'Law should uphold Constitution' - Appeals Judge

'We are bound to uphold and defend the Constitution. The law should be there to minimize conflicts and interpretation is of paramount importance," new Court of Appeal Judge Justice P.W.D.C. Jayathilake said at the ceremonial silting to welcome him as a court of appeal

judge on November 14 he said. "When I was a law student, I placed very much emphasis on and took a keen interest in jurisprudence that is the science of law. The jurisprudence allows us to observe the very fundamentals which resulted in creation of law. As a result of variations and changes that occurred periodically, geographically and socially have moulded many varied and valid theories of law that could be identified through jurisprudence. Schools of law includes the opinion of visionaries from Socrates, who showed the world the need for law and up to Karl Marx who's ideology as that the law must be defunct in human society.

"Legal systems develop from "Grund Norm" which is considered as the topmost layer of the pyramid as per Kelson's "Pure theory" According to Kelson, there won't be existence of a legal system without the Grund Norm. In our law what we consider our Grund Norm is the constitution. Hence we are bound to uphold and defend the constitution. The validity of legislation made for the fulfillment of the social needs under the authority of the Grund Norm could be identified by applying the Pure theory.

"As per the theory under the school of "analytical positivism" the need of law arises as a result of the conflict of interests. When the interests are different conflicts occur. Hence the law should be there to minimize the conflicts, in other words the purpose of law is the minimization of the conflicts.

"When applying the law to minimize the conflicts, interpretation is of paramount importance.

Interpretation according to the "Literal rule" delivers a narrow effect. It is easy for the literal rule to be applied to interpret the law. Literal interpretation could be obtained eventhough the computer by mere input of data. Similar ideas could be found in the school of "Scandinavian realism".

"The style of language by which the law is written is very important as the words can include direct as well as emotional meanings, yet for all, more gravity lies with emotional meanings. The computer does not have this emotional intelligence. Hence the emotional meaning needs to be understood by the human brain. A wide meaning could be derived from law by applying the "Golden rule" for the purpose of interpretation. The "Golden rule" is that the law is not for law, but for society.

"The law is only a prediction. Therefore the law in practice cannot be perceived only by studying law alone. In order to understand the practical aspect of real law, we need to study the judge's who give interpretations to the law. Oliver Wendel Holmes has shown this theory in the school of "American realism".

Holmes further says that judges may normally tend to believe the evidence given by a smartly dressed charming woman rather than that of a shabbily poor man.

"This shows the nature and reality of the law in practice.

"I have had the privilege of serving in all courts of first instance, from Primary Court to High Court in our judicial system. During my service, I had served mostly outstations. After 20 years of service as a district Judge and a Magistrate and seven years as the Secretary of the Judicial Service Commission, with my appointment as a High Court Judge. I was posed to Ampara which was my first station as a primary court judge. By this you will understand how socialist the administration concerning judges is.

"By the time I was appointed as a Judge of the Court of Appeal I had served for 23 years as a judge and seven years as the Secretary of Judicial Service Commission and still another 11 months as a Ministry Secretary.

I believe I had a deeper insight in to the judicial service and judges during that 11 months period in which I served outside the judiciary. It was during that period that I struck the idea that our court should have been a bit more flexible and the judges a bit more milder.

"In Colombo I served for only a few months in High Court, Colombo and one and a half years in Commercial High Court. During this short period I had the privilege of associating with young lawyers, senior lawyers and learned President's Counsels in Colombo.

"I must honestly and frankly state that my respect towards the legal profession increased during this period.

I have gathered and learned a lot through the lawyers of official and unofficial bar appeared in Colombo High Court and Commercial High Court.

I believe that I will have more opportunities to enjoy the same privilege in this court as well.

"Let me conclude here by expressing my thank particularly to Attorney General Palitha Fernando and MP the President of the Bar Association of Sri Lanka Wijedasa Rajapakse.

"My love and my gratitude go to my parents, teachers and family members for whose devotion and support that helped me to reach these heights. To my relations and my friends. Who have supported me in many different ways. And I thank you all, for attending this occasion to felicitate my elevation, I ask most humbly for your cooperation and your guidance in the Law that we administer in the next decade of my life. Further I express my gratitude, to my colleagues for being present on this occasion to welcome me.

I thank you all, most humbly".