By Colombo Telegraph –
A Contempt of Court action filed against Rajpal Abeynayake, the Editor -Daily News – by Dr. Sunil Cooray today through Instructing attorney Nilanthi de Silva. The Complainant states that by the news paper dated 3rd December 2012 the Editor -Daily News has alleged the existing Chief Justice in the headline of the news paper as ; “CJ CONVENES DISTRICT JUDGES IN ‘HULFTSDORP COUP”
The petitioner asked; Issue summons to the Accused; Charge that the Accused on the offence of contempt of the Supreme Court under Article 105(3) of the constitution of the country; Take the steps against the Accused as per the Article 105(3) of the Constitution on the offences of contempt of the Supreme Court for the defamatory statements referred in publiucation Daily News dated 03.12.12 and 04.12.12 ; An order restraining the Accused preventing him from publishing further Contemptuous statements/articles scandalizing the Supreme Court and Her Ladyship the Chief Justice until the conclusion of this case; Impose sentence on the Accused as provided for in article 105(3) of the Constitution of the Republic of Sri Lanka; Issue a ruling on the Accused directing him to show cause as to why he should not be struck off the role of the Attorneys at Law; Make orders on the accused Attorney at Law in keeping with the rules of Professional ethics.
We publish below the full text of the petition;
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of Contempt of Court in terms of the Article 105(3) of the constitution
Contempt of Court
SC ApplicationNo: 87/2007
Dr.Sunil F.A. Coorey
Attorney at Law
Dr.Sunil F.A. Coorey
No.51, Kalaeliya Road, Jaela.
The Editor “Daily News”,
The Associated News papers of Ceylon Limited, Lake House, Colombo 01.
On this 13th day of December 2012
TO: – YOUR LADYSHIP THE CHIEF JUSTICE AND THE OTHER HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.
The Petition of the Complainant above named appearing by its Attorney-at-Law Lilanthi De Silva states as follows;
01. The Complainant is a citizen of Sri Lanka and an Attorney-at-Law by profession, and has authored a number of books, papers and artciles on the subject of Administrative Law. He has also been awarded the Doctorate of Philosophy by the University of Colombo in the year 2006 for the 2nd edition of the book ‘Principles of Administrative Law in Sri Lanka’.
02. The complainant is of the firm belief that all citizens of the Democratic Socialist Republic must regard Your Ladyship’s Court in a sacred and dignified manner and that no person should attempt to tarnish the high esteem in which Your Ladyship’s Court is held by all citizens.
03. In the said backdrop the complainant is concerned on continued contemptuous articles that are being published in the Daily News Paper as ‘’Sri Lanka’s National News Paper’’ on the Chief Justice of the Supreme Court of Sri Lanka, scandalizing the judiciary, the Supreme Court and the entire system of Administration of Justice with a calculated motive in diminishing the public confidence and the high regard and the esteem in which the Chief Justice and other judges are held by the members of Public in Sri Lanka.
04. Therefore the Petitioner files this action against the Accused afore mentioned seeking the intervention of your Ladyship’s Court to deal with the accused in the manner as provided for by Article 105(3) of the Constitution of the Republic of Sri Lanka on the publications more fully described hereinafter.
05. The Accused is an Attorney-at-Law and presently employed as the Editor In Chief of the ‘Daily News’ Paper published by the Associate News papers of Ceylon Limited commonly known as Lake House. The shares of this company are held by the Public Trustee after being acquired by the government from private ownership.
06. It is complained that the Accused Attorney at Law has committed the offence of Contempt of Court punishable under and by virtue of article 105(3) of the Constitution of the Republic of Sri Lanka. Further it is stated that the Accused is responsible for all the articles written by him and others published in the said News Paper as the Editor in Chief of the said newspaper under and by virtue of his authority and supervision.
07. The Complainant further states that the said accused being registered in the role of the Attorneys at Law of the Supreme Court of Sri Lanka has grossly misconducted himself with such publications as referred to below in a manner not fitting for an Attorney at Law and is liable to be struck off the role of the Attorneys at Law of the Supreme Court of Sri Lanka.
08. The Complainant states that by the news paper dated 3rd December 2012 the accused has alleged that the Chief Justice had committed a Coup with the heading in the Daily News as ; “CJ CONVENES DISTRICT JUDGES IN ‘HULFTSDORP COUP”. The Complainant states that by the afore mentioned headline of the said Daily News Paper the office of the Chief Justice is desecrated and ridiculed in the public eye that Her Ladyship is engaged in a Conspiracy against the existing government. Therefore, a low opinion of the office of the Chief Justice is conveyed and communicated to the general public. Therefore, the Public Trust of the entire Judicial System is breached with the judicial system being scandalised.
The said Article is annexed herewith marked as P1 and pleaded part and parcel hereof.
09. Further by the said article it is further alleged as follows;
“Our reliable sources say the intention of the Chief Justice – at the behest of a coterie of international and local conspirators – is to undermine the supremacy of parliament and also its clear decision to ignore notices by Court, by getting Magistrates and District Judges to sign statements to the effect that she should not resign from her current post”
In page 13 (continued page of the said article) of the said article it further alleged that
“Our sources said they believe the move is in furtherance of the Hulfsdrop coup by local and international conspirators hell-bent on undermining the Legislature and people’s sovereignty. Fear for their careers have compelled these Judges and magistrates to bring their plight to the attention of the media.’’
10. The Complainant states that by the afore mentioned statements the public as well as the members of the legal fraternity are coerced to lower its opinion of the Supreme Court and the esteem in which they hold Her Ladyship the Chief Justice, making it imminent and very likely that the trust of the people in the Independence of the Supreme Court is diabolically threatened.
11. Further in the same newspaper dated 03.12.2012 in an article in the front page with the photograph of Her Ladyship, marked as P1, it is alleged that the “Meeting inappropriate and ill timed – members of the legal fraternity”
“Members of the legal fraternity yesterday claimed that if the news of a hastily arranged meeting of the District Judges convened by the Chief Justice today was true, it was both inappropriate and ill-timed.
They said that a sudden meeting of this nature on a working day could cripple court proceedings island wide and put the public into difficulty”.
12. The complainant further complains that the said statement is unsubstantiated.
13. The Complainant states that the said accused has misrepresented the true facts by his editorial containing the heading ‘’Meeting and Arm Twisting’’ on the same date and published a scathing attack on Her Ladyship the Chief Justice is quoted as follows:
“Any reasonable observer of events would not hesitate to conclude that what comes under the rubric of ‘threats to the judiciary’ when it comes from the party convening the said meeting, could only be issues that face the CJ in the current impeachment process now before Parliament.’’
‘’That the smooth functioning of courts and the day-to-day courtroom cases of litigants have to be held in abeyance for a day, because the courtrooms get shut down when the ‘Boss calls a meeting in Colombo’, is almost too shocking to contemplate.
Unless the conveners of the meeting have a really good reason that they could put before the District Judges today, it would be extremely difficult to avoid the reasonable conclusion reached by people that the meeting was convened to eke out unfair advantage, therefore the action bordering on abuse of office if not constituting outright abuse of office, indisputably.’’
If the meeting is to stave off an inevitable resignation and execute a last minute rescue act of the embattled CJ by getting the District Judges to plead on the basis of ‘independence of the judiciary,’ that will be laughable. It is fervently hoped for the sake of everybody concerned that this is not the objective of the exercise, because if the District Judges are summoned to Colombo by their Head, and then told to say that she should stay in office, as otherwise the ‘judiciary is being threatened’, that would certainly be an example of undue influence for the history books.
The District Judges are captive in the present context; they are being summoned by their superiors and would for professional reasons be hard-put to go against any Resolution or any other document put before them for their assent.
On the other hand, if perchance it transpired that today’s meeting was to discuss ‘regular business’, that too casts a similarly damning integrity shadow over the conduct of the Chief Justice.
There can be nothing in the order of ‘ordinary business’ that can be presided over by the Chief Justice of this country, in the current circumstances, in which she is facing impeachment charges in the Legislature — which to the reasonable eye appear to be of a rather serious nature. An ordinary civil servant under the circumstances would have faced suspension or an enforced leave of absence, and it is only the constitutional stipulations that stop the CJ from facing similar discomfiture.
Those who ostensibly having the interests of the Chief Justice at heart, are not doing themselves any favors by embarking on this attritional war with the Legislature and Executive, when the position of the Legislature on all of this has been made abundantly clear by now. Such precipitous action on the part of the Judicial branch, to say it with the least ado, is bound to fail for its short-sightedness.”
The said Editorial is marked as P2 and pleaded part and parcel hereof.
14. By the said statement the accused has made his own comment and pontificated to the members of the Judiciary as to how to maintain the good relationship with the Legislature.
15. The Accused Contemnor has further insulted the judiciary, Supreme Court and Her Ladyship The Chief Justice by the publication of the lead story on the front page of the Daily News Paper on 04.12.2012. The head line of the Daily News dated 04.12.2012 reads as follows:
“ Sophisticated Wealth Concealment By CJ”
Finance and banking assessors see fraudulent, corrupt pattern:
With the Parliamentary Select Committee hearings on the impeachment of the Chief Justice due today, independent observers have expressed shock and dismay over the manner in which some of her financial dealings have been manipulated, with a view to hiding her true financial worth from assessors.
Financial regulators for example would have been put off by the fact that on repeated occasions over several years (see details on page 5) there was zero balance in her accounts on significant dates such as March 1 or December 1.
However, as soon as the dates passed, these accounts were replenished with their regular millions.
Observers say that this was a clever device to evade wealth and tax assessors, and was certainly tantamount to fraudulent concealment of monies to evade full declaration of finances, as is the expectation in her position as Chief Justice.
For example, during the year 2007/2008, Dr Bandaranayake maintained an account in an active manner with the National Development Bank with four debits to the value of Rs 5,524,875.25 and eight credits to the value of Rs 5,524,875.25 being transacted through the account. By February 8, 2008, Rs 674,323.52 was lying to the credit of the account. On that date, the entire amount is withdrawn, thus reducing the balance to zero.
The manner in which such accounts have been operated is significant in that it is deliberate, and consistent. Such deliberate and consistent manipulation points to a sophisticated plan of deliberate concealment of net wealth, our banking and finance sources say.
Said article is annexed herewith marked as P3 and pleaded part and parcel hereof.
16. By the said statement the editor of the said newspaper, the Accused Attorney at Law has alleged that Your Ladyship the Chief Justice has misused millions of money and manipulated the net wealth. However the said Accused Contemnor has by unsubstantiated publication in the Daily News Paper has alleged that the person who holds the highest position in the judiciary is a criminal. Therefore the said statement / publication of the Accused Contemnor is an act of gross contempt of court.
17. The Complainant states that the said Accused Attorney at Law has manipulated and misrepresented the facts again by his editorial of 4th December 2012 has published as follows:
WHAT – NO EVIL?
Today’s expose on the front page and the op-ed to the right of you indicate the financial jiggery-pokery that the Chief Justice of this country was responsible for, in the handling of her private accounts. The sums involved were to the tune of millions.
The methods involved were, to say the very least, innovative to the point of being the stuff of a regular detective thriller. Here she has millions. There they vanish. This, all, from the supreme judicial office of the country.
It is a very bad record, all things considered. There have been reams written since the recent impeachment proceedings began against the head of the country’s Supreme Court. But alarmingly, none of the rights activists and the Transparency International corruption czars have said anything about the propriety or otherwise of the Chief Justice’s financial dealings.
As they say – – the silence is so deafening. If they would have thought that they do not see anything objectionable in the Chief Justice’s money matters, they would certainly have said so. But they did not.
They cannot afford to be so flagrantly out of line. No sane person could suggest that the CJ like Caesar’s wife, is above suspicion. That would be so utterly ludicrous, for even those contortionists at Transparency International who have historically had such a rather transparent set of double standards.
But what is shocking is the fundamental moral decline in the country, to the extent that there are people who think the so called independence of the judiciary is so important that they wager the integrity of the judiciary can be all but forgotten!
Taken at a more fundamental, even, it is hard to imagine that the paragons of virtue and good governance and integrity find it so is difficult to acknowledge that it is impossible, to ignore real lapses in integrity – – real financial wrongdoing and malpractice – by simplifying the equation and saying that it is all on behalf of a good cause, which is the independence of the judiciary.
This is a bit similar to, say, a contention that pedophilia is somehow passable as long as it is practiced for the more noble purpose of the prevention of murder.
By any yardstick the so called judicial independence issues involved here are minuscule, even on the unlikely assumption that they exist at all? Really, is the independence of the judiciary threatened by the movers of the impeachment motion?
Are there any personal cases that the Supreme Court has authority over that involve the 117 signatories to the impeachment motion? Or are there any abuse of power issues involving these 117 parliamentarians personally?
The answer is in the emphatic negative. This means that there is no real ulterior or personally dictated motive that the Legislature harbours, to impeach the Chief Justice.
If there is no finger pointing at the movers of the impeachment motion, there is no crime, and there is no smoking gun either. Whereas, as far as the integrity issues involving the CJ are concerned, the ‘crime’ and the smoking gun are very real.
The accounts that have been emptied and replenished and the dates involved point to a real intent to conceal and therefore mislead. If concealing millions is the ‘crime’ the smoking gun is that these millions were carefully manipulated, so as to evade the regulators — with a trail of banking records leaving incontrovertible evidence.
But yet, the civil society corruption watchers, whistle blowers and lily white moralists etc., are largely silent. Is it because they feel that there is certain types of corruption carried out by certain types of people that is excusable?
The only things these generally shrill activists seem to be saying is that there is corruption in society, and therefore the CJ’s is not something special. This is no malpractice however that has been invented for general mischief by some scurrilous website. This is obvious, glaring, and on the record misdoing from the Chief Justice of the country.
What’s worse than her behaviour, is the hypocrisy of the civil society elite who turn the other way because they obviously want to see no evil.
Said Editorial is annexed herewith marked as P4 and pleaded part and parcel hereof.
18. It is respectfully stated by the said statement the editor, the Accused Attorney at Law Contemnor, the Editor In Chief of the said newspaper, has alleged that Her Ladyship the Chief Justice has misused millions of money and manipulated the net wealth. However the said accused has failed to substantiate these statements made by him in the news paper and alleged that the person who holds the highest position in the judiciary is insulted in the most heinous and an appalling manner not worthy of an Attorney at Law. Therefore such publications made against the head of the Judiciary in the country has scandalized the entire Judicial system and the administration of Justice tarnishing the hallowed temple of Justice that has been held in High Esteem by the citizenry and the legal fraternity committing the offence of contempt of court punishable with imprisonment.
19. Further by publishing an article named “OPEN AND SHUT CASE OF ACCOUNT FIXING/CORRUPTION” by S.P.C. in page No. 5 of the said newspaper the 1st accused has again scandalized the Judiciary as a whole and disgraced the entire Supreme Court of Sri Lanka and more particularly Her Ladyship the Chief Justice of Sri Lanka. The Complainant states that the following statements of the said article amount to contempt of court.
In the said statement it is reported and published in the Daily News of 4th of December 2012 by the 1st Accused who is the Editor In Chief of the same News Paper.
“The operation also suggests that Dr. Bandaranayake has deliberately and consistently acted in at least five consecutive instances to avoid disclosure of the sums that were in her account and that the scheme has been meticulously implemented in a highly sophisticated manner. A further suspicion that may arise is as to whether Dr. Bandaranayake was using her privileged position, first as a Supreme Court Judge and thereafter as the Chief Justice, to indulge in this activity, knowing fully well that her actions are very unlikely to be investigated by any other regulatory agency. Being the Chief Justice of the country, does not give such person immunity from the laws of the land. The law must apply in a just and fair manner to all persons, however high and mighty they may be.”
“Accordingly, it is now time for the law enforcement authorities to commence a probe regarding the true nature of this Dr. Shirani Bandaranayake’s highly suspicious financial dealings. If that is to be done in an impartial manner, she cannot remain as the Chief Justice of the country.’’
Justice must apply to the Chief Justice as well.
(a) the operation of several bank accounts by a person, which suggests that multi-accounts are used to defuse the magnitude and frequency of transactions in order to confuse regulators.
(b) the opening and closing of bank accounts within short periods of time, which suggests that the accounts are used for a particular transaction and then closed before suspicion is aroused in the minds of the authorities.
(c) the manipulation of accounts to have low balances or zero balances on certain significant dates, e.g. 31st December or 31st March, (which are the dates that are generally used by regulators or surveillance agencies to monitor accounts on a regular basis), in order to reduce suspicion or evade detection by regulators…………………………
It is obvious that, the methodology adopted in the operation of the above account is a well thought out and sophisticated operation. It is not an operation of an account that would be expected from any ordinary person, let alone the country’s chief judge of the Supreme Court. The magnitude of the figures and the careful avoidance of significant dates is consistent with an intention to conceal the operation of the account, and avoid detection.”
Said article is annexed herewith marked as P5 and pleaded part and parcel hereof.
20. The Petitioner Complainant further states that another report was published by the 1st Accused on the front page of the Daily News Paper of 12th December 2012 with the heading ‘CJ MUTE ON VANISHED FILE’ on the front page of the News Paper. The said paper has further headlines in white letters on Red background giving wide Publicity and attention are quoted as follows;
*Said Registrar ‘could do nothing’ about it
*Case was used as a means of amassing wealth
21. The said news report is quoted in full as follows;
(i) ‘’Chief Justice Dr Shirani Bandaranayaka refrained from taking action against the disappearance of a special investigative report on the Golden Key Credit fiasco, which was prepared by the Special Investigations Unit of the Central Bank, five office bearers of Golden Credit All Depositors’ Association revealed yesterday at a press conference at the Sri Lanka Foundationb Institute.
(ii) The report had been kept in the Supreme Court Registrar’s safe on the advice of former Chief Justice Sarath N Silva, who said that it contained important evidence, said GCC All Depositors’ Association President Dushanthi Hapugoda.
(iii) Hapugoda said , this was a report they submitted to the Supreme Court as evidence against the Board of Directors of Golden Key Credit on March 17, 2009.
(iv) ‘The report said that Golden Key was collecting funds from the public going out of its way against all legal bounds,”she said.
(v) “When we requested for a copy of the report in writing , the file was missing from the Supreme Court Registrar’s safe,”
(vi) Hapugoda said . “ In February, 2012 when during proceedings of the Golden Key Credit case when we raised the matter before Chief Justice Dr Shirani Bandaranayake , she admitted that she heard about the loss of that report.
(vii) “Chief Justice Dr Bandaranayaka said , “ Matath Eka Aarnchi” ( I have been made aware”).
(viii) Hapugoda said , they requested Chief Justice Dr Bandaranayaka to summon the Supreme Court Registrar about it, upon which she replied that the Registrar cannot do anything about it, and asked what were they going to do about it.
(ix) As pointed out by Golden Credit Card Depositors , this is just one twist in their case.
(x) Golden Key Credit depositor Prasanna Hennayaka said at the press conference, the Golden Key Credit case has been heard under several Chief Justices from former Juctice Sarath N Silva to present Chief Justice Dr Shirani Bandaranayaka for three and a half years.
(xi) “ When the case was heard by Supreme Court Judge Shirani Thilekewardena, she took steps to arrange a repayment plan for them with directions to Kothalawala and his Board of Directors to pay a sum of Rs 200 000 to each depositor on a quarterly basis during her time,” he said.
(xii) “From 2011 October 13, the case was heard under Chief Justice Dr Shirani Bandaranayake. The depositors did not receive any payment due to them during this time. Also, there had been no inquiry against those who got bail, including Kothalawala and his Board of Directors, “ he said.
(xiii) “On November 6, 2012, when the impeachment motion was brought against Chief Justice Dr.Shirani Bandaranayaka, we submitted a letter to Speaker Chamal Rajapaksa apprising him of all injustices we suffered when the case was being heard under Chief Justice Dr Bandaranayaka. .” “In December 2011, because our case took a dramatic twist and the case was on the brink of being thrown out by Chief Justice Bandaranayake, we made an appeal to Speaker Chamal Rajapaksa to address our issue through Parliament”.
(xiv) We submitted a letter titled “ Sequence of events in ….ex-parte No 195/2009 the Golden Key case ”, which was prepared by our lawyers to the Speaker explaining how Golden Key depositors’ case took a surprising twist under the present Chief Justice.
(xv) The depositors said that it occurred to them that the case was being led to their disadvantage methodically against all norms of justice under the present Chief Justice. “The case was being used as a sources of amassing wealth,” said Hapugoda.
(xvi) It was for the benefit of the country, that impeachment against Chief Justice had manifested. Some of our depositors committed suicide because they were compelled to think that they would not get any money they had invested with the Golden Key company, she said.
(xvii) This is a fraud involving Rs 26 billion with thousands of victims.
22. In the aforesaid circumstance the Complainant very respectfully pleads that the accused whilst being aware of the supremacy of the Supreme Court made wrong, unfounded, misleading and false allegations on conduct of judges/judge of the Supreme Court on an ongoing case which is still pending in the Supreme Court on alleged steps that have been taken with complete distortion, untruthful influencing the minds of the judges that are expected to hear such case/cases and the Accused Attorney at Law, Contemnor had again committed offence of contempt of Court punishable under article 105(3) of the constitution.
23. The Complainant therefore seek summons be issued in the 1st instance on the Accused Attorney at Law, Contemnor and be directed to plead and show cause as to why he should not be punished for his Contemptuous conduct in gross scandalization of Your Ladyships’ Court and take steps to deal with him as provided for by virtue of article 105(3) on the offence of contempt of the Supreme Court.
24. The Complainant very respectfully states that the Complainant has not invoked Your Ladyship Court’s Jurisdiction under Article 105 (3) of the constitution previously in this matter.
WHEREFORE, THE 11th RESPONDENT -COMPLAINANT VERY RESPECTFULLY PRAYS THAT YOUR LADYSHIPS’ COURT BE PLEASED TO: –
(a) Issue summons to the Accused;
(b) Charge the Accused on the offence of contempt of the Supreme Court under Article 105(3) of the constitution of the Republic of Sri Lanka;
(c) Take steps against the Accused Contemnor as per Article 105(3) of the Constitution on the offences of contempt of the Supreme Court on the publication of statements referred in Daily News dated 03.12.12 , 04.12.12 and 12.12.12.
(d) An order restraining the Accused preventing him from publishing further Contemptuous statements/articles scandalizing the Supreme Court and Her Ladyship the Chief Justice until the conclusion of this case.
(e) Impose sentence on the Accused as provided for in article 105(3) of the Constitution of the Republic of Sri Lanka.
(f) Issue a ruling on the Accused directing him to show cause as to why he should not be struck off the role of the Attorneys at Law.
(g) Make orders on the accused Attorney at Law in keeping with the rules of Professional ethics.
(e) grant costs, and;
(f) such other and further relief as to Your Lordships’ Court shall seem meet.
for the Complainant