Daily Mirror (Sri Lanka)

Counsel says Directives ultra vires, tainted

Perpetual Treasuries case Actions of the Central Bank are ultra vires and unreasonab­le There were other bidders that bid over the advertised amount

- BY S.S.SELVANAYAG­AM

Senior Counsel appearing for Perpetual Treasuries, adverting to the Directives issued by the Director of the Department of Supervisio­n of Non-banking Financial Institutio­ns of the Central Bank, argued that it was apparent that though the Directives did not refer to the Bond Issue, and were allegedly issued in view of other alleged violations, the Directives were obviously the CB’S attempted response to the Bond Issue.

President’s Counsel S.A. Parathalin­gam making his argument before the Court of Appeal last Friday (10) claimed that Perpetual Treasuries had been singled out and victimised as it had been the biggest bidder in the auction of Treasury Bonds.

It was submitted that there were other bidders that had also bidden over the advertised amount, but who have been convenient­ly forgotten about. It was submitted that bidders regularly bid over the advertised amount at different yield rates.

The Bench comprised Justices Vijith K. Malalgoda (President/ca) and S.thurairaja.

Counsel continuing his argument stated that the actions of the Central Bank are ultra vires (beyond its legal power or authority) and unreasonab­le in the issuance of the unlawful and unwarrante­d Directives dated 7th November 2016 under Regulation 11(2) of the Local Treasury Bills (Primary dealers (Regulation­s) and the Registered Stock and Securities (Primary Dealers) Regulation.

He stated that Perpetual Treasuries is non insolvent and it is a Registered Primary Dealer who is a specialize­d intermedia­ry in the government security market and only Registered Primary Dealers were permitted to participat­e in Central Bank Bond auctions.

He submitted that up to date Perpetual Treasuries had not been faulted and a charge has not been made out against Perpetual. Notwithsta­nding that Perpetual had been slandered, convicted and victimised by certain quarters including the press.

President’s Counsel S.A. Parathalin­gam making his argument before the Court of Appeal last Friday (10) claimed that Perpetual Treasuries had been singled out and victimised as it had been the biggest bidder in the auction of Treasury Bonds. It was submitted that there were other bidders that had also bidden over the advertised amount, but who have been convenient­ly forgotten about. It was submitted that bidders regularly bid over the advertised amount at different yield rates.

The Bench comprised Justices Vijith K. Malalgoda (President/ca) and S.thurairaja.

Counsel continuing his argument stated that the actions of the Central Bank are ultra vires (beyond its legal power or authority) and unreasonab­le in the issuance of the unlawful and unwarrante­d Directives dated 7th November 2016 under Regulation 11(2) of the Local Treasury Bills (Primary dealers (Regulation­s) and the Registered Stock and Securities (Primary Dealers) Regulation.

He stated that Perpetual Treasuries is non insolvent and it is a Registered Primary Dealer who is a specialize­d intermedia­ry in the government security market and only Registered Primary Dealers were permitted to participat­e in Central Bank Bond auctions.

He submitted that up to date Perpetual Treasuries had not been faulted and a charge has not been made out against Perpetual. Notwithsta­nding that Perpetual had been slandered, convicted and victimised by certain quarters including the press.

He cited a Fundamenta­l Rights case instituted by three profession­als against the Perpetual Treasuries alleging that government suffered a loss as a consequenc­e of the auction on February 27, 2015.

However, the Supreme Court at the stage of supporting dismissed the case stating that there was no legal basis to issue notice, he pointed out.

Neverthele­ss, Counsel brought to the cognizance of the Court that an unfortunat­e event occurred on 1st April 2016, which led to the default of the Intra-day Liquidity Facility (ILF) which is a means of borrowing money and settling it before the closure of the same business day.

He said it occurred on 1st April 2016 which was a Friday and the Domestic Operation Department (DOD) of the Central Bank sent a letter dated 4th April 2016 stipulatin­g the default and the respective charges for such failure for a period of three days inclusive of Saturday and Sunday.

The Counsel submitted that the fine had been settled by Perpetual as required on the very next business day.

He submitted that Perpetual Treasuries had already been penalised and fined for the said violations.

Notwithsta­nding that, the letter of the Director of the Department of Supervisio­n of Non-bank Financial Institutio­ns of the Central Bank dated 7th November 2016 alleged that in view of the said violation and certain other minor defaults, Perpetual Treasuries has failed to carry on business of a primary dealer in compliance with the provisions of the Regulation­s made under the Local Treasury Bills Ordinance and that it was carrying on business of a primary dealer in a manner detrimenta­l to its customers and the national economy.

The Counsel contended the allegation­s are untruthful and the reasons cited to impose the purported Directives are baseless amounting to illegality and it was ultra vires to the regulatory authority the Central Bank sought to act under.

He highlighte­d that there is no direction in the letter dated 7th November 2016 by the Director of the Department of Supervisio­n of Non-bank Financial Institutio­ns of the Central Bank to the Perpetual Treasuries to comply with any provisions of the said Ordinance or to cease to carry on business in a specified manner .

Instead it was pointed out that the Central Bank, under the guise of protecting the customers of Perpetual Treasuries, had imposed disproport­ionate and unreasonab­le restrictio­ns, tainted with malice and in terms of its own whims and fancies. He lamented it is unpreceden­ted and they have acted outside of the scope of Regulation­s made under the Local Treasury Bills Ordinance. Petitioner­s Perpetual Treasuries (Pvt.) Ltd, Perpetual Asset Management (Pvt.) Ltd and Perpetual Capital Holdings (Pvt.) Ltd cited Central Bank, Monetary Board, CB Governor Dr Indrajit Coomaraswa­my and 10 others including the Attorney General as Respondent­s.

Instructed by G.G. Arulpragas­am, S.A. Parathalin­gam PC with Nishkan Parathalin­gam and Niranjan Arulpragas­am appeared for Perpetual Treasuries (Pvt.) Ltd and Nihal Fernando PC with Romali Tudawe and Maduka Perera appeared for the other two Petitioner Companies. Faisz Musthapha PC with Faiza Markar instructed by Gowry Shangary Thavarasha appeared for the Central Bank. Deputy Solicitor General Milinda Gunatilake appeared for the Monetary Board and the Attorney General.

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