SC slams the door on dictatorship

Tiran gets Dialogÿdealership for east

CJ comments on why Dep is still Acting AG

Govt. in trouble if Alles goes to
Geneva hints SC

Romesh calls the AG's bluff

By Sonali Samarasinghe

Chief Justice Sarath N. Silva continuing his role as the only opposition to a toxic regime, last Monday granted interim relief to Communication and Business Equipment (CBE) Ltd. to operate Dialog services in the east.

In granting relief the bench comprising Chief Justice Silva and Justices Shiranee Tilakawardena and Saleem Marsoof came down hard on the Rajapakse cartel warning state counsel the government would be in deep trouble if CBE took up the matter in the International Court in Geneva.

Deeming the action disgraceful he said the Petitioner coud have even gone to the Human rights council in Geneva. "We can't allow people to be harrassed in this manner," he had said. Chief justice also revealed that officials of the Eurpoean Union had told him that the judiciary of this country had on previous ocassions enforced justice in similar situations. The CBE owned by former presidential confidant, chairman Airport and Aviation Services and head of RADA, Tiran Alles was the exclusive dealer for Dialog in the north and east.

The Telecommunications Regulatory Commission (TRC) Director General, Kanchana Ratwatte on March 3, 2007 suspended the dealership of CBE following a directive by the Defence Ministryÿciting security considerations.

FR Application

Following a stoppage of their services in March 2007 CBE was to file a Fundamental Rights Application against the Director General of TRC and Secretary Defence Gotabaya Rajapakse among others claiming their action to stop their services to the north and east was ultra vires, arbitrary, capricious and violated its fundamental rights to equality and the freedom to engage in any lawful business.

Alles alleged the actions of the respondents were politically motivated and the CBE had become a victim of a political spat involving the state hierarchy.

The CBE is also part of a company that published the two newspapers namely Mawbima and SundayÿStandard which wereÿÿforced to closeÿ by the government last year even as the Rajapakse government proceeded to freeze Alles' assets and bank accounts. Alles has so far been successful in releasing his assets through court intervention but his two newspapers remain silent.

The court had on an earlier date decided with the concurrence of counsel to separate the two regions for the purposes of the proceedings taking up the dealership enjoyed in the east first.

ÿ However when the matter came up in court last Monday (10) the state was to object to interim relief with the Attorney General (AG) informing court that the mobile phone used by the suicide bomber in the Jeyaraj Fernandopulle case carried a SIM card sold by CBE. Deputy Solicitor General Sanjay  Rajaratnam also said that according to his instructions the AG would be indicting the petitioner in one month on the strength of these revelations.

The Apex Bench however was not amused. The dealership was suspended they observed in March 2007 while Fernandopulle was tragically bombed some 13 months later in April 2008. 'how can you hold this company responsible for that?'CJ asked.  

Justice Shiranee Tilakawardena clarified by example stating,'if a suicide bomber comes on a Honda motorcycle  are you going to ban all Honda motorcycles?'

The bench also said many of the documents letters and responses filed by the AG supporting the State's case carried the the same date suggesting the case was fabricated and a set-up.

The AG was to argue that Tiran Alles and the CBE were obstructing a proper inquiry. The Affidavit filed by the Defence Secretary was to also state that a decision had been taken to suspend all dealerships to the north and east and it was only the petitioner who was obstructing this move.

Chief Justice Sarath Silva seemed visibly angry as he retorted, "Are you calling court action an obstruction? Then we might as well close down all the court houses and let the military run the country," he said.

In any event the CBE was the sole dealer to the NE.

Counsel for CBE, Romesh De Silva PC when asked if his client wanted to pursue with the case considering the risk involved, was to inform court that CBE would in fact pursue with the case since he had confidence the Acting AG Priyasath Dep would not arbitrarily file indictment.

"That is why," Chief Justice Silva observed with some degree of levity, "that he is still 'acting' AG."

The Bench also observed that the TRC could regulate operators and control them on the networks but could not ask operators not to appoint dealers.

Torture

"How else are wayside boutiques selling cards?" they said. "What is to prevent a person from the east coming to Colombo, buying a SIM card and going back to the east?" the Bench queried. "The whole case looks suspicious," the CJ was to say. "Suspending the dealership, suspending the bank account. Basically," he said, "this is harassment and torture."

Therefore condemning the blanket stoppage of the dealership, the Supreme Court in issuing interim order directed the respondents to forthwith provide the services of Dialog in the Eastern Province to CBE as it was provided prior to March 2007 on condition that CBE was subject to the security requirements as stipulated to other service providers.

And while the merits or demerits of the case is solely for the judiciary to determine when it comes up for hearing on February 16, their comments from the Bench have a special significance for the public as a culture of impunity and a spirit of fear consumes the country.