Espionage: The great betrayal

CA dismisses writ against findings of Commission of Inquiry on Athurugiriya Safe House Raid

(August 06, Colombo, Sri Lanka Guardian) The Athurugiriya Millennium City Safe House incident which occurred in 2002 was one of the major landmarks in the three decade of ethnic conflict in Sri Lanka. The consequences of the raid at the Safe House by the Police were characterized by some veterans in the media as "the Great Betrayal". Undoubtedly Sri Lanka’s national interest was compromised by this raid.

The Court of Appeal recently dismissed a Writ Application made against the Commission of Inquiry appointed to inquire into the Millennium City Safe House incident. The Application was made by Parakrama Dissanayake, a former Colonel of the Sri Lanka Army against certain findings in the Report of Justice Dharmasiri Jayawickrama, a retired Judge of the Court of Appeal who was appointed by President Chandrika Kumaratunga under the Commission of Inquiry Act No.17 of 1948 to inquire into the incident. The application for the Writ of Certiorari to quash the findings for the Commission against the Petitioner was dismissed by Justice Sriskandarajah.

The Police raided the Safe House operated by the Sri Lanka Army at Athurugiriya on 2nd January 2002, a few weeks after the United National Front Government came into power. The raid resulted in the disclosure of its existence to the media and the public thereby helping the LTTE to acquire knowledge of the personnel involved in the long-range reconnaissance patrol operations (LRRP) that operated from the said Safe House. Consequently persons connected with the long-range patrol were hunted down by the LTTE.

The raid, which was backed by political patronage not only retarded the covert operations but also led to the killing of many informants and civilians who assisted in operations of the army long-range patrol units. The raid exposed the identity of several Army officers who had after years of painstaking planning and sacrifice infiltrated the LTTE controlled areas and executed vitally important operations.

After the raid and the huge public outcry which followed, President Chandrika Kumaratunga appointed a Commission of Inquiry to inquire into the disclosure of the existence of and the raid on the Safe House operated by the Sri Lanka Army at Athurugiriya.

One of the terms referred to the Commission was whether there was any information given by any personnel of the armed forces disclosing the existence of a Safe House at Athurugiriya and if so, by whom, under what circumstances and to whom such disclosures were made.

Accordingly, the Commissioner in his Report stated that there was strong evidence that the Petitioner – Colonel Dissanayake who was Deputy Commandant of the SLMA, Diyathalawa and previously Commander of the Army Military Intelligence Corps (MIC) – had made attempts to obtain the address of the Safe House before the 2001 December General elections and also just a few days before the raid through certain named Army officers. The Commissioner also found the complicity of the Petitioner and Colonel Padmasiri Udugampola in disclosing certain activities of the DMI to the UNP hierarchy before the General Elections of 2001.

In view of the findings of the Commission and the findings of an Army Court of Inquiry convened by the Commander of Army in respect of the raid, President Kumaratunga, in terms of Regulation 39 read with Regulation 37 of the Army Officers’ Service Regulations (Regular Force) 1992, directed the Petitioner to resign his commission. Accordingly, the Petitioner was directed to resign by a letter of the Commander of the Army in 2004.

An instant writ application was filed by Mr. Dissanayake to quash the findings of the Commission of Inquiry against him. He alleged that there were findings against him in the Commissioner’s Report and those findings had led to his commission being recalled by a letter dated 10-03-2004. He contended that the Commission of Inquiry had not followed due procedure by calling for an explanation from the Petitioner and informing him of any charge against him. Thus, it was alleged by the Petitioner that the principle of natural justice had been violated by the Commission. Hence, the Petitioner sought a writ of certiorari quashing the findings of the Commission pertaining to him.

Counsel for the Respondent Mr. Nigel Hatch P.C. in the Objections filed on behalf of the Respondent and in his oral and written submissions raised several objections against the Petition inter alia that the Petition was flawed in that the findings of the Commission which was a mere fact finding body was not amenable to judicial review; that the Petitioner was seeking to quash a decision made by the President which was immune from judicial review; the Petitioner had failed to join necessary parties and that the Petitioner in any event had an alternative remedy of submission of a Redress of Grievance (ROG) to the Secretary Defense; and that the Writ would be futile since the decision of the President would stand even after its issuance. Counsel for the Respondent also reiterated that President Kumaratunga’s direction to the Petitioner to resign his commission was not only based on the findings of the Commission of Inquiry, but also on the findings of a separate Army Court of Inquiry convened by the Commander of Army whose findings were never challenged by the Petitioner.

Moreover, Mr. Nigel Hatch P.C. successfully argued that a Presidential Commission of Inquiry was not authorized to make "decisions" but was a mere fact finding body. Hence, it was argued, that no necessity arose for the Commission either to call for explanations or to inform the Petitioner of any charges against him. Thus, Counsel for the Respondent contended that the allegation of a breach of natural justice was baseless in the instant case.

Justice Sriskandharajah in his judgment stated a Commission of Inquiry did not have legal authority to make binding decisions in relation to the retirement, resignation and removal of the commission of an army officer. The Court, citing previous authority of the Supreme Court of Sri Lanka, stated that a writ of Certiorari would not lie to quash the findings of the Commission of Inquiry.

The Court of Appeal also concluded that even if the findings of the Commission were quashed the decision made by the President will stand valid. The Court of Appeal accordingly determined that issuing a writ of certiorari was futile and dismissed the application.

Romesh De Silva P.C. with Eraj De Silva, Manjuka Fernadopulle and A.A.M. Illiyas appeared for the Petitioner. Nigel Hatch P.C. with P. Abeywickrema and K. Geekiyanage appeared for Justice Jayawickrema the Respondent.
-Sri Lanka Guardian