17th February 2017
Mr Pradeep Jayatilake
Secretary
Judicial Service Commission
Hulftsdorp St,
Colombo 12,
Sri Lanka
Dear Mr Jayatilake,
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
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
