Senior lawyer reprimanded by CID tipped to be next BASL VP | Sunday Observer

Senior lawyer reprimanded by CID tipped to be next BASL VP

24 February, 2019
Shavindra Fernando and Shani Abeysekera
Shavindra Fernando and Shani Abeysekera

Former Additional Solicitor General Shavindra Fernando is tipped to be nominated as the next Vice-President of the Bar Association of Sri Lanka, as he contends with allegations by the CID of obstructing an investigation into the murder of eleven youth, allegedly by navy officers.

On February 19, 2015, CID Inspector Nishantha Silva filed a B Report in the Colombo Fort Magistrates Court alleging that Fernando, then an Additional Solicitor General and Navy Judge Advocate’s “direct interventions on behalf of individuals who are responsible for abducting persons for ransom and then making these persons disappear was the particular reason why justice has not yet been served to the aggrieved parties in this particular case.” IP Silva stated in the same report that he had kept the Solicitor General and a Deputy Solicitor General informed of this fact.

In July 2018, Shavindra Fernando, who had since taken early retirement from the Attorney General’s Department, filed a motion in the Magistrates Court seeking to compel the CID to strike the lines that mentioned him from another B Report filed by the CID in February 2018. Fernando made a lengthy submission before the court on July 31, 2018.

“It has been over one and a half years since I retired from the Attorney General’s Department,” Fernando said. “This report has been filed in February 2018. It has no relevance. These are submitted as facts in a B report, but their intention is to sling mud. I know that it is a grave offence to utilize a B Report to do this.” Fernando requested that the Magistrate order that the paragraphs of the CID report that mentioned him be expunged from the court record.

The CID was represented before the court by its Director, Senior Superintendent Shani Abeysekara. The Director explained the position of the CID to the court. He said that two CID officers, Nishantha Silva and Chief Inspector Ranjith Munasinghe, were witnesses in a Habeas Corpus proceeding before the Colombo Chief Magistrates Court in relation to the disappearance of the 11 youth. “The learned Counsel Shavindra Fernando cross-examined” the CID officers, which Director Abeysekara took objection to as the Attorney-General’s Department officers are expected to represent the CID, not cross-examine them.

“On several occasions, he gave us instructions not to send IP Silva and CI Munasinghe to court, to send them elsewhere on duty or to have them admitted to hospital” to prevent them from testifying in court, Director Abeysekara submitted.

“He gave us this advice when he served as Deputy Solicitor General at the Attorney General’s Department,” Abeysekara stated. “He appeared to represent the accused in the case and cross-examined us, prompting the Hon. Chief Magistrate to query who he was appearing for before the court.”

Shavindra Fernando responded that in the Habeas Corpus cases, he was present as a Deputy Solicitor General representing the Attorney General’s Department at the proceeding. “I never advised Shani Abeysekara not to send the CID officers to court” Fernando submitted, denying the serious allegation by the CID Director.

A senior lawyer familiar with these Habeas Corpus inquiries told Sunday Observer that Shavindra Fernando’s role was unclear and questioned by the Magistrate due to a potential conflict of interest. “The conflict is that in a Habeas Corpus inquiry, the Attorney-General is supposed to play the role of identifying what happened to the ‘corpus’ or body of the alleged victim. Having been closely associated with the accused in the Navy as Judge Advocate, Shavindra Fernando played an adversarial role to try and demolish the credibility of the witnesses, who were CID officers.”

“He had a conflict, as a Navy officer, a lawyer, and an official of the Attorney-General’s Department,” the senior lawyer said, pointing out that officers of the Attorney-General’s Department, as state counsel, are expected to appear for, not against, police officers who are testifying in their official capacity.

Abeysekara informed the court that while the criminal investigation into the abduction and murder of the 11 youth was underway, the CID submitted a detailed report to the Attorney-General and received written instructions to record statements from several navy officers including Commodore D.K.P. Dassanayake. When the CID wrote to the navy to produce the suspects, Director Abeysekara said, Shavindra Fernando summoned the CID officers “in his capacity as Additional Solicitor General” and instructed them “not to summon and question” the navy officers.

The CID Director also informed court that Fernando had participated in sensitive discussions about the investigation in his official capacity, including at the Ministry of Defence. It was this kind of interference, Abeysekera said, that resulted in Nishantha Silva reporting the obstruction posed by the senior lawyer to the court in early 2015. “The learned Counsel had tied our hands,” he said.

After the CID had reported Fernando’s alleged obstruction to the Magistrates Court, the Attorney-General’s Department had exerted pressure on the CID to retract their submissions, which the officers refused to do citing their obligation to report to the magistrate all facts relevant to a criminal investigation.

The CID’s refusal resulted in Solicitor General Suhada Gamlath writing to the Inspector General of Police (IGP) on September 22, 2015, seeking the deletion of the evidence against Fernando from the Magistrates Court record. Director Abeysekara produced a copy of the letter to the Colombo Fort Magistrates Court with his submissions on July 31, 2018.

“I have advised I.P. Nishantha Silva and DIG (C.I.D.) to have the said references in the B report deleted, however no such steps have been taken to date,” the Solicitor General wrote to the IGP. “You are hereby advised, to instruct your officers to meet me and get instructions as what steps need be taken to delete the references stated above.”

“You may also advise them that the failure to carry out the said instructions would entail appropriate legal consequences,” Gamlath warned. Neither the CID nor IGP ever acted on these instructions to amend the facts that they reported to court. To date, no legal repercussions have followed the CID submissions. Their court submissions remain unaltered. The following year, Shavindra Fernando retired from his posts in the Attorney-General’s Department and the Navy, after having served 30 years in the Department. The criminal investigation has continued. Fourteen Naval officers, including former Navy Commander Admiral Wasantha Karannagoda, have been named as suspects in the 11 grizzly murders resulting from the alleged abduction for ransom racket.