Path-breaking Judgement hailed | Sunday Observer

Path-breaking Judgement hailed

Former Secretary to the President Lalith Weeratunge and former Telecommunications Regulatory Commission (TRC) Director General Anusha Pelpita were on Thursday (7) found guilty of misappropriating Rs.600 million of funds belonging to TRC in the controversial Sil Redi distribution case and were sentenced to three-years Rigorous Imprisonment by the Colombo High Court.

They were ordered to pay a compensation of Rs.50 million each to the TRC in lieu of losses incurred contrary to the Telecommunication Act. Each of the accused were further ordered to pay a fine of two million rupees.In the wake of the controversial Sil Redi distribution case judgment, the legal experts expressed concerns over the country’s existing legal mechanism and people’s aspirations to combat frauds and corruptions.While commending the integrity of the High Court Judge Gihan Kulatunga in upholding the rule of law in the country, the legal experts also highlight the loopholes in the legal system and lackadaisical approaches of law enforcement authorities.A prominent criminal lawyer who wants to remain anonymous told Sunday Observer that the Attorney General will have to explain as to why he dropped charges under Public Property Act against the accused.While filing amended indictments against Lalith Weeratunge and Anusha Palpita, the Attorney General on March 6, 2017 decided to drop charges which had been filed under the Public Property Act against the two accused.’Anybody can question as to they were not charged under public property act.

Criminal misappropriation

These funds are indeed public property’, a criminal lawyer said. ‘There would have been a higher punishment if they were charged under Public Property Act. The court was compelled to give a law sentence because the accused were charged under Section 386 of the Penal Code for criminal misappropriation. The legal action should be proceeded to collect the balance of misappropriation funds through a civil action,’ he added.

The section 386 of the Penal Code of Sri Lanka says, whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years. Each of the accused was found guilty of two charges sentencing each accused to three-year rigorous imprisonment.

Meanwhile, in his judgment High Court judge Gihan Kulatunga held that the accused had committed this offence dishonestly with the intention of gaining undue advantage to a particular candidate during the 2015 - Presidential Election.In his dock statement, former Secretary to the President Lalith Weeratunge clearly stated that former President Mahinda Rajapaksa had given instructions to carry out Sil Redi distribution program.Lalith Weeratunga had further told Court that he had to follow the instructions given by former President Mahinda Rajapaksa as the executive of the country.Then a question arises as to why the Attorney General refrained from making other persons who were involved in the crime as suspects or accused. It was also transpired in Court that these two accused had not gained any personal benefit from the transaction.

In his judgment, the High Court Judge observed that on December 5, 2014 a sum of Rs.600 million had been remitted to a bank account maintained by former Secretary to the President through the intervention of Anusha Pelpita, without obtaining (TRC) Board of Directors’ approval.The prosecution moved Court that the maximum sentence be passed against the accused in a such a way that it will be an example to society.

Procedural issues

There is no doubt that this judgment has given an alert on the government officials to be cautioned when following politicians’ orders.On October 8, 2015, while handing out a 44-page judgement over the procedural issues taken by the FCID throughout this case during the magisterial inquiry, then Colombo Additional Magistrate Nishantha Peiris observed that the FCID has contradicted the accepted legal procedure in the country and taken measures not to arrest and produce Lalith Weeratunga and Anusha Palpita before Magistrate’s Court because they had been charged under the Public Property Act. The Additional Magistrate has further observed the Attorney General Department should have guided the Police on the correct procedure if the Police was not following it.The first B report against former Secretary to the President Lalith Weeratunge and former TRC Director General Anusha Palpita had been filed before the Colombo Additional Magistrate but they were not produced before a Magistrate.However, the Attorney General filed direct indictments against the accused in Colombo High Court and they were ordered to be released on bail on September 7, 2015 after appearing on notices.

Criminal lawyer Asela Rekawa said that this judgment indicates without a doubt that there is no room for corruption and malpractice, and that it will be punished regardless of office.

Corruption and malpractice

The following are excerpts from a comment made by Attorney-at-law Asela Rekawa who has handled several controversial criminal cases including Hicorp case against Danuna Tillekaratne.

The conviction of Lalith Weeratunge, the former Secretary to HE the President and Anusha Palpita the former Telecommunications Regulatory Commission (TRC) Director General was a surprise indeed, and in my opinion has far reaching ramifications.

On the one hand, it establishes without a doubt that there is no room for corruption and malpractice, and that it will be punished regardless of office, which will I’m sure bring about a much needed ‘re-think’ policy for Public Servants when blindly following the instructions given to them by those who hold immunity against their actions; yet on the other hand, one does need to consider what impact this judgement would have on the efficiency of the Public Service when considering the new restrictions and red tape that will inevitably follow in the wake of this judgement.

The integrity of the learned Judge in upholding the rule of law is to be lauded, I am equally respectful of the integrity shown by the two accused, who unlike most Public Officials and Politicians of the past did not seek evade or circumvent the legal process, nor influence it through changing political allegiance.

It is the duty of Public Officials to advice elected officials on the applicable laws and indeed to ensure they are upheld, furthermore I believe it was the duty of Weeratunga as the Head of the Public Service to have evaluated the consequences of such a blatant violation of the law, and to have acted in a manner more befitting the responsibilities of his station - that said the fact that he has not shirked the consequences, is, once again commendable.