The Attorney General is on the war path with Colombo Chief Magistrate Lanka Jayaratne, Colombo Telegraph learns.
The Colombo Chief Magistrate’s extensive 40 page order justifying bail being granted to former Defence Secretary Hemasiri Fernando and suspended IGP Pujith Jayasundara heaped scorn on Dappula De Livera’s brazen decision to charge the pair with murder, punishable by death over the ‘failure’ to prevent the Easter Sunday attacks.
Now De Livera is bent on getting revenge.
On July 18, the AG’s Department filed a revision application in the Colombo High Court against the Chief Magistrate’s order granting bail to Fernando and Jayasundara.
The same day the Department issued an unprecedented press communique through the Attorney General’s Coordinating Officer State Counsel Nishara Jayaratne.
The Coordinating Officer’s release to the media accused the Magistrate’s bail of being “illegal, unjust, unreasonable”. The order Chief Magistrate Jayaratne made was “illegal and a violation of the law,” the release noted in reference to the revision application the AG had filed.
The four-page media release went further, accusing the Chief Magistrate of making “baseless and partisan” declarations in her order.
The remarkable thing was that while these claims against a Magistrate’s order may be considered the regular pleadings in a revision application filed against that order, it is unheard of for the AG’s Department to issue a press about the phrasing in the application made to the higher court, according to senior legal practitioners, since outside the context of a court filing, it could create the impression that the Attorney General is casting aspersions upon the conduct of the magistrate.
“All this was what the AG could not say when Lanka Jayaratne issued her order. AG De Livera’s Coordinating Officer has very skilfully used the opportunity of when the revision application was filed in High Court to hit back publicly and outside the courtroom – at the Magistrate” a legal source explained.
“In this and other cases in the future the AG’s Department must work with these judges again. So it’s quite remarkable that they are doing this, all for the public’s right to know” the source added.
Sources close to the Attorney General openly expressed disgust at the “conduct” of Chief Magistrate Jayaratne saying she seemed to be blowing “hot and cold” when it suited her. In previous media releases the AG has referred to Fernando and Jayasundara’s failure to prevent the Easter attacks as a “grave crime against humanity” making it clear that De Livera and his inner circle feels strongly about the case against the two former officials.
The issue of the controversial media release came up in court yesterday, Monday (23) when the case came up again before Chief Magistrate Lanka Jayaratne.
Lawyers for Hemasiri Fernando took objection to the press release issued by State Counsel Nishara Jayaratne on July 18 on the basis that it was prejudicial to his client.
Deputy Solicitor General Dilipa Peiris was asked about the release to which he replied that while he was not aware of the release all state institutions were bound to provide information in accordance with the Right to Information law. He promised Court that he would convey the matter to the Attorney General personally.
A few hours after the proceedings ended in court, the Coordinating Officer to the AG issued another press release, this time asserting that the release issued on July 18 had been “fully authorised” by the Hon. Attorney General.
In her order made on July 9 Chief Magistrate Jayaratne made it clear that the failure to have a security plan in place to prevent the Easter Sunday bombings could not immediately lead to a murder charge. The penal code was clear and distinctive about the two offences – murder, which is punishable by death and causing death through negligence which carries a maximum punishment of a 5 year jail term. In her order she explained that the physical act of murder was not present in the case of Fernando and Jayasunadara.
It also fell to the Chief Magistrate to explain to the Attorney General that judicial proceedings could not be instituted based purely on the findings of an ad hoc presidential committee set up to probe the Easter attacks, since the committee was not set up under any established law. The AG may commence judicial proceedings based on evidence gathered during sittings of a Presidential Commission of Inquiry or a Commission of Inquiry which is set up by Acts of Parliament and constitutes written law. However the Malalgoda Committee appointed by President Sirisena in the aftermath of the Easter attacks, has no legal basis. Under the circumstances, the report of such a committee may only be considered as an initial complaint about a crime, and must be investigated by law enforcement before charges can be filed and arrests made, the Chief Magistrate noted.
The Chief Magistrate also faulted the AG for ordering the arrests of Fernando and Jayasundera before the CID could even record statements from the pair.
This is not the first time De Livera has fallen afoul of judges due to his love for publicity and theatrics for the benefit of the media.
During the hearings of the Presidential Commission on the Central Bank Bond Scam issue, De Livera was severely admonished by Justices Chitrasiri and Prasanna Jayawardane after he refused to backdown even after the Commission made an order about what evidence would be permissible.
Both Justices Chitrasiri and Jayawardane remarked that they had never seen a senior counsel behave so badly in careers spanning over 30 years.
Justice Jayawardane even remarked during the heated exchanges that De Livera was openly challenging the Commission’s order in order to have his statements given wide publicity in the media.
Jayawardane called De Livera’s conduct “deplorable”.
“I’m sure your words will be appropriately reported in the media reports, which will give you satisfaction. We are not interested in what newspapers report, we are interested in our job which I’m sure will upheld by any court. When an order is made, one can go and canvass against it at the appropriate court. Making statements standing in the bar table is not appropriate,” Commissioner Jayawardane admonished.
See transcript of exchanges here