By A Legal Correspondent
(Lanka-e-News - 26.Sep.2017, 10.30AM) As a lawyer, I have carefully read and re read the 63 pageJudgment of the Colombo High Court Judge Mr. Gihan Kulatunga, in the so called Sil Redi Case. The Judgment is in Sinhalese and so were the proceedings. Some people have expressed erroneous views about the judgement without reading it.
After a trial of over 25 days former Secretary to the President Lalith Weeratunga and former Director General of the Telecommunication Regulatory Commission (TRC) Anusha Palpita were sentenced to three years rigorous imprisonment on being found guilty to the charge of criminal misappropriation of Rs.600 million belonging to the TRC which money had been transferred to the President’s Secretary’s – Account No. 7040016 at the Taprobane Branch of the Bank of Ceylon to be used for distribution of “Sil Redi” during the 2015 Presidential Election campaign where Mahinda Rajapakse was a candidate seeking election for a third term. The Elections Commissioner had gazette the Proclamation for the Election on 20th November 2014calling for Nominations on 8th December 2014.
By all accounts it is an excellent Judgment. Every page of it is relevant to the facts of the case and the evidence and the legal implications. There are no unnecessary comments or remarks by the Judge, which is sometimes found in original Court Judgments delivered by Judges of lesser experience. Mr. Gihan Kulatunga is a highly respected Judge of the highest integrity and judicial independence. His father was a Supreme Court Judge. Justice Gihan Kulatunga’sJudgments have rarely been appealed from and even if appealed they have been upheld. Without disrespect to the Court of Appeal and to the senior lawyers who may appear before it for the two accused who have now lodged an appeal and a few days ago released on conditional bail pending the appeal.It is this correspondent’s view that the Judgment will be upheld.
The High Court Judgment is excellent in many ways. In the Introductory pages of the 63page Judgment, the Judge refers to the three charges against the two accused (Lalith Weeratunga and Anusha Palpita). He outlines the charges very carefully and in an elementary way. Next in pages 3-7 of the Judgment, the Judge outlines the basic principles of the criminal law applicable to the three charges and refers to the relevant sections of our Penal Code. He first starts with section 386 of the Penal Code which is the main charge and which relates to criminal misappropriation of movable property. This case relate to “movable property” in the sense of money. Under section 386 a person who dishonestly misappropriates any moveable property commits a crime as explained under that section. He thenquite rightly refers to other relevant sections of the Penal Code such as sections 21, 22 and 23. Section 21 defines “wrongful gain and wrongful loss”,section 22 defines the meaning of the term “dishonestly” and section 23 explains what is meant by “fraudulently”.
The Judge then goes on to refer to sections 100, 101 and 102 of the Penal Code which deals with the Abetment of a criminal act, because in this case there were two accused and both had allegedly joined together (Abetted each other) in committing the crime. Lastly, the Judge deals with section 113 of the Penal Code. This section relates to Conspiracy to commit a crime. This section becomes relevant because the Prosecution alleged that both Lalith Weeratunga and Anusha Palpita had taken part in aconspiracy or conspired to commit this crime which was the misappropriation of Rs.600 million of TRC funds.
Having set-out the law and legal provisions applicable, Justice Kulatunga in a remarkable manner outlines some of the basic legal principles which are present in our law to guarantee the freedom of any person accused of a crime. The elucidation of these legal principles is more relevant today, because currently the public are saying that those who committed financial crimes under the previous regime of Mahinda Rajapakse have not been charged and convicted of such alleged crimes. This public perception may have induced Justice Kulatunga to set-out in a few pages the right of citizens to the protection of law and the important features that protect their innocence, unless and until they are proved guilty. In that context, Justice Kulatunga devotes about three pages of the Introductory Part of his Judgmentin explaining these salient principles. Firstly, he clearly states that in the case before him the Prosecution must prove their charges beyond all reasonable doubt. If at the end of the Prosecutioncase there is some doubt about the guilt of the accused then they are entitled to be acquitted and go free even without a Judge having to call for any explanation from them.
Secondly, the Judge states that the accused need not give any evidence and no criticism can be made on any accused remaining silent. On the other hand, if the accused does wish to give evidence or make any statement in open Court, he may do so.
Having outlined these principles in the Judgment, the Judge moves on to look at the Prosecution case, the witnesses and the documents and the totality of the Prosecution evidence. The Prosecution was very ably and honourably conducted for the Attorney -General’s Department by the Deputy Solicitor General Mr Mudalige.
According to the Judgment there were about seventeenwitnesses listed to give evidence at the trial. However, only TEN witnesses were called by the Prosecution. Three of these TEN witnesses testified that they were the main people who supplied the Sil Redi for this case. All three of them dealt in the supply of textile material mainly on government and public tenders. They were registered suppliers with the Ministry of Commerce and the Ministry of Trade. There was no problem about any one of these witnesses as regard to their credibility,etc.
The first witness was H. Hettiarachchi, the proprietor of a business called Subhatex. The next supplier called to the witness stand was FirozeHadjiAnwer and was the proprietor of Chiptex textiles and the third supplier called was Advani Yusuf, who also owned a textile firm in Colombo. All three of these textile traders gave evidence to say that they were registered suppliers to the government and that they were asked to tender for white cloth to be used as Sil Redi and be packeted with five (5) meters each and had to place a label in each packet. These labels wasto be supplied to them from a printing establishment in Borella. These textile suppliers were further told that a Buddhist Priest by the name of Rev. VattinapahaSomananda who was a Coordinator working in the Presidential Secretariat will be responsible and will co-ordinate this entire Sil Redi distribution. The ultimate target was about 700,000 to 800,000 packets of 5 meters cloth in each packet to be distributed island wide mainly through Temples prior to the Presidential Election in January 2015. A meter of such Sil Redi was normally to cost about Rs. 165/= but the suppliers had been able to negotiate a lesser price of Rs.150/=.
The evidence supported the view that the Sil Redi distribution will be completed by the month of December 2014. The textile suppliers were to be paid by the President’s Secretary once they had completed their tasks.
The next important evidence that was given was that of Rev. Somananda who stated that he worked at the Presidential Secretariat as a Coordinator to President Rajapakse and that he had been entrusted with the task of co-ordinating the distribution of the 700,000 to 800,000 packets of Sil Redi prior to the Presidential Election andhe was in touch with the textile merchants who were to deliver the Sil Redi parcels to him for distribution. Rev. Somananda and the textile traders admitted and confirmed that in each packet it carried a label which read as follows:
“This is a Religious offering (Daham Pandurak) made by Mahinda Rajapakse in pursuance of Mahinda Chinthanaya policies”. (No doubt the entire label was in Sinhalese.)
Having explained in his Judgment the whole physical operation relating to the distribution of Sil Redi, the learned High Court Judge discusses in his Judgment how the money of Rs.600 million was found for this project. The Presidential Secretariat which was ordering and paying for distribution of the Sil Redi had no funds to meet the cost of this operation. Here, the Senior Accountant of the Presidential Secretariat (one Mr. Gunaratne) had looked into the finances at the Presidential Secretariat and found that it had no money whatsoever to meet the cost of such a Sil Redi distribution. This absence or lack of money had been conveyed to Lalith Weeratunga who was then the Secretary to President Mahinda Rajapakse.
Although no reference whatsoever was made by the Prosecution or by the Judge in this case, the public are aware that there was also another Senior Official in the Presidential Secretariat namely Gamini Senarath who was the President’s Chief-of-Staff. But there is no mention or reference to the involvement of Gamini Senarath in this Sil RediProsecution or case. All the roads in the Presidential Secretariat lead to Lalith Weeratunga, the Secretary to the President.
It is clear from Justice Kulatunga’sJudgment that when Lalith Weeratunga was told that there were no funds for the Sil Redi operation in the Presidential Secretariat, what did he do? The High Court Judge was told by the Prosecution that if the Sil Redi was a normal distribution of the government like say School Books, and there was a short supply of Sil Redi or School Books in the country and the President wanted to rectify such a shortage,the President was entitled and empowered to ask for a Supplementary Estimate from the Treasury. That is the correct and legal way to meet such an emergency requirement.
However, Mr. Lalith Weeratunga did not think in that way or did not act in that way. He himself would have thought of getting the funds from another institution over which the President and he had control. The only obvious institution to him was the Telecommunication Regulatory Commission. Why the TRC?. From its inception in 1996 the Telecommunication Regulatory Commission which is established under the Sri Lanka Telecommunication Act comes under the President. Many Sri Lankans are not aware of this fact. The TRC is a Regulatory Body like the Central Bank which regulates the banking institutions and the Insurance Board which regulates the insurance institutions. The TRC regulates all institutions involved in Radio, TV and Telephones and what is important isthat the TRC gets its funds not from the Treasury but from a CESS, contributed by all institutions regulated by it. When we pay tax on each mobile phone that tax is credited by the mobile phone operators (Dialog, Mobitel, Estisalatetc) and it is to be remitted to the TRC as CESS.
What is significant in the Sil Redi case is that the Minister in charge of the TRC is the President. Even today it is so.
Accordingly, under the TRC Act there are five Board members. The Chairman of the Board is the Secretary of the Ministry in charge of the TRC – automatically Lalith Weeratunga became the Chairman. The Director General is appointed by the Minister, who is the President and Anusha Palpita a former Director of Information of the Government was appointed by the President as Director General TRC and it was Lalith Weeratunga who issued that letter of appointment. Other three members of the TRC under Mahinda Rajapakse were Porf. SampathAmaratunga, the Vice Chancellor Sri Jayewardenapura University, next Mr. Prasanna de Silva, a Board Member and Mr. S SSahabandu, also a Board member. Director General Anusha Palpita is also a Board Member.
From what is stated above it is obvious that the TRC was like the Presidential Secretariat. It was completely under the President and both the Board and its Director General would unhesitatingly abide and follow the instructions from the President’s office. A wish from the Presidential Secretariat would be a command to them. Thus, when Lalith Weeratunga was looking for money for the Sil Redi operation he naturally looked to the TRC where he was the Chairman. Anusha Palpita the Director General had been appointed by him with the President’s approval and the other three members Prof. SampathAmaratunga, Mr. Prasanna de Silva, and Mr. S SSahabandu would not hesitate to act on a request from the Presidential Secretariat.
In that situation Justice Kulatunga’sJudgment clearly shows how Lalith Weeratunga sent a written directive on 5th December 2014 to Anusha Palpita to remit Rs.600 million to Lalith Weeratunga’s account at the Presidential Secretariat for distribution of Sil Redi. On the same day that he got the written directive from his Chairman Lalith Weeratunga, Anusha Palpita sent by electronic transfer the requested sum of Rs.600 million to the account of Lalith Weeratunga held at the Taprobane Branch of the Bank of Ceylon. It was this money of Rs. 600 million totally owned by TRC that Lalith Weeratungaobtained and authorized for the purchase and distribution of Sil Redi.
Next the Judgment clearly shows that the entire request from Lalith Weeratunga to Anusha Palpita of the TRC was wrong. He had no authority to do so. The TRC Act is very clear that its funds can only be used for specific purposes and a remittance of Rs.600 million for a Sil Redidistribution was unlawful and illegal. The TRC is responsible for television, radio and telephones (including mobiles). What has “Sil Redi” got to do with the TRC? Additionally, it is very clear that there was no approval of the TRC Board of Directors for this remittance. Both Weeratunga and Palpita in their evidence before the High court made a feeble attempt to state that this authorization had been approved by the Board by “Circulation of Board Papers”. But this view was not acceptable to the Court. Also the evidence of the TRC Commission Secretary(MsGunaratne) which was given at the trial by the Prosecution discounted any assertion by the accused that the TRC Board had approved this remittance of Rs.600 million to the President’s office. However, as stated earlier the Board could not do so by Statute and the TRC was also not empowered to give donations of any kind.
The other important issue which is evidenced from a careful study of Justice Kulatunga’sJudgment is that Lalith Weeratunga did not try to argue that what he did, namely ordering TRC to remit Rs.600 million for Sil Redi, was because of a directive from the President and therefore, he had no alternative but to obey such a directive of his boss.
Many newspaper Columnists have commented on the Sil Redi case on the basis that a Senior Public Servant (Weeratunga) was compelled to carry out an illegal directive of his superior, namely the President. Accordingly, these same Columnists put forward JusticeKulatunga’sJudgment as a warning to all public servants not to carry out illegal orders. A former Auditor General has also gone on record saying that in this particular Sil Redi case Lalith Weeratunga had the option not to obey the President’s directive and not implement it even at the sake of losing his job.
However, the evidence in this case does not disclose that Lalith Weeratunga took up such a position in his defence. Lalith Weeratunga gave evidence in this case. Here again one or two Columnists have said that he made a Dock statement. A Dock statement is different from giving evidence in the witness box. If an accused chooses to give a Dock statement he cannot be cross-examined and his Dock statement has to be accepted as an explanation from him. According to established judicial views, Dock statements have little evidentiary value. In the Sil Redi case it was Anusha Palpita who gave the Dock statement and the Dock statement was commented on adversely by the Judge because he said that the TRC Board had approved this remittance when in fact the officer of the Commission had earlier stated that there was no such approval and that statement had preceded Palpita’s Dock statement.
LalithWeeratunga did not give a Dock statement, but gave evidence from the witness box and he was cross-examined. Regrettably, for him, the learned Judge was not impressed with Weeratunga’s evidence. The Judge did not go to the extent of saying that Weeratunga told untruths and was a liar. The Judge gave him the benefit of the doubt but concluded that he was not impressed with Lalith Weeratunga’s evidence. This is a scar that Lalith Weeraunga will have to carry even in later years namely, that his evidence did not impress the Trial Judge who can see the demeanour of a witness unlike an Appellate Court Judge who does not see the witness.
Coming back to the earlier point, nowhere did Lalith Weeratunga say that what he did was merely to carry out the President’s orders and therefore he himself is not to blame. Even to consider the legal position of an employee saying that he was compelled by his boss to do a wrong thing does not come into the picture in this case because Weeratunga never said that he was only carrying out orders and that he had no freedom to act on his own. The Prosecution case clearly shows that Lalith Weeratunga acted on his own. Infact, as the Judge remarked at that time there were Media statements by Lalith Weeratunga which indicated that he supported the President’s re election. In other wordsWeeratunga had become “A Political Public Servant” who was very keen on the election of his boss for another term of three years. Weeratunga’s act of directing the sum of Rs.600 million from the TRC was a voluntary act of his and not done by compulsion of the President and to argue that it was involuntary and that he had no option is not supported by his evidance. Also of importance is the evidence of the Election Commissioner Mr. Mahinda Deshapriya who very clearly said that any type of distribution of any sort of gifts or handouts, religious or otherwise on behalf of one candidate was a clear election offence.
In this writer’s view Lalith Weeratunga never thought that his boss will lose the election andtherefore the money taken from the TRC could always be repaid by a Supplementary Estimate and the whole episode be covered up.
Another, comment about Justice Kulatunga’s excellent Judgment in this writer’s view is that it will stand the test of an Appeal and it will become one of the leading Judgment in the country not only for public servants, but also for law students and will find a place in the legal syllabuses on criminal law. What is fascinating about this Judgment is that Justice Kulatunga does not venture into unnecessary comments or remarks. Some Judges fall into this trap. It is this unnecessary or irrelevant remarks which give the cue to Appeal Court Lawyers to attack the Judgment.
This correspondent could only notice two matters where Justice Kulatunga had made a statement not entirely related to the case. First, he appears to have said that there was a culture during the time of the previous regime of President Rajapakse for public servant to obey the wishes and orders of their political superiors.
The other matter is humorous aside at page 30 of his Judgment.The learned Judge could not help but say about this SIlRedi distribution by Lalith Weeratunga in December 2014:-
“In our Society everyone knows that the distribution of Sil Redi occurs during Wesak, Poson or Esala season and it does not formally occur in the months of December/January”.
A smile may appear on his face when Justice Kulatunga reads this comment he himself made !
What are the chances for the appeal? Justice Kulatunga has been very careful to stick to the facts and the evidence - both verbal and documentary. He has avoided the normal judicial impulse of many trial judges to give a sermon in their judgments as to how public servants should react when faced with difficult demands from their political bosses. Bluntly said, it is difficult to fault JusticeKulatunga’s judgment. This correspondent can only think of one possible ground.
Neither of the two accused benefitted financially from this misappropriation. They did not take or get one cent. As their Counsel said they did not take home even one Sil Redi packet. Is such financial gain a requirement of the crime. The better view and the “case-law” says there is no such requirement. Also, if PresidentRajapakse was re-elected, both the accused could enjoy “heavenly” positions at State expenses for themselves and their families. That is how it works! So, it is unlikely an appeal will succeed. The entire country will be surprised if it does!
The other ground for appeal is that both accused, were only obeying orders and had no “wrongful mind” or (mens rea) of their own. They had no option but to comply – especially when such a directive came from the former President!Such a ground will not hold water because the evidence of both accused at the trial did not support such a view. Hence, such an argument will not succeed.
However, one cannot predict the arguments of Presidents Counsel who will appear at the appeal When Arjuna Mahendran the former Governor of our Central Bank was asked by the Presidential “Bond” Commission to give evidence, his Counsel had argued that he technically need not because Mahendran held a Singaporean passport and was therefore not a Sri Lankan citizen etc. One wonders the “moral” logic of such legal advice because it is Mahendran’s signature that so prominently appears on our currency notes!
by (2017-09-26 05:09:21)
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