1972. Later obtained a Masters Degree in Law from the University of Colombo and a Postgraduate Diploma in Law from the University of Illinois in the United States, also followed a Postgraduate Studies in the University of London and the Rome Institute of Law and Development.

The Chief Justice was appointed Senior State Counsel in 1981 and as Deputy Solicitor General in 1988 and elevated thereafter to the Court of Appeal in 2001 was the President.

It should be our common goal that when it’s time for us to vacate the arena our judicial system should be a better place that what we found it to be.

The role of the Judiciary in the developing countries is somewhat different from the developed nations. In the developing countries the very survival of the law and democracy cannot exist in a vacuum.

The existence of the rule of law is dependent upon access to economic development of society as much as protection of individual rights. We see as a problem faced by the Judiciary in the developing societies, the need to reconcile and balance the difference between social control and social justice.

Bearing in mind this salutary principle, let me mention some of the improvements we like to see to enhance the effectiveness of our system. There is a crying need for more courts and judges.

We would however like to see an uniform and consistent guidelines in the performance of their duties, a code of conduct for the judiciary as much as there is a code of conduct for practitioners.

We would even encourage periodic refresher courses for Judicial Officers, so as to ensure uniformity of thought and to enable judges to keep themselves updated on the latest social and educational developments locally and abroad.

We cannot claim that our law is entirely indigenous. It may not be entirely wrong to say that until independence and to some extent even today our laws have been substantially a product of Western civilization, superimposed on our culture, habits and traditions.

The role of the Judicial System therefore in this context is not very easy.

The Chief Justice has had a long experience of representing the state as a member of the Attorney General’s Department, a judge of the Superior Court of the land and as a judge of the war crimes tribunal.

One cannot but over-emphazie the indispensable requirement that justice should be done and should only be done according to law.

In December 1999 His Holiness Pope John Paul traditionally pushed open the two parts of the large bronze door of St. Peter’s Basilica to usher the millennium celebrations.

His prayers opened with the saying “Aperite mihi portas justitiae” meaning “Open for me the doors of justice”. Justice Michael Kirby speaking to law students said amongst other things that the great challenge for the legal community in the millennium is to cherish our past and to respect legal authority and ancient principles, but also to keep our minds open to the possibility that either what was done in the law in the past was unjust then or that it is wrong now. If that is so, it is our civic duty by argument and persuasion to move for the laws, improvement.

Sometimes as lawyers we can contribute at the margin to such improvement. We can do so in our professional work. It is our vocation. Justice according to law. But justice too. That’s our mission. It is the banner to which we in the legal fraternity has been called.

The Chief Justice has the onerous duty to continue the traditions of our Supreme Court which has strived to dispense justice within the framework of the law including the rules, principles, presumptions and cannons of construction.

We are conscious that there are some things a judge can do and a judge cannot. We pray that Chief Justice will be guided by the single principle of what is fair and right. For that which is good and equitable is the law of laws. “Aequum et bonum est lex legume”.

The Chief Justice can be assured of our support in upholding the principle of the legal policy that the law should be just and judges construing laws should strive to adopt a construction which avoids injustice. So that eventually justice must be done according to law.

Viscount Simonds in the case of Major and St. Mellons vs. Newport Corporation 1952 AC 189 made the observation that a judge cannot under a thin guise of interpretation usurp the function of the legislature to achieve a result that a judge thinks desirable in the interest of justice.

Henry Cecil in his famous Hamlin lectures said the object of every court is to do every justice within the law. Admittedly, the law sometimes forces an unjust decision. If there is noway around it, it is for the Parliament to alter the law if the injustice merits such alteration.

We have a set of rules for governing our relationships with the state and with each other. These rules are the law, but it had been found beyond the wit of men to device rules which can be applied to every occasion.

Samuel Johnson did once say that laws are not made for particular cases but, for men in general and that no law is equally convenient for everyone.

The only question is being whether it is beneficial as a whole and good for the majority and that it is a matter as Chief Justice Sastri and Lord Justice Harmond said, to be decided by the elected representatives of the people who are entrusted with by constitution with the task of making laws. We have to be mindful of the legislature’s representative function.

This observation is made as there is one school of thought that the role of the Court is not to second guess the wisdom of policy choices made by the legislature, where choices have to be made between differing reasonable policy options and that we must allow the organs of Government the difference due to them.

This, however, does not mean that the executive or the legislature has an unrestricted licence to act as they please. The other organs of Government must act within the framework of the law.

The legislature and the people accept that our Courts have the right to go through statute with a fine toothcomb.

We humbly ask that having discharged the fine toothcomb scrutiny, if it is found that a law - infringes fundamental human rights, that directions be made for law reform by exercising such moderation in application as to be compatible to the tenor of the law, by adopting a mental attributing of any error or injustice to the lawmakers and by accepting a fallibility of their opinions.

Experience has shown that the collective opinions of the many who must be involved as legislation pass through Parliament will be a more reliable reflection of common, wisdom than the individual views of a court however experienced.

“I submit with all respect and humility, that to adopt any other approach, however attractive it might be, will leave to common misconception amongst the general public a misplaced impression and impression which is far from the truth.

It is my humble plea today that this aspect of the matter is addressed during tenure as Chief Justice, so as to ensure that the theory of the separation of powers does not recede to the background whilst safeguarding the sovereignty of the people.”

The Chief Justice, today, you take your rightful place at the highest level of the Judiciary and we at the Bar have every reason to be justly proud of your appointment.

If I may say so with respect the combination of the experience that acquired both as a Counsel and as a Judge and extensive knowledge of the law would undoubtedly equip with all necessary attributes to discharge the onerous duty as the Chief Justice of the Supreme Court.

We will be with you Chief Justice in the road ahead of you, I have not the slightest doubt that you will fit into the galaxy of several eminent Chiefs Justice that our country have had the good fortune to have.

Whilst assuring our fullest co-operation, I wish a successful and pleasant tenure of office as Chief Justice.