By Mudliyar –
Those who attended Court No 403 on 1st February 2013 and witnessed the Counsel for the Petitioner single-handedly fighting the case (FR/536/2010), filed against Mohan Peiris, would agree that the Counsel was under tremendous pressure by the obviously biased Judges and the AG’s Department, the integrity of which is at stake. It was obvious that there was a concerted effort to stop the case from proceeding any further, challenging the dishonesty and gross misconduct of Mohan Peiris as well as exposing the lawlessness prevails at the AG’s Department. The Counsel for the Petitioner was forced to attend the Court under threats to his life, that according to media, he had reported to the Police.
It was indeed depressing to witness the Rule of Law rapidly eroding under the new head of the Judiciary, Mohan Peiris, the de facto CJ, and the accuse in the case, where the remaining Judges have meekly surrendered their moral integrity. From the very beginning, the Petitioner was completely denied a fair hearing, whilst serious allegations were being leveled against the Petitioner that he was abusing the legal process to tarnish the image of Mohan Peiris. The Counsel was strictly warned not to refer to Mohan Peiris by name, despite him being charged in his personal capacity in the case. It was obvious to all those present at the court house that the Petitioner was not only denied his right to a fair trial but a stern message was sent out to all citizens who challenges their right violations to expect deterrent punishments with order granted in favor of Respondents, as in this case, when powerful allies of the government are the accused. Probably, this may be the first time in a fundamental rights case where the Petitioner was made to pay cost for the Respondents.
According to the submissions made by the Counsel for the Petitioner, the Respondents had failed to appear before the hearing on 19 occasions from the day it was filed on 24th September 2010. The AG had dodged the hearing 7 times and the Court itself had postponed the case on 4 occasions due to four Judges (Ratnayake, Dep and Siripawan and finally the de facto CJ, Mohan Peiris) further to the objections taken that that they would not take part in the hearing.
1st February 2013 was the date marked to decide on the fate of this all important case, the outcome of which was a foregone conclusion even before the proceedings resumed. The way the hearing was planned on the day and the manner in which the events unfolded thereafter clearly showed that it was nothing more than a sham hearing. On the previous day the de facto CJ, Mohan Peiris, was on the bench and his presence was objected by the Counsel for the Petitioner.
According to the case schedule of the day (01-02-2013) this case was due to be taken up at Court No 502, before a Bench chaired by Marsoof J. However just before the Court sessions were commenced, an announcement was made in the Court, that this particular case had been transferred to Court No 403, before a bench headed by Ratnayake (other two being Hettige J, the former Senior State Counsel and Wanasundara, the former AG). Ratnayake J had already informed that he would not take part in the hearing ‘for personal reasons’.
The attitude of the two Judges before whom the case was taken up on 1st February 2013, summed up all. Their conduct suggested that as if they were under strict instructions from Mohan Peiris to ignore all objections the Counsel for the Petitioner may raise and to proceed with the matter and dismiss it.’
Yet, despite strenuous objections raised by the Counsel for the Petitioner that the case should not be heard before the 2-Judge bench, the Deputy Solicitor General, Shavindra Fernando, insisted that the case should be heard and disposed of. This practice has never been followed before without the consent of all the parties involved. Similar applications made by the Counsel for the Petitioner on earlier occasions, had been refused by the Court, allowing the objections raised by the AG.
The Counsel for the Petitioner then strongly objected to the hearing before Hettige J, on the basis that he had been reported to CJ Bandaranayake by the Petitioner for his biased attitude against the Petitioner, by way of an affidavit filed in Court, which the Court did show no interest to see.
Hettige J had completely disregarded the Motion filed in Court by the Petitioner on 4th July 2012, seeking an early date (11th, 12th or 13th July 2012) to support the Petition for leave to proceed and had ordered that the matter only be mentioned on 6th September 2012 to re-fix a date for support. However, as a result of the intervention of CJ Bandaranayaka, Hettige J had to change his previous order and re-fix the case for support for an earlier date (5th July 2012).
The basis for the said Motion dated 4th July 2012, was that on 27th March 2012 justice Dep’s name was included in the bench (despite he had requested on 30th September 2011 not to list him for this case) and the matter was re-fixed for support on 2nd July 2012. Thereafter, further to a Motion filed by the AG the case was taken up in Court on 21st June 2012, with no notice served on the Petitioner or his Instructing Counsel and the matter had been re-fixed for support on 6th September 2012. Accordingly the Petitioner had filed this motion dated 4th July 2012, seeking an earlier date.
The objections raised by the Counsel for the Petitioner against his taking part in the hearing were refused by Hettige J himself and he ruled that he would hear the case with Wansundara J and rejected the requests made to record the objections raised by the Counsel on two counts mentioned above and ordered the commencement of the hearing.
Then the Additional Solicitor General took up a preliminary objection, on the basis that the Petitioner had challenged a Judicial act which cannot be challenged (dismissal of the Court case SLA/100/2009 filed by the Director General of Customs against the Dockyard Ltd for willful defrauding of public funds of rupees 619 million) by way of an Fundamental Rights Application. The Counsel for the Petitioner submitted that the said case had been filed by the Solicitor General, Dep, when then AG Mohan Peiris had refused the request made by the DGC.
The DSG submitted to the court that AG had withdrawn the case (on 30th Aug 2010) with the full knowledge and concurrence of the DGC, which was confirmed by the letter by the AG dated 26th Aug 2010 addressed to the DGC. The DSG further argued that since the dismissal of the said Court action was a Judicial Act, and there was no ground for an FR action and therefore to dismiss the FR application filed by the Petitioner in limine with costs, alleging that the Petitioner had blatantly abused the process of law to undermine and discredit the then AG, Mohan Peiris with ‘baseless and unfounded allegations’.
The two-judge bench seemed that they did not want to hear the Petitioner. They repeatedly interrupted the Counsel Nagananda Kodituwakku and strongly warned not to refer to the Respondent Mohan Peiris, by his name but to quote him in his official capacity only. However the Counsel for the Petitioner submitted that the then AG Mohan Peiris had withdrawn the said case with no concurrence of the DGC, and that deceitful act violated the fundamental rights of the Petitioner. In fact the DGC, in very clear terms, had instructed the AG (by her letter dated 03rd August 2010 filed in Court) that the withdrawal of the Court action (SLA/100/2009) is improper as that would result in a loss of colossal sum of public funds defrauded by the Dockyard Ltd and that any such action would deny the customs from invoking penal sanctions as provided by the Customs Ordinance (Section 50A and 129) against the Respondent, Colombo Dockyard Ltd, accused for defrauding 619 million rupees of public funds.
The Counsel further informed the Court that the AG’s decision conveyed to the DGC by his letter dated 26th August 2010, had been a clear contradiction to his own stand he had already conveyed to the DGC on 4th Nov 2009 at a meeting held at the AG’s office, which was also attended by the Solicitor General Dep, where he had informed the DGC, that he would defend the Supreme Court Case (SLA/100/2009), and had advised the DGC to act as required by the law against the Dockyard Ltd. The Counsel argued that the said action of withdrawal of the case by the AG, which was filed by the Solicitor General Dep, by deceitful means was an Executive Act, and amounted to the violation of the Petitioner’s fundamental rights to the equal protection before the law guaranteed under Article 12(1) of the Constitution. It was further submitted that as a result of AG’s gross misconduct and dishonesty that deceived both the Supreme Court and the DGC, not only the government had incurred a loss of a huge volume of public funds but that action also denied the informant of his legitimate share of reward.
It was further submitted by the Counsel that this fact has been reaffirmed by the DGC by her observations sent to the AG (filed in Court by the Petitioner) after the Petitioner had filed the FR actions, challenging the dishonesty and gross misconduct of Mohan Peiris, that caused a colossal loss of public funds.
Yet the Court showed no interest in any of the documents referred to by the Counsel for the Petitioner. It was obvious that the conduct of the two judges concerned was far worse than the manner in which members of the Parliamentary Select Committee (PSC) had acted against the CJ Bandaranayaka, denying her a fair trial.
It was quite apparent that the two-judge bench was biased against the Petitioner and determined to dismiss the application. This is the very same Court that, very recently ruled that the PSC had denied CJ Bandaranayake a fair trial. The attitude and demeanor of the two Judges clearly demonstrated that they were mandated to dismiss this application in limine, which they accomplished with a ruling handed down that the AG Mohan Peiris’s action was not amounting to the violation of the Petitioner’s fundamental rights, effectively exonerating the de facto CJ, Mohan Peiris, from the serious charges of gross misconduct and dishonesty leveled against him by the Petitioner, T R Ratnasiri, Deputy Superintendent of Customs in this case.
The ruling by the recent Supreme Court, nullifying the impeachment of CJ Bandaranayaka, is now being challenged before a 5-judge bench further to an application made by the AG, however with no apparent merits. Whereas, in this case, it is quite apparent, that the Petitioner has denied justice. And he has a deserving case with merits to apply for a revision, challenging the ruling given by the 2-Judge bench. In this case the Petitioner is not only lost his rights application but also imposed with a Cost order. Learned experts in the field of fundamental right jurisdiction is of the view that the Petitioner should apply for a revision of the ruling given by 2-Judge bench before full bench, which would open up a window for the people of this country to test the credibility of the Judges in the Supreme Court, now functions under the accuse of this all important case, Mohan Peiris, the CJ, de facto.