Two SC judges recuse themselves from hearing writ petitions

MC proceedings against Ex-CJ and CA judge 

By S.S. Selvanayagam

Two judges of the Supreme Court yesterday recused themselves from being members of the bench hearing the writ petitions against the decision of the Bribery Commission to institute proceedings against the former Chief Justice and incumbent superior court judge.

When the writ petitions were taken up yesterday before a bench headed by Chief Justice Priyasath Dep, justices Buwaneka Aluvihara and Nalin Perera declined to be members of the bench to hear the writ petitions challenging the decision of the Bribery Commission to institute proceedings in the Magistrate’s Court against former Chief Justice Mohan Peiris and incumbent judge A.H.M.D. Nawaz of the Court of Appeal.

The Court fixed the matter to be taken for support on 14 May.

Meanwhile, Justice Priyantha Jayawardane had sought the opinion of the parties over whether they had any objection to him hearing the case as he knew both parties. The Counsel for the Bribery Commission on that instance had informed the Court that he had to obtain instructions.

The petitions were filed by Justice Nawaz, the Bar Association of Sri Lanka and Kalyana Thiranagama seeking to quash the decision of the Bribery Commission to institute proceedings against former Chief Justice Peiris and Justice Nawaz in the Magistrate’s Court of Colombo and to continue with the proceedings.

Gamini Marapana PC with Nigel Hatch PC, Dr. Harsha Cabraal PC, Palitha Kumarasinghe PC and Navin Marapana appeared for 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 and M.A. Sumanthiran appeared for the Bribery Commission. Additional Solicitor General Sanjay Rajaratnam appeared for the Attorney General.

The Court had on 26 February issued an Interim Order until the final determination staying the proceedings in the Colombo Magistrate’s Court against the former Chief Justice and Justice Nawaz initiated by the Bribery Commission.

The BASL in its petition states the gravamen (the essence or most serious part of the complaint or accusation) of the purported allegation is that first 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 contends the correctness or otherwise of a legal opinion is not within the purview or jurisdiction of the Magistrate and is thus not a matter into which a Magistrate can inquire.

It states that ex facie no wrongful or unlawful benefit could have been caused to any person such as 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 emphasises that the first respondent is thus entitled to all his privilege and immunity in respect of such professional work being carried out.

It laments that the actions of the Director General of the Bribery Commission are misconceived to seek to impose any personal criminal liability upon the first respondent’s acts done ex-officio on behalf of the Attorney General.

It points out that the first respondent’s appointment as the Judge of the Court of Appeal in 2014 was approved by the Parliamentary Council without the slightest allegation of wrongdoing. It 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) of the said Act.