SC reserves order on Writ Petition on incumbent Superior Court Judge

By S.S. Selvanayagam

The Supreme Court yesterday (12) reserved its order on the Writ Petitions seeking to quash the decision of the Bribery Commission to institute criminal proceedings against the incumbent Judge of the Court of Appeal.

The Bench comprising Chief Justice Priyasath Dep and Justices Vijith K. Malalgoda and Lalith Dehideniya reserved the order until the supporting of other kindred applications in respect of the proceedings in the Magistrate’s Court initiated by the Bribery Commission against former Chief Justice Mohan Peiris and Justice Nawaz.

Court fixed 19 July to support the applications.

Justice Nawaz and Sri Lanka Bar Association President U.R. de Silva PC filed the petition seeking to quash the decision of the Bribery Commission to institute proceedings against Justice A.H.M.D. Nawaz in the Magistrate’s Court of Colombo and/or to continue with the proceedings.

Petitioner cited Justice Nawaz, Bribery Commission Chairman Justice T.B. Weerasuriya, Members of the Bribery Commission Justice W.L.R. Silva and Neville Guruge, Director General of the Bribery Commission Sarath Jayamanne, the Attorney General and Colombo Chief Magistrate Lal Bandara as Respondents.

Petitioner pleads the identity of the complainant, if any, is undisclosed in the proceedings filed before the Magistrate’s Court.

He states the gravamen (the essence or most serious part of the complaint or accusation) of the purported allegation is that 1st Respondent Nawaz provided a legal opinion as a Deputy Solicitor General in December 2010 to confer a wrongful or unlawful benefit or advantage on another person or knowing that the said legal opinion would cause a wrongful or unlawful benefit or advantage to another person. He contends the correctness or otherwise of a legal opinion is no within the purview and/or jurisdiction of the Magistrate and is thus not a matter into which Magistrate could inquire.

He states that ex facie no wrongful or unlawful benefit could have been caused to any person such certain undisclosed Directors of the Lanka Electricity Company Ltd. and some other persons in that the decision to prosecute is in the hands of those responsible for the prosecution who are not bound by an opinion of the Attorney General.

He emphasises the 1st Respondent is thus entitled to all his privilege and immunity in respect of such professional work carried out.

He laments the actions of the Director General of Bribery Commission are misconceived to seek to impose any personal criminal liability upon the 1st Respondent’s acts done ex officio on behalf of the Attorney General.

He points out that 1st Respondent’s appointment as the Judge of the Court of Appeal in 2014 was approved by the Parliamentary Council without the slightest allegation of wrong doing.

He bemoans his actions amount to an abuse of the Bribery Act and the Bribery Commission and corruption Act is ultra vires (beyond legal power or authority) the said Act.

Faisz Musthapha PC with Sanjeeva Jayawardane PC and Manohara de Silva PC appeared for the Petitioner. Gamini Marapana PC with Navin Marapana appeared for Mohan Peiris. M.A. Sumanthiran PC with Suren Fernando appeared for the President and the Members of the Bribery Commission, Viran Corea appeared for the Director General of Bribery Commission, Romesh de Silva appeared for the BASL. Additional Solicitor General Sanjay Rajaratnam appeared for the Attorney General.