Reliable sources told the Sunday Observer that Lawyers have advised Commissioners of the Commission to Investigate Allegations of Bribery and Corruption (CIABOC) to file a complaint under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), after the Supreme Court on September 5 rejected an application to review and set aside an order issuing notice and a stay order made by a previous bench in a case filed by former Attorney General Mohan Peiris against the CIABOC.
The review application had been supported by Counsel for the Bribery Commission M.A. Sumanthiran PC and Attorney at Law Suren Fernando, and sought to set aside the issuance of notice and the stay order granted on February 26, on the basis that the bench which issued notice and the stay order was not properly constituted since one of the judges on the previous bench was disqualified from hearing the matter. The review application was rejected earlier this month by a bench presided over by the Chief Justice.
It is in this background that the Commission has been advised to complain to the UN Human Rights Committee under the Optional Protocol to the ICCPR, Sunday Observer reliably learns. The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by signatory State parties.
The complaint would be filed on the basis that the Bribery Commission’s right to fair hearing had been denied by the country’s highest court leaving the Commission with no further domestic judicial redress. The Human Rights Committee can entertain complaints from individuals who fall within the jurisdiction of a State that has acceded to or ratified the Optional Protocol to the ICCPR. Sri Lanka acceded to the ICCPR in 1980, and to the Optional Protocol 17 years later in 1997.
In January 2018, the Bribery Commission filed a case against former Attorney General Mohan Peiris. In its B report filed in the Colombo Magistrate’s Court, the Commission said it was charging Peiris and former Deputy Solicitor General A.H.M.D. Nawaz, who currently serves as a judge of the Court of Appeal, under Section 70 of the Bribery Act on the allegation that they had conferred unlawful benefits to favour persons accused of fraud at the Lanka Electricity Company (LECO). As AG, Peiris requested DSG Nawaz to give an opinion, on the alleged LECO fraud. Two committees set up to look into the fraud, and an Auditor’s report also pointed to misappropriation, according to the B report filed in court by the Bribery Commission. DSG Nawaz however had opined that there should not be a criminal investigation launched into the matter. The Bribery Commission believes the opinion was given to protect the party guilty of fraud, according to documents filed in the Magistrate’s Court.
Weeks later, Peiris filed a writ applications in the Supreme Court challenging the Bribery Commission case in the lower court.On February 26, 2018, a Supreme Court Bench comprising the then Acting Chief Justice Eva Wansundera, Justice Prasanna Jayawardene PC and Justice Nalin Perera issued an interim order preventing the Bribery Commission from taking any further steps against Mohan Peiris who was accused of corruption in the Colombo Chief Magistrate’s Court.
In March 2018, the Bribery Commission filed a review application in the Supreme Court, challenging the interim order.
According to the Review Petition filed by CIABOC, when Peiris’ application was taken up, it was disclosed in open Court by Senior Additional Solicitor General Sanjay Rajaratnam PC, that Justice Eva Wanasundara, during her tenure as Attorney General had made certain minutes pertaining to the LECO matter in an official and confidential file of the Attorney General’s Department which he referred to as a “CF File”.
The Review Application also states that certain documents were handed over to Justice Eva Wanasundara, by SASG Rajaratnam PC, which were said to be copies thereof.
The content of same were not disclosed to the parties or counsel. Justice Wanasundara, without disclosing the content of the documents so handed over, or the nature of the minutes she had made, inquired from Counsel appearing in SC Writ 22/2018, whether they had any objections to the Bench or Justice Wanasundara herself hearing the matter.
Being unaware of the content or nature of the aforesaid documents, all Counsel (including J.C. Weliamuna PC appearing for the CIABOC) indicated that they had no objection to the bench taking up the matter.
Significantly the Review Application was accompanied by an Affidavit from Weliamuna PC, affirming the above facts, since he had originally appeared for the CIABOC in the matter.
In its review application, having also subsequently obtained a copy of the relevant minute from the Attorney General’s department, the Bribery Commission stated that Justice Eva Wanasundara PC was biased and at minimum there was a strong and seeming appearance of bias or there was a conflict of interest in her participating in the proceedings, given the nature of the material considered by her and the minute made by her in her capacity as AG, with regard to the matter. Sumanthiran PC citing reported cases of the Supreme Court argued that the Court did have the inherent power to review its own judgments.
However, the Supreme Court bench comprising Chief Justice Priyasath Dep PC, Justice Vijith K. Malagoda PC and Justice Lalith Dehideniya dismissed the review application on September 5 and the stay order has remained in place, disallowing the case against Peiris and others in the Colombo Magistrate’s Court from proceeding.
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Sinharasa and the Human Rights Committee
A similar complaint was made by Nallaratnam Sinharasa at the Human Rights Committee in June 2001 after the High Court convicted him on charges under the Prevention of Terrorism Act. When his appeals before the Court of Appeal and the Supreme Court to have his sentence set aside failed, Sinharasa filed his complaint at the Human Rights Committee, as he was convicted by the High Court on the sole basis of his alleged confession, which is alleged to have been made in circumstances amounting to a violation of his right to a fair trial. In 2004, after considering the facts, the Commission said that Sri Lanka was “under an obligation to provide the author with an effective and appropriate remedy, including release or retrial and compensation.” However, HRC rulings are not binding on state parties.