The recommendation by a Presidential Commission of Inquiry (PCoI), that a large number of criminal cases that have been filed in the courts be withdrawn, is the deadliest blow that has been dealt to the administration of justice. If this recommendation is put into effect, the consequence would be that of replacing the Judiciary with anyone that the President may choose to appoint in order to annul any of the proceedings that are instituted in a court of law. Thus, it would be impossible for the system of the administration of justice to recover from this blow if this recommendation is allowed to be put into effect.
The recommendation that over 70 cases pending in various courts should be withdrawn on the basis of the recommendation of the said PCoI amounts to nothing less than situating such a PCoI above the courts of law.
[caption id="attachment_132909" align="alignright" width="609"]
Chairman of the PCoI retired Supreme Court Judge Upali Abeyratne handing over the report to President Gotabaya Rajapaksa in December 2020. Commission Members, retired Appeal Court Judge Daya Chandrasiri Jayatilleka and retired IGP Chandra Fernando and Secretary Pearl Weerasinghe look on. [/caption]
The fact that a Commissioner appointed to this PCoI was a Supreme Court (SC) Judge does not add anything to alter the fact that these commissioners are nothing more than civilians. A judge is a judge only to the extent that he or she exercises a judicial power. Only judicial officers can exercise judicial power. Civilians, whatever their former status, would have no power to stand above the courts and to interfere in the affairs of courts.
A question that is worth considering is as to whether a PCoI can commit the offence of contempt of court. If the commissioners act in a manner that interferes with the proper functioning of the courts according to the manner prescribed by the law, they are doing far more harm than anyone punished for contempt of court so far. These commissioners have been virtually making the accusation that in the cases identified by them, the relevant courts have politically victimised those named as the accused parties.
The commissioners have gone even further in recommending that these cases must be withdrawn. Is that not an attempt to order the relevant courts to act on the authority of the PCoI?
The action of this PCoI is nothing less than a direct interference in the administration of justice. That is also a criminal offence. There are good grounds on which to bring all three commissioners before the SC for having committed serious acts of contempt of court and for the obstruction of the administration of justice.
It would also be absurd to argue that the commissioners enjoy immunity, even if what they do amounts to criminal offences. It would also not be a defence to state that they have done what they did, acting on the orders received from above.
The recommendations of this PCoI are completely null and void as no one, including the President, can grant a power to a certain group of civilians to interfere into the manner in which a court conducts its affairs. Anyone who obeys this PCoI and plays any part in trying to put into effect the recommendation made by this PCoI on the issue of ordering the withdrawal of cases which are pending before courts, is also committing a serious act of contempt of court. It is only the courts that have that power and the courts can do it only within the framework of due process, where the rights of all affected parties should be heard. Besides, if courts make any decision, it should be appealable. To take the power of the administration of justice in the cases filed before courts from the Judiciary of a country and to hand it over to anyone else is the highest act of the destruction of the very fabric of the legal framework of a country.
This decision by a PCoI to interfere in the administration of justice does not come as a surprise at all. It is merely a very clear manifestation of what has been going on for several decades to undermine the Judiciary. This gradual process has now come to its final stage when the President acting through a PCoI directly interferes with the administration of justice.
With this last assault, the system cannot survive at all except as a farce.
Several members of Parliament, including former SC Judge C.V. Wigneswaran, have strongly condemned this recommendation and called it unprecedented. As he has stated: “If the appointment of the said PCoI was a folly, the PCoI itself, described by Parliamentarian and Field Marshal Sarath Fonseka as the ‘Pissu Poosa’ (Crazy Cat) PCoI, has proceeded with visible glee into territories that angels fear to tread. It is clear that there are several cases that are presently pending in relation to the matters inquired into by the PCoI. The PCoI is not a body recognised by Article 105 of the Constitution as an institution for the administration of justice. It simply has no business regarding anything to do with matters pending before the Judiciary.
All the actions by the PCoI in respect of pending cases would constitute a clear interference with the Judiciary and as such, would be in violation of Article 111C of the Constitution which states that any interference with the Judiciary would be an offence recognised in the Constitution itself.” (Citation from Colombo Telegraph)
If serious offences have been committed, then the PCoI should be held accountable.
(The writer is the Director of Policy and Programmes of the Asian Human Rights Commission)
Photo President’s Media Division