Sri Lanka: My Experiences as a Judge

There is no legal basis at all to delay the Fundamental Rights application simply because a criminal action is pending. In law, the two are very separate types of actions and the matters that the courts have to decide are based on different legal criteria.

by B.F.R.Somasighe-May 31, 2017

( May 31, 2017, Colombo, Sri Lanka Guardian ) I am writing this to the public as a judge who has presided over the affairs of the public for 16 years as a Magistrate and as a District Court Judge. For all those 16 years, my record has been impeccable.

I want to bring to the notice of the public that, due to a certain judgment I gave as a District Court Judge in a civil dispute, which I did to the best of my ability and purely on the basis of the principles of law and justice – all of which I was appointed to uphold -, I have come to a very serious difficulty.

The judgment in this case, which I gave in favour of the defendant, seems to have offended one of the witnesses, who happens to be a Senior Legal Counsel and, to my knowledge, a relative of the former Chief Justice Mohan Peiris. The day I delivered the judgment, it was reported to me by court staff that this gentleman had openly said that he will see to it ‘that I will lose my position as a Judge’.

A month or so later, I was called upon by the Chief Justice and he demanded that I resign from my position. I told him that no charge had been made against me and that there had been no inquiry, and that therefore the proper procedure would be to conduct such an inquiry into any claims before making an appropriate decision. In response, I was talked down to in humiliating language and threatened with losing my position.

Several months later, I was called upon by the Bribery Commission and was asked to submit details of all my income and assets. I did that immediately, by way of affidavits, and also provided the necessary references. To this date, the Bribery Commission has not informed me that any of the information I have so provided is incorrect or inadequate.

I understand that this inquiry was begun on the basis of an anonymous complaint. I do not know the name or any other details of the complainant, and therefore, I am unable to say what may have motivated such a person and what my relationship to that person could be.

With the beginning of the inquiry, the incremental salary increases given to me in my position as a judge were stopped. I wrote to the Judicial Services Commission giving them all the details, and also wrote to the Bribery Commission and asked them for an inquiry and an immediate exoneration. This was important to me for many reasons. My position, which could have been elevated to the High Court, was affected by this inquiry and, therefore, I had to retire without the usual promotions that were due to me as to any other Judge in the service.

I constantly requested the Bribery Commission and the Judicial Services Commission to bring this matter to an end, either by way of declaring me exonerated, which I know and believe is my due, or otherwise to indict me so that I will be able to prove my innocence in a court of law.

After five years of pleading without any positive result, I filed a Fundamental Rights Application before the Supreme Court of Sri Lanka, and asked for an inquiry on the basis of Article 126 of the Sri Lankan Constitution. This, after all, is the final resort that any citizen, be he a judge or any other person, has.

I was fully aware of the risks involved in filing a fundamental rights case. I knew that it could have dangerous results. I am aware of many people who have been exposed to serious threats and violence by the respondents in some of these cases. In one case, while a fundamental rights petition filed by a young man was being heard, he, his father and his mother were all made to disappear.

My case was called by the Supreme Court on a few occasions. The Respondents purposefully sought dates to obtain advice from the Attorney General.

No objections to my Petition have been filed and none of the facts that I have relied upon have been contradicted by my opponents.

Several months later, I heard that an indictment had been filed against me, although it has not yet been served on me. I don’t know what the charges could be. All that I know is that some charges are reported to have been filed.

My position is that this has been done for one purpose: as a counter action against the Fundamental Rights application that I have filed in the Supreme Court

I believe that the Respondents want to use this indictment in order either to get me to withdraw the Fundamental Rights application that I have made or to delay the hearing of the Fundamental Rights application on the basis that there is a criminal action against me and that the criminal action should be heard first before the Fundamental Rights application.

There is no legal basis at all to delay the Fundamental Rights application simply because a criminal action is pending. In law, the two are very separate types of actions and the matters that the courts have to decide are based on different legal criteria.

One issue is about whether a fundamental rights violation has taken place and the other is about whether a crime has been committed.

I am aware of several judgements that were delivered while criminal actions were pending. If need be, I could give the details of such judgments. However, I am aware that, particularly at the time when Chief Justice Sarath Silva was presiding, there were many cases that were postponed until a criminal trial was held and a few such cases have been pending in the Supreme Court for over ten years because criminal actions, once started, are subjected to the normal delays that are a part of our legal system, and that includes the delays in the appeals and the re-trials. Again, I am able to give details of such cases if it is required.

Therefore, my plea to all, to the judiciary as well as to the public, is to ensure that I will have the benefit of a speedy trial and a speedy hearing of the Fundamental Rights application.

The Fundamental Rights application should be heard irrespective of any issues that may arise in the criminal case, and the criminal case itself should be heard as speedily as possible.

I am aware that the greatest trap that an innocent man could be placed in is to have a fabricated criminal charge filed against him. It makes him a victim of a lengthy trial for may many years to come. It could be ten years or even more, judging by many cases, which I am able to cite.

Therefore, I am bringing to the notice of the public that I, having myself been a judge, have been exposed to one of the gravest problems that any citizen could be exposed to.

I am also letting the public know that when the criminal case is before the courts I will demand a trial by a jury, which is one way of ensuring a day-to-day trial, and that will speed up the trial process.

As a citizen and a judge with a long record of service, I must tell you that there are some things that I am unable to fight:

A. I am unable to fight prolonged delays in a criminal trial

This is a way to destroy a man, his family and everything he stands for, and to irreparably stain his reputation.

I will be helpless in this situation and the denial of justice in this manner is something that, even as a former judge, I know I am simply unable to fight.

B. I also want to inform the public that, from what the law says about equality of arms, I am not in a position to match the powerful people who are trying to victimise me.

Therefore, my plea to the judiciary, the judges who were my fellow colleagues in these long years, to the legal profession and the Bar association, and to the public in general, is this: please do not ignore this as one individual’s problem; this is a problem that affects the very nature of the justice system we have and the way injustice is perpetrated through our system.

I would therefore urge all of you to ensure that the criminal trial that has been initiated against me be held as speedily as possible in the coming few months and that the Fundamental Rights application that I have filed should be heard without any kind of obstruction based on the criminal trial or otherwise.

While I am making this plea for myself, I am also aware that the outcome could be of great use to the public in general.

It is time that we fight against the abuse of the justice system to perpetrate injustice.

The writer is a former District Court Judge and Magistrate. This article based on an open letter by the writer originally published by the Asian Human Rights Commission in Hong Kong.