Bribery Commission seeks SC to set aside stay order

Proceedings in Magistrate’s Court against Mohan Peiris and Nawaz 

By S.S. Selvanayagam

The Supreme Court fixed for support on 20 September the motion filed by the Bribery Commission seeking to set aside the interim order issued by the Supreme Court staying the proceedings in the Colombo Magistrate’s Court against former Chief Justice Mohan Peiris and the incumbent superior Court Justice Nawaz.

The bench comprised Chief Justice Priyasath Dep and justices Vijith K. Malalgoda and Lalith Dehideniya.

The Bribery Commission in its motion states that their petition demonstrates that Justice Eva Wanasundera, in her capacity as Attorney General, had taken a decision related to the subject matter of their application, including a decision relating to the question of whether or not to refer the matter to the Bribery Commission whether inter alia Peiris and Justice A.H.D. Nawaz should be prosecuted for corruption.

It states Justice Wanasundera was also fully aware of the evidence in the possession of the Attorney General’s Department relating to the corruption allegation. It goes on to say that Justice Wanasundera, having knowledge of the aforesaid and especially having made a minute related to the aforesaid, merely inquired whether parties in SC Writ Petition (22/2018) had any objection to the said Writ Petition without making full disclosure of the parties or their Counsel.

It contends that as such there was a conflict of interest in her hearing the matter.

It laments that she proceeded to hear the matter and participated in the making of an order issuing notice and a stay order.

It pleads it has thus become necessary for the Bribery Commission to invoke the court’s jurisdiction to exercise the inherent power or the power of review and set aside the order of 26 February 2018.

It also pleads that it has also become necessary to seek an appropriate order from the Court considering the general and public importance of this matter that a direction be made constituting a Divisional Bench of five or more Judges of the Supreme Court to consider this application and all matters connected therewith.

In their petition, the Bribery Commission states the writ application of Peiris was filed on 9 February 2018 and listed for support on 26 February 2018.

It states the Attorney General had informed the Chairman and members of the Bribery Commission that he was unable to appear for them.

It asserts that this was due to the fact that the Attorney General’s Department was the complainant with regard to the complaint of corruption allegedly committed by the petitioner and Justice Nawaz as well as M.M.C. Fernando.

It states the bench presided over by Justice Wanasundera, Acting Chief Justice, took up the matter for support despite several Counsel requesting that connected matters be taken up together.

It states that after hearing the submissions of all parties, Justice Wanasundera dictated the order issuing notice and a stay order restraining the proceedings in the Magistrate’s Court until the final conclusion of the case.

M.A. Sumanthiran PC with Suren Fernando appeared for the Bribery Commission. Gamini Marapane PC with Nigel Hatch PC, Dr. Harsha Cabraal PC, Palitha Kumarasinghe PC and Navin Marapana appeared for Peiris. K. Kanag Iswaran PC appeared for Justice Nawaz. Romesh de Silva PC with Sugath Caldera, Manjula Fernandopulle and Niran Anketell appeared for the President of the Bar Association of Sri Lanka. Additional Solicitor General Sanjay Rajaratnamappeared for the Attorney General.