Legal battle royale over Corruption Court | Sunday Observer

Legal battle royale over Corruption Court

18 March, 2018

Legal heavyweights will continue to battle it out in the country’s apex court, as the Government’s proposal to set up a special high court on corruption through amendments to the Judicature Act is taken up before a bench headed by Chief Justice Priyasath Dep tomorrow.

Strong backers of the January 2015 mandate for reform and good governance have come out in support of the bill to set up the special corruption court, after the pro-Rajapaksa political faction comprising the Joint Opposition (JO) and the Sri Lanka Podujana Peramuna (SLPP) pulled out all stops to block the legislation.

The Attorney General and counsel for 13 intervening petitioners will make submissions before the three judge bench of the Supreme Court tomorrow, arguing that the amendment being proposed to set up the permanent high court to try corruption and complex financial crimes does not require a two thirds majority and a referendum to be enacted, since the bill does not violate the constitution.

Government parliamentarians Eran Wickremaratne, Dr Harsha De Silva, Patali Champika Ranawaka, Ajith Perera and Karunaratne Paranavithana, good governance activists, trade unionists and a host of actors who strongly backed the January 8 2015 yahapalanaya coalition have come forward to intervene in the case before the Supreme Court. President’s Counsel J.C. Weliamuna, Dr. Jayampathi Wickremaratne PC, M.A. Sumanthiran PC, Saliya Peiris PC and Geoff Alagaratnam PC – the former BASL President – will appear on behalf of the intervention petitioners when the case comes up before the Supreme Court tomorrow.

 “The move to set up this anti-corruption court is long overdue,” said JHU General Secretary and Minister of Megapolis and Western Development Champika Ranawaka in a press conference last week. Ranawaka said the establishment of this court should have been a priority for the Government as soon as it came into office. Opponents of the legislation to set up the court were running scared of being prosecuted on corruption charges themselves, he claimed.

JO Convenor Dinesh Gunewardane, SLPP Chairman G.L. Peiris, the Bar Association of Sri Lanka and another petitioner filed suit against the proposed amendment to the Judicature Act. Counsel for the JO, SLPP and the BASL President argued that the bill would give the AG who is a member of the executive branch, arbitrary powers to decide which offences should be tried in the special High Court. The bill to amend the Judicature Act was politically motivated, the counsel told Supreme Court and would also erode the powers of the Chief Justice.

BASL President U.R. De Silva PC, insisted that the Association’s petition should not be construed as overall opposition to the amendment.

“We are not in opposition to the amendment as a whole. What we suggest is that maybe the authority to indict should be vested with the Chief Justice.

Then there will be a degree of accountability, rather than leaving it in the hands of the AG and the DG of the Bribery Commission. This is very important given the fact that there lies only one appeal from this court,” De Silva PC told Sunday Observer yesterday.

“Another factor that should be considered is that appeals from this proposed court only lies to the Supreme Court. It should at least have two stages to appeal. It is against these lacunas in the proposal that we have petitioned against,” the BASL President said.

However, the BASL decision to file the petition comes despite the Association’s participation before the Parliamentary oversight committee on the formulation of a policy framework for the proposed amendment to the Judicature Act to set up the new court, and even in discussions on the bill, thereafter, *Sunday Observer* learns.

In December 2017, BASL President U.R. De Silva PC himself had appeared before the Oversight Committee in looking into the draft bill to amend the Judicature Act and was specifically asked if the Bar Association had objections to the court being able to hold day-to-day trials, authoritative sources told *Sunday Observer*. In fact, the BASL President had insisted his members would be ready to cooperate, the sources added. Throughout the parliamentary oversight process into the draft legislation, the BASL had been part of the deliberations, with the Association’s Treasurer also taking part in consultations.

Advocates of the amendment that would enable the establishment of the High Court to try corruption cases say that under the present law, the Chief Justice must decide on each and every case that must be heard before a trial-at-bar. With this large backlog of cases relating to corruption and financial crimes, the Chief Justice has to decide on each and every file, which prolongs indictments and prosecutions, the proponents say.

Under the amendment, there will be a permanent High Court sitting at bar, meaning it would comprise a three-judge bench to which the AG and the Director General of the Bribery Commission can refer cases. The criteria for referring cases is set out in the bill, and it is only in serious matters that the cases will be referred to the High Court at Bar, legal experts said. The three judges to the High Court at Bar will be appointed by the Judicial Services Commission which has the power to transfer judges. It is essentially a Provincial High Court, permanently sitting at bar – or consisting of three judges, explained one constitutional law expert, who did not wish to be named due to the ongoing case.

“The bottom line is that the JO and the Rajapaksas don’t want this court to be set up and they are mounting a Herculean effort to block the legislation,” a Government lawmaker claimed. The pro-Rajapaksa political faction was putting its full strength in Supreme Court towards blocking the anti-corruption court, the MP told Sunday Observer.


Those who opposed the Government measures to set up a special court to hear and determine those cases against individuals who are being charge under relevant provisions of the law are attempting to delay the positive measures taken by the Government to eliminate corruption. Whether it is politically motivated or not, there is a burning moral issue that needs attention of the legally elected Government. More recently in Scotland in the United-Kingdom, Scottish Government Justice Ministers have set up Domestic Violence courts successfully to deal with domestic violence cases. Idea of setting up special courts to deal with cases of corruption cannot be classified as targeting a particular class of people who fall into a particular political groups. It is well known in SL, for nearly a century LAWS DELAYS greatly affected the litigant in civil court and a victim of a crime are expected to wait years before their cases are heard in court. No previous Government thought it fit to debate the issue of laws delays, even if there was pressure from the members of the public, issue was never addressed. I am sure the present Chief Justice and other justices in the Supreme Court will look at this burning issue from the point of view of the proportion of affected individuals by not setting up a Special Court to hear and determine corruption and money laundering cases, the numbers raised to sky-high simply because during the Rajapaksa regime some officials occupied higher positions within the Government and politicians of the day didn`t use the word "Accountabilty" as they were free to make wealth as much as they could. We must remind ourselves that the "Present Government has a mandate to eliminate corruption, and they expect the Government to deliver their promises". We need a justice system which is fair and transparent and speedy. Setting up a special court does not violate the right to access to law and procedure of an accused person.

The newly established will only increase corru[tion - this time in the judiciary since they can bypass the head of the judiciary, the Chief Justice. The Supreme Court, therefore, must block this amendments to the Judicature Act.

The newly established will only increase corru[tion - this time in the judiciary since they can bypass the head of the judiciary, the Chief Justice. The Supreme Court, therefore, must block this amendments to the Judicature Act.