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Hilton Hotel Fiasco & Ad hominem Legislation Expropriation Law

‘Socio-political realities’ at the highest levels in society are lucidly revealed by the Author documenting real life experiences, in interacting with Presidents, Prime Ministers and Ministers, demonstrating their subservience to international pressures by influential powerful countries, and their shameless shielding of fraudulent/corrupt Ministers/Officers. Author discloses non-enforcement of the rule of law, even by Attorney Generals, against those affluent and powerful, eventhough the rule of law is the cornerstone of democracy. There is shocking revelation, of how Japanese Government, through Diplomats, pressurized to settle and cover-up a colossal fraud, blatantly perpetrated on a country and impoverished people, to prevent criminal prosecution thereof; even inducingly offering to negotiate with a terrorist organization, to resolve the issue of armed terrorism, ironically created by social injustice, including economic terrorism. Constitutional Minister, President’s Counsel, charged for fraud utters blatant falsehoods. Justice Minister and Foreign Minister, President’s Counsel, both scholarly alumni of Oxford University, camouflages to whitewash fraud, taking duplicitous stances. This Book is in two Sections, one dealing with ‘Political and Diplomatic Hypocrisy’, and the other on an ‘Ad Hominem Legislation – Expropriation Law’, enacted in violation of UN Universal Declaration of Human Rights, and ultra-vires the Constitution.How the country’s highest judiciary deals with challenges to the perverse legislative process is revealing, with shocking disclosure of the Chief Justice’s husband

with a scandalous controversy exploding in the public domain; just as the Author applies for a review of the pre-enactment Determination by Chief Justice for such Statute, as having been made per-incuriam and ultra-vires the Constitution, adducing additional grounds of perceived bias, upon which Their Lords of Appeal exercising inherent jurisdiction, in similar circumstances, rescinded a previous Judgment of the House of Lords in extradition proceedings re – Chilean President Pinochet.

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In fact one day, when I, among others, was before a Meeting of the Cabinet of Ministers of Sri Lanka, chaired by President J.R. Jayawardene, with the attendance of Prime Minister R. Premadasa, I was called upon to afford requisite clarifications and explanations on the Colombo Hilton Hotel Project; and at the very end of such brief interaction with some Ministers of the Cabinet, quite significantly President J.R. Jayawardene queried from the Minister of Finance & Planning, Ronnie de Mel, who had been ominously silent in our presence – “ Ronnie any further questions ?”. Surprisedly, he had none !

Very clearly, President J.R. Jayawardene thereby ‘let the cat out of the bag, as it were’, disclosing that prior to me and others being invited to the Meeting of the Cabinet of Ministers, that Minister of Finance & Planning, Ronnie de Mel, in fact, had indeed raised questions before the Cabinet of Ministers, but he curiously refrained from doing so in our presence !

Appallingly, this Letter dated 5th February 1993, which was after the delivery on 2nd December 1992 of the Judgment by the Supreme Court of Sri Lanka, the highest judiciary of the country, had taken a completely diametrically different stance, to the stance which had been taken in the following Letter dated 17th December 1990 sent by the very same K.H.J Wijayadasa, Secretary to President R. Premadasa, himself, addressed to R. Paskaralingam, Secretary, Ministry of Finance & Secretary to the Treasury, only after only ex-parte Enjoining Orders had been issued on 17th September 1990 by the District Court of Colombo. This amply demonstrates the servile subservience of pontificating senior public officers, advocating good governance in the public domain !

Japanese Government offers to negotiate with the LTTE as a quid pro quo to settle the Hilton Case

On 8th April 1994, G. Wijayasiri, Director General, Economic Affairs, Ministry of Foreign Affairs of Sri Lanka, had addressed a Note under the subject ‘Hilton Hotel’ to the Secretary, Cabinet Sub-Committee on Investments, forwarding an ‘extract’ of the Note dated 24th March 1994, which had been prepared by the State Secretary, Ministry of Foreign Affairs, R.C.A. Vandergert, on the aforesaid discussion he had had with I. Hashimoto, Chargé d’ Affaires of the Japanese Embassy in Sri Lanka, the contents of which are appallingly shocking !

“8 April 1994

Secretary

Cabinet Sub-Committee on Investment

BOI

Colombo 1.

Hilton Hotel

Mr. I. Hashimoto, Charge de Affaires a.i. of the Japanese Embassy in Colombo, recently called on Mr. R.C.A. Vandergert, State Secretary, Ministry of Foreign Affairs. During their discussion the Charge de Affaires made reference to the Hilton Hotel dispute.

I am sending herewith an extract of a note prepared by Mr. Vandergert, on his meeting with the Japanese Charge de Affaires. I shall be glad if this is brought to the notice of the Cabinet Sub-Committee on Investment at its next meeting.

Sgd.

G. Wijayasiri

Director-General / Economic Affairs”

“Secretary,

Last afternoon Mr. I. Hashimoto, C.d’A. of Japanese Embassy, called on me.

2. While it was predominantly a courtesy call, he referred to the following matters, which I think need a studied response from the appropriate agency of government :-

• 1.Referring to the ethnic conflict and the expressed intentions of the Government to negotiate with the LTTE, he said he was thinking aloud about what the reaction of the Government would be if Japan was to offer itself as a venue for talks between the representatives of the Government and the LTTE. He thought that such a meeting away from the public glare, might provide a conductive atmosphere for such talks. I replied that he should make this proposal to AIR since these matters were being handled by the Presidential Secretariat.    
• 1. Mr. Hashimoto also brought to my notice the concern of the Government of Japan and Japanese investors in regard to the Hilton Hotel dispute. He said that in view of the importance which Sri Lankan Foreign Policy attaches to attracting foreign investment, the Government should look at the overall impact which disputes like the Hilton Hotel dispute would have on Sri Lanka-Japan bilateral economic relations and, more particularly, the adverse impact it may have on Japanese investors who might feel that in situations of this nature, the government was not doing enough to help resolve such issues. Since the overall looser would be the country itself, he thought that in matters like this the Government should become more involved, without leaving it to private arbitration or even negotiations conducted by BOI etc. I said I would convey his concerns to the appropriate authorities.

SS/FA

24.3.94

copy to :  DG/PA

DG/EA”

The foregoing to me was in very plain and simple terms nothing but pure blackmail and a threat akin to holding to ransom at gun point, and thereby to inhibit the enforcement of the rule of law in a sovereign country, to prosecute a major fraud schemingly perpetrated by the Japanese Companies, Mitsui & Co. Ltd., Taisei Corporation and the Japanese Architects Kanko Kikaku Sekkeisha Yozo Shibata & Associates, on the Government of Sri Lanka and its people !

K.N. Choksy, P.C., M.P., makes untrue, erroneous and false statements – Special Presidential Commission

The Special Presidential Commission, adverting to the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules, in the said Postscripts, inter-alia, stated thus:

“We are of the unanimous view that in this respect he [reference being to the said K.N. Choksy] has stated untrue, erroneous and false facts, which necessarily has the tendency to mislead and deceive the public in general, and the members of this Commission”

President Chandrika Bandaranaike Kumaratunga intimated that Justice & Constitutional Minister, G.L. Peiris, had brought K.N. Choksy, P.C., M.P., who was an influential member of the then main Opposition United National Party, led by Opposition Leader, Ranil Wickremesinghe. K.N. Choksy, P.C., M.P., was one of the 4 persons, against whom a Show Cause Notice, containing several Charges, on grounds of fraud against the Government of Sri Lanka, had been issued by the Special Presidential Commission.

President Chandrika Bandaranaike Kumaratunga further intimated, that at such discussion, K.N. Choksy, P.C., M.P., had assured her to extend his unstinted support and also lobby for the support of the opposition United National Party for the draft new Constitution, which was being finalized at that time by President Chandrika Bandaranaike Kumaratunga, among others, with the involvement of Justice & Constitutional Minister, G.L. Peiris. The said draft Constitution referred to as the draft Constitution of 2000, was presented to the Parliament of Sri Lanka by President Chandrika Bandaranaike Kumaratunga, herself, in August 2000.

In such circumstances, K.N. Choksy, P.C., M.P., and Justice & Constitutional Minister, G.L. Peiris had pleaded with and persuaded President Chandrika Bandaranaike Kumaratunga, to agree not to extend the Special Presidential Commission Warrant in 1999, in order that K.N. Choksy, P.C., M.P., and those others against whom Show Cause Notices, containing several Charges, on grounds of fraud against the Government of Sri Lanka, had been served by the Special Presidential Commission, could be saved from the risk of being found guilty, and the consequences thereof.

Minister of Constitutional Affairs K.N. Choksy P.C., damnably lies before President D.B. Wijetunga

After the discussion was over, President D.B. Wijetunga pointing out that, since the discussion was now over, inquired whether he could now socially invite the Minister of Constitutional Affairs K.N. Choksy P.C., to join, as he had been waiting to participate in the discussion. Since the request came from President D.B. Wijetunga, himself, I had no option, but to acquiesce thereto.

Minister of Constitutional Affairs, K.N. Choksy P.C., came in and   President D.B. Wijetunga welcomed him saying – ‘Come, come, Cassey, our friend Nihal is here !’.  Minister of Constitutional Affairs K.N. Choksy P.C., came and sat down. He then began lamenting that he was never a Director, whilst the construction of the Colombo Hilton Hotel was underway, and that in the media his name had been tarnished and ruined.

I then staunchly blurted out to President D.B. Wijetunga – ‘If, as stated, he was not a Director of HDL during the construction of the Colombo Hilton Hotel, then why the hell did he object to and oppose my actions on the matter of the construction of the Colombo Hilton Hotel ?  Minister of Constitutional Affairs K.N. Choksy P.C., shamelessly pleaded – ‘ No, no, Sir, I never objected or opposed’.

Such blatant lie provoked me. I stood-up and produced documents, which I was ready with, showing several instances, where Minister of Constitutional Affairs, K.N. Choksy P.C., had obstructed and opposed my such actions, and that he had even attempted to have my Case, filed in the national and public interest, dismissed in the Court of Appeal, to enable the full payment of monies to be made to Mitsui & Co. Ltd., and Taisei Corporation, under the State Guarantees, which had been issued.

Having well and truly instantaneously demonstrated the blatant falsehood uttered by Minister of Constitutional Affairs K.N. Choksy P.C., I raised my voice and blurted out to President D.B. Wijetunga – ‘Mr. President, your Minister of Constitutional Affairs is a damn liar’.

Such ‘bombshell’ shattered to smithereens Minister of Constitutional Affairs K.N. Choksy P.C. In the given circumstances, Gamini Wijesekere, General Secretary, United National Party, calmed me down, and the Meeting abruptly ended.

Winding-up Application opposed and protracted, and hasty acquisition of HDL by the Government on purported ground of protracted litigation to bury the fraud against the State !

Ironically it was the Attorney General, who appeared for the Chief Financial Officer of the State, namely, P.B. Jayasendera, Secretary, Ministry of Finance & Secretary to the Treasury, filing Affidavits to oppose my Application to wind-up HDL, intervening, as an Intervenient-Party, represented by State Attorney, without first having had and obtained the permission of the District Court of Colombo to have so intervened. This was regardless of the statutory mandates to wind-up HDL in terms of the provisions of the Companies Act No. 7 of 2007.

Ironically thereafter HDL was acquired by the Government of Sri Lanka, among other business acquisitions, under and in terms of a startlingly controversial perverse piece of legislation, hastily enacted by the Parliament of Sri Lanka, with the Bill being presented on 8th November 2011, and debated and passed by the Parliament of Sri Lanka on 9th November 2011, and intriguingly hurriedly certified into law on 11th November 2011 by  Chamal Rajapakse, Speaker of Parliament of Sri Lanka, elder brother of President Mahinda Rajapaksa, also Minister of Finance, and so announced to the Parliament of Sri Lanka on 21st November 2011.

Opposition Tamil National Alliance Member of Parliament, M.A. Sumanthiran, Attorney-at-Law  asserting, that this Bill had been hurriedly and secretly dealt with, also stated –

Sir, I would also urge you to look at the definitions of underutilized assets and an underperforming enterprise. These have been designed, these have been tailored to suit what later appears in the Schedule. That is why I said this is an ad hominem legislation. In previous instances, Sir, you will be aware that even the Privy Council has ruled out as bad, any legislation that was recognized to be ad hominem and ad hoc. …..

When one reads this Determination, one is sad for the Supreme Court; for what the Supreme Court has been reduced to, at how they have pronounced upon this Bill without any material whatsoever placed before them. How can the Supreme Court like this Legislature, rule on whether a particular enterprise is underperforming or not without examining the accounts of that enterprise, without examining other material ? …..

It is a sad indictment on the highest court of the land. I am saddened by the fact that I am also an officer of that Court and have been prevented from assisting it in the determination of this because it was an urgent Bill and hurriedly and secretively taken up for hearing. “

President Mahinda Rajapaksa, as the Minister of Finance unequivocally endorsed this piece of perverse legislation in the Parliament of Sri Lanka. In this instance, in making such acquisition, he was lest concerned, as to what the repercussions would be with Japan, particularly in the context of the Investment Promotion & Protection Agreement signed on 1st March 1982, between the Government of Sri Lanka and the Government of Japan, and tabled in the Parliament of Sri Lanka on 9th September 1982; whereas on the other hand he expressed such concerns in November 2006, when I notified him of the Application I had made to wind-up HDL !

In the foregoing circumstances, I decided to make an Application to the Supreme Court for the Special Determination of 24th October 2011 in SC (SD) No. 2/2011 to be reviewed and/or re-examined by a Fuller Bench of the Supreme Court, as a matter of utmost general and public importance, as the said Special Determination having been made per-incuriamand/or ultra-vires Article 123(3) of the Constitution and/or under circumstances of perceived bias warranting the same to be rescinded or varied.

‘Perceived bias’, as disclosed in my further Written Submissions dated 9th February 2012, was on the part of Her Ladyship the Chief Justice Shirani A. Bandaranayake, in that, her husband Pradeep Kariyawasam, whom I had known previously, as an Executive in a Client Company, was holding lucrative public office, as Chairman of financial institutions, sans any expertise in such sector, on political appointments made by the 1st Respondent, as the Minister of Finance, which financial institutions, namely, Insurance Corporation of Sri Lanka Ltd., and the National Savings Bank, came under the purview of the Ministry of Finance.

Quite unexpectedly, at the very same time I submitted the aforesaid Application on 8th May 2012 to the Supreme Court, coincidentally a scandalous controversy surfaced in the public domain and was splashed in the media, in relation to the questionable purchase by the National Savings Bank, of which Pradeep Kariyawasam, was Chairman, of a 13% Shareholding in the Company, namely, The Finance PLC for Rs. 391 Mn., paying a price of around Rs. 50/- per Share, whilst such Shares were trading in the Colombo Stock Exchange for around a price of only Rs. 30/- per Share. This controversy was exposed in the public domain, as a consequence of whistleblowing by some personnel of the National Savings Bank.

In the wake of such scandalous exposure in the media,  the 1st Respondent, President Mahinda Rajapaksa / Minister of Finance, as reported, had directed that the impugned transaction be suspended and investigated into, whilst the 3rd Respondent, Secretary Ministry of Finance & Secretary to the Treasury, P.B. Jayasundera had been reported to have directed the stalling of the aforesaid transaction, whereby the National Savings Bank having purchased the Shares in the Colombo Stock Exchange, has defaulted on the settlement of payments, thereby contravening  the Colombo Stock Exchange Rules, which require transactions to be settled within 3 days.

This entire scandalous controversy extensively being exposed in the media would be an embarrassment to Her Ladyship Chief Justice, Shirani A. Bandaranayake, whose husband Pradeep Kariyawasam is the Chairman of the National Savings Bank, and who had being involved in this scandalized transaction, and who had been appointed to such position by the 1st Respondent, Minister of Finance, Mahinda Rajapaksa, who as the President of Sri Lanka had also concurrently appointed his wife, Shirani A. Bandaranayake, as the Chief Justice of Sri Lanka.

Thereafter, upon discovery, that one of the Lords, namely, Lord Hoffmann’s wife was employed with Amnesty International, who had intervened in the Application, the House of Lords exercising inherent jurisdiction, rescinded their earlier Judgment – viz:

1.LORD BROWNE-WILKINSON

#    “…… there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased ….. it is alleged that there is an appearance of bias not actual bias”.

#    “….. may give rise to a suspicion that he is not impartial, for example because of his friendship with a party …..  the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial”.

2.LORD GOFF OF CHIEVELEY

#      “Your Lordships are concerned with a case in which a judge is closely connected with a party to the proceedings”.

#      “It follows that in this context the relevant interest need not be a financial interest. … A judge may have to disqualify himself by reason of his association with a body that institutes or defends the suit”

3.LORD NOLAN

 #             “…..the appearance of the matter is just as important as the reality. “

4.LORD HOPE OF CRAIGHEAD

#      “It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. …. He must be seen to be impartial.”

#      “If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing that duty. Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person’s impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists.”

5.LORD HUTTON

 #     “…… or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice”.

#      “…. there is an overriding public interest that there should be confidence in the integrity of the administration of justice ….. it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”