Counsel tells SC: Bill to amend Judicature Act politically motivated
-tas--FINAL-12.jpg)
Romesh de Silva
by Chitra Weerarathne-March 17, 2018, 12:04 pm
President’s Counsel Romesh de Silva in objecting to the Bill to Amend the Judicature Act, yesterday told the Supreme Court that the Bill did not refer to the establishment of the Permanent High Court Trial-at-Bar.
The Bill assumed that such a Permanent High Court Trial at Bar is in existence but it was not so. Hence the Bill could not be proceeded with De Silva P.C. said.
He said the Minister might establish a Permanent High Court Trial-at-Bar whenever he so wished.
The Minister could specify location by publishing a gazette notification. The Attorney General or Director General of the Commission to Investigate Bribery or Corruption, might initiate proceedings in the Permanent High Court Trial-at-Bar.
The set-up will interfere with judicial independence. It violated Article 154(B), 100 of the Constitution of Sri Lanka.Article 154 (B) is very specific.
Accordingly, every High Court is empowered to hear the criminal offences within the Province.
After this proposed Bill is enacted an offence might be committed in Hambantota and the Minister would decide on the province where the High Court inquiry was to be held, the counsel argued.
Some people might be tried under the new Act while another could be charged under the old one for the same kind of offence. This is unequal treatment in violation of Article 12(1) of the Constitution of Sri Lanka, said de Silva.
The Attorney General and the Director General of Bribery would be empowered to determine which offences should be tried in the new High Courts. That was violative of Article 12(1) on equality, 12(2) on freedom from discrimination and Article 10 on the Right to think. That could target persons politically. If the Chief Justice appointed the three Judges to the new High Court, then the Minister could not decide the location. The Attorney General or the Director General the bribery commission, could not decide on the persons to be prosecuted - that will interfere with the independence of the judiciary.
This violated Article 4(C) of the Constitution and also Article 12(1) on equality and 12(2) on freedom from discrimination. There could be undue targeting, De Silva, PC explained.
The Judge couldn’t be compelled by the impending law on the postponement of cases. The right to a fair trial was denied. It violated judicial power enshrined in Article 4(1). The right of a lawyer to practise his profession, free of external forces was also denied in violation of Article 14(1) of the Constitution of Sri Lanka.
Romesh de Silva supported a petition, against the Bill.
He appeared for the President of the Bar Association of Sri Lanka, U. R. de Silva P.C.
President’s Counsel Gamini Marapana supported a petition by Professor G. L. Peiris, objecting to the Bill.
He appeared with Kaushalya Molligoda and Navin Marapana.
Gamini Marapana endorsed the position taken up by Romesh de Silva PC that the Bill did not refer to the establishment of the Permanent High Court. It had put the cart before the horse; without reference to the establishment of the Permanent High Court Trial-at-Bar, it referred to the procedure to follow.
The right to postpone cases denied the right to fair trial. If the family member of a counsel died how could he appear in the court? He needed a postponement.
This Bill sought to give the power to the Executive Officer of the State, to take away a case from the Magistrate’s Court and place it somewhere else in violation of the independence of the judiciary, Counsel Marapana maintained. The Attorney General and the Director General of the bribery commission would be interfering with the independence of the judiciary.
The Bill carte blanche to the Attorney General and the Director General Bribery, to send any case before the Permanent High Court Trial-at-Bar.
A day-to-day trial prevented an accused from retaining a counsel of his choice, Gamini Marapana said.
The Bill did not refer to serious crimes such as rape, child abuse, murder. It was politically motivated.
The fundamental right to a fair trial would be denied if the Attorney General and the Director General Bribery decided in which Permanent High Court a case should be heard. Let the Chief Justice decide such issues without completely eroding the judicial powers.
The Counsel requested the Supreme Court to declare that the Bill violated the judicial power of the courts, and was, therefore, unconstitutional.
President’s Counsel Sanjeewa Jayawardene endorsed the submissions previously made by de Silva and Marapana. He objected to the Bill, stating that the Bill did not refer to the establishment of the Permanent High Court Trial-at-Bar.
It was a case of putting the cart before the horse. He appeared for Prof. Channa Jayasumana.
The Bill eroded the powers of the Chief Justice, he said. Waging of war, terrorism, murder, rape kidnapping were not given prominence in the Bill at issue.
Serious criminal offences had not been highlighted, he said.
It seemed to be politically motivated. Victims of rape, murder of family members, drugs had been ignored
Manohara de Silva P.C., supported a petition, which objected to the Bill. He said the Bill of that nature needed to be approved by a two-third in Parliament and by people at a referendum.
He appeared for Dinesh Gunewardene.
The bench comprised Chief Justice Priyasarth Dep, Justice Buwaneka Aluwihare and Justice Nalin Perera.
