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Sri Lanka’s “political victimisation” commission : 40 opposition members want SC to deal with members of CoI for contempt of court

In a signed letter to Chief Justice Jayantha Jayasuriya and other Supreme Court (SC) Justices forty Members of the  parliamentary oppostion Samagi Jana Balawegaya (SJB) requested  SC to initiate action against the three member Commission of Inquiry (CoI) into Political Victimization for contempt of court.

The three member Commission comprised retired Supreme Court Justice Upali Abeyratne, retired Court of Appeal Judge Chandrasiri Jayathilake and former Inspector General of Police Chandra Fernando.

Justice Upali Abeyratne now heads the Office for the Missing Persons while former IGP Chandra Fernando heads the National Police Commission

The letter “very respectfully urge SC to;

(a) Deal with the said Upali Abeyratna, Chandrasiri Jayathilake and Chandra Fernando for Contempt of Court under Article 105(3) of the Constitution of Sri Lanka,

(b) Make order to strike off the names of Upali Abeyratna and Chandrasiri Jayathilakefrom the roll of Attorneys at Law of the Supreme Court of Sri Lanka,

(c) Direct the Hon. Attorney General to institute proceedings against the said Upali Abeyratna, Chandra Jayathilake and Chandra Fernando under Article 111(c) of the Constitution of Sri Lanka.

The Commission has recommended that accused facing trial in Magistrate’s Court be acquitted and discharged, that accused facing trial in the High Court or High Court Trial-at-Bar be acquitted or discharged and / or indictments be withdrawn by the AG, that officers from the AG’s Department who prosecuted these cases and police officers who investigated the cases be prosecuted, and for the accused to be compensated, the letter emphasises.

The letter raised the isssue of  former MP Duminda Silva, who was sentenced to death in a quadruple murder case by a High Court at Bar and whose judgement was approved by a full bench of the Supreme Court.  IN its recomendations the CoI has recommended that the AG should reopen the case and move to discharge the accused.

The letter in full:

Parliament of Sri Lanka,
Sri Jayawardenapura Kotte.

23 February 2021

His Lordship The Chief Justice, Hon. Jayantha Jayasuriya PC & Other Honourable Justices of the Supreme Court of Sri Lanka
Hulftsdorp,
Colombo 12.

Your Lordships,

Report of the Commission of Inquiry into Political Victimizations and its adverse effects on the Rule of Law, the judiciary, judicial process, and members of the official and unofficial Bar

As Your Lordships are no doubt aware, His Excellency, the President appointed a Commission of Inquiry chaired by retired Supreme Court Judge Upali Abeyratne and comprising retired Court of Appeal Judge Chandrasiri Jayathilake and former Inspector General of Police Chandra Fernando to inquire into and report on allegations of victimization of public officers, employees of public corporations and members of the armed forces and the police during the period 08 January 2015 to 16 November 2019.

The report of the Commission, although not officially published, is in the public domain. The report has been submitted and discussed by the Cabinet of Ministers and have decided to implement the recommendations of the Commission. His Excellency the President has, based on the recommendations of the Commission, appointed a Special Presidential Commission of Inquiry for the implementation of the same.

Although the Commission was appointed to investigate and report on victimization of public officers etc, the Commission has, ultra vires of its mandate, made a number of recommendations that have an adverse and a damning effect on the Rule of Law, democratic governance, the judiciary, the process of criminal justice etc. It has cast aspersions on the judiciary, the Office of the Attorney-General, law officers of the State and members of the unofficial Bar. These aspersions are unethical and in violation of the decorum of an Attorney at Law whose obligation is to respect these institutions in the process of administration of Justice.

Hon Attorney General has informed the Commission by a written communique on 22nd June 2020 that the Commission has no jurisdiction to go into complaints made by private individuals. The Members of the Commission have refused with arrogance to hear even the submissions of the Deputy Solicitor Generals Wickum De Abrew and Rohantha Abeysuriya who sought the permission of the Commission to make submissions based on the letter sent by the Attorney General and have even refused to make a ruling on the letter written by the Attorney General and have proceeded with the relevant inquiry unperturbed. The two officers of the Attorney General’s Department have been publicly humiliated and threatened and silenced when they sought to make submissions on the letter that was sent by the Attorney General. This is alarming, appalling and most unprecedented.

In the Court of Appeal, in case bearing No. CA 167-169/2020, the Counsel representing the members of the Commission have given an undertaking that a senior officer of the Attorney General’s department and the two petitioners of the aforesaid applications will not be summoned before the Commission until the said applications are disposed of. The Commission has recommended charges against the said senior officer Janaka Bandara of the Attorney General’s department and the two petitioners of the aforementioned applications. Violation of an undertaking given to court is contempt of court.

The Commission has in many other matters ‘pronounced’ that persons who have been convicted by courts should not have been so convicted, that accused persons who are now being tried in courts are innocent and should be acquitted and discharged, and that further criminal proceedings should not be continued against persons awaiting trial before Trial at bar, High Court and Magistrates’ Court. The recommendations by the Commission have concluded that the judiciary of this country have indulged in a witch-hunt and subjected the Judiciary to humiliation on the basis that the judiciary continues to victimize such persons. Present and past Senior officials of the Attorney-General’s Department such as Additional Solicitor General Wasantha Navaratna Bandara PC and Solicitor General Dilrukshi Dias Wickremasinghe PC who were only performing their official functions have come under unfair criticism with vituperation in derogation of the professional and official duties of such officers, and therefore the Office of the Attorney-General, has been ridiculed attributing collateral reasons and political motivations in forwarding indictment and or recommending charges.

Members of the unofficial Bar who had only done their duty by their clients and or taking up matters in Public Interest as per the objectives of the Bar Association of Sri Lanka have been vilified and portrayed as been involved in political victimization and or fabrication of evidence and or indulged in corrupt practices as provided for under the Bribery and corruption law and further recommended that action should be taken as provided under relevant laws.

The procedure that has been adopted by the Commission is not provided for in the Criminal Procedure and is arbitrary, capricious and impedes on the powers and the authority of the Attorney General who is also the Principle Law officer of the State.

As per the arbitrary findings of the said Commission they have recommended:

(A) That accused who are facing trial be acquitted and discharged from the proceedings of the Magistrates court,

(B) That the accused facing trial in the High Court and or High Court Trial at Bar be acquitted and discharged and or indictment to be withdrawn by the Attorney General,

(C) That the Officers of the Attorney General’s Department who prosecuted these accused, other Attorneys at Law who have voiced their concerns in respect of these matters be charged for fabricating false evidence under Section 189 of the Penal Code and reported to the Commission to Investigation Bribery or Corruption n to be charged for corruption.

(D) That the Police Officers who conducted investigations be charged for fabricating false evidence under Section 189 of the Penal Code and reported to the Bribery and corruption Commission to be charged for corruption.

(E) In a concluded quadruple murder case tried by a High Court at Bar and the judgement affirmed by a full bench of the Supreme Court wherein the accused (including Duminda Silva, a politician/ former Member of Parliament) were sentenced to death, it has been recommended that the Attorney General should reopen the case and move to discharge the accused.

(F) That the respective accused be sufficiently compensated by the Government of Sri Lanka.

In these atrocious and appalling circumstances and such scandalous and outrageous recommendations, we are of the view that the perpetrators who have acted in such diabolical manner in violation of ethical conduct of an Attorney at Law in Contempt of the Courts of Sri Lanka should immediately be dealt with for Contempt in order to safeguard the Rule of Law and the independence of the judiciary. The judiciary must be protected from such vilification and all forms of invasions and all three Commissioners must be dealt with for committing contempt of Court for having interfered in the course of Justice in more than 50 pending court cases.

The two commissioners who are also Attorneys at Law, namely Upali Abeyratna and Chandrasiri Jayathilake have desecrated the legal profession in an unlawful and a disgraceful manner in which they conducted themselves in the proceedings of the Commission having committed moral turpitude in a flagrant manner, should be struck off the role of Attorneys at Law and accordingly they should be given an opportunity to exculpate themselves by the Bar Association of Sri Lanka. Upon their failure to exculpate themselves they should be reported to the Supreme Court for their names to be struck off the role of Attorneys at Law.

We bring to your Lordship attention Article 111C of the Constitution of Sri Lanka:

“ [111C.]

(1) Every judge, presiding officer, public officer or other person entrusted by law with judicial powers or functions or with functions under this Chapter or with similar functions under any law enacted by Parliament shall exercise and perform such powers and functions without being subject to any direction or other interference proceeding from any other person except a superior court, tribunal, institution or other person entitled under law to direct or supervise such judge, presiding officer, public officer or such other person in the exercise or performance of such powers or functions.

(2) Every person who, without legal authority, interferes or attempts to interfere with the exercise or performance of the judicial powers or functions of any judge, presiding officer, public officer or such other person as is referred to in paragraph (1) of this Article, shall be guilty of an offence punishable by the High Court on conviction after trial without a jury with imprisonment of either description for a term which may extend to a period of one year or with fine or with both such imprisonment and fine and may, in addition, be disqualified for a period not exceeding seven years from the date of such conviction from being an elector and from voting at a Referendum or at any election of the President of the Republic or at any election of a Member of Parliament or any local authority or from holding any public office and from being employed as a public officer.”

In the foregoing circumstances it is clear that the three persons who functioned as the Commissioners in a Commission warranted to examine within the four corners of the objectives have blatantly violated the terms of reference and made recommendations that are diabolically dreadful and influenced the judicial process of the Courts of Law as defined therein. As such they have committed an offence under the said Article of the Constitution of Sri Lanka and are liable to be prosecuted.

In these circumstances, we very respectfully urge Your Lordships to;

(a) Deal with the said Upali Abeyratna, Chandrasiri Jayathilake and Chandra Fernando for Contempt of Court under Article 105(3) of the Constitution of Sri Lanka,

(b) Make order to strike off the names of Upali Abeyratna and Chandrasiri Jayathilakefrom the roll of Attorneys at Law of the Supreme Court of Sri Lanka,

(c) Direct the Hon. Attorney General to institute proceedings against the said Upali Abeyratna, Chandra Jayathilake and Chandra Fernando under Article 111(c) of the Constitution of Sri Lanka.

Yours faithfully,

Archive

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