de facto CJ Mohan: Time to pack your stuff
| by A Special Correspondent
(January 10, 2015, Colombo, Sri Lanka Guardian) For a start, just think of the stupidity of the person who had failed to inform the President that he was not permitted by law to accept the appointment to the Office of the CJ as the findings of the PSC had been overruled and quashed by the Supreme Court and the Court of Appeal and as there was no vacancy existed. Probably he may not be aware of the irreparable damage caused by him to the Judiciary by accepting this high office.
Professional Misconduct & dishonesty as a lawyer in the Private Bar
Mr Mohan Peiris as an Attorney at Law abused his office for improper purposes and a classic example is given below. It is a story of taking double standards in two identical cases whilst in the private practice.
Customs Inquiry (CRTF/145/2000)
In the year 1999/2000 the IBM World Trade Corporation and the Commercial Bank imported very expensive software over US$ 100,000.00, designed for specific banking purposes without declaring the true value for the Customs purposes. This action was tantamount to evasion of payment of fiscal levies to the government.
|Two Devils are getting ready to kill the last milestone of the independence of Judiciary|
The law stands that fiscal levies are charged on all goods imported into Sri Lanka as specified in the Schedule A of the Customs Ordinance. The value of goods declared for Customs purposes shall include royalties and license fees where appropriate. Disks, tapes and other media for recording of sound or other phenomena too are included in the Schedule A, and liable for fiscal levies.
Submissions by Mohan Peiris speak volumes on his character
The violations committed by these two established commercial entities were identical and Mr Mohan Peiris, Attorney at Law, was defending both of them.
In the case conducted against the IBM World Trade Corporation (POM/390/1999) Mr Mohan Peiris pleaded guilty and leniency for his client. He made a written representation (14th Oct 2009) claiming that the failure to declare true value was a ‘genuine error’ on the part of his client. Whereas in the other case (the Commercial Bank - CRTF/145/2000) he took an entirely different stand and submitted that ‘… that provisions of the Customs Ordinance do not apply to software on the basis that software is intangible property…” clearly was an attempt to deceive the Customs as the fiscal levy defrauded by the bank, ran into over hundreds of millions of rupees.
When his submission was overruled at the Customs Inquiry by the Inquiring Officer, Nagananda Kodituwakku, it was challenged by him before the Court of Appeal by way of a Writ Application (CA/218/2001) on the basis that ‘that customized software packages imported as intangible property on a license fee should be valued on the basis is carrier medium only (not the value of the software but only the value of the disks in which they are recorded is liable for fiscal levies).
On 2nd January 2001 Mr Mohan Peiris made a false statement at the Customs Inquiry claiming that the Court has issued an Order staying the Customs inquiry. The Customs Inquiring Officer, Nagananda Kodituwakku, found that Mr Mohan Peiris was making a false submission and sent him out of the inquiry room with a severe warning that appropriate action would be taken for his misconduct. This was later reported to the DGC for follow up action.
Reported to the CJ for misconduct and dishonestly
Obviously the double standard taken by Mr Mohan Peiris was tantamount to professional misconduct and dishonesty. The Director General of Customs reported this unbecoming conduct of the lawyer, Mr Mohan Peiris, to the Chief Justice on 16th Feb 2001 for disciplinary action.
When in April 2006 the final determination was made by the Court, after five long years, it was held that ‘there is no legal basis for the proposition that customized software packages imported as intangible property on a license fee should be valued on the basis is carrier medium only.’
This decision by the Court further demonstrated the true character of Mr Mohan Peiris who had been misrepresenting and deceiving the authorities denying the proper collection of revenue for his private benefit.
Abuse of Office of the Attorney General
During his tenure as the Attorney General Mr Mohan Peiris abused the office with no regard to the prime duty of the AG, which is to uphold the Rule of Law.
His actions such as pleasing the Executive President whilst withdrawing indictments served on criminals with political affiliations have been well known. Herein the focus is on his conduct as the AG in one of the high profile Customs cases, involving a colossal loss of over Rs 600 million of Government revenue in the Customs Case: P/Misc/93/2000.
Customs Inquiry: P/Misc/93/2000
The Dockyard Ltd, a boat manufacturing company had sold 21 marine craft to Sri Lanka Navy and the to the Ports Authority. And these boats had been manufactured out of raw material imported duty free for the export based manufacturing industry of the company. Therefore, the Dockyard was required to get prior permission from the DGC and pay the Customs duty prior to the sale of any such boats in the local market.
The Dockyard Ltd had collected the duty element from the buyers but had completely misappropriated the entire sum running into over 600 million rupees.
This case began in the year 2000 and still not been completed. There have also been four Court cases (Court of Appeal and Supreme Court) since then, on the same subject matter.
One was filed by the Customs Officer who had detected the case, the second by the Accused-Dockyard Ltd against the Customs and the third by the DGC. The fourth one was a Fundamental Rights Case filed by the same Customs Officer who had been denied justice. Both the AG Mohan Peiris and the Secretary to the Treasury PB Jayasundara had been cited as Respondents in this case in their personal capacity.
The first Court Case filed by the Customs Officer was withdrawn further to an undertaking given by the AG to expedite the disposal of the Customs case. The second court case filed by the accused Dockyard Ltd challenging the jurisdiction of the Customs was ruled in their favour.
The third was an appeal against the court order made in favor of the Dockyard Ltd filed for the DGC. This was withdrawn by the AG against the written instructions of the DGC and also by deceiving the Supreme Court.
The fourth was a fundamental rights case filed by the same customs officer, which is briefly described below.
The Fundamental Rights case (SCFR/247/2010) Mr Mohan Peiris CJ (Respondent) sitting on the Bench to hear his own case
Fundamental Right case (SCFR/247/2010) came up for support on 31st January 2013 (after two years from the date of filing the case) in Supreme Court, Mr Mohan Peiris appointed himself to the Bench to hear the case. And when the Defense Counsel, Nagananda Kodituwakku protested against the case being heard before the very respondent, it was rescheduled for the following day. On this day (01st Feb 2013) the 2-judge bench, appointed by CJ Mr Mohan Peiris, the Respondent dismissed the case outright without affording an opportunity to the Petitioner to support his case.
Brief of the inappropriate actions taken by the AG concerning the Dockyard fraud
Giving a false undertaking to the Court of Appeal to hear and determine the Customs Inquiry as expeditiously as possible
- Not enforcing the undertaking given to the Court of Appeal and allowing the accused (Colombo Dockyard Ltd) to challenge the jurisdiction of the Customs to hold the inquiry in the Court of Appeal (CA/1413/2005) and to obtain a flawed order against the Customs for want of jurisdiction.
- Failure to challenge the flawed order given in favour of the accused (Colombo Dockyard Ltd) by the Court of Appeal despite repeated request to appeal against the order by the DGC, until the then Solicitor General, in the absence of the AG initiated action to appeal against the Order in the Supreme Court (SC/Spl/100/2009)
- Further to the special leave application filed in the Supreme Court give an assurance to the DGC to proceed with the Customs inquiry and that AG would proceed with the Special leave application
- Violating his own undertaking, and disregarding the DGC’s strict instructions as reiterated in the DGC’s letter dated 10-05-2010 to proceed with the case, notifying the DGC that the Special Leave Application would be withdrawn.
- DGC’s stand was well supported by the Officers Trade Union whilst the Secretary to the Treasury summoned the DGC to the Treasury and warned her to strictly follow AG’s instructions
- Withdrawing the Special Leave Application filed in Supreme Court on 30th Aug 2010 against the written instructions of the DGC dated 03rd Aug 2010
- In an attempt to cover up the misdeeds committed; dispatching a backdated letter (26-08-10) to the DGC ‘by hand’ on 01-09-2010 implying that the said withdrawal had the consent of the DGC. This has been proved manifestly unfounded by the DGC’s own submission to the Court that the said was received at the DGC’s office only after withdrawal of the case (ref. to item 48 of the DGC’s observation).