The Case of former Judge M.P. Wijesiriwardene
We are bring you the following up date on this case which we brought to your notice last year. (For your easy reference we attach the original appeal below). For complete file please see our web-site, under following reference: UA 20/99 Index: 42699 and the 1999 update on the case UA 20/99 Index: 51499.
Current Situation:
On this matter, the last letter received from the Judicial Service Commission(JSC), Sri Lanka, by many persons who wrote to JSC, was that Mr.Wijesiriwardene was expected to be arrested soon and produced as an accused in a case. JSC letter was dated 4th June 1999.
AHRC has reviewed the case and found that Mr. Wijesiriwardene was never arrested or even questioned and the case in question is now over.
The case in question is the case bearing No. 21082 of Higurakkgoda Magistrates Court, (Sri Lanka). The verdict in this case was entered on 21.09.1999 by Honourable Magistrate R.A.P. W. de Silva. There were six accused in the case.
Their lawyer had informed court, that as the suspects have been in remand custody for over one year with out trial and as the punishment against them in any case will not exceed that period, they will plead guilty to the charges. The Magistrate entered verdict on that basis and thus ended
the case.
Following facts are relevant.
1. Mr. Wijesiriwardene was neither an accused or even a witness in this case.
2. That there were no reference to Mr. Wijesiriwardene in any of the statements recorded by the police.
3. In the entire case record there is no mention of Mr. Wijesiriwatrdene¡¯s name.
4. The police at no stage informed Mr. Wijesiriwardene that he may be charged with any offence; nor did the police record any statement from him on the basis of any charge.
5.There was no basis of any sort to make the allegation that he may become an accused in a criminal case. In fact the case was against several other persons.
The copies of documents relating to these matters is in the possession of AHRC.
Under these circumstances the position taken by JSC in their letter to many persons dated 4th June 1999 and bearing reference number JB/10/22/91 is baseless. (For easy reference a copy of the letter is attached here with).
Under these circumstances it is evident that a gross injustice has been done to this officer, by way of deprivation of his job and by abuse to his reputation by sending letters of allegations proven to be baseless.
It may also be noted that in a recent case ( Case of judge A.H.M.U Abeyratne) of compulsory retirement of a judge after he was found guilty of several charges on the basis of a disciplinary inquiry conducted by a panel of three Appellate court judges, he was re-instated after an appeal made by him. In the case of Mr. Wijesiriwardene, as there has not even been an inquiry, there canNot be any legal obstruction to his re-instatement.
RECOMMENDED FURTHER ACTIONS: It is will be quite useful to write to the Judicial Service Commission, to reverse their decision and undo the injustice done to Mr. Wijesiriwardene.
SEND APPEALS TO:
Her Excellency President Chandrika B. Kumaratunga
Presidential Residence
Colombo 3
Sri Lanka
Fax: 94 – 1 – 333 – 703
Chairman
Judicial Service Commission
The Office of the Judicial Service Commission
Superior Courts Complex,
Colombo-12, Sri Lanka.
Fax:94-1-320785
CC COPIES TO:
Dato’ Param Cumaraswamy
Special Rapporteur on Independence of Judges and Lawyers
UN Centre for Human Rights
United Nations Office
Palais des Nations
CH-1211, Geneva 10
Switzerland
Tel: [4122] 917 3945
Fax: (4122) 917 0022
Email: Dato Param Cumaraswamy <cparam@pc.jaring.my>
Email: webadmin.hchr@unog.ch
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Re; The Case of former Judge M.P. Wijesiriwardene
Last year Asian Human Rights Commission brought to our notice of the compulsory retirement of Mr. Wijesiriwardene, a judicial officer, without any inquiry. On this basis many letters of concern were written on his behalf. At that stage, the Judicial Service Commission issued a letter dated 4th June, very injurious to Mr. Wijesiriwardene stating that he may be arrested soon and that he will be made an accused in a criminal case.
We have now learned that nothing of this sort has happened and in fact, the case in question is now over. We have further learned that Mr. Wijesiriwardene has not even be questioned on the basis of any charge at any stage. In these circumstances, it is only just and fair to re-instate Mr. Wijesiriwardene with due apologies. We have also learned
that under Sri Lankan law there is provision for an appeal even after a judge is found guilty in a disciplinary inquiry against him . The case of judge A.H.M.U Abeyratne has been cited as an example. In the case of Mr.Wijesiriwardene, there was no inquiry at all. Therefore, it should be much easier to correct this by re-instating him.
With assurances of highest regards,
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Please remember to send a copy of your letter to: ua8@hknet.com
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FOR YOUR REFERENCE THE REPLY FROM THE JUDICIAL SERVICE COMMISSION:
Office of the Judicial Service Commission
P.O.Box 573, Hulftsdorf, Colombo 12,
04 June 1999
Ref: JB 10/22/01
Mr. Sinapan Samydorai
Programme Coordinator
Asian Human Rights Commision
Unit D, 7th Floor, Mongkok Commercial Centre,
16 16B, Argyle Street, Kowloon,
Hong Kong, SAR China
Dear Sir,
Mr. M.P. Wijesiriwardene, former Juricial Officer.
Reference your letter dated 31st May, 1999, on the above subject, the Judicial Service Commission has directed me to inform you the following:-
Mr. M.P. Wijisiriwardena was interviewed by the jurdical Service Commission on 08th March 1999. At the interview the Commission
clearly informed him that the allegation against him was that he was a party to the unlawful removal of stolen artifacts which are of great archaeological value. There is material to indicate that his motor car was used to transport the stolen artifacts and that he was himself travelling in the vechicle that transported the artifacts.
There is material to show that Mr. Wijesiriwardena in his capacity as a Judicial Officer has interfered with the investigations which were being conducted by the police with regard to the theft of artifacts.
The police investigations show that they are endeavouring to arrest yet another accomplice who would directly implicate Mr. Wijisiriwardena in his criminal activity. In the event the accomplice who is presently absconding is arrested, there is every likelihood that Mr.Wijisiriwardena himself would be taken into custody.
Having regard to the serious nature of the allegations, he agreed to go on compulsory retirement rather than facing an inquiry which may eentually result in his dismissal from service. As it is he has retired with full pension.
The present complaint made by Mr, Wijesiriwardana to the Asian Human Rights Commission constituted the basis for the petition filed by him invoking the Fundamental Rights jurisdiction vested by the Supreme Court. The petition was supported before three judges of the Supreme Court by Senior Counsel(President¡¯s Counsel). The petition was filed
in terms of Article 126 of the Constitution. Article 126 of the
Constitution provides that the application may be proceeded with ¡°only with leave to proceed first had and obtained from the
Supreme Court, which leave may be granted or refused, as the case may be, by not less than two Judges¡±. Counsel was fully heard by the three Judges of the Supreme Court I support of the petition filed by Mr. Wijisiriwardene. Having heard Counsel, the court made order refusing leave to proceed for the abvious reason that no case has been made out to proceed to inquiry.
It is correct that the Supreme Court has not given reasons
for refusing leave. The general practice of the Court is not
to give reasons at this stage of the proceedings.
There is nothing unusual in not giving reasons for the refusal
of leave to proceed.
Yours faithfully,
C.N. Samarakoon
Acting Secretary
Judicial Service Commission.
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FOR YOUR REFERENCE THE FIRST APPEAL AHRC UA ISSUED ON THIS CASE:
ASIAN HUMAN RIGHTS COMMISSION URGENT APPEAL PROJECT UA Index: 42699
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UA 20/99: Constitutional rights Violated 26 April 1999
SRI LANKA: Judicial Officer’s Constitutional Rights Violated
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A Sri Lankan Judicial Officer Files Action Against the Chief Justice and Two Other Judges Against Violation of His Constitutional rights, as Members of Judicial Service Commission.
A Judicial Officer, Mr. M. Percy Wijesiriwardena, with nearly 12 years experience who had worked in several parts of the country has filed an application before the supreme court of Sri Lanka under section 126 of the Constitution complaining that the three judges acting as members of the Judicial Service Commission have violated his rights to be treated equally before law (article 12 (1))and to engage in a lawful occupation (Article 14 (G)), by sending him on compulsory retirement on merciful grounds, without stating any charges against him and without inquiry.
BACKGROUND INFORMATION: Mr. M. Percy Wijesiriwardena, a Grade 1, category 11 Judicial officer states that a letter was obtained by the said officers
from him under the threat of immediate dismissal. The reason for the action of the three members seems to Mr Wijesiriwardene, a secret report of an officer of the police department, the content of which has been never divulged to him. The three members stating that police might charge the
judicial officer of some unspecified offence and that adverse press publicity may be generated against the judiciary, the judicial offer asked to submit a letter seeking compulsory retirement or face immediate dismissal despite his protests. The officer, further states that no criminal charge has been filed against him and the action of the three members is contrary to the disciplinary code relating to minor judicial
officers which gives the officers a right to be heard, and that he has been unfairly treated. He also points out that a judicial officer facing two rape charges is still allowed to function as cases are proceeded against him and disciplinary inquiries are continuing. The judicial officer has further stated that he has had an unblemished record. The Judicial officer
is married and is father of two children.
SEEKING RELIEF: The Judicial officer seeks following reliefs from the Supreme Court: to grant leave to proceed with application in the first instance; to declare that the Petitioner’s Fundamental Rights under Articles 12(1) and 14(1)(g) of the Constitution has been violated by the 1st, 2nd and 3rd Respondents; to quash the decision of the Judicial Service Commission sending the Petitioner on compulsory retirement as embodied in the letter dated 22/3/1999; to direct the Judicial Service Commission to hold an inquiry according to law giving the Petitioner an opportunity to
defend himself if any charges that are leveled against him; to grant appropriate compensation for violation of the undamental Rights of the Petitioner; to direct the Judicial Service Commission to re instate the Petitioner without losing his seniority and with back wages if found not guilty after proper inquiry; to grant costs; and such other and further
relief.
