Gamini Dissanayake (Petitio... - Human Rights Commission of Sri ...

Gamini Dissanayake (Petitioner In Sc 4/91) V. Kaleel, M.C.M. And Others file:///C:/Documents and Settings/kapilan/My Documents/Google Talk ...
2. ALLEGATION OF BIAS AGAINST DISTRICT JUDGE
The petition in each case, makes reference to the unsuccessful actions filed in the District Court of Colombo on
5.9.91. Paragraph 21 of the petition, and paragraph 22 of the affidavit (in S.C. (Special) No. 4/91), filed in this Court,
refer to a speech made by the District Judge of Colombo, as President of the Judicial Service Association, at the
Annual Conference of the Association, welcoming the President. In the course of that speech, the District Judge
conveyed the appreciation of the members of the minor judiciary of the practice of promoting senior judges of the
minor judiciary to the High Court, and of steps taken in relation to the welfare and conditions of service of the
members of the minor judiciary, making special mention of housing schemes and cars. Such action, he said, was in
recognition of the fact that the judiciary is a vital and integral part of the state, especially in maintaining peace and
order. These issues were in no sense personal to the District Judge himself, but related to matters of legitimate
interest and concern to all members of the Association. It was a formal and open expression of gratitude for the
provision of facilities which did not unduly favour the minor judiciary, but which enabled at least the majority of them
to enjoy facilities comparable to public officers. He assumed that judicial officers may, like Oliver Twist, ask for more
and may give thanks for what they get.
However each Petitioner proceeded to allege that he " has reason to believe in all the circumstances that
justice was not seen to be done in his case "; this was re-iterated in counter-affidavits dated 26.10.91. Learned
President's Counsel concluded his submissions on behalf of the Petitioner on 4.11.91 without in any way relying on
this allegation to support the prayer for relief under Article 99 (13) (a).
These applications are not by way of appeal from, or review or re-consideration of, the proceedings or order
in the District Court. The insinuation of partiality is in no way relevant to the issues of fact and law arising in these
applications. We are therefore not called upon in any way to determine whether that allegation was justified, or even
whether there was a reasonable suspicion of bias requiring the District Judge to disqualify himself. Indeed, if we
were to consider whether there was substance in that allegation, we would be doing so in proceedings to which the
District Judge is not, and could not have been, a respondent, and we would thereby be denying to him
what the Petitioners claim for themselves, namely the protection of the audi alteram partem rule.
In these circumstances we indicated to learned President's Counsel on 4.11.91 that the pleadings filed in this
Court should not have contained such an obviously irrelevant allegation of bias, and one based on such tenuous
grounds ; that this Court could not ignore the aspersions cast on a judicial officer, of an inferior court but
nevertheless an integral part of the judiciary of Sri Lanka ; and that in the circumstances it seemed right that
allegation should no longer be permitted to remain on the record. Learned President's Counsel wished to have time
for consideration. On 13.11.91, at the conclusion of his submissions in reply, he informed us that the Petitioners,
while re-affirming that they suffer a deep sense of grievance that they were denied justice when they sought relief in
the District Court, nevertheless recognised the force of our observations that no finding was possible on that
allegation, and while reserving their right to take up the matter elsewhere, desired to withdraw the offending
averments.
These proceedings involve important questions of law as to the status, rights and powers of the Executive
President, vis-a-vis Parliament and Members of Parliament, and the Petitioners seek to vindicate the rights and
privileges of Parliament and its Members. When the jurisdiction of this Court is invoked for such purposes, it is more
than ordinarily important that nothing should be done unfairly to impair the independence, and the reputation, of the
judiciary or any section of it. Unsuccessful litigants may labour under a sense of grievance, in respect of orders which
are either wrong or believed to be wrong ; they have the right to avail themselves of all such remedies as the law
allows, but they are not at liberty to use judicial proceedings recklessly to scatter allegations of partiality. Neither the
Petitioners nor their legal advisers should have permitted this base allegation to be made, and persisted in. It does
not redound to the credit of those professing to enhance democratic institutions and practices in Sri Lanka, that there
was not even a perfunctory expression of regret for the injury to the judiciary and the officer concerned. However, as
the allegation was made in restrained terms, in this instance we merely direct the Registrar, to expunge the offending
passages from the record, namely
(a) the entirety of paragraph 21 of the petition dated 4.10.91, and paragraph 22 of the supporting affidavit,
in S.C. (Special) No 4/91 ; and
(b) the last sentence of paragraph 9 of the counter-affidavit dated 26.10.91,
as well as the corresponding passages in the other seven cases.
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