| by Tassie Seneviratne

( October 26, 2014, Colombo, Sri Lanka Guardian) It is reported that the former CJ Sarath N Silva had made a confession of the fact that he did not give the right judgement in 2005, and that he tendered an apology for his ‘mistake’. The judgement in 2005, referred to, is his judgement in the FR application made by Prime Minister Mahinda Rajapakse to quash the CID investigation against him for allegedly misappropriating Rs 83,000,000/= from the Tsunami Fund which is a public fund, to the ‘Helping Hambantota Fund’ which is a private fund.

Investigations were initiated by the CID under DIG/CID Lionel Goonetillake on the orders of the Attorney General, K.C. Kamalasabayasan on a complaint made by MP Kabir Hashim to the effect that the Prime Minister was siphoning Tsunami Funds into a private fund. Initial inquiries revealed prima facie evidence of misappropriation and the CID filed a B report in the Fort Magistate’s Court (Case No B/1294/5) with the concurrence of the Attorney General. Based on the CID report the court immediately called for details of the several bank accounts involved in the Helping Hambantota episode.

This investigation opened a can of worms. In August 2005 the money was returned after seven months of holding it in a private account, which was further evidence of the alleged misappropriation. Everyone acquainted with the facts of the case was aghast at the judgement of the CJ in the FR application quashing the investigation on the basis that the allegations were false and politically motivated. The complaint may have been politically motivated, but that does not per se make the allegation false.

Moreover, DIG/CID Lionel Gunatillake and the Attorney General K.C. Kamalasabayasan who were responsible for filing the ‘B’ report were both public servants of the highest integrity, who would not have filed the ‘B’ report if there was no prima facie evidence to justify further investigations. The CJ however, not only arbitrarily quashed the investigation but also ordered the following compensations to be paid to Prime Minister Mahinda Rajapakse, the petitioner in the FR application:-

1. MP Kabir Hashim – complainant/informant - Rs 100,000/=
2. IG Police Chandra Fernando – Rs 100,000/=
3. DIG/CID Lionel Gunatillake – Rs 100,000/=
4. State- Rs 200,000/=

It may be noted that the imposition of these compensatory fines was against the Rule of Natural Justice – audi alteram partem, which means no punishment can be meted out to any person without affording that person an opportunity to defend himself. In this case no formal charges were served on these public servants and hence the punishments were arbitrary and in violation of a principle of Natural Justice. There is enough and more law authority to support my contention.

It is unfortunate that lawyers appearing for police officers acquiesced to the arbitrary judgements of this CJ in order to insulate their practice before him. It is only attorney Ms Kishali Pinto-Jayawardene who had the spunk to take him to task for his perverted judgments, in her columns in the Sunday Times.
A mistake is an error of judgement, but a deliberate malversation of justice in an alleged crime against the nation, with a view to unscrupulously enhance ones personal ambitions, is no ‘mistake’. This statement of the Ex CJ has now exposed a string of crimes committed by him and hitherto kept under cover by arbitrary judicial process. On his own admission, besides perjury,

1. He has connived to foist a person facing serious criminal allegations as the Executive President of the country.
2. In the perpetration of the above criminal acts, it would now be clear that the arbitrary imposition of compensatory fines amounts to extortion.
3. It is also revealed that he has committed a heinous crime of extortion against innocent public servants who had performed their duty conscientiously. Should he not be made to pay back the arbitrary fines to the innocent public servants with compensation, apart from any other action deemed fit against him?

( The writer is a retired Senior Superintendent of Police, Sri Lanka)


ARCHIVES FROM AUGUST 2007 TO JANUARY 2015