S.C. (FR) Application No. 387/2005 - Case of Mahinda Rajapakse
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
|S.C. (FR) Application
5. Hon. Attorney General,
Hon. Sarath N Silva, Chief Justice
Hon. Shirani Thilakawardena, Judge of the Supreme Court
Hon. N.E. Dissanayake, Judge of the Supreme Court
D.S. Wiljesinghe, P.C., wiht Sanjeewa Jayawardena and Priyantha Jayawardena for the Petitioner.
Tilak Marapana, P.C., with Ronald Perera for the 4th Respondent
Palitha Fernando, D.S.G., with P.Nawana S.S.C., for the 1-3rd and 5th Respondents
ARGUED ON: 17th and 30th January 2006
WRITTEN SUBMISSIONS ON: 27th February and 03rd March 2006
DECIDED ON: 27th March 2006
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:
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.