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By S.S. Selvanayagam
The Supreme Court yesterday (20) reserved for 1 October its order on granting of leave with the Writ petitions challenging the decision of the Bribery Commission to institute proceedings against former Chief Justice Mohan Peiris and incumbent Superior Court Judge A.H.M.D. Nawaz in the Magistrate’s Court.
The Bench comprised Chief Justice Priyasath Dep and Justices Vijith K. Malalgoda and Lalith Dehideniya.
The Petitions were filed by Justice Nawaz, Bar Association of Sri Lanka and Kalyana Thiranagama seeking to quash the decision of the Bribery Commission to institute proceedings against former Chief Justice Mohan Peiris and Justice A.H.M.D. Nawaz in the Magistrate’s Court of Colombo and/or to continue with the proceedings.
Gamini Marapana PC with Nigel Hatch PC, Dr Harsha Cabraal PC, Palitha Kumarasinghe PC and Navin Marapana appeared for Mohan Peiris. K. Kanag Iswaran PC appeared for Justice Nawaz. Romesh de Silva PC with Sugath Caldera and Manjula Pernandopulle and Niran Anketell appeared for the BASL. Jeffry Alagaratnam PC, M.A. Sumanthiran and Suren Fernando appeared for the Bribery Commission. Additional Solicitor General Sanjay Rajaratnam appeared for the Attorney General.
Court had on 26 February issued Interim Order until final determination staying the proceedings in the Colombo Magistrate’s Court against former Chief Justice and Justice Nawaz initiated by Bribery Commission.
BASL in its petition stated 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.
It contended 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.
It stated 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.
It emphasised the 1st Respondent is thus entitled to all his privilege and immunity in respect of such professional work carried out.
It lamented 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.
It pointed 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.
It bemoaned 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.
