Two Supreme Court Judges decline to hear judge's petition

Justices Sisira de Abrew and Murdu Fernando P.C. declined to hear the Writ Applications filed by Court of Appeal Judge A.H.M.D. Nawaz, Attorney-at-Law Kalyananda Thiranagama and the Bar Association of Sri Lanka (BASL), and the Fundamental Rights (FR) Application filed by Upul Jayasuriya P.C., in relation to the case filed against Justice Nawaz and two others, by the Bribery Commission.

When the cases came up on Monday before a Supreme Court (SC) Bench that included Justice L.T.B Dehideniya, the Bench put off the hearing before another SC Bench, for June 1.

An earlier SC Bench comprising Justices Eva Wanasundera, Nalin Perera and Prasanna Jayawardene, which heard a Writ Application on February 26, filed by former Chief Justice (CJ) Mohan Pieris P.C., issued a stay order on the Colombo Chief Magistrate from proceeding with the case filed under Section 70 of the Bribery Act by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) against Justice Nawaz, former CJ Mohan Pieris and former Secretary, Ministry of Power & Energy, M.M.C. Ferdinando, until the hearing and final determination of the Applications before the SC. The Application was supported by Gamini Marapana P.C.

The other Applications on the same issue, came up for support on March 7, before Justices Priyantha Jayawardena P.C., Prasanna Jayawardena P.C. and L.T.B. Dehideniya, and were re-fixed for support on March 15, following Justice Priyantha Jayawardene unwillingness to hear the case.

On March 15, the Applications came up for support before a SC Bench comprising CJ Priyasath Dep P.C., Justice B.P. Aluvihare P.C. and Justice Nalin Perera, but were re-fixed for support on May 14, as Justices B.P. Aluvihare P.C. and Nalin Perera declined to hear.

Justice Nawaz's Application was supported by Faisz Musthapha P.C.. M A Sumanthiran P.C. appeared for the 3 members of the CIABOC named Respondents in the Writ Applications. Prof H.M. Zafrullah appeared for Petitioner Attorney-at-Law Thiranagama in the Writ Application to the SC. M.M. Zuhair P.C. appeared for Justice Nawaz as Respondent in that case. Romesh de Silva P.C. appeared for the BASL's Application. Geoffrey Alagaratnam P.C. appeared for the CIABOC Commissioners and the Director-General in the case. Upul Jayasooriya P.C. appeared in support of the FR Application, while Suren Fernando appeared for the CIABOC in the FR application. The Counsel were unable to support their respective Applications following the two judges declining to hear, and re-fixed the cases to be heard before another Bench.

The CIABOC's allegations made in the Colombo Magistrates Court relates to an opinion given by the former CJ, when he was the Attorney General (AG), together with a sitting Judge of the Court of Appeal, when he was a Deputy Solicitor-General in the AG’s office. The AG’s opinion, it is alleged, had been given in 2010, to then Secretary, Ministry of Power & Energy, and that, the opinion is violative of Section 70 of the Bribery Act. It is alleged that, "The 3 suspects conspired in December 2010, in their then official capacities, and gave the opinion, notwithstanding reports by two committees, dis- closing the commission of offences of corruption and criminal misappropriation by the Board of Directors and other employees of Lanka Electricity Co. [LECO] (Pvt) Ltd, with the intention or knowledge of granting an unlawful favour or advantage to persons responsible for the offences and thereby, committed an offence under Section 70 of the Bribery Act, read with the conspiracy provisions in the Penal Code."

According to the Petition filed by Justice Nawaz, the AG had expressed the view in an opinion dated December 16, 2010, that, "On the material furnished, there had been a collective decision taken unanimously by the Board, with regard to a commercial transaction and that, a judgmental error by the Board of LECO (Pvt) Ltd, with regard to the commercial viability of a transaction which results in a loss, does not lead to an inescapable inference of criminal liability and would therefore, preclude criminal action being launched against the Board of Directors." The Petition further alleged that, the CIABOC or the Magistrate has no jurisdiction to review or call in question, an opinion furnished by the AG and that, the purported assumption of jurisdiction is ex facie a nullity.

The Petitioner also complained that the criminal proceedings instituted in January 2018, is mala fide, and for a collateral purpose, namely to victimise the Petitioner’s elevation to the Court of Appeal. A legal opinion cannot, in Law, entail the commission of a criminal offence, the Petitioner stated.

The BASL, in its Petition filed by its President U.R. de Silva, has alleged that the correctness or otherwise, of a legal opinion, is not within the purview or jurisdiction of a Magistrate to inquire into and that, the AG had carried out his professional entitlements as an Attorney-at-Law, under Section 41 of the Judicature Act and that, the communication is privileged under the Evidence Ordinance. The Petition further states that the criminal proceedings will, in effect, obstruct the AG in the exercise of his powers and functions vested in the said office by Law and Custom. The proceedings in the lower court will violate the functional immunity of a sitting Superior Court Judge protected by the Constitution of the Republic, the BASL Petition stated.