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| Peries at UNHRC |
A fraud case against Sri Lanka’s de facto Chief Justice and former Attorney General Mohan Pieris has been taken to the Human Rights Commission in Geneva seeking proper inquiry since justice has been denied by the Sri Lankan judiciary now run by Pieris. Customs Officer, T R Ratnasiri who was denied an opportunity to support his fundamental rights petition (SCFR/246/2010 – the case that made very serious accusations against the AG Mohan Peiris and Colombo Dockyard Ltd for criminal misappropriation of public funds of 619 rupees) to the Supreme Court by a Bench selected by the de facto CJMohan Pieris has petitioned the Human Rights Commission in Geneva.
Sri Lanka’s de facto Chief Justice who was illegally appointed after the removal of his predecessor Shirani Bandaranayake is the main Respondent in the Case. One of the charges in a 14 point charge sheet brought to accuse Chief Justice Shirani Bandaranayake by the ruling Rajapaksa regime that she had personal prejudice and stakes in the cases before her at Supreme Court.
The Colombo Telegraph reliably learns that the Human Rights Commission has formally acknowledged this Petition for proper investigation and inquiry and notified the Petitioner’s counsel of their decision.
In the Human Rights action Ratnasiri filed before the Supreme Court, the Customs Officer had challenged the gross misconduct and dishonesty of the Respondent Mohan Peiris (cited him in his personal capacity) for abusing the office of the Attorney General to withdraw a case filed by the Director General of Customs filed before the Supreme Court [SC/SLA/100/2009].
The case was about the wilful misappropriation of public funds to the tune of over Rs. 619 million by the Colombo Dockyard Ltd. The Petitioner alleges that the AG Mohan Peiris had deliberately disregarded the clear instructions given by the Director General of Customs against the withdrawal of the said case and withdrew the case. Written instructions were provided by the Director General of Customs to proceed with the case.
619 million-revenue fraud committed by the Colombo Dockyard Ltd
In hisPetition to the Human Rights Commissionthe Petitioner states that he commenced the investigation into a major fraud and completed it on 12th October 2001. And the investigation revealed that the Colombo Dockyard Ltd had sold 21 marine craft in the local market, manufactured out of raw material imported tax free, meant only for the export bound products.
The Petitioner states further that his investigation further revealed that the Colombo Dockyard Ltd had collected 619 million rupees of the tax component from the buyers (Sri Lanka Ports Authority and the Sri Lanka Navy) and then misappropriated the entire tax component, without remitting the same to the Customs.
The Petitioner further states that whilst the investigation was being conducted by him Colombo Dockyard Ltd, in an act of conceding guilt, had deposited a sum of over 94 million rupees in two instalments i.e. on 25th July 2001 and 15th August 2001 with Customs, to be applied against as a part of the total revenue element misappropriated by it.
Dismal Custom Inquiry facilitates the Dockyard Company
The Petitioner states that on 07th February 2002 a formal Customs Inquiry (P/Misc/93/2000) into the fraud was commenced by the Deputy Director of Customs, Thilak Perera, but it was never heard with a view to conduct a fair inquiry into the revenue defrauded by the Colombo Dockyard Ltd and it was effectively an inquiry conducted into absolve the Dockyard Company from the penal sanctions and it was dragged on for two years with no decision being taken by the inquiry officer.
The Petitioner states that then on 05th March 2004, the then DGC Sarath Jayathilake, disregarding the written objections raised by the Petitioner on 14th February 2004, granted a General Tax Amnesty to Dockyard Ltd, relieving it from all the tax liabilities which the Petitioner challenged before the Court of Appeal (Case No: CA/1397/2004) on 25th June 2004 to protect public interest that DGC had openly undermined.
The Petitioner states that the further to this Court action, the, on 09th February 2005 the Attorney General gave an undertaking that the Customs Inquiry (P/Misc/93/2000) would be resumed and completed ‘as expeditiously as possible’ but the AG never honour the said undertaking given to the Court.
The Petitioner states that thereafter on 29th August 2005, the Dockyard Ltd filed an action (Case No: CA/1413/2005) in the Court of Appeal against the continuation of the Customs inquiry. The said action was based on the premise that the Customs had no authority to proceed with the inquiry.
The Petitioner states that after a period of over 4 years of filing this action, the Court of Appeal on 27th April 2009, issued a Writ of Prohibition, against the continuation of the Customs inquiry for non-payment of ‘other levies’ (except the Customs duty defrauded by the Dockyard Ltd. The said judgement also contained a reference that even the Customs duty ‘could be recovered’ under Section 18A of the Customs Ordinance, a relief the CDL had not even prayed for. The Author states that this provision is provided in the Customs Ordinance “only for the recovery of duties ‘short levied’ and not to invoke in the cases where the revenue is wilfully defrauded”. Obviously it was a case of misrepresentation of facts to the court.
The Petitioner states that therefore, on 13th May 2009, the then DGC, urged the then Attorney General, Mohan Peiris, to appeal against the said Court ruling [CA/1413/2005] and when Mohan Peiris failed to initiate any action on the matter, the then Solicitor General, Priyasath Dep, (now a Judge in the Supreme Court), further to representations made to him by the Petitioner and the officers of the Customs Legal Affairs Directorate, filed action [SC/SLA/100/2009] before the Supreme Court on 05th June 2009, challenging the Court of Appeal order.
The Petitioner states that the then Attorney General Mohan Peiris failed to take any tangible action to proceed with the said appeal [SC/SLA/100/2009] as well, and then his inaction was exposed by ‘Sunday Leader’ on 06th September 2009. It was alleged that Mohan Peiris was abusing the office of the Attorney General to settle this case where public funds of 619 million was at stake. [In fact in the year 2001 when Mohan Peiris was in the private bar he had been reported to the then Chief Justice by the then Director General of Customs on 16th February 2001 for abuse of office, dishonesty and gross professional misconduct].
The Petitioner states that in this backdrop, on 04th November 2009, a meeting was held at the office of the Attorney General, Mohan Peiris, which was attended by the Solicitor General, Priyasath Dep Deputy Solicitor General (DSG) Sanjay Rajarathnam, DGC, Director Legal Affairs of Customs, and the Author. And at the said meeting, the Attorney General Mohan Peiris advised the DGC to continue with the Customs inquiry with a guarantee given to defend the Custom’s right to proceed with the Inquiry against the Dockyard Ltd. Expressing his opinion on the references made in the Court of Appeal Judgement (CA/1413/2005) regarding the ‘recovery of Customs duty under Section 18A’, he said that it was a mere obiter, (a judicial comment whilst delivering a judicial opinion but one that is unnecessary to the decision of the case and therefore not precedential).
Then, after a lapse of six months, on 10th May 2010, the Attorney General, Mohan Peiris, did a U-turn and informed the DGC that he would withdraw the Appeal [SC/SLA/100/2009] that had been fixed for support on 30th Aug 2010 and advised the DGC to recover the Customs levies (misappropriated by the CDL) under Section 18A of the Customs Ordinance, which was meant only for recovery of Customs duty ‘short levied’.
The Petitioner states that in the meantime, the DGC Sarath Jayathilake was removed from the office with effect from 24th May 2010 and replaced by Mrs Sudharma Karunarathna. The new DGC, after having observed that the Attorney General had expressed a completely contradictory opinion on the matter on 04th Nov 2009, took a firm stand and on 03rd August 2010, informed the Attorney General, that ‘considering the colossal revenue loss involving in the case’ it was inappropriate to withdraw the case.
The Petitioner states that thereafter, on 16th August 2010, the DGC was summoned for a meeting to the office of the P B Jayasundara, the Secretary to the Finance Ministry (ST), which was also attended by the senior officers of the Customs Legal Affairs Unit (LAU). At the said meeting the ST ordered the DGC to follow the advice given by the Attorney General, Mohan Peiris, [regarding the Supreme Court action filed against the CDL], yet refrained from confirming his order in writing. Then the officers (Lawyers) of the Customs LAU informed the ST that there were several important points of law to be argued in the case, which would have a direct impact in the collection and protection of the Government Revenue. The ST had simply ignored their submissions and warned them either to follow his orders or to leave the Customs and join the private bar. The Petitioner also informed the Human Rights Committee that P B Jayasundara, the ST, is a person convicted for cheating by the Supreme Court in the case SCFR/209/2007 where he had pleaded guilty and paid a fine of Rs. 500,000.00 on 21st July 2008 and has been held by the Supreme Court that P B Jayasundara should not take up any public office in the Government of Sri Lanka.
The Petitioner states that thereafter, on 30th August 2010, the Attorney General Mohan Peiris completely disregarding the written instructions given by the DGC withdrew the case [SC/SLA/100/2009]. The Petitioner states that in the process the AG deceived the Supreme Court that he was acting as per the instructions of the DGC.
The Petitioner states that, after the withdrawal of the case, on 01st September 2010, the DGC’s office received a ‘hand delivered’ letter from the Attorney General in which the date of the letter was recorded as 26th August 2010, which gave an impression that the DGC had been informed of the withdrawal of the Supreme Court case in advance. According to the content of this letter, the Attorney General had informed the DGC that the Appeal would be withdrawn and that the revenue losses incurred by the Customs, should be pursued under Section 18A of the Customs Ordinance, effectively affording the CDL a preferential treatment and granting time as long as 20 years to pay the quantum of revenue defrauded, a concession of which the honest tax payers who voluntarily comply with law are never afforded.
Fundamental Rights Petition to Supreme Court
The Petitioner states that thereafter, on 24th of September 2010, he filed a Petition in the Supreme Court of Sri Lanka, challenging the withdrawal of the Supreme Court case [SC/SLA/100/2009] by the Attorney General Mohan Peiris. In the said Petition his Executive act of withdrawing the case against the written instructions of the Director General of Customs (DGC) and thereafter giving directions to the DGC to ‘recover’ the revenue losses incurred by the Customs, under Section 18A of the Customs Ordinance, effectively violated the Author’s and his informant’s right to ‘equality before the law without any discrimination to the equal protection of law’ recognised under Article 26 of the International Covenant on Civil and Political Rights was challenged. The Petitioner states that by his deceitful act the Attorney General Mohan Peiris had allowed the Dockyard Ltd to go scot free, effectively evading penal sanctions specified by the Customs law being taken against it, for the serious revenue crime committed against the State. The Petitioner states that had the fraudster been dealt with as required by law like any other case, the informant in the case would have been rewarded with a substantial cash reward for his precise information given to Customs about the revenue fraud committed by the Colombo Dockyard Ltd.
The Petitioner states that since, filing of this case (SCFR/536/2010) he had been completely denied a fair treatment. The Supreme Court, not even considered the Application for granting of ‘leave to proceed’ for more than 2 1/2 years, whereas the Constitution of Sri Lanka requires the Supreme Court to hear and determine a fundamental right application within two months of its filing in the Supreme Court. The Petitioner states that the Respondents cited in the case persistently resorted to adopt all delaying strategies to have the case died a natural death by denying the Author any opportunity to support the case for more than 16 occasions. In the meantime, several Judges in the Supreme Court refused to take part in the hearing, citing ‘personal reasons’.
The Petitioner states that on 20th December 2012, supporting of the Petition before a Bench Presided over by the Chief Justice Dr Bandaranayake was dodged again by the Respondents. It is reported that on that day when the CJ Dr Bandaranayaka declined the Petitioner to support his case and want to postpone the matter, the Petitioner’s Counsel Nagananda Kodituwakku, informed the CJ that by the time the next day comes probably she would not be in the office of the CJ any more which CJ and Senior Lawyer Weliamuna refuted immediately.
The Petitioner states that however on 15th January 2013 Chief Justice Dr Bandaranayake was forcibly removed from the Office and the main Respondent in the case Mohan Peiris was installed as the CJ.
The Petitioner states that on 31st January 2013 his case was taken up before a Bench presided over by the main respondent Mohan Peiris and the Counsel for the Petitioner, Nagananda Kodituwakku, informed the Court that the matter was about the misconduct of the then AG Mohan Peiris and therefore, de facto CJ was disqualified from hearing the case and then the matter was postponed for support on the following day (01st February 2013).
On 01st February 2013 it was taken up for support before a Bench comprising of Justice Hettige, Justice Wanasundara and Justice Ratnayake, but Justice Ratnayake withdrew citing ‘personal reasons’. Then Justice Hettige presided over the 2-Judge Bench and decided to hear the case, ignoring the great public importance in the case, where the person appointed to the office of the Chief Justice was the main respondent, and hence the matter should have been taken up before a properly constituted fuller Bench.
The Petitioner states that his Counsel vehemently objected to Justice Hettige taking part in the hearing, since he had been formally reported to the Chief Justice Dr Bandaranayake, on 12th July 2012 for bias. It was argued that Justice Hettige’s taking part in the hearing was amounting to violation of the natural justice maxim ‘Rule against Bias’. Yet, Justice Hettige simply refuted the objections raised, and went on to hear the case with Justice Wanasundara and ordered the Counsel to support the application.
The Petitioner states that immediately thereafter, the Attorney General raised a preliminary objection against presenting the case. The Attorney General’s argument was based on the ground that the Author had challenged a ‘Judicial Decision’, [dismissal of the Supreme Court action (SC/SLA/100/2009)] which was not an Executive act and therefore, the Petitioner should not be allowed to present his case for ‘leave to proceed’.
The Petitioner states that his Counsel then submitted that the grounds for the Petition were not at all based on any Judicial act and, the right violation challenged by the Author, had been prompted by an Executive Act performed by the Attorney General Mohan Peiris as clearly demonstrated in the documents presented in Court. It was further submitted that the withdrawal of the case, was amounting to an act of deceiving the Supreme Court as the Court had been made to believe that the AG had the concurrence of the DGC to withdraw the case and that the Attorney General Mohan Peiris, after having withdrawn the case, had the audacity to send a concocted ‘back-dated’ letter to the Director General of Customs which was ‘hand delivered’ (with a wording that ‘I am of the considered view that there is no merit in pursuing this appeal and in the circumstances, the said appeal would be withdrawn and to pursue action against the Respondent CDL to ‘recover’ the revenue defrauded by the CDL under Section 18A of the Customs Ordinance’), and received at the DGC’s office only on 01st Sep 2010, two days after the withdrawal of the case. The Petitioner states that both the AG and the Counsel for the CDL refuted these submissions and sought a ruling (against the Counsel for the Petitioner, a Court order suspending him from practice of Law), alleging that the Counsel was making ‘baseless allegations against the then Attorney General now being appointed to the office of the Chief Justice.
The Petitioner states that the 2-Judge Bench paid no attention or interest to examine the documents referred to by his Counsel. The Court held with the preliminary objections raised by the AG, which were based on completely unfounded and WRONG FACTS, and dismissed the case denying a fair trial before a competent and properly constituted Bench. The Court further went on to issue a cost order against the Petitioner.
The Petitioner believes that the order made by the Bench presided over by Justice Hettige was ab initio void as the said Bench had failed to observe one of the two pillars of the rules of natural justice, the ‘Rule against bias’, which was clearly demonstrated from Judge Hettige’s own misconduct (which was reported to the Chief Justice Dr Bandaranayake) and hence the order made by the 2-Judge Bench on unfounded FACTS presented by the AG had no legal effect.
Revision Application to the Supreme Court
The Petitioner states that therefore on 14th February 2013, he filed a Motion and a Revision Application in Court, which was listed ‘only for mention’ on 26th February 2013, before a Bench presided over by Justice Shirani Thilakawardene and two other Judges, Justice Ratnayake and Justice Wanasundara. In the motion the Author requested a Bench comprising of five judges to hear and determine his Revision application, which was of paramount public importance, as the facts in the case were related to the gross misconduct and dishonesty of the then Attorney General Mohan Peiris, who had been appointed to the office of the Chief Justice with effect from 15th February 2013.
The Petitioner states that, disregarding the fact that the case was fixed only for mention on that day (26th February 2013), the Court, presided over by the Judge Thilakawardane directed the Author ’s Counsel, Nagananda Kodituwakku, to support the application, also disregarding the request made by the Author for a 5-Judge Bench to hear the case.
At the hearing of the revision application the original ruling by the 2-Judge Bench was challenged on two counts. First, it was contested on the basis that the order made by the 2-Judge Bench was void as the 2-Judge bench had violated the natural justice maxim ‘Rule Against Bias’ and hence the order made by the 2-Judge bench was ab initio void.
The second point raised was that the ‘decision has been made on WRONG FACTS given to the prejudice of the Author and hence liable for revision’. And it was submitted to Court that in the instant case, the ruling made by the Bench presided by the Judge Hettige has been made on absolutely WRONG FACTS presented by the AG that the Petitioner had challenged a Judicial act and not a right violation committed by an Executive or Administrative act, (which was MANIFESTLY WRONG, as the Right violation challenged by the Petitioner had been prompted by an Executive act committed by the Attorney General, and the said ruling had been given to the prejudice of the Petitioner hence there was a serious miscarriage of justice, made through manifest error (per incuriam).
Yet, the Petitioner states that the Bench presided over by the Judge Thilakawardane refused to consider the two grounds submitted by the Counsel for revision of the original order. And finally the Court held that ‘It sees no reason to vacate the original order made on 01st February 2013’ and dismissed the application.
The Petitioner states that immediately after dismissing the application, Judge Thilakawardane signalled the news editor of ‘Ceylon Today’, Stanley Samarasinghe, who was in the Court room, to report at her Chamber and adjourned the proceedings for a few minutes. At the Chamber, the editor was advised by Justice Thilakawardane, to confine the reporting of the case, strictly relying on the ruling that she would make available to him (seethe affidavit dated 05th March 2013 of the news editor Stanley Samarasinghe). And sometime thereafter, Justice Thilakawardane had provided the said news editor with ‘uncertified copy of the judgement’ dated 26th February 2013.
The Petitioner states that the copies of judgments are not issued by the Judges but by Registry of the Supreme Court on the payment of a prescribed fee. Therefore, the Author states that any prudent person with common sense would agree that the conduct shown by the Justice Thilakawardane after the hearing only demonstrates her clear prejudice in the case.
Having completely denied justice and having fully existed with the domestic remedies available to him now the Petitioner requests the Committee on Human Rights to declare:
a) that the Government of the Republic of Sri Lanka has violated the Author’s and his Informant’s right to equality and equal protection of law and their right to a fair trial by a competent, independent and impartial tribunal established by law, guaranteed under Article 14(1) and the Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
b) that P B Jayasundara, holding the office of the Secretary to the Ministry of Finance, Sri Lanka and Mohan Peiris, holding the office of the Chief Justice of the Supreme Court of Sri Lanka are unfit to hold any public office in the Republic of Sri Lanka.
