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The importance of the decentralization of judicial functions

by

Former CJ Sarath N. Silva

”Your Lordships are aware that the decentralization of judicial functions has been debated since the introduction of the Thirteenth Amendment. The earliest attempts at bringing the necessary legislation in this regard fell through due to the inability of the several parties in Parliament to agree on a common formula. It was at this juncture that His Lordship Chief Justice Sarath N Silva took upon himself the task of drafting the necessary legislation in this regard”

An address made by the President Bar Association of Avissawella, Mr. Neil Dias on the occasion of the leaving of the Judge of the Civil Appellate Court of Avissawella.

Her Ladyship of the Civil Appellate Court, Her Ladyship of the High Court, His Lordship Ruwan Fernando, Honourable the District Judge, Honourable the Magistrate, Honourable the President of the Labour Tribunal. I am indeed overawed and not a little excited by the prospect of addressing a Full Bench here in this Hall today.

Before the commencement of the day’s proceedings before Your Honours and on the occasion of the departure of His Lordship Ruwan Fernando I very respectfully seek Your Honours’ indulgence to make a reference to His Lordship Ruwan Fernando and his shortened stay at Avissawella. Indeed it was too short a stay for us to grasp and familiarize ourselves fully with Your Lordship’s jurisprudential leanings except for me to note a tendency on Your Lordship’s part to lean a little too heavily on the side of textualism.

I will not capitalize on this occasion in order to lecture to Your Lordships or to deliver a homily. In keeping with the highest traditions of our judiciary I will be very brief in showering praise on Your Lordship. But I may not perhaps altogether succeed in hiding my lawyerly fascination for judges

 I may be permitted with respect, for the purpose of the record on this occasion, to mention certain noteworthy occurrences connected with the setting up of the Civil Appellate Courts in the Provinces and particularly in our own areas. According to Chief Justice Sarath N Silva there were nineteen thousand civil appeals pending before the Court of Appeal when His Lordship’s decision was taken to get rid of the laws delays in regard to civil appeals.

 I must hasten to mention that the laws delays are not a recent occurrence nor are they confined to our country and to this day. Your Lordships are quite aware, as much as His Lordship Sarath N Silva, that Hamlet, in addition to, and with much justification, complaining about the frailty of women, in the same breadth, bemoaned about the laws delays. 

Your Lordships are aware that the decentralization of judicial functions has been debated since the introduction of the Thirteenth Amendment. The earliest attempts at bringing the necessary legislation in this regard fell through due to the inability of the several parties in Parliament to agree on a common formula. It was at this juncture that His Lordship Chief Justice Sarath N Silva took upon himself the task of drafting the necessary legislation in this regard. The drafting of act No. 54 of 2006 was I believe, undertaken single-handedly by His Lordship. It is said that His Lordship drafted this bill during a flight to China. Arguments were tendered at the highest levels of the legal profession in Colombo about the absence of necessary legal provisions without a two thirds vote in Parliament to take away the appellate functions conferred on the Court of Appeal under the constitution which were argued as entrenched provisions. It was at this juncture that Chief Justice Sarath N Silva utilized article 154P © under the Thirteenth Amendment which enables the High Court to “exercise such other jurisdiction and powers as Parliament may, by law, provide.” It was indeed a judicial master stroke which failed to attract any challenge from any quarter. The jurisdiction which Your Lordships exercise here at the Provincial level is one that is concurrent with the Court of Appeal in Colombo.

 I am happy to say that the Bar Association of Avissawella played a significant role both during the deliberations at the Bar Council and in the countrywide debates in bringing about the Provincial Appellate Courts and the decentralization of judicial functions. Further struggles had to be waged in this field because quite against our expectations the initial Civil Appellate Court for our people in these areas was set up in Gampaha. How that came about only a few are aware. After that problem was solved and after much negotiation surfaced the problem of finding buildings to house this new Court. This problem was solved by the shifting of the Labour Tribunal. Still we are attempting to convince that the areas of jurisdiction of courts have to be determined according to the Judicature Act and not according to the Thirteenth Amendment.

 My Lords, the campaign to decentralize judicial functions which the Bar Association of Avissawella fought for will be pursued until the Fundamental Rights jurisdiction presently vested in the Supreme Court is also decentralized and conferred on the Provincial High Courts.

Naturally fears were expressed that provincial lawyers and judges were not competent to handle this kind of situation and dabble in complex questions of law which had been the preserve of a few in Hulftsdorp. Complaints were made in the course of hushed conversations that standards will go down. But no one was able to build up a case to challenge the legislation that set up Provincial Appellate Courts. I will not dwell too much on the subject due to the reason stated above, except to boldly say that anyone reading the judgments delivered by Your Lordship and Her Ladyship (which are made available in our library) will not dwell at length on this line of argument. The judgments which are the results of days and hours of laborious reading and research answer to the highest standards required in this field of judicial determinations in our country. It’s a pity that they do not yet find a place in the law reports.

We are very mindful and quite excited about the place which Your Lordship Ruwan Fernando will occupy on leaving us. From Your Lordship’s new standing Your Lordship will shape the standards and the quality of the minor judiciary that will in future adorn the courts in our country.

 Alexander Hamilton one of the drafters of the American constitution, in the 78th Federalist, referred to the Supreme Court as the least dangerous branch of the American government and the extraordinarily powerful. The American constitutional scholars Alexander Bickel and his pupil John Hart Ely wrote and examined these concepts at length in several works they produced on the subject. Chief Justice John Marshall in 1803 in Marbury V Madison wrought out the power of judicial review and fashioned a bold legacy of constitutional interpretation in spite of such provisions not being found in the American constitution. Closer to home Justice P.N. Bhagwati of the Indian Supreme Court encouraged by constitutional scholars like Upendra Baxi through fearless judicial activism or what came to be termed Juristocracy exploited this potential of the judiciary and transformed it into making it an institution which is capable of bringing about measures to ameliorate the conditions of the poor and the downtrodden and the oppressed. Procedures were relaxed and new procedures were adopted. Through epistolic jurisdiction people were enabled to approach the court by the mere submission of letters seeking relief.

 The courts ceased to effectively correspond to the political style of the regime in power.

I may not be understood as attempting to indoctrinate Your Lordship but I am very respectfully seeking to lay stress on the obvious power which the judiciary as the third arm of government holds in the political set up in any country. This is a power which remains to be utilized in resolving the national question which has plagued our country since the granting of independence from colonial rule. In spite of racial rhetoric we cannot any longer keep the minorities in political bondage and deny their just claims, within a united country, to administer their areas of habitation. Where the politicians have failed it is hoped that the judiciary will play their part. These are the primary messages which we from Avissawella expect Your Lordship to deliver to Your Lordship’s students at the Judges Institute which we have no doubt Your Lordship will adorn as capably as Your Lordship have done the Judiciary.

Permit me My Lords on behalf of the members of the Bar here to wish His Lordship Ruwan Fernando and his Lordship’s family and children health, intellectual wealth and immense happiness in your Lordship’s new endeavors.

May an order be made to lodge a copy of today’s proceedings with the Registry of the Court.

 I thank Your Lordships once again.           
13th June 2012.

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