Counter-terror response must adhere to rule of law, be mindful of human rights - Justice Kodagoda | Sunday Observer

Counter-terror response must adhere to rule of law, be mindful of human rights - Justice Kodagoda

12 May, 2019
Justice Yasantha Kodagoda
Justice Yasantha Kodagoda


At a time when national security concerns are drowning out concerns about individual rights and freedoms in the wake of last month’s horrific terror attacks that took the lives of 257 citizens, the new President of the country’s second highest court appeared to sound a timely note of caution, using his inaugural address to emphasise that the security of a nation state and human rights were not mutually exclusive.

As he formally took over as 47th President of the Court of Appeal, Justice Yasantha Kodagoda emphasised the importance of ensuring that the military and law enforcement response to the recent Easter Sunday terror attacks adhered strictly to the law, and fell in line with the state obligations to ensure the human rights of all its citizens.

“Even at difficult and extraordinary times like this when there exists a realistic and serious threat to national security, and the security of the people of our country is seriously endangered, it is necessary to ensure that the authorities respect the Rule of Law, recognise Constitutionalism, do not violate Human Rights and protect innocent people,” the new President of the Court of Appeal said.

Speaking at his ceremonial sitting last Monday (6), Justice Kodagoda, who conducted and supervised investigations into dozens of terror attacks during his 30 year tenure as a state prosecutor, also emphasised the necessity to ensure swift prosecutions against all those involved in the dastardly acts of terror on April 21.

Expressing confidence in the police and the tri-forces to expeditiously identify and apprehend all those responsible for the Easter Sunday bombings, Justice Kodagoda went on to say that it was important for the Attorney General to advise the police to bring detained suspects before courts of law as provided by law.

He added that it was also important for the Attorney General to expeditiously and successfully prosecute them, so that they could be punished through judicial pronouncements made in terms of the law.

“It is also important that effective preventive strategies be adopted and enforced so that the security of the country and its people can be ensured. Let us also not forget the need to urgently provide meaningful reparation and restitution to the victims of the terror attacks,” Justice Kodagoda said.

The new President of the Court of Appeal urged all communities to be resolute, to ensure that the ‘ugly face of terrorism’ is not allowed to raise its head in the country again. “All communities should peacefully co-exist in a free and non-discriminatory environment as provided by our Constitution. All communities must enjoy a parity of status, feel secure and be able to enjoy fundamental freedoms,” Justice Kodagoda reiterated.

Speaking at the Ceremonial Sitting, Justice Kodagoda also called for sweeping reforms in the judicial system, to ensure the systematic clearing out of the case load to ensure the courts could administer justice swiftly.

Justice Kodagoda issued detailed guidelines the constitution of benches, assignment of matters and general measures applicable to the Court of Appeal just days before ceremonially assuming duties as President of the Court, with effect from May 7, one day after the ceremonial sitting. During his speech, the new President of the Court said that the rules of the Court of Appeal, especially those relating to service of Notice, hearing of applications seeking interim relief, filing of counter pleadings and written submissions and the argument of cases would have to be strictly adhered to.

Speaking of case delays and backlog of cases, Justice Kodagoda proposed that the cadre of judges of the Court of Appeal be increased by a meaningful number so that ideally a case instituted in the court can be heard and judgment delivered within a year.

“Court of Appeal must be in a position to constitute ten divisions of the court comprising two judges each. Such a number of judges would be sufficient to bring the backlog of cases pending in this Court within reasonable control in a few years’ time. That would enable fresh and urgent cases to be heard and concluded expeditiously,” he said.

Kodagoda J in his speech suggested that consideration be given to the enactment of a constitutional amendment to enable a serving Supreme Court judge to be appointed to sit and function as the President of the Court of Appeal for a fixed term of three years.

“Whenever a vacancy in the Supreme Court arises, the President of the Court of Appeal is invariably appointed as a Judge of the Supreme Court. Though this practice has justification, it results in frequent changes in the Presidency of the Court of Appeal,” he said.

He explained that in the entirety of its existence for the past 40 years the Court of Appeal has had 46 Presidents, on an average, each president being allowed only to work in office for about 10 months, hardly any time to bring about long-lasting or effective management systems.

The abrupt changes had impacted the management and administration of the Court of Appeal, causing neglect and stagnation of developmental activities, Justice Kodagoda said.

“A term of three years would enable the President of the Court of Appeal to fully understand the internal workings of the court, identify challenges, plan, muster resources and effectively manage the court in a stable and efficient manner,” he said.

According to the President of the Court of Appeal, as at January 1, 2018, 4,923 matters had been pending in the Court of Appeal for adjudication. During 2018, 1,473 new matters were instituted, re-listed and 2,345 matters had been concluded.

At the commencement of 2019, the total number of pending matters came down to 4,051, roughly a reduction in the backlog by about 800 cases per annum. Of the cases pending before the Court of Appeal many are matters that were over 10 years old.

“Nearly 4o percent of the matters have been instituted five years ago. Most appeals that come up in the Court of Appeal relates to cases that were previously heard in criminal and civil courts for over a decade.

Those litigants by now must be both frustrated and exhausted.

I would not be surprised if they have lost faith in the system of administration of justice,” Justice Kodagoda said.

“If this is the actual situation, we cannot any longer be complacent,” he said.