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Thursday, 15 March 2018 01:04 - - {{hitsCtrl.values.hits}}
By S.S. Selvanayagam
The Bribery Commission has filed revision application contesting the Order dictated by acting Chief Justice Eva Wanasundera staying the proceedings in the Colombo Magistrate’s Court against former Chief Justice Mohan Peiris and the incumbent Superior Court Justice A.H.M.D. Nawaz filed by it.
It cited former Chief Justice Mohan Pieirs, Incumbent Superior Court Judge Nawaz, BASL President U.R. De Silva, Attorney General and other as Respondents.
It states Attorney General had informed the Bribery Commission that he was unable to appear for them due to the fact that the Attorney General’s Department was the complainant with regard to the complaint of corruption.
A Bench of Supreme Court presided over by acting Chief Justice Eva Wanasundara took up this matter for support despite several Counsel requesting that the connected four matters be taken up together.
It states that it was disclosed in open Court by Additional Solicitor General Sanjay Rajaratnam appearing for Attorney General that Eva Wanasundara during her tenure as Attorney General made certain minutes pertaining to facts and circumstances relevant to this subject matter in an official and confidential file of the Attorney General Department.
It says that copies of certain documents were handed over to Justice Eva Wanasundara by him. While those documents were retained by Justice Wanasundera, the content of same were not disclosed to the parties or counsel.
It states Justice Wanasundera, without disclosing the content of the documents so handed over, or the nature of the minutes she has made, inquired from Counsel whether they had any objections to the Bench or her hearing the matter.
Being unaware of the content or nature of the aforesaid documents handed over to her, all Counsel indicated that they had no objection to the Bench or her taking up the matter.
Counsel for the Bribery Commission raised two preliminary objections. After hearing the submissions of all parties, acting Chief Justice Wanasundara dictated the Order of Court issuing Notice and a Stay Order restraining proceedings in the Magistrate’s Court, until the conclusion of the case.
Although Counsel for Bribery Commission urged Court to record the submissions made by him, those matters as well as the other connected matters were adjourned for support for 7 March without recording the submission, it says.
Subsequently Bribery Commission requested Attorney General to provide a copy of the relevant Minutes to the instant Respondents relevant to the subject matter of the application and the criminal proceedings which form the subject matter of this application, it states.
The Attorney General accordingly made available the said minute and connected documents to the CIABOC.
It claims the documents furnished by Attorney General and the relevant Minute demonstrates that Justice Eva Wanasundara in her capacity as the then Attorney General had taken a decision related to the subject matter of this application (including a decision relating to the question whether or not to refer the matter to the CIABOC) and that she was also fully aware of the material/evidence in the possession of the Attorney General’s Department relating to the said allegation of corruption.
It further states that Justice Wanasundera, having knowledge of the aforesaid and especially having made a Minute relating to the aforesaid, merely inquired whether the parties in the instant application had any objections to her hearing the matter without making full disclosure of the extent of her involvement with the file, in her capacity as Attorney General.
It contends that in the aforesaid circumstances, Justice Eva Wanasundara was biased and / or at minimum there was a strong and seeming appearance of bias and/or there was a conflict of interest in her participating in the proceedings.
It maintains that as such Justice Eva Wanasundara was obliged to have recused herself from participating in the matter.
The Bribery Commission is seeking an appropriate order from the Chief Justice, considering the general and public importance of this matter, as well as a direction in terms of Article 132(3) of the Constitution constituting a Divisional Bench of five or more Justices of the Supreme Court to consider this application and all matters connected therewith.
Special Determination of the Supreme Court is sought on the Bill titled ‘Judicature (Amendment)’ to amend the Judicature Act of 1978.
Leader of MahajanaEksath Peramuna filed the Petition that certain Clauses of this Bill violate the provisions of the Constitution.
He alleges that the said Bill shall vest the ‘Executive with arbitrary powers to decide as to whom to be tried before the proposed High Court and thereby deprive the citizens of equal application of the Criminal Procedure’.
He complains that it removes judicial functions from the Judiciary and entrust the same with the Executive, which is amounting to breach of the fundamental principal of ‘separation of powers’.
He blames it indirectly empowers the Attorney General and the Director General of the Bribery Commission to use the findings of the investigations carried out by purported ad hoc units of the Police such as Financial Crime Investigation Division (FCID).
He charges it takes away the right of an accused to be represented by a counsel of his choice, a significant and inalienable element of his right to a fair trial.
He impugns it is capricious and unreasonable in that it seeks to take away the right of Attorneys-at-Law to engage in their professional practice. (SSS)
