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Thilanga case: Judge reminds lawyers of higher ethics
The petition filed by Sri Lanka Cricket and Sri Lanka Telecom Chairman Thilanga Sumathipala challenging the legality of the plaint filed in the Magistrate's court on December 10 last year, consequent to which summons were issued on him, was dismissed by the Colombo High Court.

High Court Judge Eric Basnayake did not vacate the magistrate's order, stating that the previous order made on Poya day (December 8) was invalid, hence there being no impediment to the subsequent acceptance of the plaint filed by the CID on December 10,2003.

Court accepted the submissions of Senior State Counsel Yasantha Kodagoda that the "prescribed order made and obtained under hitherto unknown procedure and under extremely suspicious circumstances most unfortunately and clearly and irresistibly pointing towards fraud and collusion" was not valid. The counsel also noted that the motion was tendered after 1.30 p.m. on a holiday (Poya day) when normally motions were not accepted after 10 a.m. Further the magistrate to whom the motion was tendered was not one to whom the case had been allocated and therefore was not in possession of the case record.

In the absence of the case record, the magistrate had used loose white paper to write the order and subsequently the magistrate had to face the penalty for his unorthodox conduct. Therefore the magistrate's order should be ignored, he argued.

The judge said he was not surprised at the suspicions that arose and held that the standard procedure had not been followed. Court also took into account the fact that the magistrate had not mentioned a single provision on which he had based his order to discharge the petitioner.

Court held that the magistrate could not have discharged the petitioner under 5.120(3) of the Code of Criminal procedure (CCP) as the investigations were still pending. Further under sections 186 and 188 of the CCP, a suspect can be discharged only after a complete investigation and the filing of a plaint. In the instant case, the investigations were pending and a plaint had not been filed in the magistrate's court.

Court discharged the submissions of Mr. Sumathipala's counsel Rienzie Arsekularatne that the acceptance of the plaint on December 10 was invalid because a competent court on December 8 (Poya day) had already dealt with the matter and therefore it was ves judicata and the magistrate erred in accepting the plaint of December 10.

In his judgment, judge Basnayake stated that he did not wish to go into the conduct of the magistrate or the counsel who took part in the proceedings on Poya day as inquiries were pending, except to add (quoting justice O'Connor of the United States):

"One disfiguring feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one's selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal trial or through the discipline of the market.

There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both the special privileges incident to membership in the profession and the advantage those privileges give in the necessary task of earning a living are means to a goal that transcend any accumulation of wealth."

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