Bail affirmed for Weeratunga, Pelpita :

Courts tug-of-war over Rs. 600 m Sil Redi plunder case

The Weeratunga saga

Soon after the government came to power early this year, there was severe criticism that the anti-corruption investigations it initiated were selective and lopsided.

Amid this criticism, law enforcement bodies, including the newly formed Police Financial Crimes Investigations Divisions (FCID) launched inquiries into complaints against some top echelons of the previous government. All parties in the governing alliance as well as Opposition parties such as the JVP supported the investigative process.

One of the important investigations, the FCID launched was the inquiry into alleged misappropriation of funds belonging to the Telecommunications Regulatory Commission (TRC), which came under the purview of former President Mahinda Rajapaksa during the past five years.

Anusha Pelpita, a senior administrative officer, was the Director-General of the TRC while former Secretary to the President Lalith Weeratunga worked very closely with the TRC administration on behalf of the former President.

The main allegation against the TRC was the siphoning off of Rs. 600 million from the TRC and its use to distribute sil redi among Buddhist devotees on Duruthu Poya day - four days before the Presidential election on January 8. Former Secretary to the President, Weeratunga, former TRC Director-General Pelpita and former President’s Secretary on Religious Affairs Ven. Watinapane Somananda Thera are under investigation in connection with this suspected massive misappropriation of public funds.

The FCID concluded initial investigations on the alleged misappropriation several weeks before the last parliamentary election. The usual procedure followed by the FCID in similar cases was to arrest the suspects, produce them before the Magistrate Court and charge them under the Offences Against the Public Property Act. That was why former Economic Development Minister Basil Rajapaksa and former Monitoring MP for the Ministry of External Affairs Sajin Vaas Gunawardena were remanded after the FCID’s initial investigations.

The FCID informed the Attorney General’s Department of the progress of the initial investigations on the TRC case and awaited the Department’s instruction on how to proceed with the case.

Curiously, the Attorney General’s Department, for some obscure reason, did not give the green light for the arrest of the suspects. That was just a few weeks ahead of the parliamentary election and many thought the Attorney General’s Department was ‘soft-pedalling’ the matter, probably due to the fear of its political impact. The incident, needless to say, involved a prominent bhikkhu and a senior state official who had immense clout under the previous administration.

A-G deviates

At that point, there was speculation that the Attorney General was exploring the possibility of directly indicting the suspects of the TRC inquiry in the High Court. There were indications that this was the factor that delayed the law enforcement bodies from arresting the suspects of the TRC inquiry, which involved Weeratunga and Pelpita. Many fingers were pointed at the Attorney General’s Department, the main legal body of the state, over this strange ‘exception’ from the norm in criminal procedure.

Nearly a month after the parliamentary election, on September 14, the A-G filed action in the High Court of Colombo against Weeratunga and Pelpita for misappropriating Rs 600 million of SLTRC funds. It was the first instance where the Attorney General filed a case in the High Court following an FCID investigation.

In the case filed by the Attorney General under the Public Property Act 21, prosecution witnesses including the Elections Commissioner, Mahinda Deshapriya and the former President’s Coordinating Secretary (Religious Affairs), Ven. Vatin?p?né Som?nanda Thera were cited, and 15 Court productions were presented.

The AG submitted that between October 30, 2014 and January 5, 2015, Rs 600 million belonging to the SLTRC had been transferred to account No. 7040016, in the name of ‘President’s Secretary’ at the Bank of Ceylon Taprobane branch. This, the AG charged, had been done in violation of the SLTRC Act No 25 of 1991.

In a major development with regard to the case, Weeratunge and Pelpita, who appeared before Court on notice, were granted bail under strict conditions by the Colombo High Court on Wednesday.

While ordering the release of the accused on cash bail of Rs.100,000 with three sureties of one million rupees each, High Court Judge Sarojini Kusala Weerawardena advised them to strictly adhere to the bail conditions.

The two accused were further ordered to refrain from interfering with witnesses. The Court also barred them from leaving the country and asked them to report to the Financial Crimes Investigation Division (FCID) on the last Sunday of each month. The High Court Judge observed that bail could be cancelled and the accused remanded until the conclusion of the trial if they were found breaching any bail condition.

The two accused in the case pleaded not guilty when the charges filed against them were read out.

President’s Counsel Kalinga Indatissa, appearing for the accused, apprised Court that in this instance the Attorney General had filed direct indictments against the accused without resorting to a magisterial inquiry. However, Senior State Counsel Thusith Mudalige appearing for the A-G maintained that that in accordance with Section 394 of the Criminal Procedure Code the A-G had the power to file direct indictment.

Defence Counsel submitted to Court that the accused’s health condition and their previous records in the public service be considered as exceptional circumstances.

Dramatic turn

Another dramatic development took place on Thursday, when the Police FCID requested the Colombo Additional Magistrate Nishantha Pieris to remove the travel ban imposed on Anusha Pelpita. The FCID, interestingly, made the request a day after the Colombo High Court released the two accused on bail.

While handing out a 44-page judgement over the procedural issues taken by the FCID throughout the case, the Additional Magistrate observed that the FCID has contravened the accepted legal procedure in the country and taken measures not to arrest and produce suspects before the Magistrate’s Court because they had been charged under the Public Property Act.

The Additional Magistrate observed the Attorney General Department should have guided the Police on the correct procedure if the Police was not following it.

The first B report against former Secretary to the President Lalith Weeratunge and former TRC Director General Anusha Pelpita had been filed before the Colombo Additional Magistrate but they were not produced before a Magistrate. However, the Attorney General filed indictments against the accused directly in the Colombo High Court .

Meanwhile, Additional Magistrate Peiris ordered the OIC of Police FCID (Unit 2) to appear in court on November 5 to show cause as to why the suspects were not presented before the Magistrate’s Court.

While delivering his lengthy judgement, the Additional Magistrate observed that in accordance with the provision of the Constitution all persons are equal before the law and entitled to equal protection of the law.

‘Procedural flaws’

He observed that the FCID has neglected the powers and duties vested on them to arrest and produce suspects who could be charged with serious allegations. “Justice should not only be done but should also appear to have been done,” the Magistrate said alluding to the ‘procedural flaws’ on the part of the Attorney General and the Police FCID.

The Additional Magistrate declined to revoke the travel ban imposed against Anusha Pelpita and maintained that he would announce an appropriate order over the matter after inspecting the bail order issued by Colombo High Court.

This was not the first time the Police and the Attorney General’s Department came under criticism for treating certain individuals with kid gloves where anti-corruption investigations were concerned. Civil society organizations and many members of the legal fraternity raised eyebrows over the manner in which the Attorney General proceeded in relation to some cases involving former Defence Secretary Gotabhaya Rajapaksa.

Some parliamentarians of the government and the opposition have raised doubts over the conduct of the Attorney General who was elevated to the position during the tenure of former President Mahinda Rajapaksa. There has been criticism that the Attorney General was deliberately soft-pedalling investigations on some members of the former first family. Such negative remarks even compelled the Attorney General to issue a media statement to justify his actions.

Who is Yuwanjana Wanasundera?

Attorney General Yuvanjana Jawaharlal Wanasundera Wijayatilake, the 28th Attorney General of the country, enrolled as an Attorney-at-Law of the Supreme Court in August 1979. He joined the Attorney General’s Department in 1980 as an acting State Counsel and was later promoted as Senior State Counsel, Deputy Solicitor General, Additional Solicitor General and Solicitor General. This is Wanasundera’s 35th year at the Attorney General’s Department.

During his first six years in the Attorney General’s Department, Wanasundera conducted prosecutions in the High Courts and the Magistrate’s Courts in Colombo as well as the outstations and also appeared for the State in Criminal Appeals before the Court of Criminal Appeal.

He moved to the Civil Division in 1987 and appeared for the State and State Corporations and Statutory Bodies in a wide range of cases in the District Courts throughout the country. He also appeared for cases in the Commercial High Court, in the Court of Appeal in Writ Applications and Civil Appeals and, in the Supreme Court in Fundamental Rights Applications and in cases where the constitutionality of Bills and the interpretation of the Constitution were involved.

In several leading cases, he appeared in the Court of Appeal and the Supreme Court as ‘amicus curiae’. He has also represented the State and State agencies in several important national and international arbitration.

He was admitted as a Solicitor of England and Wales in 1988 and obtained his Master of Laws (LLM) degree in Commercial and Corporate Law from Kings College, London in 1990. He was appointed a President’s Counsel in June 2007, one and a half years after Rajapaksa became the President.

During his career in the Attorney General’s Department, Wanasundera had been involved in the drafting of pleas, advising government departments and Corporations in a variety of matters including local and international contracts, interpretation of Statutes, disciplinary matters and dispute resolution.

It is still a question as to why a senior official with such an impressively varied track record has come under criticism for alleged lapses on the part of his department in crucial cases.

While officers at the Attorney General’s Department who back the Attorney General say that Wanasundera dealt with cases as objectively as possible, some prominent members of the government and civil society groups believe that the Department treats certain people with velvet gloves.

SLFP’s challenge

Barely six months away from Local Government elections, the top rung leaders of the Sri Lanka Freedom Party are now struggling with serious internal divisions over the LG polls.

A sizable proportion of the top rung of the party want the SLFP to contest the election alone, under the leadership of President Maithripala Sirisena.

They are of the firm belief that the UPFA coalition and its minor constituent parties will again piggy back on the SLFP at the election, if the party decides to contest under the UPFA.

The top rung leaders of the party, who hold ministerial portfolios in the national unity government have a hostile attitude towards the minor parties of the UPFA. SLFP General Secretary Duminda Dissanayake openly challenged former President Mahinda Rajapaksa’s leadership credibility at the last parliamentary election by boycotting the inaugural rally of the UPFA, chaired by Rajapaksa. He was among the first group of UPFA members who defected with President Maithripala Sirisena from the UPFA before the last Presidential election.

Today, party insiders say that the new high command, including top brass such as Dissanayake and former President Chandrika Bandaranaike Kumaratunga will reject a coalition with minor parties of the UPFA in the forthcoming local polls.

There are two schools of thought among SLFP parliamentarians over the timeline for the local government elections. One group of SLFP stalwarts want the President to call the local government election ahead of schedule to capitalise on the present political situation.

At this point, the two main political parties, the UNP and the UPFA are working together within the framework of a national unity government and that allows the party to enter into some sort of a power-sharing agreement with the UNP at the local government level. Such an arrangement looks viable at this stage as the two parties still enjoy the honeymoon period of the national unity government with no serious divisions within the ruling camp. They are aware that these dynamics can shift quite rapidly with the passage of time.

A second faction of party stalwarts believe that President Sirisena should push the election back as the present political situation seems disadvantageous to the SLFP, the main stakeholder in the UPFA. It is common knowledge that the overwhelming majority of those who voted for the party did not approve of a national government with the UNP.

Although the top decision making bodies of the party, led by President Sirisena, unanimously supported a national government alliance with the UNP, the grassroots level membership has differing viewpoints over the matter.

“It is true that our voters gave us a strong mandate to function in the Opposition.

But, the party’s Central Committee, after the election, made a strategic decision to enter into a national government with the UNP. The reasons behind the formation of the national unity government should be communicated properly to our grassroots level members who are currently in a state of confusion. This will take some time.

Therefore, a local government election in March will be disadvantageous to the SLFP,” a senior parliamentarian of the party, who backs President Maithripala Sirisena, told the Sunday Observer.

Polls campaign leader

There is another division within the party as to who should lead the SLFP election campaign at the local government polls. While some believe that former President Mahinda Rajapaksa should play an active role in the campaign, others think the time is ripe for President Maithripala Sirisena to come forward and lead the party from the front.

A group of parliamentarians, who met President Sirisena before his visit to New York, posed a question to the President about the party’s plans for the local government election.

Responding to their queries, the President said he was willing to lead the party’s campaign at the local government polls.

But, at the parliamentary election, the majority of local government representatives of the party supported former President Rajapaksa.

Therefore, it is still not clear whether they will accept President Maithripala Sirisena as their campaign leader. President Sirisena’s involvement in the campaign will compel former President Rajapaksa to take a back seat.

However, political pundits believe that the minor parties of the UPFA, the National Freedom Front, Pivithuru Hela Urumaya, Mahajana Eksath Peramuna and Democratic Left Front, will attempt to lure Rajapaksa to lead a new political alliance at the local government polls. Such a scenario, undoubtedly, will bring former President Rajapaksa’s 45-year association with the SLFP to an abrupt end.