Two SC Judges recuse themselves from hearing Writ petitions

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 former Chief Justice and incumbent superior court judge.

When the Writ petitions were taken up yesterday before the 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 the incumbent judge A.H.M.D.Nawaz of Court of Appeal.

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

Meanwhile, Justice Priyantha Jayawardane had sought the opinion of the Parties whether they had any objection to him to hear 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 instruction.

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

Gamini Marapana PC with Nigel Hatch PC, Dr Harsha Cabraal PC, Palitha Kumarasinghe PC and Navin Marapana appeared for Mohan 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.

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

BASL in its petition stated the gravamen (the essence or most serious part of the complaint or accusation) of the purported allegation is that 1st 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 and/or jurisdiction of the Magistrate and is thus not a matter into which a Magistrate could inquire.

It states that ex facie no wrongful or unlawful benefit could have been caused to any person such certain undisclosed Directors of the Lanka Electricity Company Pvt 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 emphasizes the 1st Respondent is thus entitled to all his privilege and immunity in respect of such professional work carried out.

It laments the actions of the Director General of Bribery Commission are misconceived to seek to impose any personal criminal liability upon the 1st Respondent’s acts done ex officio on behalf of the Attorney General.

It points out that 1st 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) the said Act. (S.S.Selvanayagam)