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"The Sil redi judgment" a plea for its correct

analysis

by a Legal Correspondent-September 23, 2017, 5:50 pm

As a lawyer, I have carefully read and studied the 63-page Judgment of the
Colombo High Court Judge 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 Judgment without reading it. This article
attempts to provide what I think is a correct analysis of the Judgment.

Why it is an excellent Judgement?


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 Presidents
Secretarys 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 Rajapaksa was a candidate seeking election for a third
term. The Elections Commissioner had gazette the Proclamation for the Election
on November 20, 2014 calling for Nominations on December 8, 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. Judge Gihan Kulatungas Judgments have
rarely been appealed from.

Judge Explains the Charges

The High Court Judgment is excellent in many ways. In the Introductory pages of
the 63-page 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 then
quite 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 accused had taken part in a
conspiracy or conspired to commit this crime which was the misappropriation of
Rs.600 million of TRC funds.

Judge Explains Legal Defences Available

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 Rajapaksa 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 Judgment in 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 Prosecution case 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.

Judge sets out the Prosecution Case

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 honorably conducted
for the Attorney -Generals Department by Deputy Solicitor General Mudalige.

According to the Judgment there were about 17 witnesses listed to give evidence
at the trial. However, only 10 were called by the Prosecution. Three of these
witnesses testified that they were the main people who supplied the Sil Redi in
this instance. All of them dealt in the supply of textiles 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 Firoze Hadji Anwer
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
packaged in five-meters lengths with a label placed in each parcel. These labels
were to 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.
Vattinapaha Somananda 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 packages of five meter lengths
of cloth in each 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
Presidents 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 Rajapaks and that he had been entrusted with the task of co-ordinating
the distribution of the 700,000 to 800,000 packs of Sil Redi prior to the
Presidential Election. He 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 pack carried a label which read as
follows:x

Judge Explains How the "Misappropriation" Originated

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
Rajapaksa.
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 Presidents Chief-
of-Staff. But there is no mention or reference to the involvement of Gamini
Senarath in this Sil Redi Prosecution or case. All roads in the Presidential
Secretariat led to Lalith Weeratunga, the Secretary to the President.

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.

Lalith Weeratunga Seeking Rs. 600 million from the TRC

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 is that 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, Estisalat,etc) and it is to
be remitted to the TRC as a 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. Sampath
Amaratunga, the Vice Chancellor Sri Jayewardenapura University, next Mr.
Prasanna de Silva, a Board Member and Mr. S S Sahabandu, 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
Presidents 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 Presidents
approval and the other three members Prof. Sampath Amaratunga, Mr. Prasanna
de Silva, and Mr. S S Sahabandu would not hesitate to act on a request from the
Presidential Secretariat.

In that situation Justice Kulatungas Judgment clearly shows how Lalith


Weeratunga sent a written directive on December 5, 2014 to Anusha Palpita to
remit Rs.600 million to Lalith Weeratungas 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 Weeratunga obtained and authorized for the
purchase and distribution of Sil Redi.

TRC had No Legal Power to give

the Money

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 Redi distribution 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 an 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 (Ms. Gunaratne) 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 Presidents 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
Kulatungas Judgment 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.

Did Weeratunga Blindly

follow Orders?

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 Justice Kulatungas Judgment 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 Presidents directive and not implement it even at the cost 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 Palpitas Dock statement.
Lalith Weeratunga 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 Weeratungas 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
Weeratungas 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.

Weeratunga Did Not Say

He was Compelled

Coming back to the earlier point, nowhere did Lalith Weeratunga say that what he
did was merely to carry out the Presidents 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. In fact, as the Judge remarked at that
time there were Media statements by Lalith Weeratunga which indicated that he
supported the Presidents re-election. In other words Weeratunga had become "A
Political Public Servant" who was very keen on the election of his boss for a third
term. Weeratungas 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
evidence. Also of importance is the evidence of the Election Commissioner
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 writers view Lalith Weeratunga never thought that his boss will lose the
election and therefore the money taken from the TRC could always be repaid by a
Supplementary Estimate and the whole episode would be covered up.

Another, comment about Justice Kulatungas excellent Judgment in this writers


view is that it will become one of the leading Judgments 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 Sil Redi distribution 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 normally occur in the months of
December/January".

A smile may appear on his face when Justice Kulatunga reads this comment he
himself made!

Can an Appeal Succeed?


One cannot predict the arguments that will be put before an Appeal Court. No
doubt Presidents Counsel will appear and no doubt the Attorney Generals
department will defend the judgment and ask that the appeal be dismissed.

In this connection it is significant to note that neither of the two accused


benefited 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 crime?

This is a matter that would be canvassed at before the Appeal Court.

On the other hand if President Rajapaksa was re-elected, both the accused could
enjoy high positions at State expense for themselves and their families. That is
how the political system works!

The other possible 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 may not hold water because the evidence of both
accused at the trial did not support such a view.

As stated earlier any new argument can be taken up at the Appeal to obtain relief
for the accused who are now on conditional bail pending the Appeal. We have to
wait and see.
Posted by Thavam