State does not intend to establish separate High Court, AG contends on Judicature Amendment

By S. S. Selvanayagam

Senior Additional Solicitor General Yasantha Kodagoda yesterday (19 March) said that the State does not intend to establish a separate High Court of Trial at Bar, but the Bench will be constituted from the existing cadre of High Court judges.

He clarified that the proposed Permanent High Court at Bar shall consists of three judges sitting together, nominated by the Judicial Service Commission from among the judges of the High Court of the Republic, of which one judge shall be nominated by the Judicial Service Commission as the Chairman of such Court.

Senior Additional Solicitor General Kodagoda with Additional Solicitor General Priyantha Nawana, Deputy Solicitor General Nerin Pulle and Senior State Counsel Yuresga de Silva appeared for the Attorney General for the Special Determination of the Supreme Court on the proposed ‘Judicature Amendment’ Bill.

Kodagoda submitted that the Permanent High Court at Bar shall have jurisdiction in respect of the offences committed by any person wholly or partly in Sri Lanka or wherever committed by a citizen of Sri Lanka in any place outside the territory of Sri Lanka or on Board or in relation to any ship or aircraft of whatever category.

The High Court was originally created in 1973 by the Administration of Justice Act as an institute of administration of justice, and it inherited criminal jurisdiction which was earlier done by the Supreme Court, Kodagoda said. Both District Courts and Magistrate’s Courts had also conferred with these jurisdictions and all trials were heard by jury, and thereafter the administration of justice law was repealed by Article 105 of the Constitution and it created Supreme Court, Appeal Court, High Court etc., he added.

In the nature of the High Court, there are two separate Courts, namely the High Court of the Republic and the High Court of Province under the Article 105(1)(c) of the Constitution, Kodagoda said. The differences between them are insignificant. Under Article 112(b), the power of disciplinary conduct, appointment and removal of High Court judges are vested in the Judicial Service Commission whereas it was earlier performed by the Chief Justice, he submitted.

High Court of Province was created by the 13th Amendment to the Constitution and in spite of the creation of the High Court of Province, the High Court of Republic continue to exist, he said.

In terms of our law, there are modes (manner or mechanism) of hearing the cases namely (1) Trial at Bar by High Court judges, (2) hearing by the High Court by jury before a High Court Judge, (3) hearing by three judges of the High Court without jury namely High Court at Bar or Trial at Bar by distinguished Judges, Kodagoda elaborated.

Tracing the origin of the High Court Trial at Bar, Kodagoda stated that in the eve of Sinhala – Muslim riot, the 3rd mode of hearing by three judges was introduced for the offences of civil commotion, disturbance of peace so and so forth whereas this crimes were originally heard by the Supreme Court. The power remained conferred on the Governor then but it was taken away and conferred on the Minister now where the proposed Bill provides for the 3rd mode of hearing, he said.

Underlining the government policy, Kodagoda submitted that the 6th schedule to the Judicature Amendment has a series of offences namely serious financial and economic crimes under the Penal Code. He differentiated the gravity of the offence mentioned in the theft category and said it would be considered on the seriousness and not on the nature of the crimes.

Some of the serious crimes listed in the said schedule are: Dishonest misappropriation of Property, Criminal breach of trust, and so on, he said.

In the aftermath of the abortive coup of 1962, Parliament enacted Criminal Law (Special Provision) Act, Kodagoda noted.

Kodagoda submitted on the Permanent High Court at Bar said the 12(a) provides that the permanent High Court at Bar shall hear, try and determine in the manner provided for by written law, subject to the provisions of Sub section (7), all prosecutions on indictment against any person, in respect of offences specified in 6th Schedule and any other offence committed in the course of the same transaction of any such offence.

Kodagoda said the Minister shall, in specifying the location or locations of the permanent High Court at Bar or increasing the number of such Courts, consult the Judicial Service Commission. He contended that the intended Permanent High Court at Bar is forum jurisdiction and is being brought for the in the interest of the country and the justice to speed up and expedite the hearing day by day and concluded. 

Hearing for Special Determination of the Supreme Court came before the Bench comprising Chief Justice Priyasath Dep, Justices Buwaneka Aluvihara and Nalin Perera.