Aspirant CJ Mohan Pieris Exposed: Professional Misconduct As Attorney General

By Colombo Telegraph -January 9, 2013

The former Attorney General, Mohan Pieris, PC widely considered an aspirant to the job of Chief Justice if Dr. Shirani Bandaranayake is removed, has engaged in serious professional misconduct in relation to a case filed against Sri Lanka Customs, the Colombo Telegraph can reveal today.

Mohan Peiris, Defence Secretary Gotabaya Rajapaksa and Central Bank Governor Ajith Nivard Cabraal

A fundamental rights application (SC FR 360/2008) was filed on behalf of Royal Fernwood Porcelain Ltd by Mohan Pieris prior to his appointment as Attorney General. Pieris’ name was marked as appearing for the Petitioner (Royal Fernwood Porcelain Ltd) on 06.10.2008 and the case was refixed at his request for 10.11.2008.

On 10.11.2008, Pieris himself has made submissions to the Supreme Court, to the effect that ‘representations have been made to the Director General of Customs and there is a likelihood of administrative relief’. On this basis, a further postponement has been sought without supporting the case for leave to proceed. The court, presided over by (then) Chief Justice Sarath N. Silva has directed ‘that this matter be finalized by the Department of Customs’ and had the case listed for mention on 03.12.2008.

On 03.12.2008, Pieris has appeared before the Supreme Court presided over again by (then) Chief JusticeSarath N. Silva, and the Supreme Court has amongst other things, directed that the basis of the mitigation of the sum imposed on the Petitioner as a forfeiture be disclosed to court on the next date. Pieris ceased to appear for the Petitioner in the case after this date. Pieris was appointed Attorney General by PresidentMahinda Rajapaksa without the required sanction of the Constitutional Council with the failure to implement the 17th Amendment to the Constitution, in a move heavily criticized and unpopular with many officers of the Attorney General’s Department.

However, up to that point, he was the senior counsel in the case, who appeared for Royal Fernwood Porcelain Ltd and fought against Customs, a revenue collection agency of the State to obtain relief for that company. It is well known that big companies pay very high fees to Counsel for high value cases involving multi-millions of Rupees at stake. This case involved a mitigated forfeiture of Rs.75,462,012/- as borne out by the case journal records.

After Pieris was controversially catapulted into the top slot of the Attorney General’s Department, he ceased to appear in the case before the Supreme Court. However, Colombo Telegraph has come into possession of a document which reveals that Pieris held consultations with Customs and wrote a letter dated 31st March 2009 under his own hand on the letterhead of the Chambers of the Hon. Attorney General advising the Director General of Customs to settle the case on terms put forward by the Petitioner Company as acceptable. Accordingly, Pieris writing under his own hand has directed the Director General of Customs that a sum of Rs.2,616,219/- only be recovered as duty and other levies, citing a view taken by the Supreme Court. Whatever the case may be with regard to the factual merits of the opposing positions taken by the Petitioner Company and Customs, the said revelation is suggestive of serious professional misconduct and could be deemed corruption at the highest level.

It is a fundamental tenet of the legal profession that an Attorney-at-Law should not act for two opposing or conflicting sides to a legal dispute. Quite apart from the fact that it is moral commonsense, the prohibition is expressly laid down in the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988. Rule 2 makes clear that “These Rules shall apply to every Attorney-at-Law admitted and enrolled by the Supreme Court of the Democratic Socialist Republic of Sri Lanka”. This includes Pieris.

The most apparent improper conflict of interest evidently also involves serious beaches of several Supreme Court Rules.

Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988, Rule 6 requires that:

An Attorney-at-Law shall not act for any party or person in professional matters in which the said Attorney-at-Law has a personal interest unless after making full disclosure of the said interest to the client and after obtaining a declaration in writing that the client has no objection to the Attorney-at-Law acting for him.

Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988, Rule 7 mandates that:

An Attorney-at-Law shall not appear or advise in any professional matter which in his opinion would be in conflict with the interest of any other client in such or connected professional matter.

Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988, Rule 18 mandates that:

An Attorney-at-Law shall act with complete frankness and honesty in advice to and all dealings with his client.

In fact, the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules clearly outlines the high degree of integrity required of a practicing lawyer, by providing that a lawyer ought to withdraw altogether from any professional matter, even in the following situation:

Where a conflict arises between the interests of two or more clients for whom the Attorney-at-Law is acting, the Attorney-at-Law shall cease to act for all of the said clients unless he decides that he can without any professional impropriety or embarrassment to himself appear for any one of more of such clientsprovided other such client or clients agree that he might so appear. (Rule 8 )

The matters now revealed raise serious issues of professional impropriety and it is most apparent that the above mentioned Supreme Court Rules have been breached.

In the past, many lawyers have been subjected to disciplinary proceedings and even struck off the list of Attorneys-at-Law after the issuance of a Rule by the Supreme Court for having appeared for opposing parties in the same case. The impropriety is even more shocking and scandalous when it is perpetrated by the Chief Law Officer of the State, handpicked and appointed over the heads of the senior officers in the ranks of the Attorney General’s Department without an independent mechanism for the making of high appointments.

Mohan Pieris has been appointed as the Chairman, Seylan Bank after the collapse of the Ceylinco Group, of which the bank was a part. The question arises as to whether a person who has acted in such an inappropriate manner is fit to hold the reins of a banking institution, and what impact such appointments have on the credibility of the banking and financial sector under the present political dispensation.

It remains to be seen whether the forces that hold sway will also seek to catapult Pieris to the highest position of the judiciary, especially after the Bar Association of Sri Lanka has resolved not to respect any person appointed to replace Dr. Shirani Bandaranayake as Chief Justice without giving her a proper, independent inquiry provided for by law.

Several analysts expressed the view to Colombo Telegraph that with rumours abounding that former Attorney General, C. R. De Silva, PC and several respected sitting judges of the Supreme Court refusing to replace her in such circumstances, any step to appoint the controversial Mohan Pieris to the hallowed position of Chief Justice would signal another significant milestone in a rapidly increasing erosion of the Rule of Law – in more ways than one, as this ‘expose’ reveals!

The Colombo Telegraph has been unable to reach C. R. De Silva for comment.