Justice Dilip Nawaz charged with corruption

February 7, 2018, 10:19 pm 

The Commission to Investigate Allegations of Bribery or Corruption has filed corruption charges, before the Colombo Chief Magistrate, against a sitting Judge of the Court of Appeal (Dilip Nawaz) and a former Attorney General and Chief Justice, Mohan Peiris. Any ordinary human being, who does not know the intricacies of the various connotations to the meaning of corruption, as found in Section 70 of the Bribery Act, may rush to the conclusion that they had been involved in corrupt activities such as accepting bribes from some person so that he could avoid legal action.

Mr. Peiris is now in retirement and very few people have access to him. Justice Dilip Nawaz, who is the Second most Senior Judge of the Court of Appeal, who may be junior only to Justice Deepali Wijersundera. He is now facing a very serious charge under the Bribery or Corruption Act. It is important for people to know what is spelt out in Section 70, which is an amendment introduced in 1994. "Any public servant, who when notified, cause wrongfully or un-lawfully loss to the Government, or conferred a wrongful or un-lawful favour or advantage on most or any person, or has knowledge of any wrongful or un-lawful favour or benefits to be accrued on any person

a. does or forbears, to do any act by virtue of his office as a public servant,

b. includes any other public servant to perform or refrain from permitting any act, with such other public servant to do as virtue of his office as a public servant.

c. uses any information to his knowledge by virtue of his office as a public servant, participates in the making of any decision by virtue of his office as a public servant, or induces any other person by the use, where directly or indirectly of his office, and as such, a public servant performs or refrains from performing any act, should be guilty of an offence of corruption and should, upon summary trial and conviction by the Magistrate, be liable for imprisonment of a term not less than ten (10) years, or a fine of Rs.100,000 or both, such imprisonment and fine.

The legal fraternity was aghast as they knew Justice Nawaz was a good Judge, with an excellent temperament and exceedingly skillful in writing judgments. When you exhibit such extraordinary skills and is discovered by the Head of the Department, the Head would make use of the knowledge of that person for his good use and make use of him to do many tasks that another contemporary, senior- junior lawyer would not have been able to do.

Mr. Nawaz, who came from Batticaloa, as a young intern, met me for the first time when I was the Secretary of the Bar Association, at a time when Justice Mark Fernando and the Asia Foundation introduced a system, which was very popular in the US, a ‘Court Clerk System’. It benefitted the apprentice or an intern, very junior in position, to work with a Judge, especially to maintain his diary, to do research on various case laws and help the Judge with the authorities. In turn, the Judge would, teach him all aspects of the legal profession, especially etiquettes and the Supreme Court Rules. The Asia Foundation, in the year 1992, paid every such Court Clerk, Rs.500/= a month. This was a boon to the apprentices and was resoundingly successful. Justice Mark Fernando, whom I consider to be one of the greatest Judges of Sri Lanka, was specially inclined to help junior lawyers who came from the outstation schools and who did not have friends or relations in Colombo. These juniors found it very difficult to get into the Chambers of a Senior, as most Juniors who came from Colombo had an elitist background and enough and more Senior Lawyers, from whom they could learn their basics in the legal profession. But, others who came from the villages were stranded. Justice Mark Fernando, I know, had personally talked to the Senior Lawyers to accommodate some of the juniors who were not so well connected.

It was he who initiated this scheme and even obtained funding from the Asia Foundation. Over a hundred apprentices were sent to various judges of the Supreme Court, Court of Appeal and even to the District Court. As the Secretary of the Bar Association, I interviewed these students and allocated them, according to their ability, to various judges. The most important place of course, was reserved for Justice Mark Fernando. Dilip Nawaz, as a young apprentice, who hailed from a remote village in Batticaloa, interested me so much that I decided to send him to Justice Mark Fernando. Justice Mark Fernando, whenever he met me, complimented me on having sent him such a brilliant young man. He was quite surprised to know that such brilliance could be found even in such remote villages in Batticaloa. From that day onwards, Justice Dilip Nawaz had only one way ahead and that was to forge ahead with his knowledge and learning.

He later joined the Attorney General’s Department and soon out-shadowed his contemporaries. I am not quite astonished that even my friend, the former Attorney General, C. R. de Silva, made use of him to write opinions and to do legal research. When Mr. Mohan Peiris was appointed to the Attorney General’s Department, he soon found out about the extraordinary ability of Dilip Nawaz and took DSG Nawaz to Geneva, as a member of his entourage to fight against the European Union, which accused the Sri Lankans of war crimes and wanted us to stop the war. Some even urged that sanctions be imposed against our country. Whenever some difficult question came, it was Dilip Nawaz who would immediately type the response on his computer and send it to his peers. This created an alliance between Mohan Peiris and Dilip Nawaz.

Sri Lankan society breeds upon lies, hatred and jealousy. This is true especially amongst the elitist, educated society. The middle-class and the upper middle-class were the worst scoundrels, who would not sleep unless they are of the knowledge that their best friend is in deep trouble. My good friend and mentor, Mr. Douglas Amarasekera, once described this class as an utter rotten fruit. He said the West and other civilized nations are ripe fruits and even the barbarians and the savages, who live in the darkest Africa, are green fruits, as one day they will become ripe. But we have from green fruit a metamorphosed into rotten fruit. Today, it seems to have spread to every nook and cranny of our society. Naturally, the rise of Dilip Nawaz was hated by a few of his own colleagues in the Department. They constantly conspired against him. As long as Mohan Peiris was the Attorney General, they could only write to a particular website which attacked Nawaz regularly.

At the last meeting of the Bar Council, Upul Jayasuirya, PC, the former President of the BASL, who was mainly responsible of ousting Mohan Peiris from the post of Chief Justice and bringing in Shirani Bandaranayake and appointing her as the Chief Justice, for one day, which was a totally unconstitutional act, rose up in defense of Mohan Peiris.

In the meantime, the most unbiased President we had for a long time, Mr. U.R. de Silva, PC, along with Mr. Ali Sabry, PC, who has won the admiration of all members of the Bar Council, as soon as they heard the news, decided to call an Emergency Meeting of the Executive Council of the Bar Council to decide what course of action they should take.

In the meantime, when this news was leaked out, His Lordship Justice Nawaz was attending a conference at the invitation of the Indian Government. He got to know this news when several of his colleagues and friends telephoned him from Sri Lanka. The moment the news was out, some sections of the Attorney General’s Dept., who had been a conduit to the aforesaid website were elated. When there was a question that was bandied about how an opinion could be tantamount to corruption, the answer was many fold.

The claim that this opinion was brought to the notice of the Attorney General, who directed that disciplinary action be taken against Nawaz was later found to be absolutely false.

The other story was that Deputy Solicitor General Nawaz, knew in advance that the Secretary to the Minister of Power & Energy would be seeking the advice of the Attorney General and he (Justice Nawaz), in order to prevent the request letter, tendered to the Attorney General’s office, from being opened because of the correspondence notes on an inquiry and on a file, which had been already opened, would get into that file; which in turn would prevent the motive of Mohan Peiris to send back an opinion to stop criminal proceedings. Accordingly, in order to achieve that end, DSG Nawaz was supposed to have waited near the door expecting the letter to be delivered and it was then taken by him and the impugned order followed.

This was concocted by the decadent imagination of a besmirched brain in the Attorney General’s Department to frown upon his colleague’s brilliance. There was nothing in the summary of evidence to show that any of these pieces of gossip were true.

The Legal Profession and the Bar Association is very concerned about the fact that the mere opinion of the Attorney General, which may be wrong like the other opinion of the Attorney General that the President had six years to conclude, could be the subject matter of an inquiry under Section 70.

The senior most President’s counsel, who had examined the indictment, was of the view that whatever opinion Justice Nawaz gave was sans any moral turpitude and therefore, he cannot be subject to a bribery charge.

The only recourse available to the former Chief Justice Mohan Peiris and Justice Nawaz is to move the Supreme Court with a writ and squash the findings. The Bar Association has already announced, that in the event of such an action being taken, the Bar will either intervene or appear as observers, to ensure that justice is done.