Setting up Kangaroo courts to try political opponents 

By C. A. Chandraprema-March 12, 2018, 12:00 pm 

The government has presented a Bill in Parliament to amend the Judicature Act No. 2 of 1978 so as to make provision for the setting up of a permanent High Court at Bar to hear cases in relation to a wide range of financial and property related offences. The offences which come under this proposed permanent High Court at Bar are specified in the Schedule of the Bill and include virtually all offences in relation to financial and property matters in the existing law. This permanent High Court at Bar is to consist of three Judges sitting together, nominated by the Judicial Services Commission from among the Judges of the High Court and one Judge will be nominated by the JSC as the Chairman of the Court. The Minister in charge of the subject may specify by gazette notification, the location and the number of these permanent High Courts at Bar after consulting the Judicial Service Commission.

The Attorney General and the Director General of the Commission for the Prevention of Bribery and Corruption, will be authorized to institute criminal proceedings in these permanent High Courts at Bar taking into consideration the nature and circumstances; the gravity; the complexity; the impact on the victim; or the impact on the State, of the offence, and in the interests of justice and the public and national interest. Trials before these permanent High Courts at Bar are to be held and concluded expeditiously; and unless exceptional circumstances require, be heard from day to day. The inability of a particular Attorney-at-Law to appear before the Permanent High Court at Bar on a particular date for any reason including engagement to appear on that date in any other court will not be a ground for postponing a hearing. Appeals against the judgments of these permanent High Courts at Bar are to be made within 28 days to the Supreme Court and are to be heard by a Bench of not less than five Judges nominated by the Chief Justice.

Professor G. L. Peiris has petitioned the Supreme Court arguing that the proposed amendment to the Judicature Act is among other things, inconsistent with Articles 12 and 13 Constitution which guarantees all persons equality before the law and to the equal protection of the law and every person’s right to a fair trial by a competent court and to be heard in person or by an attorney-at-law, at such a trial. Prof. Peiris has also argued that this Bill goes against the doctrine of the separation of powers between the executive, legislature and judiciary enshrined in Articles 3 and 4 of the Constitution and therefore cannot become law unless passed with a two thirds majority in Parliament and approved by the People at a Referendum. The petition further points out that:

(a) While the proposed law seeks to designate several categories of offences to be tried by the proposed permanent High Courts at Bar, all such offences are not mandatorily triable by the permanent High Courts at Bar. Instead, the Attorney-General and the Director General of the Commission for the Prevention of Bribery and Corruption, will have the discretion to selectively refer cases to the proposed permanent High Courts at Bar. Prosecuting officers will thus have the power to arbitrarily select cases to be referred to the permanent Trial at Bar, while other cases of a very similar nature will be sent through the normal courts system.

(b) The discretion to appoint High Courts of Bar which was hitherto vested exclusively (in respect of a lesser number of offences) with the Chief Justice, is thus to be conferred on officers who constitute a part of the Executive, thereby undermining the doctrine of the separation of powers. Furthermore, this power is to be conferred on the prosecutors, thereby depriving the Accused of the right to a fair trial.

(c) Moreover the criteria on which such discretion is to be exercised such as the ‘gravity’ of the offence, its ‘complexity’, its ‘impact on the victim’ and its ‘impact on the State’, its ‘nature and circumstances’ brings in an element of subjectivity and arbitrariness because the same offence committed by two different individuals is to be distinguished using such criteria which will make the whole process discriminatory and capricious. Decisions by the prosecutors will be based on extraneous and subjective considerations.

(d) The proposed law confers upon executive officers of the State, the power to transfer any case currently before a Magistrate or a Judge of the High Court to be tried in the permanent High Court at Bar. This amounts to an interference with the Judiciary.

(e) The power hitherto granted to the Commission to Investigate into Allegations of Bribery or Corruption by Act No 19 of 1994, to direct its officer, the Director General, to institute proceedings is now to be directly conferred on the Director General – thereby transferring a power of the Commission to a public officer.

(f) The offences to be tried by the proposed High Courts at Bar, as specified in the Schedule of the Bill is arbitrary and motivated by extraneous, political considerations, as offences which surpass all others in gravity such as the Capital offences of Treason, Murder, Rape and Gang Rape are not included in the proposed new sixth Schedule. There are a large number of pending cases before the High Courts, in respect of capital offences, without any special procedure being implemented for their expeditious disposal.

(g) In the recent past, several politicians and members of the Present Government have stated that new laws will be created and introduced to convict identified persons, and the Petitioner reserves the right to seek and obtain media accounts of same and produce them before the Supreme Court.

(h) The Bill seeks to confer on the Minister the sole authority to specify the location of the permanent High Courts at Bar and to increase the number of such Courts, thus conferring on a Member of the Executive arm of the Government, powers of the Judicial arm of Government. Although the said Bill purports to provide that the Minister shall, in doing so, consult the Judicial Service Commission - it does not provide that the concurrence of the Judicial Service Commission is required.

(i) The Bill takes away the right of an Accused to be represented by a Counsel of his choice, by providing that the inability of an Attorney-at-Law to appear before the High Court at Bar shall not be a ground for postponing the trial. It thus also seeks to take away the right of Attorneys-at-Law to engage in their professional practice.

In his Petition, Prof. Peiris has further stated that this proposed amendment to the Judicature Act is a contrivance designed to defeat the franchise of the People by the incarceration and/or conviction of the political opponents of the Government.

The President of the Bar Association of Sri Lanka U.R. de Silva has in his official capacity as the President of the BASL also petitioned the Supreme Court against this proposed amendment to the Judicature Act of 1978. In his Petition he has specifically stated that "the Bar Association of Sri Lanka (‘BASL’), is the sole representative body of the entire fraternity of legal professionals comprising of the Private as well as the Official Bar, and consists of more than 18,000 members who have enrolled as Attorneys-at-Law of the Supreme Court and that the Executive Committee of the BASL and the Bar Council, by a circular resolution dated 6th March 2018 unanimously adopted a resolution expressing grave concern of the Bar regarding this Bill and had unanimously resolved to apply to the SC challenging its constitutional validity.

Thus the entire legal profession in the country is now opposed to this proposed amendment. The BASL had in fact attached to their petition a copy of the BASL constitution pointing out that the objectives of their Association included making representations to the government and any other relevant authority matters of national importance relating to the rule of law and administration of justice and that they were making this application in the interest of the members of the legal profession representing both the private and official Bar, the judiciary and the public of the country. Furthermore the BASL Petition states that this application to the SC is being made to safeguard the interests of Attorneys–at-law including those serving in the private and the official Bar, to ensure that the rule of law is adhered to, to preserve and promote the independence of the judiciary and to protect the institutions essential to the administration of justice.

Among the arguments put forward by the BASL was that, in law, there is no Court known as permanent High Court at Bar, and thus this Bill cannot be passed. The other arguments in the BASL petition ran more or less parallel to those raised in the Petition mentioned earlier. Petitions have been filed by several other parties as well and as is the usual practice in such cases, will most probably be heard together by the SC. The opposition to this piece of proposed legislation designed to ‘kangaroofy’ the existing courts system is unlike anything we have seen in recent times.