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8th August 1999

Act against errant judges

By Mudliyar

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Protecting the judiciary from Anacharee and Duracharee judges

The Special Disciplinary Committee appointed by the Judicial Service Commission was headed by Justice Amir Ismail, now a Judge of the Supreme Court, and Court of Appeal judges P.A. Edissuriya and Hector S. Yapa, were the other members.

Justice Edissuriya succeeded Justice Ismail as the President of the Court of Appeal. The committee inquired into the following charges framed by the JSC against District Judge Upali Abeyratne. It is a matter of great interest that most orders made by Judge Abeyratne could be safely considered as judicial orders, where if the Judge has made a mistake there was provision for the aggrieved party to file an appeal.

Nonetheless the Committee dismissed the objection in limine by the counsel of the District Judge and found the judge guilty.The defendant was Dam-ayanthi Jayasekera and the co-respondent was Attorney General Sarath N.Silva who at the time the case was filed was a Court of Appeal judge.

The charges framed by the JSC on the complaint made by W. A. Jayasekera, the plaintiff in the case, are as follows.

"You are hereby required to show cause in writing as to why you should not be dismissed or otherwise dealt with for misconduct in that:

(1) You did in dealing with D.C. Colombo Case No. 16799/D, abuse your judicial powers and discretion, and/or exercise your judicial powers and discretion in a harsh and oppressive manner,

(i) by rejecting the plaint, and (ii) failing to return the plaint for amendment, if in fact there had been any defect in pleading.

(2) You did in dealing with D.C. Case No. 17082/D (a) abuse your judicial powers and discretion, (b) exercise your judicial powers and discretion in a harsh and oppressive manner, and (c) act in flagrant disregard of the principles of natural justice.

In respect of the following orders acts and omissions:

(i) on 7.7.94 rejecting the plaint, as against the co-respondent named therein, on the ground that there was no plea of adultery, although the plaintiff had so averred particularly in paragraph 18 of the plaint.

(ii) rejecting the plaint in part.

(iii) failing to return the plaint for amendment if in fact there had been any defect in pleading.

(iv) failing to give the plaintiff notice of the said order made on 07.07.94 rejecting the plaint.

(v) on 16.09.94 failing to give the plaintiff time to file his statement of objections in respect of the order nisi issued on 01.09.94 upon the defendant's application for alimony pendente lite and costs, despite submissions by plaintiff's counsel, in respect of which the following was recorded.

(vi) failing upon the defendant filing her answer on 02.09.94 to give the plaintiff a date to file his re-application or to fix the matter of trial.

(vii) On 15.09.94 ordering the plaintiff to pay the defendant Rs. 50,000 as costs of action in one single instalment and within 13 days (i.e.22.09.94) although by then the defendant had already retained lawyers, filed and supported her application for alimony pendente lite and costs and filed her answer.

(viii) Despite having ordered on 15.09.94 that the date of trial would be fixed after such costs were paid, fixing the trial for 28.09.94 such order having been made only on 28.09.94 in the absence of and without notice to the plaintiff, and proceeding to try the case ex parte."

Mr. Jayasekera could not get suitable counsel from Colombo to appear for him in the divorce proceedings. Only in Kandy did he find a lawyer to brave the battle ahead.

Mr. Jayasekera or his lawyer did not want to take the risk of getting his papers typed in Colombo. The typist in Kandy made a mistake in the heading of the plaint. Instead of stating that the plaint was to be filed in the District Court of Colombo the typist as was as his usual practice stated that the plaint would be filed in the District Court of Kandy.

When the plaint was brought to Colombo, an instructing attorney detected the mistake and struck off the word Kandy and wrote the word Colombo.

When the plaint was filed, it was accepted and summons were issued on the defendant and the co-respondent.

In the District Court it is necessary to file a copy of the plaint along with other papers necessary for the process server to issue summons.

The court clerk discovered that of the two copies of the plaint, filed as service copies the word Kandy had been struck off only in one copy and the word Colombo had been substituted. This innocent mistake was sufficient for Judge Abeyratne to reject the plaint without even informing the plaintiff or his instructing attorney.

With the case making no progress, Mr. Jayasekera who could not trace the case record as well, filed another plaint.

Judge Abeyratne found that though in the body of the plaint the Sinhala legal term for adultery had been described as 'anacharaya' it had been for some reason changed to 'duracharaya' in the prayer. Judge Abeyratne wrote a lengthy order where he struck off the name of Sarath N. Silva but decided to issue summons on the defendant Ms. Jayasekera.

The disciplinary panel found that though on the summons returnable date the defendant Ms. Jayasekera was present in Court and later alimony and costs were awarded to her, the copies of the summons together with the plaint were still included in the case record and had never been served on her.

The findings of the panel were conclusive. It found that Judge Abeyratne was guilty of all charges, which concern the abuse of judicial power and discretion and exercise of judicial power in a harsh and oppressive manner. But with the blessings of the JSC, he will be functioning as a judge in the Mon-eragala courts.

The people of this country have faith in the judicial system. The manner in which the Supreme Court and the Court of Appeal have held with a citizen against the all powerful state and the executive has given them the only hope in a country where corruption is rampant. They expect Judges to be like Caesar's wife, above any suspicion.

When Mr. Jayasekera filed this case, he would never have expected, even in his wildest dreams, that the plaintiff would be turned into an accused. He had to submissively enter a settlement, as there was a possibility the Court would issue process to sell his house, to pay alimony to his wife.

Justice Weeramantry in his book 'Law: The Threatened Peripheries,' states: "From the beginning of recorded legal systems, the judge has been elevated to a position of supreme respect and responsibility in the community. Four thousand years ago the Code of Hammurabi provided that a judge who altered a written judgment should pay twelve-fold the penalty ordered in the judgment and should be publicly expelled from the judgment seat.

"The ancient Indian law books likewise proclaimed that judges who look on with indifference while injustice is done in their court's are doomed to destruction themselves and that their duty was, in surgical manner, to extract the dart of iniquity from the lawsuit.

"Jewish law proclaimed that the Divine Presence dwells in the midst of any competent Jewish tribunal and that the judicial robes of a judge who has bought his office should be despised like the packsaddle of an ass."

The Holy Quran mentions a special hell for dishonest judges.

The Buddha reminded his disciples of what would befall a dishonest or biased judge in his next birth.

The highly respected Chief Justice Neville Samarakoon took J. R. Jayewardene, the most powerful executive president to date, head on. Probably as a result of this clash, the executive allegedly tried to throttle the judiciary by not providing its members with the basic requirements. Justice Samarakoon refused to budge an inch from the stand he took as the most independent and fearless Chief Justice since independence.

He also wanted to clear the Augean stables desecrated by political appointments of judges made by Felix R. Dias Bandaranaike. The canker of corruption, abuse of power and political patronage was creeping into the judiciary.

Justice Samarakoon before he entered the judiciary had the largest civil practice in the original courts. When he was the chief justice one day, a senior practitioner from the Northern province telephoned to complain that a magistrate was having sex with a woman brought before him.

Mr. Samarakoon did not waste even a minute. He summoned the JSC Secretary and told him to immediately proceed to the primary court in the northern province. Upon questioning the judge and examining the case record, the secretary found that the woman had been produced by the police under the provisions of the Vagrants' Ordinance.

The judge had initially remanded the woman but later a motion had been filed by a lawyer and the woman was released on bail.

The secretary also saw a box spring bed in the judge's chamber. When the judge was questioned, he said he used the bed to relax. It was found that the Magistrate was living one mile away from the courts and this was a lame excuse. The secretary recorded the statements of the Registrar, the clerk and the lawyer who had been the chief supplier of women to the magistrate.

Unlike in the case of Magistrate Lenin Ratnayake, the woman who was a prostitute could not be traced. There was no direct evidence of sexual intercourse. The moment the report was submitted to Chief Justice Samarakoon, the magistrate was ordered to appear before him. It was a very short inquiry. No technicalities, no charges framed and no disciplinary panel was appointed.

The JSC secretary gave a brief summary of evidence he had recorded. The Chief Justice was very terse. "You heard the evidence against you. You are free to ask for a full fledged inquiry. At the end of the inquiry if you are found guilty, you will be dismissed, but that will not be all.

The proceedings will be sent to other Judges of the Supreme Court to decide whether you have violated the code of conduct as an Attorney-at-Law. We will not hesitate to issue rule and dis-enroll you from the profession, if you are found guilty of the alleged misconduct. But on the other hand you have the option of tendering your resignation from the Judicial Service. As there is no inquiry and findings against you we will not have material to be placed before the other Judges of the Supreme Court to dis-enroll you from the profession".

It took only a few seconds for the magistrate who was till then protesting his innocence to decide and he tendered his resignation.

In the Uva province too, there was a primary court Judge who was arrested while trying to be funny with a police sergeant's wife at the Pettah bus stand.

The judge had been following this woman for a few days.

Though there was no criminal force used on the woman, it amounted to sexual harassment. Finally the woman reported the matter to her husband. The judge was arrested and when the Police was about to give him the thrashing of a lifetime, he disclosed his identity. The Police then contacted the then Chief Magistrate of Colombo, the late Kirthi Srilal Wijewardene.

Mr. Wijewardene through the JSC secretary established the identity of the man and informed Chief Justice Samarakoon. The JSC got the Attorney General to frame charges and Senior State counsel P. H. D. Kulatilleke, who is now a judge of the Court of Appeal, led the evidence before the Commission.

After the police sergeant's wife gave evidence, the judge tendered his resignation.

During this period more than two dozen Judges were removed. There were allegations of dishonesty only against a few of them. The others were charged for having brought the institution into disrepute.

The JSC once recruited a young judicial officer who fared well in the interview and had the highest credentials and recommendations from respected seniors and judges in the area he practised.

All new recruits are sent to sit with the District Judge, Colombo and sit on the Bench in rotation for a few weeks. When this young clever recruit was sitting on the Bench of the District Judge Colombo, a senior lawyer recognized him and informed Chief Justice Samarakoon about something that had occurred in the past.

He was promptly summoned to the Chambers of the Chief Justice, and was asked whether he was a defendant in a seduction case and whether he paid Rs. 100,000 as settlement to the seduced woman. The young lawyer cried.

This had happened before he entered the profession. A number of years had passed and the seduced woman had got married and the young Magistrate had nothing to do with her after that incident. The only question that was posed to him was why he did not disclose this matter when he applied to join the judiciary. He had no answer to give except to cry.

"Willful suppression of facts amounts to dishonesty and such people have no place in the Judiciary", Justice Samarakoon said.

To-day we have been fighting with the Executive to uphold the independence of the judiciary. The very existence of the legal system is dependent upon the independence of Judges.

When Victor Ivan started his campaign, most members of the profession who cared to read Sinhala newspapers came to the conclusion that these allegations made against these Judges were beyond one's imagination. Most lawyers thought that there was some political or some hidden agenda behind the Ravaya exposures.

Several former presidents of the Bar Association and prominent lawyer H.L. de Silva were of the view that if these allegations were found to be false, severe punishments should be imposed on the editor for bringing down the estimation of the judiciary in the eyes of the ordinary people.

But if the allegations were true the highest punishment be imposed on the errant judges.

Some of the allegations that he made against Baddegama Magistrate Lenin Ratnayake were so extraordinary that most independent right thinking people thought that Ravaya was doomed. But Mr. Ivan was not deterred.

Evidence of the women in Lenin Ratnayake's case was led before the panel of judges appointed by the JSC and he was cross-examined.

Later for some unknown reason Mr. Ratnayake refused to participate at the inquiry and refused to testify before the members of the Commission.

Today we are aware that Upali Abeyratne had been found guilty. Of all charges framed against Mr. Ratnayake, which includes sexual intercourse with two women and embezzlement of state funds a prima facie case had been established. The Commission has decided to send him on compulsory leave.

What is the position of Mr. Ivan who on his own initiative worked tirelessly to bring home the standard of the judiciary with reference to these two judges.

If the superior Judges could not discipline the minor judiciary, the whole judicial system would decay and finally perish.

In the interest of the future generation, we appeal to all those highly respected members of the Judicial Service Commission to take positive and a strong steps to eradicate corrupt, biased, dishonest judicial officers who have been found guilty by highly respected judicial officers of the Court of Appeal.

As much as the members of the Civil Society will protect the judiciary from constant attacks directed at them by the powers that be and will defend its independence with their lives; they would at the same time start a campaign fearlessly even under the threat of being jailed for contempt, if judges themselves do not take meaningful steps to rid the judiciary of corrupt, dishonest patently biased oppressive judges.

In Sinhala the appropriate term to describe them is 'Duracharee'.

Otherwise the system and the institution is doomed and with it civilization is also destined to doom.

The Jungle Telegraph

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