28 March 2018 12:19 am Views - 3737
Q The government says the purpose of this Bill is to cleanse politics of corruption in this country. Then why do you oppose to it?
The Judicature (Amendment) Bill has nothing to do with catching thieves. It is a canard. This has nothing do with eradication of bribery and corruption from our society. The objective of this legislation is entirely different. It is nothing but political vendetta. The idea is simply to silence the political opponents who cannot be defeated at elections. The results of the local government elections, held on February 10, indicates very clearly what the public opinion is. The government , or President Maithripala Sirisena’s Sri Lanka Freedom Party (SLFP), are fully aware that they cannot face an election with Sri Lanka Podujana Peramuna (SLPP) or come anywhere near victory. Their determination, as a result, is to eliminate these people from the political stage and throw them up in jail. That is the long and broad target.
Q But, there are instances where special tribunals have been set up in the past. Why do you object to them this time?
This country has a very unfortunate history with regard to special courts and special tribunals. We recall the dismal events connected to late Prime Minister Sirimavo Bandaranaike. We can recall the insults that were hurled at her. She was called ‘Bindumathi’. The Ministers in the JR Jayewardene government said she would be dragged on the road in chains. She was convicted for offences which has no existence in the law. She went to the regular courts. She got relief. What happened? The JR government enacted legislation in Parliament to reverse the decisions of the court that gave her relief. Late Justice Wimalaratne, an illustrious judge in this country who gave her relief, was hauled before Parliament. The judge himself was tried before Parliament. The present Prime Minister was a member of the committee of Parliament appointed to try the Supreme Court Judges, Justice Wimalaratne, Justice Colin Thome and others.
That was the behaviour of the UNP in the past. In this case, this Bill has been presented. We have challenged it in the Supreme Court. The oral argument has been concluded. The written submissions were filed on March 24. The decision is to be communicated to the President and the Speaker next week.
The basic purpose of the legislation is to set up a permanent High Court at bar to conduct trials at bar. Trials at bar are nothing new in this country. That is very much a law in the established courts. With regard to the trial at bar, the procedure is for the Attorney General to make an application to the Chief Justice for the constitution of trial at bar. It is for the Chief Justice and the Chief Justice alone to decide whether the circumstances warrant the establishment of a trial at bar. That requires the application of judicial might. The head of the judiciary is entrusted with that responsibility. Nobody else can make that decision. The whole concept of permanent trial at bar is anomalous and contrary to the principles of law.
Q Why do you say so?
Trial at bar is a special institution. It is brought into place when the special circumstances require it. It is for the Chief Justice to decide whether the facts of a particular case justified the creation of a trial at bar. So far, the trial at bars had been established in respect of cases such as gruesome murders, sexual abuses, followed by Vidya’s gang rape and murder case in recent times. What is totally obnoxious is the effort to take away that discretion from the Chief Justice and to vest it in the executive.
If the proposed legislation is passed, then the Minister is given the power to establish these benches or these special courts. The Bill says there is no limit to the number of courts to be established. He can establish any number of these special courts. It is for the Minister to decide where this particular court sits. All of that is in the hands of the Minister. It is for the Attorney General or the Director General of Bribery Corruption and to decide what cases to be prosecuted before these special courts. That itself is contrary to principles. The Director General of Bribery Corruption is not even appointed by the Constitutional Council. It is an executive appointment, entirely in the hands of the political executive.
The country is fully aware of the top ten initiatives headed by MP Mahindananda Aluthgamage. The most serious allegations were made against the Cabinet Ministers of the present government. Facts and figures were presented. Very strong evidence was presented before the Bribery and Corruption Commission. But, nothing whatever happened.
Look at the serious allegations made by Deputy Minister Ranjan Ramanayake! There was the situation involving COPE. The COPE members, while they were investigating Perpetual Treasuries, made hundreds of telephone calls to its owner Arjun Aloysius. The Ministers of the cabinet admitted that they met Arjun Aloysius face to face. It transpired that Perpetual Treasuries had 22 bank accounts, but they purchased Mendis Distilleries. It was the account of Mendis Distilleries that was used to pay bribes. There is reason to believe that. That was the allegation that was made from within the government. It was alleged that Rs.1,200 million was spent out of that bank account. Some of these withdrawals took place during the time when the COPE members were either meeting Perpetual Treasuries or having telephone communications with them. All the money has been taken out of that account. The Bribery and Corruption Commission has a duty to investigate this matter. Parliamentarian Ramanayake said the Central Bank fraud was nothing compared with other frauds which are currently taking place. He referred to a situation involving Sri Lanka Cricket.
Isn’t that a paramount duty of the Bribery Commission to investigate these matters? What is the Commission doing about it?
Our complaint is basically that this legislation involves procedures which are highly selective. It is the Director General of Bribery and Corruption to identify the people to be prosecuted or the cases to be brought before this special tribunal. A sacred principle of our law is equality. The criminal law must apply to everyone alike. Similar offences charged against different people must be tried upon the same system. Suppose the persons A and B are charged for the same offence, but A is tried by the regular court and B by the specially created court! That is discrimination. That is contrary to the principle of equality enshrined in Article 12 of the Constitution.
The offences on which this trial at bar can be constituted are set out in the sixth schedule. That covers a very wide range of offences. Again, whether a particular offence or offender should be tried before a regular High Court or special High Court depends entirely on the whims and fancies of the Director General of Bribery and Corruption.
That strike at the very root of the system of criminal justice that prevails in this country. What we are saying is that this is not what it pretends to be. There is pretense to clean up politics of this country. On the contrary, what is sought to be done is to introduce corruption into judiciary. That would be a great pity because that will destroy an institution which the public of Sri Lanka up to this time had great confidence. Our judges and courts have been held in the highest esteem all over the world. Now what is sought to be done is to introduce politicization.
Q But, those who lobby for this Bill say there is a backlog of cases for 17 years. The country needs to dispense with these cases. What is your view on this?
There are people who have been languishing in jail for 10 or 12 years. There are 11000 people in remand custody. There are thousands of people who have been denied bail. Why is this bill not concerned with these people then?
When you use the High Court judges for these special courts, the regular functions of High Courts will suffer. If a man has to suffer in remand custody for ten years, he will now have to languish in custody for 15 years.
This law is not applicable to serious offices such as murders, kidnapping, rape etc. If the idea is to create the backlog, we have to clear it with regard to the most serious offences. Why is no attention paid to that at all?
The only intention of those who drafted this Bill is to bring the Rajapaksa family and the leaders of the political parties opposed to them before this special tribunal.
Q Don’t’ you see the need for any special mechanism to deal with corruption?
We are not objecting to those mechanisms. They must be entirely within the control of judiciary. Trial-at-Bar is also a special mechanism. We are not objecting to Trial-at-Bar as long as it is in the hands of the Chief Justice.