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Discretion conferred on AG, Bribery Com. could lead to abuse, says SC
The Supreme Court (SC) Bench of Chief Justice (CJ) Priyasath Dep and Justices B.P. Aluwihare and H.N.G. Perera, has cautioned that, the discretion conferred on the Attorney General (AG) and the Director General (DG) for the Prevention of Bribery and Corruption, under the proposed to the Judicature Act (JA) to set up permanent High Courts (HC)-at-Bar, could lead to abuse of process.
“The purpose of this amending Bill is to expeditiously dispose of cases involving economic and financial crimes, as there is a severe delay in disposing of cases, and hence, the need to expeditiously try grave and complex cases of economic and financial crimes which have an impact on victims and State, it may be necessary that such cases be tried by a Trial-at-Bar. However, the discretion conferred on the prosecuting authority could lead to abuse of the process,” the SC said in its determination on the constitutionality of the Bill.
The SC determination on the Bill was announced by Speaker Karu Jayasuriya on Tuesday. The SC said several clauses in the Bill would either need to be amended, in keeping with the suggestion of the SC or, be passed by a two-third majority in the House, to become consistent with the Constitution.
The SC said that the Bill confers on the AG and the DG for the Prevention of Bribery and Corruption, the sole discretion of selectively forwarding indictments to the Permanent HC-at-Bar, in respect of certain offences.
As the Law stands now, the SC said, the discretion is vested with the CJ who may, owing to the nature of the offence or, the circumstances, direct that the trial of any person for an offence, be held by 3 judges with a jury. The proposed amendment to the JA confers on officers who constitute part of the Executive, discretion hitherto vested exclusively with the CJ, thereby eroding and undermining the doctrine of separation of powers, as enshrined in Article 3, read with Article 4 of the Constitution.
The SC also said that, with the discretion conferred on prosecuting agencies, the power could be used arbitrarily, and proceedings could be instituted against selected persons in the Permanent HC-at-Bar, thus discriminating between persons accused of such offences.
The SC said that, if the CJ is given the power to decide whether to hold a Trail-at-Bar or not, amending the section which gives power to the AG and the DG for the Prevention of Bribery and Corruption, this inconsistency in the proposed law can be overcome.
The SC also made reference to Clause 12 A (6) of the Bill, which stipulates that it shall not be necessary for any evidence taken prior to be retaken and that, the Permanent HC-at-Bar will be entitled to continue the trial from the stage at which it was immediately prior to its reference to the Court.
The SC said this takes away the right given to an accused, under Section 48 of the JA, to have a witness re-summoned and reheard. “Given the permanent character of the Trial-at-Bar that is proposed to be established, taking away the right given to an accused to have a witness re-summoned and reheard, cannot be justified,” the SC said.
The Government is seeking to amend the JA to set up the Permanent HC-at-Bar to try, hear and determine over 60 offences, including those committed under the Foreign Exchange Act, Registered Stocks & Securities Ordinance as well as the Local Treasury Bills Act.
These offences include ones related to money laundering and those related to bribery of judicial offers and MPs, acceptance of gratification by MPs, using influence with regard to contracts, tenders and dealings with the government.