The questions raised in regard to the Judicial Service because of the conduct of Magistrate Lenin Ratnayake, District Judge Upali Abeyratne and Attorney General Sarath N. Silva, belonging to three different levels of the Judicial Service are serious indeed.
It is established that Lenin Ratnayake is a person who joined the Judiciary with a questionable track record. How was it possible for a person with such a record to join such an honorable service as the Judiciary so easily? Even when a person joins the police as a constable, inquiries are made about his background. But the fact that a person like Lenin Ratnayake had been able to join the Judicial Service shows such inquiries are not made of people admitted to the Judiciary.
Mr. Ratnayake had not only been able to enter the Judiciary camouflaging his questionable background, he had also been able to get appointed to a position, overtaking a number of Magistrates, where he was to cover the duties of a District Judge. How did such a person get such special treatment? Who is responsible?
Although it is possible to assume that this person was able to gain admission to the Judiciary by hoodwinking the JSC, it is difficult to understand how such a person has been retained in a position of hearing cases for nearly three years after a newspaper had exposed the past.
It is also difficult to understand how a Judge who had got down the wife of an accused remanded by him, on the pretext of recording a statement from her, and allegedly raped her, was unimportant to the JSC. It was on August 17 that Ravaya carried a lead story under the headline ‘Magistrate rapes suspect’s wife’. This woman and her husband had gone to the JSC before that, and had made a complaint to the Secretary of the JSC. Thereafter, on the basis of an affidavit from her, Attorney-at-Law Kalyananda Tiranagama had made a formal complaint on the matter to the JSC and to the Supreme Court on August 14, 1997. Why did the JSC fail to conduct an inquiry into Mr. Tiranagama’s complaint? One could surmise that the complaint made to the JSC had been misplaced. But one cannot surmise that the complaint made to the Supreme Court-about which, the Secretary to the Supreme Court had informed Mr. Tiranagama in writing on August 27, 1997-was also lost.
When the JSC followed a policy of shutting its eyes and ears even though the newspaper continued to raise questions about the failure to conduct an inquiry about the incident the Free Media Movement requested the JSC on February 5, 1998, in writing to conduct a just inquiry into the public accusation made against the Magistrate. As a result, the then Secretary of the JSC (now the Secretary General of Parliament) Dhammika Kitulgoda had a long conversation with me over the phone.
He said an allegation of rape had to be investigated by the police and that there was no possibility for the JSC, to make such an investigation. When he was asked why no inquiry was made as to whether Mr. Ratnayake had been dismissed from the Insurance Corporation on a charge of misappropriation, the Secretary said although the story might have been true, there was nothing the JSC could do because Mr. Ratnayake was a Judge in the Judicial Service. When I asked the Secretary what would happen if, in a case of theft, the accused asked a judge, “how can you hear my case when you are a bigger thief?” the Secretary only said, that certainly could be a problem.
Due to the failure of the JSC to conduct an inquiry against Mr. Ratnayake regarding the first incident of rape he got a second opportunity to allegedly indulge in a similar act. This time the victim was an accused in a case heard before him. This may have been the first time in the entire history of the judiciary that a judge had allegedly taken an accused in a case heard before him into his chambers and raped her.
The policy followed by the JSC in regard to District Judge Upali Abeyratne who heard the case where Sarath Silva had been cited as a co-respondent was still more ridiculous.
W.A. Jayasekera the complainant had informed the JSC on September 24, 1994, about the prejudice caused to him by District Judge Upali Abeyratne in the inquiry into this case.
Taking action the JSC sent a copy of the complaint it had received to Mr. Abeyratne on November 8, 1994 asking for his written observations on the complaint. Mr. Abeyratne submitted his written observations to the JSC on November 11, 1994.
Judges Tissa Bandaranayake and Mark Fernando of the JSC who looked into those observations summoned the District Judge before the Commission on December 14, 1994 and questioned him. Thereafter the Commission prepared a charge sheet against the District Judge and sent it to him on February 12, 1996 asking for his explanation and for any reasons why he should not be dismissed or punished for misconduct mentioned in the charge sheet, within one month.
According to that notice Mr. Abeyratne should have sent his explanation before March 12, 1996. Sarath N. Silva was appointed Attorney General on March 1, 1996. Surprisingly, the District Judge did not respond to the charge sheet. Nor was he dismissed from service or otherwise punished for failure to respond, on the assumption that he was guilty. Up to February 12, 1996 the inquiry against Mr. Abeyratne was proceeding towards its logical conclusion, and how it ended abruptly with the appointment of Mr. Sarath N. Silva to the post of Attorney General is a question that the JSC has to answer.
That two committees of three persons were appointed by the JSC, though belatedly, is praiseworthy. However the JSC apparently came to that decision after a request made to the Chief Justice by a group of former presidents of the Bar Council.
It must be said the attitude of compassion shown by the JSC to these two people even after they were found guilty by the two committees of three members each is surprising indeed.
At the end of the inquiry against Mr. Abeyratne the JSC decided to send him on compulsory retirement. The JSC informed him accordingly. However, after listening to an appeal by the lawyer who appeared for Mr. Abeyratne the JSC changed the earlier decision on compulsory retirement and decided to stop promotions for two years and to transfer him to Moneragala with effect from January 1, 2000.
There appears to have been no substance in what the JSC says about stopping promotions. Mr. Abeyratne was a person who had got all the promotions that a District Judge could get and was in the supra grade. There was no other promotion he could get as a District Judge. His next promotion is an appointment to a High Court. It is not something that the JSC gives but an appointment to be made by the President.
Instead of interdicting Mr. Ratnayake who has had a questionable past and who even after entering the Judiciary was found by a committee of inquiry to have raped two women, he has been sent on compulsory leave pending the JSC framing charges against him and prosecuting him. The JSC has acted more firmly with Judges who have committed lesser offences.