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8th August 1999

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    Condone not wrongdoing

    The recent tale of Judge Upali Abeyratne is a topsy turvy one. Upali Abeyratne was the Judicial Officer who was found guilty by a disciplinary committee of the Judicial Services Commission ( JSC) for his wrongful handling of a case. A three member JSC team headed by the newly appointed Supreme Court Judge Amir Ismail apparently found the Judge under investigation of having acted wrongfully, and recommended that he be sent on compulsory retirement.

    Subsequently however, Mr Abeyratne appealed to the JSC. The Chief Justice, and two others , who heard this appeal confirmed the findings of the earlier disciplinary committee, but varied their own order of punishment meted out. Instead of sending the Judge home, the order recommended that the Judge be transferred, as there was palpable wrongdoing, but no dishonesty involved. In these topsy turvy and not-so-transparent times, the public is now faced with a somewhat peculiar state of affairs, in which a judge is found guilty of wrongdoing even though the victim of this wrongdoing has not come by way of any redress. The public is not fully aware, moreover, whether the wrongdoing resulting in a miscarriage of justice was confined to the said judge, or whether it extended to others more powerful and influential who may have had a hand in the wrongdoing.

    Then there is another inquiry into a Magistrate who is accused of sexual misconduct.

    All that the public can ask for, however, is that justice not only be done but that it appears to be done as well. On the one hand, these are not cases that involve some private heirloom or some solemn esoteric transaction between two private persons that the public shall not be privy to. The cases involve Judges who are guilty of wrongdoing, and at least one Judge will be hearing more cases, presiding over the fate of hundreds more litigants in the very near and distant future. That fact firmly casts this matter into the public realm, for the simple reason that litigants whose cases are being heard by the said Judge would have some very legitimate questions about the probity of the officer who is deciding their fate.

    It is in this context, and the context that there is a victim in the case of wrongdoing for which the Judge has been reprimanded and not the least also that there is another high ranking officer probably connected to the whole imbroglio that this whole matter has to be open to the full scrutiny and glare of the public. Public interest demands that no absolute faith be reposed in any officer, which is why all truly democratic polities have legislation for freedom of information encoded in their constitutions. But, sans a Freedom of Information Act in this country, the officials involved can stay thoroughly mute, and they have.

    Meanwhile, the public or the media on behalf of the public, have to observe the whole theater unfold without having any sort of access to the facts and the details that have transpired. Despite repeated attempts to get at the facts from the JSC, its Acting Secretary says all findings against the Judges are Top Secret. To say the very least, that's not quite the way in which matters in which the public interest is at stake should be handled in a democratic transparent dispensation. Curiously, all this is happening at about the time when the government has hesitated, vacillated and eventually agreed to discuss a private members motion that asks for several media reforms, including a Freedom of Information Act. This case we have mentioned above, underscores the dire need for such an Act. Justice may be blind, but it certainly doesn't mean the people should be forced to have their eyes firmly shut as well?


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