By Mudliyar –

Destiny of  SCFR/ 536/2010 Dockyardgate fraud – Charge of gross misconduct and dishonesty of former AG, Mohan Peiris

Mohan Pieris

The Revision Application made in the Dockyard fraud originally dismissed by Justice Hettige despite strenuous objections of his taking part in the hearing was fixed only for mention on 26^th February before the a Bench presided over by Justice Shiranee Tilakawardena (former senior state attorney) other two being the Justice Wanasundara (former AG) and Justice Ratnayake (former Deputy Solicitor General). When the matter was called up for just to mentioning to fix a date for the hearing, Justice Tilakawardena informed the Counsel for the Petitioner, Nagananda Kodituwakku, to support the application straightaway before a 2-Judge bench, despite the Petitioner had exercised his constitutional right guaranteed under Section 132 of the Constitution and asked for a bench of 5 Judges to hear the case which was of paramount public importance as the main respondent had been appointed to the Office of the Chief Justice, despite he was charged for his gross misconduct and dishonestly in a fraud of 619 million rupees of public funds.

The submission made by the Counsel challenging the original ruling made by the 2-Judge bench was on two counts. First, it was not valid as the ruling was invalid in terms of Article 126 of the Constitution, and secondly it was a fit and proper case for Revision as per the decided Case Law.

It was not valid as the ruling was invalid in terms of Article 126 of the Constitution

The counsel submitted to Court that section 126(2) of the Constitution requires the presence of the minimum number of two judges to consider an FR application for leave to proceed and in this case the ruling made was void as one of the judges heard the application was disqualified as he was ‘bias’, which made the ruling a nullity for the reasons set out below.

The Counsel submitted that on 27^th March 2012, one of the days this application was fixed for support, the Bench included Dep J, (who on 30^th Sep 2011 had clearly indicated his unwillingness to hear the case), and accordingly the matter was postponed to 02^nd July 2012. Thereafter, further to a Motion filed in Court on 13^th June 2012 by the 8^th Respondent (the AG) the matter had been called in Court on 21^st June 2012, with no notice served on the Petitioner, and re-fixed ex-parte for support on 06^th September 2012.

It was submitted further that on 02^nd July 2012, unaware of what had transpired on 21^st June 2012, the Petitioner and his counsel attended in Court on 02^nd July 2012 and found that the matter had been called on 21^st June 2012 and postponed for support on 06^th September 2012. Thereafter on 04^th July 2012 a Motion was filed by the Petitioner, specifying reasons and seeking permission to support the Petition on 11^th, 12^th or 13^th July 2012. However, on 09^th July 2012, Hettige J completely disregarded the said Motion removed the case from the support list of cases due for 06^th September 2012 and made and order, that the case only be mentioned on 06^th September 2012 to fix a date for support.

The Counsel submitted that this abuse of office of the Supreme Court Judge by Hetttige J was then reported in writing (document marked P22) to the Chief Justice Dr Bandaranayaka on 12^th July 2012 supported by an affidavit dated 05^th July 2012, furnished by the Petitioner. Thereafter, further to the directions of the Chief Justice, (conveyed to the Counsel by the Secretary to the Chief Justice) another Motion was filed by his Counsel on 20^th July 2012, seeking an earlier date (02^nd, 06^th or 08^th August 2012) to support the application. This was referred to the very same Hettige J, who was compelled to reverse his earlier unjust order made on 09^th July 2012 and to re-fix the matter for support on 08^th August 2012, as requested by the Petitioner.

Therefore, it was submitted to the Court by the Counsel that Justice Hettige’s taking part at the hearing on 01^st February 2013 made ruling by the 2-Judge bench void as it had violated the one of the two pillars of the natural justice maxim ‘rule against bias’. However, at the revision hearing before the 2-judge bench, headed by Justice Tilakawardena (other being Justice Wanasundara)  held that Justice Hettige had overruled the submissions made against his taking part at the hearing by the Counsel for the Petitioner and hence the decision made by the bench presided by him was a valid decision.

Supporting the 2^nd point for the revision  the Counsel submitted that the said ruling was open for revision by the Court as per the clearly defined Case Law.

It was submitted that leave to proceed for the Petitioner’s case has been denied relying on ‘WRONG FACTS’ presented by the AG that there was no valid fundamental right violation petition before the Court alleged to have been committed by an administrative or executive act and the act challenged in the Petition is a judicial act (dismissal of Special leave application (SC/SLA/100/2009) filed by the DGC as a result of withdrawal by the AG) by the Supreme Court. Whereas it was argued for the Petitioner by his counsel that the Petitioner’s right violation had been committed by an executive act committed by Mohan Peiris, the AG, by clear act of deception of the Supreme Court and also cheating the Director General of Customs. And the attention of the court was drawn to the back-dated letter filed in Court sent to the Director General of Customs by the AG, created after the withdrawal of the case and also to the Director General’s firm stand expressed in writing on the abuse of office by the AG (also filed in Court) where it had been expressed in very terms that  the said Court Case (SC/SLA/100/2009) had been withdrawn by the AG, deceiving both the Supreme Court and the Director General of Customs.

His case for revision was also supported by the Counsel citing decided case laws. As per the judgement in Jayaraj Fernandopulle vs. Premachandra de Silva and others [1996 (ISLR)70], it was submitted that “ the Court has no statutory jurisdiction conferred by the Constitution or by any other law to rehear,  review,  alter  or  vary  its  decisions  and as a  general rule, no Court has power to rehear, review, alter or vary any judgment  or  order  made  by  it  after  it  has  been  entered. However, the Court has inherent power to correct decisions made per incuriam.” And when a person invokes the exercise of inherent powers of the Court, that are adjunct to existing jurisdiction to remedy injustice, two questions must be asked by the Court:

 i.            Is it a case which comes within the scope of the inherent powers of the Court?

ii.            Is it one in which those powers should be exercised?

The attainment of justice is a guiding factor, and an order made on WRONG FACTS, given to the prejudice of a party, will be set aside by remedying the injustice caused.

The Counsel also relied on the ruling by the Supreme Court given in the Revision Application [SC 209/2007 (FR)] made by the 1^st Respondent, P.B Jayasundara, who had been found guilty by the Supreme Court for abuse of office held in trust, and paid a sum of Rs 500,000.00, being compensation to the state, it was held inter alia as follows.

Where as per the very same Justice Thilakawardene, (dissenting) had held; Put simply, Fundamental Rights applications are qualitatively different from other types of appeals heard before this Court and warrant greater latitude with respect to their review and redress in order to encompass the equitable jurisdiction exercised in these applications…’

And Where as per Justice Marsoof J “While our hierarchy of courts is built on an assumption of fallibility, with one, two or sometimes even three rights of appeal, as well as the often used remedy of revision, being available to correct errors that may occur in the process of judicial decision making, in the absence of such a review mechanism, the remedy provided by Article 126 is fraught with the danger of becoming an ‘Unruly horse’, and for this reason has to be exercised with great caution”. This Court has generally displayed objectivity, independence and utmost diligence in making its decisions and determinations, conscious that it is fallible though final. The decision of this Court in the Fernandopulle case stressed the need for finality, and very clearly laid down that this Court is not competent to reconsider, revise, vary or set aside its own judgement or order (in the context of a fundamental rights application) except under its inherent power to remedy a serious miscarriage of justice, as for instance, where the previous judgement or order was made through manifest error (per incuriam).

Yet, DSG, Shavindra Fernando, submitted to Court that the original ruling by the 2-Judge Bench was valid and in force, and the presence of Hettige J at the hearing was permitted by law and the revision application has been brought in by abusing the legal process and hence a rule should be issued on the Counsel for abusing legal process (from prohibiting practicing as a lawyer, which was declined by the Court).

It was further submitted by him that the ruling pronounced by the 2-Judge bench was based on the submission made by the AG that there was no valid petition before the Court by any administrative or executive act which was upheld by the bench, and therefore the Revision application by the Petitioner is vexatious, devoid any merit and has been made for collateral purposes.

The Court showed no hesitation to uphold the submissions made by the AG, and after one and half hour deliberation the application made for revision of the original order by bench of 5 Judges, was summarily dismissed by a 2-Judge bench appointed by the respondent, Mohan Peiris himself, the CJ de facto.