Letter to the JSC by
the Asian Human Rights Commission Over five years of investigation into a
baseless and malicious allegation against a District Judge, (now retired) Mr B.
A. R Somasinghe
Mr Pradeep Jayatilake
Secretary
Judicial
Service Commission
Hulftsdorp
St,
Colombo
12,
Sri
Lanka
Dear Mr Jayatilake,
I am writing to you on
behalf of the Asian Human Rights Commission, which has looked into the
complaint by (retired) District Court Judge and Magistrate Mr. B A R
Somasinghe, about his victimisation due to a baseless and a malicious
allegation investigated by the Commission on Bribery and Corruption for over
five years. Due to the allegation against Mr. Somasinghe, he has lost his
chances for promotion as a High Court Judge and has been exposed to humiliation
for no fault on his part. He has also stated that the Judicial Service
Commission has been duly informed about the falsity of these allegations and
about the completely unreasonable delay in concluding the inquiry into this matter.
He also complains that your Judicial Service Commission has not done anything
to protect him, nor to ensure an inquiry within a reasonable time. The said
Bribery Commission summoned him on 22.11. 2012 to submit certain documents,
which he has done; to-date however, this so called inquiry has not been
concluded. Although Mr. Somasinghe has repeatedly requested for a conclusion of
the inquiry, his requests have not been met.
Meanwhile, the
Judicial Services Commission has suspended Mr. Somasinghe’s annual increments
since 2013, pending the conclusion of the inquiry by the Bribery Commission. It
was only in 12.10. 2016 that he was informed that his annual increments have
been allowed.
Furthermore, Mr.
Somasinghe has reached the age of retirement. As the second most senior
District Court judge in service, he had the possibility of being promoted to a
High Court Judge. However, under the pretext of an inquiry against him, he has
been deprived of the reasonable pursuit of his career. According to Mr. Somasinghe,
he has been verbally informed that he could not be considered for such
promotions to the High Court, due to the failure of the bribery commission to
conclude the inquiry against him. Despite several letters written by him, the
Judicial Services Commission has failed to intervene in the matter.
Mr. Somasinghe has
also stated that the inquiry was initiated on an anonymous complaint, which in
his view was filed without any basis, but as a retaliation against a judgment
delivered in his capacity as a District Court judge and magistrate of Moratuwa,
regarding some church property. As the judge, he gave his judgment based on the
law, as required to do so. He had been made aware that a lawyer who was a
witness in the case had openly stated that he will ensure that the judge who
gave this judgment would be removed from his job.
Further, Mr.
Somasinghe has also stated that he was called by former Chief Justice Mohan
Peiris and asked to resign from his job on his own accord, which he refused,
stating that if there were any allegations against him, the Chief Justice could
initiate an inquiry. He then legitimately requested for a proper inquiry by the
Judicial Service Commission before any action was to be taken against him.
However, the actions against him relating to his increments and promotions were
taken without any such inquiry.
There are many issues
relating to law, human rights and proper administration of law in Sri Lanka
arising out of the matters mentioned above. Undue delay in concluding the
alleged inquiry by the Bribery Commission amounts to violation of civil and
political rights guaranteed under the International Covenant on Civil and
Political Rights, of which Sri Lanka is a signatory. Sri Lanka has also signed
the Optional Protocol to the said Convention, under Section 5.2 of which undue
delay in dealing with any inquiry against a person amounts to a violation of
his human rights.
In the case of
Sundaraarachchige Lalith Rajapakse v. Sri Lanka [CCPR/C/87/D/1250/2004 - 26
July 2006; CCPR/C/83/D/1250/2004], the United Nation’s Human Rights Committee
held that failure to deal with his complaint expeditiously amounted to a
violation of the Petitioner’s rights. Delay in that case at the time of the
decision on this Communication was about three years. The United Nation’s Human
Rights Committee further confirmed this in the final view expressed by it on
the above-mentioned Communication on 5th September 2006.
The principle thus
enunciated by the United Nation’s Human Rights Committee is of fundamental
importance relating to the protection of persons. While it is the duty of the
state to inquire into complaints against anyone including judges, it is the
duty of the investigating and adjudicating authorities to conclude such
inquiries within a reasonable time and particularly without undue delay.
This is particularly
so when actions are being taken in the light of an inquiry relating to the
increments and promotions of the affected persons, who in this case is a senior
District Court Judge. It is the right of every citizen to have any allegations
against them investigated without undue delay. If the complaint proves to be
substantial and backed by evidence, the person should then be promptly
prosecuted, and if the allegation is found to be fictitious and without any substance,
the person should be promptly exonerated.
It is also the right
of any citizen to be protected from false and malicious complaints, which can
be very damaging. It is relevant here to consider that in this case, the victim
of the malicious complaint is a District Court judge. The very nature of being
a judge places him in a vulnerable position, as persons who are dissatisfied
with his judgement are likely to take an antagonistic position him. Therefore,
reasonable caution should be exercised in weighing such allegations and taking
any actions based on them. In the case of The Hon. Attorney General v. M Suresh
Gunasena and five others, [SC/SPL/LA/No 259/2012], the Supreme Court held that
a preliminary inquiry could have disposed of any suspicion against the victim,
and therefore further arrest and other actions that were taken were completely
unreasonable. (The Views of the UN Human Rights Committee is attached.)
Judges have an
enormous role in protecting the rule of law framework within a country. For
this reason, it is also necessary to ensure their protection. This does not
mean that allegations against judges should not be inquired into, but that no
inquiry should be undertaken frivolously, and that any inquiry should be
concluded within a reasonable period.
The Judicial Service
Commission should therefore have taken steps to ensure whether the allegation
against the said judge was justified, as there is reason to suspect that the
complaint was frivolous and malicious. The Commission should have insisted that
the investigation conducted by the Bribery Commission be concluded within a
reasonable time, as undue delay is a basic violation of the International
Covenant of Civil and Political Rights and its Protocols. Five years is clearly
too long to conduct an inquiry, and is a violation of the rights of any
individual, particularly when the individual happens to be a judge whose
reputation is integral to the confidence the people place in the judiciary
itself.
It appears in this
case that the delay in concluding the inquiry and the actions to stop his
increments and promotions amount to a persecution of the judge, rather than a
legitimate inquiry with the intent of prosecution.
As a judge holding a
position where his good name and reputation is part of his professional
integrity, the affected District judge in this case has a right to expect that
he be exonerated with due publicity and compensation for all the damage that
has been done to him.
It is also essential
to look into the role of the complainant in the case of malicious complaints
and the role of the former Chief Justice Mohan Peiris, who attempted to force
Mr. Somasinghe to resign while refusing to conduct any inquiry. Other judges
have made such complaints in the past. If the practice of exerting pressure on
judges to resign without any basis is prevalent within the Judicial Service
Commission, it is a matter of serious public concern. Such a practice is
detrimental to the rule of law and the independence of judges. The rule of law
and the independence of judges are important parts of the foundation of the
legal system of Sri Lanka.
Given the seriousness
of all these matters, we respectfully request you to consider as a matter of
your responsibility, to clear the name of Mr. Somasinghe and grant him all that
was his due, including his right for promotion. We are of the view that in such
matters the Judicial Service Commission owes a public apology to safeguard
public confidence in the judiciary.
Yours Sincerely,
Bijo Francis
Executive Director
17th February 2017
