By Elmore Perera –
The Island Editorial on 12th February 2013 prophetically stated that “sadly and ironically, in trying to halt the Country’s slide into a political abyss people are left with no alternative but to depend on former deerstalkers to tackle errant gamekeepers”.
A spate of big-time frauds consistently robbed the Sate of sorely needed Revenue. On 2nd April 1999 (before the advent of Sarath N. Silva as CJ) the Director General of Customs (DGC) inserted an advertisement in the Daily News seeking credible information from the public about any revenue frauds, guaranteeing confidentiality and commensurate cash rewards to prospective informants.
On 9th October 2000, informant X contacted Customs Officer Mr. Ratnasiri, and confidentially informed him that Colombo Dockyard Limited (CDL) had fraudulently misappropriated a massive sum of money already recovered from the purchasers of 21 marine craft manufactured by CDL locally for export, utilising raw material imported tax free. Mr. Ratnasiri recorded the information, tendered it to the Director of Customs (Preventive) on 11th October 2000 and carried out further investigations. Caught red-handed, CDL acknowledged their liability, and deposited a sum of Rs. 94m. in August 2001, as part of the defrauded revenue. By October 2001 the investigations revealed that a sum of Rs. 619m. had in fact been defrauded and in February 2002 a formal inquiry by Director of Customs Thilak Perera commenced. Then DGC, Mr. Sarath Jayatilaka consistently obstructed the continuance of the inquiry. In March 2004 he granted CDL a tax amnesty disregarding the strong objections raised by Mr. Ratnasiri, who thereafter in June 2004, instituted action in the Court of Appeal to have the said amnesty quashed. The DGC Sarath Jayatilaka and Inquiring Officer Thilak Perera gave an explicit undertaking to the Court of Appeal that they would conclude the Customs inquiry as expeditiously as possible. Thereupon Mr.Ratnasiri withdrew his petition. The inquiry resumed but was suspended by the DGC Sarath Jayatilaka as requested by CDL.
On 29th August 2005, in a strange turn of events CDL instituted action in the Court of Appeal against the continuance of the inquiry on the wholly irrelevant ground that Customs was not empowered to invoke the provisions of the Customs Ordinance for recovery of GST, TT, NSL and Stamp Duty, which the Customs had neither done nor even contemplated in this instance. The inquiry purportedly resumed but CDL did not respond to the summons for the inquiry. In blatant disregard of the aforementioned undertaking given to the Court of Appeal to conclude the inquiry expeditiously, the inquiry was postponed indefinitely. After a protracted delay, almost four years later on 27th April 2009, the Court of Appeal issued a Writ prohibiting continuance of the inquiry.
As proposed by the Legal Affairs Unit, the DGC, Sarath Jayatilaka, by letter dated 13th May 2009 urged the Attorney General to appeal against the aforementioned Order of the Court of Appeal. As the time allowed to tender an appeal to the SC was running out, Mr. Ratnasiri and the officers of the Legal Affairs Unit made representations to the Solicitor General Mr. P. Dep who promptly submitted an appeal to the Supreme Court.
On 4th November 2009, the Attorney General Mr. Mohan Peiris held a conference in his office, attended by the Solicitor General Mr. Dep, DSG Sanjay Rajaratnam, the DGC Sarath Jayatilaka, Director Thilak Perera, the O.I.C. Legal Affairs Unit Mr. Peter Gunawardena and Mr.Ratnasiri. Then AG Mr. Mohan Peiris advised the DGC Mr. Sarath Jayatilaka and the Inquiring Officer Mr. Thilak Perera to continue with the inquiry assuring them that he would defend their right to proceed with the stalled Customs Inquiry. He farther stated specifically that the reference in the Court of Appeal order re recovery of customs duty in terms of Section 18A was merely obiter dictum and therefore irrelevant.
Whenever this Appeal came up for support in the Supreme Court, DSG Sanjay Rajaratnam informed Court that further time was necessary to decide whether to proceed with the Appeal or to withdraw the Appeal. On 8th February 2010 he informed Court that the possibility of effecting a settlement in this case was being explored by the Attorney General and requested a long date. Almost an year after the Appeal was instituted, by letter dated 10th May 2010, signed by DSG Sanjay Rajaratnam on behalf of the AG Mr. Mohan Pieris, the DGC Sarath Jayatilaka, was informed that the Supreme Court Appeal would be withdrawn on the next date, viz. 30th August 2010, and the DGC was advised to recover the Customs duties defrauded under Section 18A of the Customs Ordinance.
On 24th May 2010, Mr. Sarath Jayatilaka was removed from the post of DGC with immediate effect and replaced by Mrs. Sudharma Karunaratne. She immediately subjected the matters related to this Appeal, to a comprehensive review.
By letter dated 3rd August 2010, DGC Mrs. Karunaratne informed AG Mr. Mohan Peiris that ‘considering the colossal revenue loss involved in the case, the withdrawal of the matter before the Supreme Court was inappropriate’. She also drew the AG’s attention to the specific advice, given by him to her predecessor Mr. Jayatilaka on 4th November 2009, that he would defend their right to proceed with the inquiry and that the reference to recovery of Customs duty in terms of Section 18A was mere obiter dictum and therefore irrelevant.
At the instance of AG Mr. Mohan Pieris, the Secretary to the Treasury, Mr. P.B. Jayasundera summoned DGC Mrs. Sudharma Karunaratne, and the Customs Legal Affairs Unit to a meeting at the Treasury on 16th August 2010. The ST Mr. Jayasundera pointedly directed the DGC Mrs. Karunaratne to follow the advice of AG Mr. Mohan Pieris, but refrained from issuing any written directive. The officers of the Legal Affairs Unit submitted to the ST Mr. P.B. Jayasundera that there were several important issues of law which affected Government Revenue, to be argued in this case. The ST silenced them instantly by sternly warning them to either follow his advice or resign from the Customs and join the Private Bar.
On 23rd August 2010, the Customs Legal Affairs Unit urged DGC Mrs. Karunaratne to refrain from acting on the verbal directions of the ST Mr. P.B. Jayasundera unless and until he issued any directions in writing, for the reason that the purported instructions given verbally were arbitrary and gravely inimical to the Public Interest.
On 26th August, 2010, perhaps presuming that DGC Mrs. Karunaratne would meekly comply with the wholly unlawful verbal directions of the ST aforementioned, DSG Sanjay Rajaratnam, on behalf of AG Mohan Peiris, signed a letter acknowledging the receipt of DGC’s letter dated 3rd August 2010 (wherein she stated unequivocally that the withdrawal of the Appeal to the Supreme Court was inappropriate) but merely informing her that (disregarding her unequivocal contrary instructions to the AG) the Appeal to the Supreme Court would be withdrawn on 30th August 2010.
On 30th August 2010, DSG Sanjay Rajaratnam informed the Supreme Court that the DGC had been advised by AG Mr. Mohan Peiris to comply with the Court of Appeal Order and that accordingly the Appeal was withdrawn.
On 1st September 2010 the aforementioned AG’s letter dated 26th August 2010 was hand-delivered to the office of the DGC (Mrs. Karunaratne).
Informant X, virtually put his life at risk by responding on 9th October 2000 to the DGC’s plea for credible information re revenue frauds. He had spent 10 years in fear and trembling, holding on to the only evidence that could establish his identity as the informant to claim the “commensurate cash reward” of anything up to Rs. 185m. i.e. 30% of the sum recovered. He lived in hope, confident that the State would not dishonour its clear, unambiguous obligation. Customs Official Ratnasiri could not compensate Mr. X personally but felt compelled to honour the assurances given by him to Mr. X on behalf of the State.
On 24th September 2010, Mr. Ratnasiri, who had no other remedy available to him, invoked the jurisdiction of the “Supreme” Court and filed fundamental rights application No. SC 536/2010 (FR) alleging violation of his (and the informant’s) fundamental rights by then AG Mr. Mohan Peiris, ST Mr. P.B. Jayasundera and others. It contained a reference to the misconduct and dishonesty of AG Mr. Mohan Peiris, corroborated by an affidavit of former DGC Mr. W.D.L. Perera. Furnishing her observations (on this petition) to the AG who represented her, the DGC (Mrs. Karunaratne) stated that “Written instructions were given to the AG (Mr. Mohan Peiris) by letter dated 3rd August 2010 stating that withdrawal of the appeal to the Supreme Court was inappropriate. Receipt of that letter had been acknowledged by AG’s letter dated 26th August, 2010 which had been received in her office only after the application was withdrawn on 30th August 2010.”
On 7th October 2010 and 17th October 2010, at the insistence of Counsel Upul Jayasooriya retained by Mr. Ratnasiri, the petition was amended twice, deleting inter alia all references therein to Mr. Mohan Peiris and also the self-explanatory affidavit of former DGC Mr. W.D.L. Perera re misconduct and dishonesty of Mohan Peiris. Having succeeded in shielding Mohan Peiris, within 3 weeks, Upul Jayasooriya refused to represent Mr. Ratnasiri thereafter, without giving any reasons for this sudden withdrawal.
Unable to retain any Counsel practising in the Supreme Court of Sri Lanka to appear for him, Mr. Ratnasiri persuaded a Counsel resident in the UK, who had retired from a post of Deputy Director of Customs in Sri Lanka viz. Nagananda Kodituwakku, to represent him. On 5th December 2011, Court granted an application to amend the petition by inter alia reinstating all references to the conduct of Mr. Mohan Peiris and also the affidavit of former DGC W.D.L. Perera re the misconduct and dishonesty of Mr. Mohan Peiris. An updated and amended Petition was tendered on 23rd December 2011.
Since being filed in September 2010, this application had been listed for hearing on 17 occasions. Ratnayake J and Dep J had declined to hear the application. On numerous occasions it was listed for hearing by Benches including one of them and on each occasion the AG objected to the application being supported before the other 2 judges. On one occasion the case was listed for mention at the request of the AG without any notice to the Petitioner. An arbitrary order made by Hettige J on a motion filed by the Petitioner was reversed as a result of representations made by the Petitioner to Bandaranayake CJ.
This matter was listed for support finally on 1st February 2013 before Ratnayake J, Hettige J and Wanasundera J. As expected, Ratnayake J declined to hear the case. Ratnasiri’s Counsel objected to Hettige J hearing the matter with one other judge alleging bias indicated by his arbitrary order that was reversed on Bandaranayake CJ’s intervention. The AG vehemently opposed the objection to 2 judges hearing this. Hettige J overruled the objections of the Petitioner and entertained a preliminary objection raised by the AG that this application was based on a Judicial decision of the Supreme Court in dismissing the appeal filed by the DGC and there was no valid fundamental rights violation before Court.
Submissions on behalf of Ratnasiri that his complaint was based solely on the patently Executive and Administrative acts of AG, Mr. Mohan Peiris in withdrawing the said appeal of the DGC (contrary to the unequivocal instructions issued by DGC Mrs. Karunaratne that it should not be withdrawn but pursued with vigour) and in deliberately deceiving the Supreme Court into believing that the said withdrawal was in accordance with instructions received from her.
Vociferously supported by numerous Counsel for the Respondents (some of whom had only recently “withdrawn” the Petitions of several Public Interest Litigants in support of Bandaranayake CJ as being futile – with or without the consent of their clients, and are now clearly committed to erasing any evidence of the highly questionable acts of an un-lawfully appointed “boss”), this preliminary objection of the AG was upheld and leave to proceed refused by Hettige J. To reinforce the support of their new boss, the Petitioner was also directed to pay ‘Costs” to the Respondents.
Is this a clear indication of the new direction of Supreme Court Justice? As prophetically stated by the Island Editor, are we the Sovereign people, left with no alternative but to depend on former deerstalkers to tackle their own errant game keeping?
O Tempora! O Mores!
*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA
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