REVIEW PETITION AGAINST JUDGES ORDER

In a unprecedented development in the Sri Lankan judicial system, attorneys representing the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) on March 13 (Tuesday), filed a review petition in the Supreme Court seeking an injunction against an order issued by a bench chaired by Acting Chief Justice Eva Wanasundera, blocking the prosecution of former Attorney General Mohan Peiris on charges of corruption.

According to the application filed by CIABOC against the presence of Justice Wanasundera on the bench that issued the order, “documents furnished by the Hon. Attorney General and the relevant Minute demonstrate that Her Ladyship Justice Eva Wanasundera, PC, in her capacity as the then Attorney General had taken a decision related to the subject matter (including a decision relating to the question of whether or not to refer the matter to the CIABOC)” and that “Her Ladyship was also fully aware of the material/evidence in the possession of the Attorney General’s Department relating to the said allegation of corruption.”

CIABOC, on January 18, 2018, filed a criminal case in the Colombo Magistrate Court against former Attorney General Mohan Peiris, former Deputy Solicitor General A.H.M.D. Nawaz and former Secretary, Ministry of Power and Energy M. M. C. Ferdinando based on a criminal complaint submitted to the Commission by the Attorney General’s Department.

 

It has thus become necessary for the Respondents-Petitioners to invoke the inherent powers of Your Lordship’s Court and/ or the powers of Review of Your Lordship’s Court to Review the Order issued on February 26, 2018 in this matter, in view of the extraordinary circumstances set out above

In the CIABOC application (Case No: 87741/01/18) submitted to the Colombo Magistrate’s Court, Peiris, Nawaz and Ferdinando have been accused of conspiring to commit and thereafter committing an act of corruption to bestow undue benefit to the officers of Lanka Electricity Company (Pvt) Ltd (LECO) by gross subversion of established practices in the Attorney General’s Department, in contravention of Section 113(b) of the Penal Code and Section 102 read with Section 70 of the Bribery Act.

Specifically, according to the CIABOC application to Court on January 18, 2018, while a CID investigation into allegations of financial crimes by LECO officers was ongoing under the supervision of State Counsel Thusith Mudalige of the Criminal Division of the 

Although the CIABOC case against Peiris was filed in January, it was over a month later, in February, that CIABOC faced a coordinated onslaught of six Supreme Court petitions and writ applications seeking to block them from proceedings in the Magistrates Court. These cases were filed upon the departure 
of Chief Justice Priyasath Dep

Attorney General’s Department, the accused are charged with knowingly bypassing the Criminal Division and soliciting and sending a corrupt legal opinion to a third party, M.M.C. Ferdinando, through then Civil Division Attorney A.H.M.D. Nawaz claiming that there was no criminal liability in respect of a fraudulent transaction, without any reference to the CID investigation or consultation with the criminal division attorneys handling the matter. In fact, it is alleged that no file was opened regarding this matter, and it was done solely to halt the CID investigation.

After the alleged criminal action had taken place and the CID was informed to halt the investigation, the CID had informed State Counsel Mudalige, who had taken up the matter with then Solicitor General Jayantha Jayasuriya, who is now the Attorney General. During an internal investigation that took place after Attorney General Peiris was elevated to the position of Chief Justice, CIABOC now charges that the file had reached the desk of Peiris’ successor as Attorney General, incumbent Supreme Court Justice Eva Wanasundera.

CIABOC Review Petition

According to the CIABOC review petition to the Supreme Court, Justice Wanasundera’s involvement in this matter as Attorney General is evidenced by a minute signed by her in the investigation file on July 5, 2012, addressing the question whether a criminal complaint should be made to CIABOC over the actions of former Attorney General Peiris and over what disciplinary action was warranted.

The CIABOC complaint further states, ‘As such, Her Ladyship Justice Eva Wanasundera, P.C. was obliged to have recused herself from participating in the matter.According to the complaint, the aforesaid presumption of bias and/or conflict of interest are aggravated by her failure to make full disclosure of the aforesaid facts, prior to taking up the matter’.

Although the CIABOC case against Peiris was filed in January, it was over a month later, in February, that CIABOC faced a coordinated onslaught of six Supreme Court petitions and writ applications seeking to block them from proceedings in the Magistrates Court. These cases were filed upon the departure of Chief Justice Priyasath Dep on a foreign tour, when Justice Wanasundera, the senior-most judge of the Supreme Court, was appointed as Acting Chief Justice in his absence.
The cases consisted of four Writ Applications (Mohan Peiris SC Writ 22/ 2018, A.H.M.D. Nawaz SC Writ 23/2018, Kalyananda Tiranagama SC Writ 24/2018 and Udaya Rohan de Silva SC Writ 25/ 2018) and two Fundamental Right applications Kelum Darshana Kumarasinghe SC FR 70/ 2018 and S.A.D.S. Suraweera SC FR 66/ 2018) filed in terms of article 140 of the Constitution. Although it is the Court of Appeal that takes on Writ Applications, when a Writ is sought against a decision of the CIABOC under the Bribery Act, the jurisdiction to hear a Writ Application is transferred by law from the Court of Appeal to the Supreme Court.

All six cases were scheduled to be taken up together on February 26 by a three-member bench chaired by Acting Chief Justice Wanasundera, including Justices Priyantha Jayawardena and Nalin Perera. It was only after the first case, a writ application filed by Mohan Peiris, was taken up and an injunction against CIABOC that restrained proceedings in the Magistrates Court was issued by the bench. It was then discovered that the Acting Chief Justice had an undisclosed conflict that CIABOC alleges bars her from hearing the case.

According to the petition filed by the Counsel on behalf of CIABOC, the Bench presided over by Her Ladyship Hon. Eva Wanasundara P.C., Acting Chief Justice individually took up the Writ Application by Mohan Peiris for support over the objections of several Counsel requesting that the connected matters, i.e. SC (Writ) 23/2018, SC (Writ) 24/ 2018, SC (Writ) 25/2018, SC (FR) 70/2018 be taken up together as their subject matter and implications were interconnected.

Corruption

The motion further states, ‘Supreme Court Writ Application 22/ 2018 was filed on February 9, 2018 and was listed for support on February 26, 2018. The Attorney General informed the CIABOC that he was unable to appear for them. This was due to the fact that the Attorney General’s Department was the complainant with regard to the complaint of corruption allegedly committed by the petitioner Peter Mohan Maithri Peiris alias Mohan Peiris –former Chief Justice, and fifth and sixth respondents- Abdul Hamid Mohamed Nawaz and M.M.C. Ferdinando respectively.

‘Thus the respondents-petitioners had limited time to retain private counsel for the matter which was to be supported on February 26, 2018. A Bench of Your Lordship’s Court presided over by Her Lordship Hon. Eva Wanasundara P.C., Acting Chief Justice, took up this matter for support despite several Counsel requesting that the connected matters, to be taken up together.

‘Upon this application being taken up, it was submitted in open court by Mr. Sanjaya Rajaratnam P.C. Senior Additional Solicitor General, appearing for the Hon. Attorney General, that Her Ladyship Hon. Eva Wanasundare PC during her tenure as Hon. Attorney general made certain minutes pertaining to facts and circumstances relevant to this subject matter in an official and confidential file of the Attorney general’s Department which he referred to as a ‘CF File’.

CF File

‘Certain documents were handed over to Her Ladyship Hon. Eva Wanasundare PC Acting Chief Justice by Mr. Sanjaya Rajaratnam PC Senior Additional Solicitor General, which were said to be copies thereof. While those documents were retained by Her Ladyship, the content of same were not disclosed to the parties or counsel. Mr. Sanjaya Rajaratnam PC, who handed over the perusal a file said to be the said ‘CF File’ to Her Ladyship which was later returned.
‘Her Ladyship Eva Wanasundara PC Acting Chief Justice, without disclosing the content of the documents so handed over, or the nature of the minutes she has made, inquired from counsel appearing in SC (Writ) 22/ 2018, whether they had any objections to the Bench of Her Ladyship hearing the matter. Being unaware of the content or nature of the aforesaid documents handed over to Her Ladyship, all counsel indicated that they had no objection to the bench or Her Ladyship taking up the matter.
‘Counsel for 1st to 4th respondents raised two preliminary objections namely; the petitioner has not acted uberrima fidei by not disclosing the letter of the 6th respondent dated December 2, 2010, and the annexures thereto (which are referred to P3(a) and the petitioner has failed to comply with Rules 3(1) of the Court of Appeal (Appellate Procedure) Rules of 1990.
‘After hearing the submissions of all parties, Her Ladyship dictated the Order of Court issuing Notice and a stay order restraining proceedings in the Magistrate’s Court until the conclusion of the case. The aforesaid Order dated February 26, 2018 forms part of the Record in this matter, and in view of the Respondents-Petitioners being unable to obtain a copy of same, request permission to tender a copy of same, if so required by Your Lordships’ Court.

TWO Connected cases

‘Your Lordships’ Court did not rule of the preliminary objections raised by the counsel for 1st to 4th Respondents (Chairman, Commission Members and DG CIABOC respectively). After a short adjournment of the proceedings, two connected cases (SC Writ 23/2018 and SC Writ 25/2018) were taken up and several Counsel appearing for 1st to 4th Respondents adverted to a document filed by the Petitioner in SC Writ 23/2018 signed by Senior President’s Counsel referring to Her Ladyship, as well as the fact that Her Ladyship was said to have made a minute related to this matter (though the nature of the content of that minute was unknown to them at that time), and therefore, raised the issue of propriety to Her Ladyship hearing the case.

‘Although those Counsel urged Court to record the submissions made by the Counsel, those matters as well as the other connected matters were adjourned for support for March 7, 2018, without recording the submission made by Counsel. Subsequently, the 1st to 4th Respondents requested the Hon. Attorney General to provide the copy of the relevant Minutes to the instant Respondents in as much as it may be relevant to the subject matter of this application and the criminal proceedings which form the subject matter of this application.

CIABOC, on January 18, 2018, filed a criminal case in the Colombo Magistrate Court against former Attorney General Mohan Peiris, former Deputy Solicitor General A.H.M.D. Nawaz and former Secretary, Ministry of Power and Energy M. M. C. Ferdinando based on a criminal complaint submitted to the Commission by the Attorney General’s Department

‘The Hon. Attorney General accordingly made available the said Minute and connected documents to the CIABOC. The documents furnished by the Hon. Attorney General and the relevant Minute demonstrate that Her Ladyship in her capacity as then Attorney General had taken a decision related to the subject matter of this application (including a decision relating to the question whether or not to refer the matter to the CIABOC). Her Ladyship was also fully aware of the material/ evidence in the possession of the Attorney General’s Department relating to the said allegation of corruption.

The relevent minutes contained in B1 states:

Thanks for the long report at bl. (3).
I am of the view that part 1 can be dealt with in CR1/368/10 file in the normal course of action re CR1 files in their department.
Part II: I agree with you on recommendation 2 against 2A in your report.
SSC/ Administration should move in the matter with the knowledge of the AG and initial disciplinary proceedings under the E code for having written the letter dated 16-12-2010.
Pl. do the needful.
Eva
5/7/12

‘Her Ladyship having knowledge of the aforesaid and especially having made a Minute relating to the aforesaid, merely inquired whether the parties in the instant 

The motion further states, ‘Supreme Court Writ Application 22/ 2018 was filed on February 9, 2018 and was listed for support on February 26, 2018. The Hon. Attorney General informed the CIABOC that he was unable to appear for them. This was due to the fact that the Hon. Attorney General’s Department was the complainant with regard to the complaint of corruption

application had any objections to Her Ladyship hearing the matter without making full disclose of the extent of her involvement with the file, in her capacity as Attorney General. In the aforesaid circumstances of the instant case, Respondents-Petitioners states that Her Ladyship was biased and/ or at minimum there was a strong and seeming appearance of bias and/or there was a conflict of interest in her participating in the matter.

‘As such, Her Ladyship was obliged to have recused herself from participating in the matter. The Respondents-Petitioners further state that the aforesaid presumption of bias and/ or conflict of interest are aggravated by her failure to make a full disclose of the aforesaid facts, prior to taking up the matter.

‘It has thus become necessary for the Respondents-Petitioners to invoke the inherent powers of Your Lordship’s Court and/ or the powers of Review of Your Lordship’s Court to Review the Order issued on February 26, 2018 in this matter, in view of the extraordinary circumstances set out above.

‘Grave and irremediable harm and damage will be caused unless the interim relief prayed for is granted by Your Lordship’s Court in as much as impugned order is tainted by bias/ conflict of interest as set out above. In all the circumstances mentioned above it has also become necessary to seek an appropriate order from Your Lordship the Chief Justice, considering the general and public importance of this matter, that a direction be made in terms of Article 132(3) of the Constitution constituting a Divisional Bench of Five or more Hon. Justices of the Supreme Court to consider this application and all matters connected therewith. The Respondents-Petitioners have not invoked the jurisdiction of Your Lordship’s Court with regard to the subject matter of the instant application.

CIABOC counsel have requested that the Supreme Court “considering the general and public importance of this matter” appoint a bench comprising five or more justices to consider the application and all connected matters, issue a stay order suspending the February 26, 2018 order that blocked the prosecution in the Magistrates Court, review and set aside that order, and grant “such further and other relief as Your Lordship’s Court” shall deem fit.

 

During an internal investigation that took place after Attorney General Peiris was elevated to the position of Chief Justice, CIABOC now charges that the file had reached the desk of Peiris’ successor as Attorney General, incumbent Supreme Court Justice Eva Wanasundera

These papers had been filed in courts and the case is scheduled to be taken up soon.