Mahinda
Rajapakse v. Chandra Fernando and others (the Helping Hambantota
case)
S.C.(FR)
App: No. 387/2005
The
Bench comprised Chief Justice, Sarath N. Silva, Justice Shirani Tilakawardena,
and Justice N.E. Dissanayake.
In
this case Mahinda Rajapakse cited Chandra Fernando IGP, Lionel Gunatilake, DIG,
P. Ampawila, Inspector of Police, Kabir Hashim, MP, and the Attorney General as
Respondents.
Sarath N. Silva, C.J.,
The
Petitioner has been granted leave to proceed on the alleged infringement of his
fundamental right guaranteed by Article 12(1) of the Constitution.
The
allegation of the Petitioner is that the 4th Respondent being a former Minister
and a Member of Parliament representing the United National Party (UNP) a
political party opposed to him made a complaint to the Criminal Investigation
Department of the Police (CID) alleging the commission of an offence of
criminal breach of trust and criminal misappropriation by him, falsely and
maliciously, in order to tarnish his public image and thereby to gain political
advantage at the Presidential Election in which he was due to be the candidate
of the political party in power.
Further,
that the 1st, 2nd, and 3rd Respondents being the Inspector General of Police,
Deputy Inspector General of Police (CID) and an Inspector of the CID forming
part of the executive arm of Government, purported to take action on the said
false complaint and continued an investigation in order to support the
malicious political campaign against him by the UNP, which was in turn actively
assisted by a partisan weekly newspaper that carried a continuous flow of false
information regarding the same matter.
Thus,
the case of the Petitioner is that the executive arm of Government wielding
Police power was made use by his political opponents who were in turn backed by
a partisan newspaper, to besmirch his character and gain undue political
advantage and that such abuse of the legal process of criminal investigation
denied to him the equal protection of the law guaranteed by Article 12(1) of the
Constitution.
This
case is unique since the Petitioner being the then Prime Minister and second
only to the President in the hierarchy of Executive Government, alleged an
abuse of the legal process of criminal investigation at the highest level of
the Police, carried out at the behest of the UNP being a political party in
opposition.
The
matter was supported for leave to proceed and interim relief on 28.09.2005
which was resisted by the Deputy Solicitor General appearing for the State and
President's Counsel for the 4th Respondent. After hearing Counsel, for the
reasons stated in the order, the Court granted leave to proceed and stayed the
investigation pending final determination of the application.
On
9.11.2005 just 9 days before the Presidential Election the 1st, 2nd and 3rd
Respondents filed objections by way of affidavit, claiming that the
investigation was warranted and sought to justify the action taken by the
Police. Their affidavits were given wide publicity in the media. The 4th
Respondent did not file any affidavit or objection.
The
petitioner was elected President and when the case came up for hearing on
17.01.2006, Deputy Solicitor General made a preliminary submission that the
State having considered "further material" submitted by President's Counsel
for the Petitioner decided not to continue with the investigation.
The
"further material" which changed the emphatic stand taken in the
objections that were filed have not been disclosed. It has to be noted that the
Petitioner presented a well documented case on which the Court found that a
strong prima facie case was made out that the investigation was not warranted
and was carried out for the ulterior purpose of gaining political advantage at
the Presidential Election.
The
Police could not have discovered any new material since the investigation was
stayed. Whatever be the reason for the altered position taken by the State, it
is fully consistent with the interim order made by Court.
The Material Facts
They
related to the disbursement of certain donations received in the aftermath of
the tsunami which struck Sri Lanka seriously affecting the coastal area, in
particular the Hambantota District, represented by the Petitioner as a Member
of Parliament.
When
the tsunami struck Sri Lanka the then President was not in the country and the
Petitioner as the Prime Minister had to take charge of the immediate relief
operations. The Petitioner has stated, without any contradiction by the
Respondents, that he set up a special centre for tsunami relief operations
immediately at Temple Trees, being the official residence, under his direct
supervision and guidance immediately after the 26th of December.
A
continuous stream of persons both local and foreign arrived at Temple Tress to
meet him and offered their assistance in the relief work. Donations were
received both in cash and kind.
The
first donations were received on the 27th and since there was no special Bank
Account opened by the Government for tsunami relief operations the Petitioner
directed his Secretary, Lalith Weeratunga to deposit all such donations into
the official bank account of the Secretary and to issue duly signed receipts to
all persons who made donations.
The
action taken by Weeratunga in respect of these donations is revealed in his
Affidavit filed with the original petition. According to which, donations
received mainly by way of cheques were initially deposited in his official
account and since that account contained general funds of the State, these
donations were transferred to a separate account titled "Punarjeewana
Fund".
Some
of the persons making donations made specific requests that their donations be
used for relief work in Hambantota being the area worse affected and
represented by the Petitioner. He made a note of such specific requests and
separated the donations into two sets.
The
donations received specifically for relief in Hambantota were allocated to the
Hambantota Tsunami Disaster Relief Development Program (HTDRDP referred to as
"Helping Hambantota"). The general donations were allocated to the
National Disaster Relief Fund of the Central Bank.
Having
separated the two sets of donations, Weeratunga caused advertisements to be
published on 2.2.2005 in all three languages in the newspapers that have been
produced marked P3, B, C and D. These are full page advertisements in bold
print and contain certain photographs taken at the time the Petitioner received
donations.
It
is necessary for the purpose of this case to set out the manner in which the
donations were separated in the advertisements, giving the names of the
respective donors and the specific amounts donated. The 20 donors who made
specific requests for relief work to be done in Hambantota, as specified in the
advertisement are as follows:
1.
Maliban Biscuit Manufacturies Ltd, Ratmalana Rs. 3,000,000.00
2.
Plan Sri Lanka Country Office, Colombo 5 Rs. 20,628,000.00
3.
H.E. The Ambassador, Korean Embassy Rs. 200,000.00
4.
Sri Padastana Fund Rs. 1,500,000.00
5.
Charmaine Jayatillake - Colombo 4 Rs. 50,000.00
6.
Mrs. I.S.P. Wanigasekera, Colombo 3 Rs. 100,000.00
7.
Rev. Udugama Buddharakkitha Thera Rs. 100,000.00
8.
The Corporate Body of the Buddha Educational Foundation - Taiwan Rs.
3,097,260.00
9.
China Harbour Engineering Co (Group) Rs. 500,000.00
10.
Lanka Bell (Pvt) Ltd, Colombo 1 Rs. 1,000,000.00
11.
Keangam Enterprises Ltd. Battaramulla Rs. 5,000,000.00
12.
Keangam Ceylon (Pvt) Ltd Battaramulla Rs. 100,000.00
13.
B B Energy Asia PTE Ltd Rs. 1,036,598.70
14.
Al Maktoum Foundation UAE Dubai Rs. 10,397,612.00
15.
Japan Sri Lanka National Council - Kalubowila Rs. 249,000.00
16.
Nimal Fernando - Colombo 7 Rs. 80,000.00
17.
ND LEA Consultants Ltd Battaramulla Rs. 100,000.00
18.
Unilever Sri Lanka Ltd - Colombo Rs. 25,000,000.00
19.
Samsung Networks Rs. 9,819,777.00
20.
Chen Hoosu - President, the Chinese People's Association for Friendship With
foreign countries Rs. 1,000,000.00
Total:
Rs. 82,958,247.70
The Donors who did not make any specific request for their
donations to be spent in Hambantota are as follows:
1.
Mrs. Rupa Jayawardena - Colombo 6 Rs. 1,000.00
2.
Mr. Jayaratne Ranasinghe - Gampaha Rs. 2,000.00
3.
Mr. K.D. Kaviratne - Veyangoda Rs. 300.00
4.
Mrs. N.A.D. Kurera, Borella Rs. 5,010.00
5.
Department of Motor Traffic Union Rs. 140,000.00
6.
The Legal Officers of the A.G's Department Rs. 150,000.00
7.
Lanka IOC Ltd, Rs. 20,000,000.00
8.
N.M. Tilakaratne, Colombo 3 Rs. 200.00
9.
French Corner Rs. 5,000,000.00
10.
Officers Welfare Association Sri Jayawardenapura Kotte Municipal Council Rs.
50,000.00
11.
Women's Cricket Association of Sri Lanka Rs. 50,000.00
12.
S.K.S.R. Chandrasekera, Colombo 6 Rs. 100,000.00
13.
Unilak Fashions (Pvt) Ltd - Warakapola Rs. 200,000.00
14.
Millawana Estate Co. Ltd., Rs. 1,000,000.00
15.
Sri Dalada Maliga Fund Rs. 2,500,000.00
16.
Dr. (Mrs) Keerthisinghe - Colpetty Rs. 100,000.00
17.
All Employee of the Central Bank of Sri Lanka Rs. 2,229,087.54
18.
Some of the Employees attached to the Dept. of EPF of the Central Bank of Sri
Lanka Rs. 28,750.00
19.
Rathna Wijesekera and others - Colombo 7 Rs. 1,000.00
20.
J.C.D.S. Jayasinghe - Wattala Rs. 5,000.00
21.
Institution of Engineers of Sri Lanka - Colombo 7 Rs. 150,000.00
22.
Gangasiri Tea Factory - Opatha Rs. 100,000.00
23.
Rev. Akuresse Ariyasagara Thera, Colombo 15 Rs. 3,968.50
24.
Madelgamuwa Sarvodaya Union, Gampaha Rs. 26,870.00
25.
Tilak Gamage - Gampaha Rs. 4,000.00
26.
Pathma Attanayake - Italy Rs. 25,000.00
27.
Sri Sumangala Daham Pasala, Gonapola Rs. 51,510.00
28.
Mrs S. Wijesekera, Hungama Rs. 10,000.00
29.
300 Video Center Inc NewYork Rs. 294,000.00
30.
Mrs N. Wijetilake, Colombo 3 Rs. 18,500.00
31.
A. K. Kandappah - Colombo 3 Rs. 687,936.00
32.
Employees of Sri Ramco Lanka (Pvt) Ltd Rs. 28,273.00
Total:
Rs. 28,363,135.04
What
is relevant to this case is the disbursement of the first set of donations
identified by donors for relief work to be undertaken in Hambantota.
The
fact that the donors specifically requested their donations be used for
Hambantota tsunami disaster relief is stated in bold letters in the
advertisements published by Weeratunga very early in February 2005 well before
any controversy had arisen regarding the matter, Weeratunga has stated that no
objections were received from any of the donors to the well publicized action
taken by him to allocate these donations to the Hambantota Tsunami Disaster
Relief Development Program (HTDRDP - "Helping Hambantota" Account).
A
separate account was opened at the Standard Chartered Bank, Rajagiriya under
the title Hambantota Tsunami Disaster Relief of Development Program (HDTDRDP)
on 12.1.2005.
Weeratunga
decided that the Programme should be implemented by the Rajapakse Memorial
Educational and Social Service Fund - Rajapakse Fund - established by Act No.
23 of 1998.
The
"Helping Hambantota" programme commenced on 19.1.2005 as disclosed in
the full page publication (P3H) which gives details of the New Township
Development for re-settlement of Tsunami victims. Other donations that had been
directly received for tsunami relief by the Rajapakse Fund were also credited
to the same Account.
Weeratunga
set up a separate Management Committee chaired by him including Mr. Rienzie
Wijayatilake of the Hatton National Bank, a Chartered Accountant of a Public
Corporation and the Personal Secretary to the Prime Minister to directly
supervise the disbursement of the Rs. 82.9 million received from the 20 Donors
referred to above.
He
also issued "Guidelines dated 31.01.2005 (P3J) to the Accountant of the
"Helping Hambantota" Programme as to the manner in which
disbursements could be made from this sum of Rs. 82.9 million. Guideline No. 4
reads as follows:
"Payment
should be made only after successful completion of a project/an activity and/or
service or on receipt of the goods in good condition. A certificate to that
effect should be attached to the voucher."
The
action thus taken was also notified by the Petitioner to the Cabinet of
Ministers by a Note dated 2.2.2005 (P3Q). Further, on 3.2.2005 Weeratunga wrote
to the Deputy Secretary to the Treasury notifying the transfer of the said sum
of money Rs. 82.9 million to HDTDRDP ('Helping Hambantota') Account and stating
specifically that sums would not be withdrawn from that account until formal
approval of the Treasury is obtained (P3S).
On
3.2.2005, Weeratunga received a request from the Rajapakse Foundation for the
disbursement of certain money for rehabilitation work at Hambantota. Weeratunga
replied by letter dated 7.2.2005 (P3T) that disbursement cannot be made out of
the said sum of Rs. 82.9 Million until the Management Committee is functional
and that the rehabilitation work should be undertaken with funds directly
received by the Rajapakse Foundation.
This
action reveals the proper compliance with the disbursements arrangements put in
place by Weeratunga.
Thus
it is clear that the Petitioner and his Secretary dealt with the donations that
were received with meticulous care, notifying the public in detail of the
action taken and thereafter notifying all organs of Government, including
Cabinet of Ministers and the Treasury. Disbursement could be made in terms of
the Guidelines that were issued only with the prior approval of the Management
Committee and the Treasury.
In
fact no disbursements were made out of the said sum of Rs. 82.9 Million since
it was intended to be used only to reimburse construction and other costs that
have been incurred in terms of Guideline No. 4 referred to above.
In
view of this delay in disbursements, Weeratunga decided to credit this amount
in the same Bank to a call deposit in favour of HDTRDP, so that the money would
earn interest. Thereafter the entire sum was credited to the account in the
Central Bank due to the adverse publicity, that would be referred to later.
The
operation of this account has been transparent which is manifest on a simple
perusal of the statement issued by the Standard Chartered Bank produced by the
D.I.G. (CID) himself marked 2R6. None of the Respondent made an allegation that
any withdrawal was made from the said sum of Rs. 82.9 Million either by the
petitioner or by Weeratunga.
Nor
were there any suggestion of additional measures that could possibly have been
taken by the Petitioner of Weeratunga to ensure that this money is properly
utilized for the purpose intended by the donors. In fact no questions were
raised nor any allegations made regarding the matter until the next set of
events referred to hereafter which took place months later, in July 2005.
THE
IMPENDING NOMINATION OF THE PETITIONER, ADVERSE PUBLICITY AND COMMENCEMENT OF
INVESTIGATIONS BY THE POLICE
The
next set of events to be considered by Court relates to the month of July 2005,
commencing with certain publications in a Sunday newspaper alleging
misappropriation of the said funds by the Petitioner. Weeratunga has stated in
his affidavit that the Sunday Leader of 3.7.2005 published this matter for the
first time which was followed up by continuous publications in the Sunday
Leader itself and its sister paper in Sinhala "Irudina".
The
publications that have been produced alleged inter alia, that funds received by
the Prime Minister's office have been credited to a private account by the
Prime Minister and thereby the offence of criminal breach of trust has been
committed by him.
The
Petitioner's case is that these publications were intended to discredit him
prior to the meeting of the Central Committee of the Sri Lanka Freedom Party
(SLFP) at which he was to be nominated as a candidate of the Party for the next
Presidential Election. The meeting of the Central Committee was scheduled for
26.7.2005.
On
18.7.2005 a week prior to Central Committee Meeting, Police investigations
commenced purportedly on a complaint of the 4th Respondent alleging that the
Petitioner committed criminal breach of trust in respect of tsunami relief
money by transferring such money to a private account.
It
is important to note that the 4th Respondent did not take the course available
to him in terms of Section 109 of the Code of Criminal Procedure Act
(provisions of which would be adverted later) to initiate a criminal
investigation by making a complaint at a Police Station. Instead, the 1st and
2nd Respondents state that a written complaint was "received" at the
Police Headquarters which is not a Police Station.
Since
the 4th Respondent did not avail of the normal procedure provided for in the
law, the circumstances in which an investigation was thus commenced require
close scrutiny. The case of the Petitioner is that he was denied the equal
protection of the law by the commencement of the criminal investigation, its
continuance and filing of the "B" Reports in the Magistrate's Court,
Fort.
The
4th Respondent has not filed any affidavit or papers to contradict the specific
allegation made by the Petitioner that his complaint of criminal breach of
trust and misappropriation is totally false and malicious and made for a
collateral purpose.
The
Petitioner has made further allegations that the 4th Respondent had no locus
standi to make a complaint since he had not disclosed any interest in the
matter either as a donor or as an intended recipient and that the complaint was
made maliciously on the eve of his nomination as the Presidential candidate of
the SLFP as an integral part of a well orchestrated campaign of the U.N.P. to
tarnish his image in the eyes of his Party and the electors of the country.
These
serious allegations have not been controverted by the 4th Respondent although
he was given an opportunity to file objections. For reasons best known to the
4th Respondent he has chose to remain silent in the face of serious allegations
of malicious institution of criminal investigations.
The
affidavits of the 1st and 2nd Respondents filed as noted above 9 days before
the Presidential Election do not refer directly to any visit of the 4th
Respondent to the Police Headquarters.
The
2nd Respondent being the Deputy Inspector General of Police (CID) has stated
that on 18.7.2005, a written complaint of the 4th Respondent alleging
misappropriation of tsunami relief funds and requesting an impartial
investigation "was received at the Police Headquarters".
He
follows up by stating that "a certified copy of the said letter along with
certified copies of the minutes made on the relevant file at Police
Headquarters are annexed hereto marked 2R1" (Paragraph 5 of the D.I.G.'s
affidavit; underlined by me).
This
averment indicates that 2R1 is a letter written by the 4th Respondent and that
the rest of the document contains minutes made at the Police Headquarters in
the file relevant to the letter. If reflects probably what actually took place.
The
4th Respondent would have given a letter at the Police Headquarters, written in
English on a letterhead, as in the case of a subsequent letter written by him
and produced marked 2R2 and minutes would have been made at the Police
Headquarters as to the action taken on the letter.
It
is indeed strange and false to the extent of being ridiculous, that the
document in fact produced marked 2R1 as referred to in paragraph 5 of the
D.I.G's affidavit is not a letter written by the 4th Respondent. The rest of
the document does not contain any "minutes made on the relevant file at
the Police Headquarters." Instead, the top portion of page 1 of 2RI is
typewritten in English and reads as follows:
Police
Headquarters
Colombo
1- 18th July 2005
This
is to state that I have taken charge a written complaint handed over by Hon.
Kabir Hashim, Member of Parliament, on behalf of the United National Party
today (18.07.2005) at 13.20 hrs at Police Headquarters to be investigated by
the CID and to take appropriate legal action.
(J.
A. K. Mark) Assistant Superintendent of Police Criminal Investigation
Department"
The
contents of the note do not make any sense. The identity of the officer at the
Police Headquarters who received the written complaint of the 4th Respondent is
not revealed. Nor, does it shed light as to the officer at the Police
Headquarters who made the all important decision that the complaint against the
Prime Minister should be investigated by the CID even before a first complaint
was recorded as required by Section 109 of the Code of Criminal Procedure Act.
Some
meaning could be ascribed to this cryptic note from the minute written by ASP
Mark immediately beneath it. It states that on the instructions of the DIG (2nd
Respondent) he met the Staff DIG to IGP and took charge of a written complaint
handed over by Kabir Hashim MP, (4th Respondent). It further states as follows:
"I
have given him a receipt of acknowledgment"
Thus
it appears that the note bearing the heading "Police Headquarters"
was typed there as a receipt of acknowledgement given by ASP Mark. If so a
question arises as to how ASP Mark brought back the original of the receipt
given by him back to the CID and to make a minute on it.
The
next minute on 2R1 is by the DIG addressed to "DCI" and it reads as
follows:
"As
instructed by the Hon. A.G. when we met him today (18.7.05) at 16.15. Please
have the statement of Mr. Kabir Hashim MP, recorded and thereafter the
statement of the Secretary to the Hon. Prime Minister, for report on
22.7.05."
If
this be true, the sequence of events on the 18th afternoon would be as follows:
ASP Mark went from the CID to the Police Headquarters at 1.15 p.m. and took
charge of a written complaint handed over by the 4th Respondent.
He
returned to CID and made a minute to the 2nd Respondent who in turn rushed to
the A.G. whom he met at 4.15. Armed with the advice to investigate, the 2nd
Respondent returned to the CID that evening. Thereafter, minutes have been made
by officers at three levels of the CID, each instructing his subordinate to
investigate.
Minutes
have been made to fill up the entirety of the reverse of the page. Strangely
all the minutes are dated 18.7.2005. One gets the inescapable impression that
CID officials at 4 levels of the hierarchy were all waiting that evening as it
were with their pens in hand simply to make a minute on this document.
These
Senior Police Officers seem to have forgotten their first lesson, that a
criminal investigation ordinarily commences with a first complaint. In this
instance the whole drama had been enacted even before the first complaint was recorded.
The
4th Respondent who should have made the first complaint at a Police Station
seems to have wielded magical power to get the State machinery at the highest
level moving at break-neck speed to commence a criminal investigation involving
the Petitioner, prior to the meeting of the Central Committee of the SLFP
scheduled for the 26th. The only conclusion to be drawn on a perusal of
document 2R1 is that the entirety of it has been fabricated.
The
truth has unwittingly crept into the last sentence in paragraph 5 of the DIG's
affidavit, which refers to a letter written by the 4th Respondent and a file
containing minutes made at the Police Headquarters. The minutes would have
disclosed the action taken on receipt of the 4th Respondent's letter at the Police
Headquarters.
As
to who took the decision that the matter should be investigated by the CID and
at whose behest such a decision was taken to cause an investigation against the
Prime Minister. Ordinarily a decision that an offence should be investigated by
the CID is taken by the IGP himself. In the circumstances of this case such a
decision would necessarily have to be taken by the IGP.
The
4th Respondent by himself may not have had the magical power to move the State
machinery at the highest level, involving the Police Headquarters - CID -
A.G.'s Department, all in one afternoon in an operation directed against the
Prime Minister. The finger may point to a higher authority. These matters would
have been revealed if the "minutes made on the relevant file at Police
Headquarters" were in fact produced as stated in the last sentence of
paragraph 5.
Further,
a serious question was raised by Court at the time the case was supported for
leave to proceed as to the basis on which the investigation commenced. An
investigation at the highest level could not have lawfully commenced on a
letter.
That
by itself would have established the Petitioner's case. Therefore, it appears
that the letter was substituted with a written complaint and the minutes at the
Police Headquarters were substituted with the fabricated document 2R1. The
substitution is revealed on a careful reading of paragraph 5 of the DIG's
affidavit which is reproduced below:
"By
way of further answer I respectfully state that a written complaint dated the
18th July 2005 was received at the Police Headquarters, signed, by Mr. Kabir
Hashim. Member of Parliament, alleging misappropriation of Tsunami Relief
Funds, and requesting an impartial investigation. A certified copy of the said
letter along with certified copies of the minutes made on the relevant file at
Police Headquarters are annexed hereto marked 2R1."
The
first sentence refers to a "written complaint", whereas the second
sentence refers to a "letter". There is a manifest contradiction. It
appears that in the first sentence too the reference was to a
"letter". In which event the paragraph would have made sense,
whatever be the legal consequences.
When
the substitution was made the person typing the affidavit on the word processor
failed to substitute the phrase "minutes made on the relevant file at the
Police Headquarters", with the phrase "minutes made on the relevant
file at the CID" to fall in line with the fabricated set of minutes now
appearing in document 2R1 dealt with in the preceding section of the judgment.
This
has resulted in a jumble of prevarication regrettably done at the highest level
of the Police to be presented to highest Court in the country affecting the
person holding the post of Prime Minister.
Reverting
to the narrative of events. I have to note that the objective of the exercise
of the UNP represented by the 4th Respondent was achieved. The statement of
Weeratunga was recorded on 22.7.2005 being a Friday enabling the Sunday
newspaper to proclaim in a bold headline "CID goes to TEMPLE TREES"
as submitted by President's Counsel for the Petitioner.
The
stage was thus set for the Petitioner's candidature at the election, which was
due to be announced at Central Committee meeting scheduled for the 26th, to
commence in a cloud of suspicion of the Petitioner defrauding tsunami
donations.
The
case for the Petitioner is that this background was falsely and wrongfully
created to enable his opponent being the leader of the UNP to build up a
campaign platform as a "person who had not stolen tsunami donations."
The Petitioner has supported this averment with photographs of banners and
posters displayed in public places.
WRITTEN
COMPLAINT AND RECORDED COMPLAINT OF THE 4TH RESPONDENT
The
1st and 2nd Respondents stated that a written complaint was received at the
Police Headquarters from the 4th Respondent. The 1st Respondent has not
identified any document as the written complaint, whereas the 2nd Respondent
has purported to produce a certified copy of the written complaint in his averment
5 of the affidavit, which is demonstrably false as revealed in the preceding
analysis.
An
examination of the document itself adds to the falsity of the averments in
paragraph 5. The purported written complaint consists of 2 typewritten pages in
Sinhala annexed to the page containing minutes referred to above. It is not
typed on a letterhead of the 4th Respondent. The typed section does not contain
the name and address of the 4th Respondent as the person making the statement
in Sinhala. At the very top of page 1 a sentence has been written as follows:
"Complaint
made on behalf of the United National Party by people of criminal breach of
trust committed in respect of tsunami relief funds."
The
word "People" has been scored off. When questioned by Court, neither
the Deputy Solicitor General nor President's Counsel for 4th Respondent could
inform Court as to who wrote that sentence. Contents below the sentence are
typical of a statement recorded by the Police with the correct technical terms
for criminal breach of trust and criminal misappropriation.
It
contains details of account numbers, cheque numbers, amounts and so on. When
contrasted with the well documented version of Weeratunga, as to the manner in
which the donations have been dealt with, this document is an abridged version
in which all the safeguards taken by Weeratunga to ensure that the donations
are properly utilized have been omitted.
The
vital steps taken by Weeratunga to separate the donations and to give ample
public notice of the separation are not mentioned. There is no reference to the
commencement of the Helping Hambantota Programme on 19.01.2005 for which wide
publicity was given.
Similarly
there is no reference to the Management Committee established to supervise the
expenditure, Guidelines to the Accountant, the Note to the Cabinet of Ministers
and the notification to the Treasury.
Reading
through this document the impression is clearly formed that the information has
been carefully culled omitting whatever was in favour of the Petitioner and
Weeratunga, leading to the final sentence that the Petitioner had committed
criminal misappropriation and that Weeratunga and the Accountant S. Subasinghe
aided and abetted him to commit the fraud.
It
is clearly beyond the capacity of the 4th Respondent to write out this
statement. In fairness to him he has not endeavoured to submit a (false)
affidavit claiming that he wrote the statement. At the end of the document the
4th Respondent has written neatly in English "seen today" and placed
his signature. That is probably his only contact with the statement. He saw it
and signed it.
If
in fact this document was handed over at the Police Headquarters as claimed,
following the invariable practice in all Government Departments at least a date
stamp would have been placed on it. Strangely, this document does not bear a
date stamp or any endorsement of any officer to authenticate its receipt at the
Police Headquarters.
The
document has materialized from the air to serve a very useful purpose of
justifying the commencement of the investigation on the 18th. In terms of
Section 109 of the Code of Criminal Procedure Act, to which reference would be
made presently an investigation could commence on an information given in
writing.
In
order to satisfy that legal requirement that the letter of the 4th Respondent
was suppressed and a carefully culled out statement to implicate not only the
Petitioner but also his Secretary and Accountant was brought forth, resulting
in a fiasco of fabrication as revealed in the preceding analysis.
The
statement of the 4th Respondent is purported to have been recorded on 19/7/2005
(2R4). It is noted in 2R4 that he arrived at the CID office with 3 other MPs of
the same Party and an Attorney-at-Law.
The
statement running into three type-written pages in Sinhala contains several
account numbers and amounts and so on relevant to the action taken by
Weeratunga. The statement has been put together following the same methodology
as in the written complaint referred to above, omitting all references to the
relevant measures taken by Weeratunga to ensure a proper withdrawal of the
donations that have been received.
It
is not recorded in the statement that the 4th Respondent gave all the specific
details with reference to any documents in his possession. In normal
circumstances where a person gives information with regard to an alleged fraud
a Note would be made of the documents in his possession and on the document
itself or a copy thereof would be taken charge of by the officer and initialled
to ensure authenticity.
In
this instance no such record has been made and no document whatsoever has been
produced by the 4th Respondent. When perusing the statement one forms the
impression that the 4th Respondent had all the information bottled up in his
memory and poured forth the details to the officer who simply recorded the
same. This is a mostly unlikely scenario.
When
questioned about this matter President's Counsel for the 4th Respondent
submitted that all the information in the statement were infact contained in
the Sunday newspaper.
If
so, the 4th Respondent without going through the hassle of reading out the
contents of the newspaper to the officer, could have conveniently asked the
officer to read the newspaper himself. On the contrary, it appears from the
statement that the 4th Respondent did not even have the newspaper with him.
In
an early sentence of the statement he has stated that as far as he could recall
this matter received publicity in the Sunday Leader newspapers of 3.7.2005 and
10.7.2005. If infact the 4th Respondent had even the newspapers with him as
submitted by his Counsel, he would have been able to give the dates of the
newspapers with a greater degree of precision.
The
only conclusion to be drawn from a perusal of this statement and the total lack
of documents to substantiate the details and figures contained in the statement
is that, the CID secured the carefully sifted information from some other
source and recorded it in the form of a statement which was signed by the 4th
Respondent, as in the case of pervious document referred to above.
Ironically,
the language used in both documents is similar. The key similarity is in the
concluding portion that the offences of criminal breach of trust and criminal
misappropriation have been committed by the Petitioner and that he has been
aided and abetted in this matter by the Secretary Weeratunga and the Accountant
Subasinghe.
At
this point I have to deal with the law relevant to the recording of an
information given to the Police on the basis of which the Police may lawfully
commence investigations. Part V of the Code of Criminal Procedure Act No. 15 of
1979 is titled "Investigation of offenses" Section 109 (1) of the
Code being the first section regarding investigations reads as follows:
"Even
information relating to the commission of an offence may be given orally or in
writing to a police officer or inquirer."
The
information which thus received in a criminal investigation is ordinarily
referred to as the first information. The importance of the first information
is stated in the Sohoni's. The Code of Criminal Procedure of India in reference
to the corresponding provision in Section 154 of the Indian Code which relates
to the investigation of cognizable offenses (Sohoni's Code of Criminal Procedure
1973 - Vol. II, page 1416) - The commentary reads as follows:
"The
information on which the Police Officer is expected to act must be authentic;
in other words, the information must be capable of being traced to a specific
individual who would take the responsibility for the same so that should the
information subsequently turn out to be false, the informant may be proceeded
against.
The
information must be sufficiently definite and clear enough to suspect that a
cognisable offence had been committed. Therefore, vague information cannot
constitute a first information report."
And
a further portion of the commentary in page 1417 reads as follows:
"A
first Information Report is an important document even though it is not a
substantive piece of evidence. Its prompt lodging lends credence to the
prosecution version and diminished the possibility of a coloured version being
put up by the complainant in the report.
It
is for this reason that the Courts view with concern in the lodging of the
F.L.R. Law provides for the time and date of the lodging of the F.L.R. to be
recorded on the register and that record serves as an internal check about the
promptness with which the F.L.R. was lodged.
The
prompt lodging of the F.L.R. to a great extent brings out the spontaneous
version of the occurrence and rules out the possibility of a coloured and
thought-out version being put up."
The
commentary notes the significance of the first information in the process of a
criminal investigation. This information leads to the investigation by the
Police being an exercise of the coercive power of the State leading to the
arrest, detention and prosecution of the offender.
In
view of the serious impact of the process on the person who is suspected to
have committed the offence,l the provision of the Code should be duly complied
in the process of criminal investigation. It is incumbent on the Police officer
receiving the information to firstly satisfy himself whether there is an
offence committed.
In
this instance the information is in regard to donations that had been received
by the Petitioner. It is clear even on the carefully sifted information
contained in the statement that is said to have been recorded from the 4th
Respondent, that the entirety of the donations received were in an account in
the Standard Chartered Bank. Therefore the property in respect of which the
offence is said to have been committed was yet intact in an identifiable
account.
Further,
it is clear even from that statement that the money was yet within the control
primarily of the Secretary to the Prime Minister, being a Senior Public
Servant. In the circumstances, prima facie there was no information to warrant
the commencement of an investigation.
On
the other hand the CID would necessarily have known the political climate which
was developing and the impending nomination of the Petitioner as a candidate at
the Presidential election that was due.
Therefore
it was incumbent on the CID to ensure that the process of criminal
investigation is not made use of to advance the cause of any one party in a
political tussle. The matter could have been easily concluded by verifying the
safeguards that have been carefully taken by Weeratunga as Secretary to the
Prime Minister.
On
14.9.2005, the CID purported to file a "B" Report in the Magistrates
Court, Fort - B/1294/2005). At the top of the report it is stated that an order
is sought from Court to assist the investigation into the offence of criminal
misappropriation committed in respect of a sum of Rs. 82,958,247/70 received by
the Government as tsunami assistance and deposited into a private account
bearing the title "Helping Hambantota".
The
first two pages of the Report contain information from the 4th Respondent's
statement which as noted above was hearsay and not substantiated by any
document that was produced by him. This is followed by a brief account of
Weeratunga's statement whereas Weeratunga's statement runs into several pages
and gives a full account of the entire matter with reference to documents that
were produced.
The
Report significantly does not state as to the basis on which the investigation
is being continued when Weeratunga's statement supported by documents produced
by him clearly reveal that every step had been taken to ensure that the
donations received would be property utilized.
It
is clear that the "B" Report has been filed for the objective of
continuing with the investigations now with the sanction of the court which
would in turn advance the political motivation of the exercise initiated by the
4th Respondent.
The
misleading title typed at the very top of the Report is tended to create the
public impression that the Petitioner has committed misappropriation of tsunami
donations.
I
am of the view that very commencement of the investigation on the basis of
totally hearsay information without any supporting documentary evidence is
contrary to the provisions of Section 109(1) of the Code of Criminal Procedure
Act No. 15 of 1979. The CID has failed to check on the basic premise, whether
infact an offence has been committed in a situation where admittedly the money
in respect of which the offence is said to have been committed was securely
lying in deposit in a Bank.
Neither
the 4th Respondent nor the UNP whom he sought to represent made any donation of
money to the Petitioner. None of the donors had made any complaint with regard
to the action taken by the Petitioner or his Secretary. The 4th Respondent
availed of the provisions of the Code of Criminal Procedure Act in a matter
that he was not even remotely interested solely for the purpose of gaining
political advantage to his Party.
The
statement of the 4th Respondent do not satisfy any of the attributes of
authenticity, spontaneity and promptness emphasized in the Commentary by
Sohoni, cited above. On the contrary the findings on this judgment establish
the contention of the Petitioner that the statement is only a repetition of the
canard published in the Sunday newspaper. Therefore the purported commencement
and continuance of the criminal investigation is not warranted by the
provisions of the Code.
On
28.09.2005 being the very day on which this application was supported for leave
to proceed, a further Report was filed by the CID in the Magistrate's Court. In
this report the CID has sought an order from the Magistrate to get particulars
from People's Bank Account in Tangalle.
It
is seen that this account has no connection whatsoever to the donations
received by the Petitioner and deposited by Weeratunga in the Standard
Chartered Bank at Rajagiriya.
The
only explanation for this conduct on the part of the CID is that it was done
solely for the purpose of keeping the matter in the public eye and purporting
to continue investigations in which the Petitioner is accused of committing an
offence of criminal breach of trust and criminal misappropriation.
The
record of the Magistrate Court which was called for by this Court reveals that
on 28.9.2005, Counsel appearing at the Magistrates Court representing the 4th
Respondent submitted that the persons who committed the offences are known and
that they should be named by the CID as suspects.
That
their statements should be recorded and should be produced as suspects in the
Magistrate Court. The clear implication of these submissions made on behalf of
the 4th Respondent is that the Petitioner's statement should be recorded and he
should be named as a suspect and produced in the Magistrates Court (The
submission of Upul Jayasooriya - pages 21 to 23 of the M.C. Record).
A
perusal of the proceedings in the Magistrates Court clearly support the genuine
fear entertained by the Petitioner that the investigation would unlawfully and
maliciously be continued leading to the arrest of the Petitioner and/or his
Secretary.
The
4th Respondent representing the UNP took concerted action with one set of
Counsel in the Magistrates Court moving for arrest of the 'suspects' and
another set of Counsel in this Court vehemently resisting the grant of interim
relief.
On
the basis of the preceding analysis I would summarise the findings as follows:
i)
the donations that were received by the Petitioner immediately after the
tsunami struck Sri Lanka, commencing from or about 27.12.2004 have been taken
charge of by his Secretary who issued receipts to each of the donors;
ii)
the Secretary separated the donations received on the basis of the specific
requests made by the donors and the donations to be used for tsunami relief
work at Hambantota were deposited by him in a special account opened at the
Standard Chartered Bank at Rajagiriya. These donations were to be used to
relief work done through HDTRP (Helping Hambantota Program) to be implemented
by the Rajapakse Foundation;
iii)
The Secretary made careful arrangements to ensure that the donations are
actually used for relief work done at Hambantota by -
a)
giving specific guidelines to the Accountant;
b)
establishing a Management Committee to authorize every disbursement;
c)
notifying the Treasury;
d)
laying down a requirement that the approval of the Treasury would be obtained
for every disbursement;
iv)
The Petitioner on his part submitted a note to the Cabinet setting out the
action taken by him and the Secretary to ensure that the donations are properly
utilized;
v)
No disbursements were infact made from the said donations that remained in a
deposit account at the same bank at the time the adverse publicity campaign
commenced in July;
vi)
The adverse publicity campaign was designed to tarnish the image of the
Petitioner and besmirch his character in the eyes of his Party and the public
as alleged by the Petitioner.
vii)
The 4th Respondent had no personal interest in the matter and has acted on
behalf of the UNP in order to get political advantage at the impending election
campaign and to portray the image of the leader of the UNP as being honest in
contrast to the Petitioner.
viii)
That action on the part of the Police commenced without any basis and
unlawfully, purportedly on a letter given by the 4th Respondent to the Police
Headquarters, being a process in complete violation of the requirements of Section
109 of the Code of Criminal Procedure Act No. 15 of 1979; The documents
produced in Court by the second Respondent marked 2RI have been fabricated
specifically for the purpose of being produced to justify the commencement of
criminal investigation in the matter;
ix)
The "B" Report was filed without any lawful basis, for the purpose or
giving publicity to a purported criminal investigation against the Petitioner;
x)
The second "B" Report filed on the very day this application was
supported enabled Counsel representing the 4th Respondent to submit to Court
for a continuance of the illegal action by arresting and producing the
Petitioner in Court as a suspect on the allegation of having committed criminal
breach of trust or misappropriation of tsunami donations.
On
the basis of the foregoing I am of the view that the Petitioner has been denied
the equal protection of law guaranteed to him by Article 12 (1) of the
Constitution by the unlawful commencement of the criminal investigation by the
CID purportedly on the basis of the complaint of the 4th Respondent which was
not supported by any admissible oral or documentary evidence.
The
infringement continued when the CID proceeded with the investigation in the
face of documentary evidence produced by Weeratunga which clearly disclosed
that no offence whatsoever had been committed in respect of the said sum of Rs.
82.9 million received as tsunami donations by the Petitioner.
The
equal protection of the law guaranteed to every person by Article 12 (1) of the
Constitution is an assurance that the commencement and continuance of a
criminal investigation being a part of the coercive power of the State be
exercised lawfully, reasonably and only for the purpose of investigating an
offence that has been committed.
This
is the due process of law guaranteed to every person affected by the
commencement and continuance of a criminal investigation. Any resort to a
criminal investigation for the ulterior objective of gaining personal or
political advantage or to besmirch the character of any person strikes at the
very root of the due process of law guaranteed by Article 12 (1).
The
facts as analysed in this judgement clearly establish the infringement of the
Petitioner's fundamental right guaranteed by Article 12 (1) of the Constitution
by State action.
The
remaining matter to be considered is the liability of the 4th Respondent. In
the written submission that have been filed on behalf of the 4th Respondent it
is stated that liability could be attributed to him only if he had participated
in the commission of the impugned acts of the Police Officers.
In
support of this submission the counsel relied on certain judgements of this
Court in which the question of liability of a person not forming part of the
executive has been considered.
In
the cases of Faiz vs Attorney General -1995 1 SLR 372, Rahuma Umma vs
Dasanayake - 1996 2 SLR 40 and Pieris vs Rupasinghe 2000 1 SLR 40, the Court
has considered instances where Members of Parliament who did not form part of
the executive who were present at the time infringements were committed by
police officers.
The
observations made by Court are in reference to the particular facts of these
cases and the Court has found that the conduct of the respective MP's
demonstrate a degree of participation in the alleged infringement together with
the police officers, warranting findings against them as well. The present case
bears no similarity to the facts and circumstances of these 3 cases referred
above.
The
case of Shahul Hameed vs Rupasinghe 1990 1 Sri LR 104 is more to the point
since it deals with the conduct of the Police in reference to proceeding under
Section 66 of the Primary Courts Procedure Act. The allegation was that the
Police favoured one party to the dispute and were persistently indifference to
the rights of the Petitioner.
The
Court held with the Petitioner as regards the alleged infringement by the
police officers and then considered the liability of the private person (5th
Respondent) who benefited from acts of the Police. There was a finding that the
5th Respondent was not liable for the alleged infringement. However the Court
made an observation which is relevant to the facts of this case. The
observation contained at page 118 is as follows:
"This
court has the power to make an appropriate order even against a respondent who
has no executive status where such respondent is proved to be guilty of
impropriety or connivance with the executive in the wrongful acts violative of
fundamental rights or even otherwise, where in the interest of justice it
becomes necessary to deprive a respondent of the advantages to be derived from
executive acts violative of fundamental rights e.g. an order fore the payment
of damages or for the restoration of property to the petitioner.
Article
126 (4) provides that "the Supreme Court shall have the power to grant
such relief or make such directions as it may deem just and equitable in the
circumstances in respect of any petition or reference referred to in paragraphs
(2) and (3) of this Article....... " The power of this Court to grant
relief is thus very wide. Such power has been expressly conferred to make the
remedy under Article 126 (2) meaningful."
It
is clear that the findings of liability could be made even against a person who
has no executive status where he proved to be guilty of connivance with the
executive in the wrongful acts violative of another fundamental rights.
In
this case the entire process has been set in motion by the 4th Respondent
purporting to act on behalf of the UNP to secure an advantage for the leader of
his Party at the impending Presidential Election.
He
has not availed of the procedure in terms of Section 109 (1) of the Code of
Criminal Procedure to make a statement in the ordinary course to a police
station.
He
has obtained favourable treatment at the highest level of the Police by writing
a letter directly to the Police Headquarters which initiated set the entire
sequence of unlawful action on which findings have been made in the preceding
section of this judgement. He has sent a further letter to expedite the
investigation.
Finally,
counsel appeared on his behalf in the Magistrate Court and made submissions
directly implying that the Petitioner should be arrested and produced in Court
as a suspect.
Therefore
his conduct measures up to being guilty of impropriety and connivance with the
executive in commencing and continuing a criminal investigation in violation of
the Petitioner's fundamental right guaranteed by Article 12 (1) of the
Constitution.
As
regards the liability of the 1st Respondent I have to refer to paragraph 6 of
his affidavit in which he has specifically stated that he is "aware"
that the 4th Respondent had provided information by way of a written complaint
about the misuse of monies donated for tsunami relief and the CID having
consulted the A.G. and launched an investigation into the said complaint.
By
this averment he has revealed his knowledge of the fabricated document 2R1. The
written complaint referred to is the one that is said to be received at the
Police.
Headquarters
and the investigation itself would not have commenced by the CID if a direction
to that effect was not given by the 1st Respondent. The 1st Respondent has
conveniently relied on the consultation with the Attorney General to justify
the commencement of the investigation.
It
is to be noted that in terms of Section 393 (2) of the Code of Criminal
Procedure Act it is incumbent on the Attorney General to give advice inter alia
to the officers of the police "in any criminal matter of importance or
difficulty."
In
an instance where even the first information had not been recorded there is no
question of the action of the police being justified on the purported advice of
the Attorney General. In the circumstances the responsibility for the
commencement and continuance of the investigation lies with the 1st and 2nd
Respondents.
The
3rd Respondent appears to have carried out the order of his superior, the 2nd
Respondent.
Accordingly
I allow the application and grant to the Petitioner the declaration prayed for
in prayer 'b' to the prayer to the Petition, that hi fundamental rights
guaranteed by Article 12 (1) of the Constitution has been infringed by the 1st
to 4th Respondents.
Considering
the preceding findings I am making further order that the 1st, 2nd and 4th
Respondents pay personally a sum of Rs. 100,000 each, to the Petitioner by way
of compensation.
This
amount is awarded only as a recognition of the infringement of the Petitioner's
fundamental rights and not intended to compensate him fully for the loss
suffered by him by being denied equal protection of law. The State will pay a
sum of Rs. 200,000 as costs to the Petitioner.
D.S.
Wijesinghe, PC, with Sanjeewa Jayawardena and Priyantha Jayawardena appeared
for the Petitioner.
Tilak Marapana, PC, with Ronald
Perera appeared for the 4th Respondent.
Palitha
Fernando, DSG, with P. Nawana SSC appeared for the 1-3rd and 5th Respondents.
Mata samavenna, mata samavenna - Sarath N Silva
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