Final Court of Justice in Sri Lanka:

Supreme Court as the highest Court of Justice

by Sarath WIJESINGHE

The Supreme Court of Sri Lanka was created in 1972, after the adoption of a new Constitution, replacing the Constitution Adopted on severing connections with the British Empire. The Sri Lankan judicial system is complex and is a blend of both Common Law and Civil Law.

Chief Justice Asoka de Silva

It is the highest Court in the country. It is the highest and final superior Court of record in the Republic and shall address matters in respect of the constitution, fundamental rights, consultative jurisdiction, election petitions and other matters which the Parliament may by law vest in it and it is the final Court of appellate and original jurisdiction.

Today the Constitution of the Democratic Socialist Republic of Sri Lanka is in force certified on August 31, 1978. It is a mixture of mainly British Parliamentary and EU Presidential democratic models which has brought about political stability in the country despite lot of criticism.

Justice is a concept of moral righteousness based on ethics, rationality, law, natural law, religion, fairness and/or equity and is a human creation based on equity without which the Nation is doomed to be subjected to the Law of the Jungle and the survival of the fittest. Equity is a name given to a set of legal principles which supplements the strict rule of law the principles of which ended the arbitrary exercise of conscience.

“Reception Statute” is the principle adopted for the tacit and direct implementation of the British Principles and Practices that are adopted in the Commonwealth jurisdictions including Sri Lanka, via legislative bodies, Constitutions and judges and made law. Judges of those who are human too are liable to make mistakes in addition to cruel judges and checks and balances should be available for the safety of the citizen from Judges who are not human cruel and arbitrary.

They possess different sentiments and attitudes and approaches towards the society. There are checks and balances in other jurisdictions though in Sri Lanka it is self regularity in view of the enormous freedom given to the Judiciary for the “Independence” and powers vested since the year 1800 where powers are concentrated in the Supreme Court on the administration of Justice and Legal Education.

Currently the citizen is at ease contended and feel safe in the hands of the current Head of the Judiciary. The Chief Justice of Sri Lanka, who has at the outset declared he will serve the nation based on great concepts of Justice and fair play which he described in a stanza in Dhammapada which quoted as follows:

“Not by passing arbitrary judgements does a man becomes, a wise man is he who investigates both right and wrong. He who does not judge others arbitrarily according to the truth, that sagacious man is a guardian of law and is called just. One is not wise because one speaks much.

He who is peaceful, friendly and fearless is called wise. A man is not versed in Dhamma because he speaks much. He who, after hearing a little Dhamma, realizes its truth directly and is not heedless of it is truly versed in Dhamma. One is called noble because he is harmless towards all living beings” The Just - Dhammapada.

The Chief Justice is quite correct and it is timely in quoting this noble stanza at this crucial hour when the Nation is in the main cross road in the annuls of our history. Why the Lordships choose to quote this at this juncture too is a matter which is important to note. In a small country such as ours where the citizens are known to each other in some way there should be more and more checks and balances, as religious, political and ethnic considerations are bound to play a role in decision making.

Scales of justice

Quotation of this stanza at this juncture speaks volumes on the contents and applicability to the society depends on a “just and democratic society from the Executive and “justice” from the guardians of justice. Today the nation is in safe hands with the current Head of the Judiciary who has pledged to follow these great concept and practices blended with the currently followed great western values and jurisprudence coupled with principles of justice, equality and equity, but the moot issue today is the finality of judgements in the Supreme Court which states that it has the final appellate jurisdiction. It has original jurisdiction as well as the appellate and the finality is discussed only in the case of appellate jurisdiction. The Supreme Court prepares its own rules from time which is changed by the Court at will, which determines the procedure and guide lines of the conduct of the Supreme Court. Therefore the finality is a matter of interpretation of the Supreme Court alone which has “Inherent Powers” by which any steps could be taken in the interest of justice, which is not questionable by any other institution including the Executive and the international Courts as access to international Courts have been prevented by judge made law, though it is what is expected by international law and conventions. We are in a “minefield and maize” in this moot issues for which the answer lies in the Supreme Court alone, where the interpretation on the finality by the Supreme Court is acceptable and changeable.

Judge made law and statute law

There is judge made law based on the precedents of previous judgements which is flexible by subsequent judgments of the highest court which are binding on other courts.

Justice Amarasinghe found that “when the Supreme Court has decided a matter, the matter is at an end” Justice Mark Fernando said, “It is a well established rule that a court cannot rehear, review judgement once delivered”.

Nevertheless the Supreme Court has recognised/identified exceptions to the general rule, which are orders have not attained finality, Clerical mistakes, Parties made wrongfully, orders given on wrong facts given on prejudice on laid down that the attainment of justice as the guiding factor.

A former CJ Parinda Ranasingh’s minority decision during the era where dissenting judgements were more frequent is important which states as follows.”

On considering of the foregoing, I am of the opinion that this court has inherent jurisdiction to grant, in appropriate circumstances, relief against or in respect of even previous judgements of this court in order to “do justice”. This is a far reaching minority judgement which is forceful by itself, though not the majority. It is also a moot issue whether the majority decision is always correct which is subject to correction by subsequent decisions. The other moot issue is whether we should prevent and curtail litigation or take precautions to prevent miscarriage of justice and to find remedies if and when the citizen has lost everything including basic justice he is morally and legally entitled to.

Law, equality and equity

Law and equality is an ancient principle and accident of history at the end of 13th century courts of law gradually “froze” procedure and hearing of petitions followed. In 1253, power to issue writs were granted to courts as “writ for right” principles of which we too follow today in Sri Lanka. People started petitioning and Chief Justice Edward Cooke started issuing Habeas Corpus writs.

We follow the principles and practices of Administrative law in the United Kingdom which plays a main role in the application of the principles of fundamental rights and the applicability of fundamental rights and the applicability which are enshrined in Article 14 and 126 respectively.

Judgement is a formal decision made by a court following a law suit. In the United States final court is the Federal Court where all the matters are taken into consideration carefully. It is extremely careful in exercising original jurisdiction, as the final decision can be changed only under very exceptional circumstances.

In the United Kingdom where we inherited our system of law the finality is flexible where the matters could be canvassed in the Privy Council and the Supreme court, especially and mainly on miscarriage of justice where the decisions were often overturned on this as there is no floodgate of cases as the system carefully identifies matters of public importance and justice is needed to the citizen aggrieved.

The thinking and the attitude behind the System is the UK West and USA, is that the citizen should not be penalised for the mistakes by judges especially when the original jurisdictions are exercised.

There were instances when judgements were delivered in few minutes with no proper or a heating at all denying the citizen of a fair trial and appeal which decides their entire future property and the family.

Justice is a human creation

Justice is a human creation though statutory or judge made. The underlying feature is Justice to the Human who depends on the judiciary who exercise the power temporarily for the carriage of this great responsibility towards the humanity. Judges are kind in nature, reasonable practical and humans who love others.

Yet history has proved that cruel judges who hate the society and those who are up to bribery, corruption and impose hasty and unruly punishments have been in society.

In the circumstances it is the duty of the Bar and the civil society to bring about legislation to make things fair and reasonable in the wider sense. There could be a constitutional change to include gross miscarriage of justice in place of Article 118 (c) to read as Supreme Court is the final appellate jurisdiction except gross miscarriage of justice and on exercising original jurisdiction.

It is time for the Bar Association and the legal fraternity to plead with the Chief Justice to reconsider framing Supreme Court rules to cater to the new needs and challenges.

This is the best opportunity for the civil society to initiate the discussion at all levels in order to bring it to the Notice of the Executive to make statutory changes and the Supreme Court to bring about changes via rules and judge made law.

The writer is a Senior Solicitor in England and Wales and a Former Secretary of the Bar Association - Chairman “For Justice and Equality”.