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CA judge petitions SC, says Bribery Com. has no power to review AG’s opinion
View(s):Justice A.H.M.D. Nawaz, Judge of the Court of Appeal, has filed papers in the Supreme Court, through his Attorney Sanjeewa Kaluarachchi, seeking Writs of Certiorarai and Prohibition under Article 140 of the Constitution on the ground, among others, that the Bribery Commission has no power or authority to review or call in question an opinion furnished to the government by the Attorney-General.
In his petition to the Supreme Court, the Court of Appeal Judge has said that the Director (Investigations) of the Bribery Commission had by a notice dated September 22, 2016 summoned the judge to make a statement in relation to a complaint said to have been received by the Commission. The Petitioner judge has said the summon was in relation to an opinion issued by the then Attorney-General in 2010, about six years prior to the 2016 notice, when the Appeal Court Judge was then a Deputy Solicitor-General.
The petitioner judge states that he had become aware that the purported complaint had been made by a senior officer of the Attorney-General’s Department without the knowledge or authorisation of any of the three successive Attorneys-General who held office after the opinion was given in December 2010. He states that at the time of this complaint, the then incumbent Attorney-General was not even privy to the purported complaint. The petitioner judge states that he has strong cause to apprehend that the complaint was made mala fide and for a collateral purpose. He states that he had served the Attorney-General’s Department as State Counsel, Senior State Counsel and Deputy Solicitor-General for a period of 24 years and thereafter as a Judge of the Court of Appeal for nearly three and a half years.
Justice Nawaz has stated that the notice summoning him before the Director (Investigations) had been issued patently without jurisdiction in as much as the said Commission has no power or authority to review and/or call in question an opinion furnished by the Attorney-General and that the purported assumption of jurisdiction was ex-facie a nullity.
Mr. Nawaz has named as respondents Justice T B Weerasuriya, Chairman of the Commission to Investigate Allegations of Bribery or Corruption, Justice W.L.R. Silva, Chandranath Neville Guruge both Members of the Commission, Sarath Jayamanne PC, Director-General of the Commission, Peter Mohan Maithri Pieris PC, M.M.C. Ferdinando, U.R. de Silva, President of the Bar Association of Sri Lanka and the Attorney-General.
The petition relates to the filing of a report by the fourth respondent, DG of the Bribery Commission, in the Magistrate’s Court of Colombo on January 18, 2018 under section 70 of the Bribery Act seeking to initiate criminal proceedings against the then Attorney-General (the 5th Respondent), the petitioner and the then Secretary to the Ministry of Power and Energy (the 6th Respondent) arising from an opinion given by the then Attorney-General in 2010.
The then AG’s opinion had stated that upon a “careful consideration of all the documents and annexes submitted for the AG’s perusal it is apparent that it was the board of directors of the company who had taken the collective decisions to authorise the transactions by unanimity”. It states further that a judgmental error by the board with regard to the commercial viability of a transaction which results in a loss does not lead to an inescapable inference of criminal liability and would therefore preclude criminal action being launched against the board of directors.
According to the petition, the 7th Respondent (President of the Bar Association of Sri Lanka) and the 8th Respondent (the incumbent Attorney-General) have been made respondents since the application raises matters of grave, public and general importance including the independence of the Judiciary and the Bar, the role of the Attorney-General in the discharge of his constitutional and legal duties, the right of legal counsel to tender legal advice untrammeled by any undue restraint or coercion.
The petition states the expression of an opinion by the Attorney-General or any other advisor cannot form the basis of any criminal prosecution and that it is an illegal intrusion upon the powers and functions vested by law and the Constitution in the Attorney-General and strikes at the independence and autonomy of the Attorney-General.
The Writ Application is due to be supported tomorrow.