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Thursday Apr 25, 2024
Saturday, 17 March 2018 01:12 - - {{hitsCtrl.values.hits}}
By S.S. Selvanayagam
When the Supreme Court yesterday took up petitions against Government plans to set up a new High Court to try corruption cases, Senior Counsel Romesh de Silva PC making submission on the proposed Judicature Act (Amendment) Bill said it would lead to unequal treatment of equals.
Seven Petitions came up for Special Determination of the Supreme Court before the Bench comprising Chief Justice Priyasath Dep, Justices Buwaneka Aluvihara and Nalin Perera.
Counsel Romesh de Silva PC with Sugath Caldera and Niran Anketel appearing for the President of Bar Association of Sri Lanka submitted that proposed Bill imposed permanent High Court of Trial at Bar whereas there was no such Court.
He submitted that the new Bill gave powers to the Minister to specify the location of the Permanent High Court of Trial at Bar and the Executives such as Attorney General and the Director General of Bribery Commission to institute criminal proceedings.
He said the new act if enacted would erode the judicial system and this permanent High Court of Bar did not come under the existing High Court of Province.
He said there was apprehension that the Attorney General or the Director General of Bribery Commission could choose a particular person and target him whereas in the normal law, one had to be charged under normal Act.
He added here the Minister could specify the Court and Attorney General or Director General of Bribery Commission to institute the proceedings. He underlined that indictment could be filed in the correct Court but not in the Court specified by the Minister.
Under the normal law of the land, the Chief Justice has to nominate the three judges of the High Court but in the proposed Bill, the Attorney General of the Director General of Bribery Commission can choose a victim and locate the place of trial.
He said there was a deliberate machination which was ultra vires and a violation of the rights of accused.
He pointed out under the proposed Bill, the proceedings could not be postponed for any reason.
Gamini Marapana PC with Navin Marapana appearing for Professor G.L. Pieris submitted that there was no Court such as a Permanent High Court of Trial at Bar. He described that as such this was “a cart before the bull”.
He argued that the Attorney General or the Director General of the Bribery Commission should not supervise the judicial system. He said under the said Bill, the Attorney General and the Director General of the Bribery Commission take powers to transfer the case from one court to another. He contended that it was interference in the Judiciary.
He submitted that Clause 2 amends the Judicature Act to make provision for the Permanent High Court at Bar to try, hear and determine the trials of the offences specified in the Sixth Schedule to the principal enactment and any other offence committed in the course of the same transaction of any such offence.
He said that it specified the composition of the Permanent High Court at Bar. He added it enabled the Minister to specify the location or locations of the Permanent High Court at Bar.
He further submitted that it enabled the Attorney-General and the Director General for the Prevention of Bribery and Corruption to institute criminal proceedings in the Permanent High Court at Bar.
He submitted that Clause 3 amends Section 63 of the principal enactment by the insertion of the definition of the expression “Director General for the Prevention of Bribery and Corruption”.
He contended the said Bill was inconsistent with the provisions of Articles 10, 12, 13 and 14 of the Constitution, the doctrine of separation of powers and Article 27, and cannot become law unless passed by the special majority of two-thirds of the whole number of Members of Parliament (including those not present) and being approved by the people at a referendum, as provided for under Article 83 of the Constitution.
He pointed out the said Bill confers on the Attorney-General and the Director General for the Prevention of Bribery and Corruption the sole discretion of selectively referring, by Indictment, to the High Courts at Bar such cases.
The said Bill confers upon administrative/executive officers of the State the power to transfer any case currently before a Magistrate or a Judge of the High Court to be tried in the permanent High Court at Bar, which amounts to an interference with the Judiciary.
He argued that it conferred on officers who constitute part of the Executive a discretion which was hitherto vested with the Chief Justice [in nominating a Trial at Bar], thereby eroding into and undermining the doctrine of separation of powers.
He submitted that it conferred on the very prosecutors, the opposing party [of the Accused/Defence], thereby depriving the Accused of a significant and inalienable element of his right to a fair trial.
He said the criterion of ‘nature and circumstances’ of the commission of such offence rendered an invitation for subjectivity and discrimination based on extraneous and subjective considerations by the said prosecutors and it confers on prosecuting officers the power to arbitrarily select cases in which selected persons are accused and refer such cases to the said permanent Trial at Bar, thus discriminating between persons accused of such an offence, he alleged.
The said Bill provides for the expeditious conclusion of trials before the High Courts at Bar whereas capital offences such as murder, rape and gang rape are not included in the proposed new Sixth Schedule, and is therefore discriminatory, arbitrary, capricious and violative of Article 12 of the Constitution, he said.
There are a large number of pending cases before the High Courts, in respect of capital offences, without any special procedure being implemented for their expeditious disposal, he submitted.
The said Bill provides for the Permanent High Courts at Bar, each consisting of three Judges from among the Judges of the High Court, sitting together, thereby taking away a number of Judges of the High Court from the High Courts, and thereby adding severely to the already tremendous backlog of cases in such High Courts, he said, and contended that therefore the said Bill was discriminatory, arbitrary, capricious and violative of Article 12 of the Constitution.
Sanjeeva Jayawardane PC appeared for Prof. Mallika Sudath Jayasumana. Manohara de Silva PC appeared for Dinesh Gunawardane. Kushan de Alwis PC appeared for Prof. Liyanage. Shavindra Fernando PC appeared for another Petitioner.
