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Monday, April 22, 2024

Sri Lanka Might Need a Hybrid Court to Probe Even Corruption etc – Upul Joseph Fernando

( An Avant Garde armory)
  • Twenty two containers with 3,154 firearms and 745,859 rounds of ammunition detected at Galle Port – 8.1.2015.
  • The CID commences investigations on the order of the IGP – 9.1.2015.
  • Court impounds the ship owner’s passport – 23.1.2015.
  • Prohibition on ship owner’s passport lifted and passport released on the recommendation of the Attorney General – 7.7.2015
  • ‘We have evidence that approval had been granted to release the passport of floating armoury Avant Garde owner’ – Anura Kumara Dissanayake’s statement on 2.3.2015 when the ban on the passport was temporarily lifted.
  • They tried to offer me a Rs 300 million bribe to sweep the floating armoury case under the carpet’, – Minister Rajitha Senaratne – 14.5.2015.
    Attorney General recommends ending case against owner of floating armoury – 8.9.2015.

Those who voted for Good Governance were shocked reading those news reports. It was in that backdrop JVP Leader Anura Kumara Dissanayake made a special statement in Parliament in a confused manner.

He charged that strongmen in the government had suppressed the Avant Garde case through the Attorney General and urged to resume the case. Hardly a few days later of Anura’s statement another Avant Garde ship carrying arms was arrested, while heading towards the Galle Harbour without notice to the Navy. What will happen if such ships arrive without notice to the Navy and launch attacks? That is where the danger lies.

The most shocking development is that this ship arrived in that secret style at a time Avant Garde had been acquitted and discharged by Court. In the same manner the Attorney General told Court that there was no sufficient evidence to indict Kumaran Pathmanathan alias ‘KP’, a known LTTE leader. In the same way the Attorney General said there was no evidence to prosecute Gotabaya Rajapaksa and lifted the ban on Gotabaya’s passport. Adding insult to injury, the woman High Court judge hearing the Sil Redi case where Rs 600 million belonging to the Telecommunication Regulatory Commission (TRC) had been misappropriated by former Presidential Secretary Lalith Weeratunga and TRC Chairman Anusha Pelpita were released on bail. The Judge said though the two suspects could be remanded under the Public Property Act she was granting bail.

An eye opener to the government
Next day, the Colombo Additional Magistrate charged that suspects could not be granted bail in that manner without them being produced before him. His judgment about the conduct of the Police and the Attorney General was an eye opener to the government. He issued notice on the FCID and the Police and stated that suspects in cases under the Public Property Act could only be granted bail under extraordinary circumstances.

He described the actions of the Attorney General in the following manner: “It is settled in our constitutional law that in matters which, concern the public at large the Attorney General is the guardian of public interest. The Attorney General is the Chief Legal Officer and Adviser of the State and then to the Sovereign and is in that sense an officer of the public. The Attorney General in this country is the Leader of the Bar and the highest Legal Officer of the State. As Attorney General he has a duty to Court, to the State and to the subject to be wholly detached, wholly independent and to act impartially with the sole object to establish the truth. That image will certainly be tarnished if he takes part in private litigation arising out of private disputes.

No Attorney General can serve both the State and the private litigant”.
Furthermore, the Judge interpreted the objectives of his judgment in the following manner: “Judges of Courts for first instance, whose orders always have a direct and an immediate impact on both parties who come before them, and members of the public who follow the proceedings in Court must always be conscious of, and deeply appreciate the immunity referred to earlier, so conferred upon them by law in regard to all acts done by them in the discharge of their Judicial functions. It is a privilege which has been bestowed upon them not in order to pander to their vanity, or to enable them to make mistakes and to do wrong, or to act without a very high sense of responsibility. It is a protection extended to them solely for the sake of the public, and for the advancement of justice; so that, the knowledge that they will not be troubled by any actions against them would make them totally free in thought and absolutely independent in judgment, and also enable them to discharge their functions not only freely without favour, but also without fear. The very thought that such immunity is granted to them for the sake of the public should inspire the Judges to exercise their powers and discharge their functions with the highest possible sense of responsibility and with such a high degree of dignity and decorum as will continue to command and retain undiminished confidence of the public in an institution which has hitherto enjoyed such confidence in full measure”.

This is how the Judge explained equality before the law;

1) All persons are equal before the law and are entitled to the equal protection of the law.
2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.
3) No person shall, on the grounds of race, religion, language, caste, sex or any one of such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, and places of public entertainment and places of public worship of his own religion.
4) Nothing in this article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children and disabled persons.

When the Colombo Additional Magistrate A. Nishantha Peiris concluded his judgment, all lawyers present in the Court House rose to respect him. When one reads his judgment it is evident and clear that the Judiciary, Police and the Attorney General’s Department in the country stands distorted. May be that is why the UNHRC says it cannot place trust in the Sri Lankan Judicial process. That fact is established by the judgment of Additional Magistrate, Nishantha Peiris. Leaving aside the inquiry on war crimes, it will not be a surprise if the need arises to set up a Hybrid Court comprising foreign Judges to probe corruption, plunder and irregularities of the previous regime

( Courtesy – Ceylon Today)


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