Legal glitch could throw 75% of Bribery Commission cases out | Sunday Observer

Legal glitch could throw 75% of Bribery Commission cases out

Over 75% of cases filed by the Bribery Commission are at grave risk of being thrown out of court, purely on the basis of a technical error in the law, senior prosecutors told Sunday Observer, as another case was scrapped based on this anomaly last week.

Last Friday (19), the case filed by the Commission to Investigate Bribery or Corruption (CIABOC) against former Monitoring MP of the Foreign Ministry Sajin Vass Gunewardena was taken up for trial before the Colombo Chief Magistrate, on allegedly causing a loss of Rs 883 million to Mihin Lanka Airlines. However, the case was removed from the trial list after objections were raised on the basis of this technicality by the counsel for the suspect, Shavendra Fernando PC.

PC Fernando informed the Magistrate that “the written approval of the Bribery Commissioner pertaining to the incident had not been affixed with the file so that the hearing could not be continued.”

In July this year when the Avant-Garde floating armoury corruption case filed against former Defence Secretary Gotabaya Rajapaksa was taken up, the defence counsel Romesh de Silva, President Counsel highlighting the identical technicality managed to stay the proceedings of the Magistrate Courts.

Speaking to the Sunday Observer a Senior Prosecutor stated that things could get from bad to worse with a recent Supreme Court judgment given stating that all three Commissioners must sanction cases filed by the CIABOC.

The issue arises pertaining to Section 78 if the Bribery Act which states that ‘No Magistrate’s court shall hear cases under Bribery Act except by written consent by the Bribery ‘Commission’.

When the Act was amended in the English version of the section was changed as “Bribery Commissioner”. However, the word “Commissioner” has not been replaced with “Bribery Commission” by oversight only in the Sinhalese text of the Act, while it has been changed to “Bribery Commission” in the English and Tamil versions of the legislation.

The issue arises since, under Sri Lankan law, in the case of any discrepancies in written law, the Sinhala version stands.

According to legal sources High Court Judge Gihan Kulathunga differentiated to the ruling given by the Supreme Court on the basis that it is not correct in law.

Prosecutors fear that if the Avant-Garde case which will be taken up next month to hear objections on this technicality if results in staying the proceedings will set a bad precedent and will result in disqualifying over 75 % of the cases that are before courts, currently filed by CIABOC.

This is a serious problem regarding most of the cases including the Avant-Garde matter. In the normal course of business, all three Commissioners do not sit together and sanction cases. One Commissioner would usually give the consent after perusing the file. If it’s made compulsory that all Commissioners’ sanction should be obtained then more than half of the cases filed by the Commission should be dropped,” the Senior Prosecutor said.

Other sources at the Attorney General’s Department however said that if there was a grave error in the law, it was crucial that the issue is addressed and amended, and Defence Counsel could not be blamed for highlighting the technical glitch.

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