“As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever”- Justice Iddawala

Address by Justice Neil Iddawala at the ceremonial sitting of the Court of Appeal held on 24th March 2021.

Thank you, Mr. Attorney General and Mr. Kalinga Indatissa for your kind and stimulating words. May I commence by thanking you all for honoring me by your presence. I consider myself privileged to be a Justice of the Court of Appeal at a time of unprecedented challenges for the justice system not only in Sri Lanka but across the world created by the COVID-19 pandemic.

Locking down courts might be necessary to protect the health and safety of justice professionals and court users but the challenge is to do this in a careful manner as it results in an important limitation of access to justice and further case backlogs. More attention than ever before must be paid to due process and fair trial standards if courts are unable to hold trials in person.

The functioning of the courts with regard to case management systems and data collection is a special challenge during this health crisis. Judges, Registrars, court officials, should continue to monitor and manage cases according to their responsibilities, even remotely. ICT offers the opportunity for the functioning of justice systems to continue functioning during the health crisis.

Online services and strengthening access to information through court websites and other means of communication such as phone, email, etc. can help maintain justice services and provide access to justice by alternative means. In applying ICT to expedite cases, courts must be careful to minimize the digital gap so that due process and fair trial rights are satisfied and access to justice on all matters is guaranteed including respect for fundamental rights, judicial independence, principles of a fair trial, cyber security and protect legitimacy of judicial proceedings.

The new innovations make judicial training even more important and judicial training should adapt to the emerging needs, including the use of IT. New curricula should be developed to support justice professionals during and after the health crisis. Specific training on teleworking, use of digital platforms for meetings and hearings, access to the internet, should be provided for justice professionals. Famous American Chief Justice, John Marshal observed that “the judicial system comes home in its effects to every man’s fireside; it passes on his life, liberty, property and everything”.

Laws delays is a perennial problem in our courts and to deal with delays and remedies in general, the judiciary can use the current situation to innovate ways in which on line solutions can be used to resolve backlogs. This should also include reviewing different levels of courts have been impacted differently and, if so, in what ways. Prosecutions of minor offenses, civil or commercial cases, could be postponed in this streamlining process. Matters oriented to protect rights, when serious crimes are committed including corruption connected to this crisis and cases of domestic violence should receive prior attention and space. Where and how to report abuses, using current online technologies must be addressed and urgently implemented.

A crisis requires immediate and urgent response. However, any kind of reaction to the crisis must be strictly based on the principles of the Rule of Law and must respect and protect human rights. Emergency measures must respect the principles of legality, legal certainty and proportionality and need to be constantly re-evaluated. Poor and vulnerable groups will be the most affected by the health and economic consequences of COVID 19. This is an opportunity for justice sector to adopt a people-centered approach to justice, to remove barriers to innovation and technologies that can further improve the way in which justice is delivered.

Transforming the judiciary for the future should maintain the necessary dialogue between all segment in the justice system and to take advantage of the new relations created between judges, court staff, lawyers, and other judicial experts to improve access to justice. As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever. As William Penn, a well-known nobleman, writer and early advocate of Justice and Religious Freedom, stated “Justice is the insurance we have on our lives, and obedience is the premium we pay for it”.