The Supreme Court yesterday rejected the revision application made by the Bribery Commission which contested the Order dictated by Justice Eva Wanasundera who stayed 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.
The Bench comprised Chief Justice Priyasath Dep, Justices Vijith K. Malalgoda and Lalith Dehideniya.
The Bribery Commission cited former Chief Justice Mohan Pieris, Incumbent Superior Court Judge A.H.M.D. Nawaz, BASL President U.R. De Silva, the Attorney General and others as Respondents.
It stated the 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 Counsels requesting that the connected four matters be taken up together.
It stated that it was disclosed in open Court by Additional Solicitor General Sanjay Rajaratnam appearing for Attorney General that 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’s Department.
It said that copies of certain documents were handed over to Justice Wanasundara by him. While those documents were retained by Justice Wanasundera, the contents of same were not disclosed to the parties or counsel.
It stated 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 said.
Subsequently the Bribery Commission requested the 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 stated.
The Attorney General accordingly made available the said Minute and connected documents to the CIABOC.
It claimed the documents furnished by Attorney General and the relevant Minute demonstrates that Justice 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 stated 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 contended that in the aforesaid circumstances, Justice Eva anasundara 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 maintained that as such Justice Wanasundara was obliged to have recused herself from participating in the matter.
The Bribery Commission sought 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.
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 the Petitioner Mohan Peiris. K. Kanag Iswaran PC appeared for Justice Nawaz. Romesh de Silva PC with Sugath Caldera and Manjula Fernandopulle and Niran Anketell appeared for the President of Bar Association of Sri Lanka. Additional Solicitor General Sanjay Rajaratnam appeared for the Attorney General.