Judicial independence in Sri Lanka

“We have all been called upon to do our parts in an age-less process, we have entrances and exits. You are heirs to a great tradition. You are here to do your share and carry the torch forward. May the flame burn bright whilst the torch is in your keeping.”

by Priyasath Dep-Oct 14, 2018

Oct 14, 2018

( October 14, 2018, Colombo, Sri Lanka Guardian) The outgoing Chief Justice Priyasath Dep gave leadership to reviewing the future of legal education in this country with a view to enhance its quality and to face the challenges of the modern era, President’s Counsel Ali Sabry iterated at the final ceremonial sitting held last Friday to bid farewell to the Chief Justice. Chief Justice Dep who served as the 45th Chief Justice of Sri Lanka, was appointed on 2 March, 2017 and retired from his position last Friday (12).

Following is the full text of his speech:

Your Lordship the Chief Justice, Honourable Attorney General, Your Lordships’ the Judges of the Supreme Court, Your Lordships’ the Judges of the Court of Appeal, Honourable Judges of the High Court, Judges of the District Court, the Magistrates Court, Honourable Solicitor General , Learned President Counsel, my dear colleagues of both official and unofficial Bar, ladies and gentlemen.

I consider this a singular honour and a privilege to be entrusted with the task of speaking a few words on behalf of the Bar Association of Sri Lanka in this ceremonial sitting which is being convened to express our gratitude to Your Lordship and to felicitate Your Lordship the Chief Justice on the occasion of Your Lordship retiring from the exalted position of the Chief Justice of Sri Lanka.

During Your Lordship’s relatively short yet tremendously productive tenure as the Chief Justice of Sri Lanka, Your Lordship displayed great sense of pride and honour in carrying out Your Lordships’ duties and tasks to protect and preserve the independence of the judiciary, the rule of law, and the due administration of justice.

Independence, integrity, and competence

Your Lordship is also a living example of a fair and reasonable judge. Whilst Your Lordship was extremely courteous to the members of the Bar, yet firm towards the course of administration of justice and imparted Your Lordship’s duties with uprightness and honesty by being fearlessly independent in the thought process and in the ultimate delivery of Your Lordship’s judgement.

It was those attributes which gave confidence to all stakeholders that the rule of law will be guarded against all forces thus instilling confidence in the people of the Republic yet again.

It is in the said context I refer to a passage from the address on the Judicial Reform, Constitutionalism, and the Rule of Law by Justice Lewis Powell of the United States Supreme Court: “Independence, integrity, and competence are the hallmarks of a judiciary committed to upholding the Rule of Law and they are the principles for which a judiciary should be accountable”

Your Lordship was faced with one of the most daunting eras with a series of important and complex constitutional matters which touched the foundation of the rule of law. Though times may have been proven difficult, Your Lordship’s uncanny ability, coupled with extraordinary intellect and the fearless attitude to meet ends of justice permitted Your Lordship to instil confidence in the judiciary.

Your Lordship’s judicial attitude in a multitude of judgements can be best described from a quotation taken from a legal classic written by Justice Benjamin N. Cardozo, in his works on “The Nature of the Judicial Process” in the year 1921 which is even more relevant today: “The judge even when he is free is still not wholly free. He is not to innovate at pleasure. He is not knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to sporadic sentiments to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to the primordial necessity of order in public life.”

Your Lordship kept away from the preconceptions, attitudes, and prejudices which made Your Lordship see each case without vengeance or undue favour.

Your Lordship’s judgements are a testimony of my thoughts.

In Your Lordship’s judgements and the rulings related to the proposed 20th Amendment to the Constitution, the determination on the reference as to the duration of the term of the office of the incumbent President of the Republic and several other important bills referred to Your Lordship’s consistently displayed commitment to uphold the rule of law, the principle of separation of power, and the role of apex court of the Republic as the guardian of the constitution and the citizens of the Republic.

Unbiased, fair, and well considered judgements

As embraced in the much-celebrated judgement of Noble Resource International Pte Limited vs. Ranjith Siyamabalapitiya and others, a bench of Your Lordship’s Court headed by His Lordship then Chief Justice Siripavan CJ and Your Lordship was a member held that: “Constitutions do not change with the varying tides of public opinion and desires, the courts should never allow change in public sentiment to influence them giving a construction not warranted by the intention of its founder.”

I must say, Your Lordship never heeded the populist views, but at all times acted in accordance to Your Lordship’s conscience. In the case of Hikkadu Koralage Don Chandrasoma vs. S. Senathiraja, Secretary of Illankai Tamil Arasu Kadchi (ITAK) and others, Your Lordship’s went on to impress that: “The labelling of states as unitary and federal sometimes may be misleading. There could be unitary states with features or attributes of a federal state and vice versa. In a unitary state if more powers are given to the units it could be considered as a federal state.

Similarly in a federal state if the centre is powerful and the power is concentrated in the centre it could be considered as a unitary state. Therefore sharing of sovereignty, devolution of power and decentralisation will pave the way for a federal form of government within a unitary state. The 13th Amendment to the Constitution devolved powers on the provinces. The ITAK is advocating for a federalist form of government by devolving more powers to the provinces within the framework of a unitary state. Advocating for a federal form of government within the existing state could not be considered as advocating separatism.”

Judicial pro-activism

I will fail in my duty if no reference is made to Your Lordship’s judicial pro-activism which was largely displayed when several members of the public challenged the manner in which certain legislation were carried through by the legislature allegedly in violation of the constitutional safeguards and the standing orders to bring amendments to the Provincial Council Elections Act at the committee stage of the Parliament.

Despite the presence of a constitutional ouster clause, Your Lordship thought it fit to grant leave to proceed with such applications which, according to Your Lordship, deserved the consideration of the apex court of the country in order to uphold the dignity of the court and the role of the Supreme Court as the apex court of the country as the guardian constitution in its content and spirit, though it was a dissenting order.

Therefore, Your Lordship, through landmark decisions and liberal jurisprudence considerably strengthened our democratic and pluralistic foundations and the commitment to rule of law. In doing so, Your Lordship protected the sanctity placed upon by the people in the apex court of the Republic and continued to remind each other of the constitution and of the constitutional duty of this Court to protect the rights of the people to uphold the democracy and rule of law in this country.

Without fear, favour, or prejudice

During Your Lordship’s tenure, whoever walked into Your Lordship’s Court and took part in proceedings had walked out feeling, no matter what the outcome may have been, that the ruling or the judgement which emanated from Your Lordship was an unbiased, fair, and a well-considered judgement solely dependent on the merits of the case as Your Lordship’s conscience dictated without fear, favour, or prejudice.

Your Lordship, in Your Lordship’s own way, gave leadership to relook at the future of legal education in this country with a view to enhance the quality of legal education and the Attorneys at Law produced by this country to face the challenges of the modern era by initiating a crucial reforms process to the entry into the profession and to legal education.

Your Lordship, amidst the busy schedule, recently amended the Supreme Court Rules to ease the litigants to prosecute or bring their dispute to Your Lordship’s Court by removing ageing practices which were no more logical to facilitate and further the administration of justice. Not to forget the amendment to the rule which Your Lordship was instrumental in bringing, to the attire of the lady lawyers very much to the delight of the female legal fraternity.

These are not my feelings alone, this expression of love and gratitude flows from each of us present here. Therefore, on behalf of the members of the unofficial Bar, let me make use of the opportunity to wish Your Lordship a happy retirement and to spend some quality time with your family, and have a long life and good health.

Let me conclude my address by quoting a great judge of the United States of America Justice Benjamin N. Cardozo when he welcomed several judges to the United States Judiciary: “We have all been called upon to do our parts in an age-less process, we have entrances and exits. You are heirs to a great tradition. You are here to do your share and carry the torch forward. May the flame burn bright whilst the torch is in your keeping.”

Certainly, the flame was burning bright whilst the torch was in Your Lordship’s keep!

Your Lordship never heeded the populist views, but at all times acted in accordance to Your Lordship’s conscience

Your Lordship, through landmark decisions and liberal jurisprudence considerably strengthened our democratic and pluralistic foundations and the commitment to rule of law

Your Lordship was faced with one of the most daunting eras with a series of important and complex constitutional matters which touched the foundation of the rule of law