Hulfsdrop Hill

17th October 1999

Magistrate under fire

By Mudliyar

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Mervyn Wijetunga, former Fort Magistrate was interdicted on October 8 at 4.00 P.M. According to sources, he was summoned to the Judicial Service Commission and the letter of interdiction was served on him, to be operative from 6.00 p.m. Speculation was rife that the interdiction had more to do with the case involving Lakshman Hulugalle and Jayatissa Tennakoon. The latter retracted his earlier statement made to the CID in support of Mr. Hulugalle.

The surety who stood for Mr. Tennakoon told court he did not know the whereabouts of Mr. Tennakoon. His lawyers said he was unable to appear in court as he feared a threat to his life and thus moved the warrant be recalled. The Magistrate refused the application and ordered the surety to produce him on the next date.

After reading the news item, several retired judges and others who are knowlegable about judicial disciplinary were aghast at the order of interdiction served on a magistrate. Mr. Wijetunga was overlooked for promotion on more than four occasions and was due to retire on November 6. The news item that appeared in the Sunday Times did not relate to any moral turpitude or any allegations of dishonesty. On the contrary the charges were based on the magistrate's judicial orders which are reviewable by a higher forum.

What has had a chilling effect on many judges and magistrates who administer justice under extremely trying circumstances is that one of the charges according to newspaper reports, deals with the issuance of a warrant on the first instance. The charge framed by the Judicial Commission reads thus:

'That on or about 29th March, 1999 whilst being the Magistrate of the Magistrate's Court Colombo Fort, you accepted a plaint and an affidavit which was purportedly filed under section 136(1)(a) of the Code of Criminal Procedure Act No. 15 of 1979 (and registered as Case No. 80833 M.C. Fort) by one Harries Ching Chen Yen and issued a warrant in the 1st instance for the arrest of the two persons named as accused in the said plaint, an order which is contrary to the law and practice of issuing process in cases filed under section 136(1)(a) of the aforesaid Act whereby you have deviated from the norm and lowered the standards of judicial conduct in order to accommodate a complaint and thereby brought the Judicial Service of Sri Lanka into disrepute.'

There has been a spate of private plaints filed in many Magistrates' Courts in and around the city mainly on 'white collar crimes' related to commercial transactions. The reason for this upsurge is that commercial and business transactions have increased manyfold and commercial crimes have become a major obstacle to the development of commerce and industry in the country. The CID and the Frauds Bureau are inundated with highly complicated and complex commercial transactions which fall within the ambit of the Penal Code but the two institutions do not have the personnel to handle such cases.

It is known that when a complaint is made to the Special Branch of the CID, officers there would record the statement and try to obtain related documents and still would refer the matter to the Attorney General for an order. The process takes such a long time that most complainants find that not only they are cheated by the accused but they are also being led on a garden path by the CID or the Police. The suspect often goes abroad leaving the complainant on the burning deck.

CID officers having recorded the statement would not initiate any action as they themselves do know whether the transaction complained of is a civil or a criminal matter. By the time the advice is sought and obtained the villains would have with the help of the wealth amassed would have been in greener pastures abroad. The obvious inefficiency of the CID to handle such complex criminal cases is borne out by the fact that the Colombo Stock Exchange has filed several cases before the Fort Magistrate alleging cheating and misappropriation and violations of other rules. The CSE has retained President's Counsel from the Attorney-General Department to draft, institute and prosecute in cases filed under what is loosely termed as 'private plaints'.

The question is whether it is illegal to issue a warrant for the arrest of the suspects at the 1st instance on the application of complaints in a private plaint.

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