“There comes a point where a man must refuse to answer to his leader if he is also to answer to his conscience.”
Ann Tusa, The Nuremberg Trial
On Thursday, September 7, 2017, the High Court of Colombo issued a chilling verdict on one of the most anticipated cases filed by the Financial Crimes Investigation Division (FCID): Lalith Weeratunga, former Presidential Secretary and Anusha Palpita, former Director General of the Telecommunication Regulatory Commission (TRC), were sentenced to three years rigorous imprisonment after being found guilty to the charge of misappropriating Rs.600 million belonging to the TRC and using it to distribute ‘Sil Redi’ (meditation cloth) during the 2015 presidential election campaign.
Colombo High Court Judge Gihan Kulatunga also imposed a fine of Rs.2 million on each of the convicts and ordered to pay Rs.50 million to the TRC as compensation. They allegedly carried out an ‘order’ given to them by politicians who happened to be their masters. Lalith Weeratunga was the Secretary to former President Mahinda Rajapaksa. He was also the Chairman of the TRC.
According to reports in the print media, a brief description of the alleged crime and the subsequent judgment is thus: ‘The Attorney General had filed indictments against former Secretary to the President Lalith Weeratunga and former Telecommunications Regulatory Commission (TRC) Director General Anusha Palpita under three counts, in connection with a criminal misappropriation of Rs.600 million belonging to the TRC funds during the 2015-Presidential Election campaign. They were found guilty of all charges.
The AG had filed indictments against the two accused on three counts of committing criminal misappropriations of funds amounting to Rs.600 million at TRC while spending for a ‘Sil Redi’ distribution programme in contravention of the Telecommunication Act No. 25 of 1991 during the period of October 30, 2014 to January 5, 2015. The prosecutors alleged that the funds referred to had been remitted to a bank account maintained by Secretary to the President.
‘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 Palpita.
‘Evidence given by a secretary attached to the TRC had proved that the Board of Directors’ approval was not obtained for this transaction. It was revealed that this transaction had been done through a method called ‘circulation’ in which no written approval was given to remit the concerned funds, the High Court judge added.
‘While observing that he cannot agree with the defence contention that the Sil Redi distribution programme was a long-time process, the High Court Judge maintained that this programme had been initiated with the intention of gaining undue advantage to a particular candidate in an urgent manner.
‘According to the defence contention, distribution of Sil Redi comes under the expenditure of President. The defence was of the view that due to insufficient funds with the President’s expenditure, they sought financial assistance from the TRC. The court is of the view that they should have sought funds through a supplementary estimate to meet financial requirements without following an irregular and illegal process.’
The findings of the Court are damning. Would the convicted, Weeratunga and Palpita now think more carefully and wisely about the orders they carried out at the behest of their political masters? Would they have not done what they did, had it dawned on them that power is so temporary and the powerful positions they once held did not grant them licence to carry out illegal orders issued to them by their masters. Rs. 600 million is, as they say in street corners, no chicken feed. Allow me to substantiate my argument:
As per the judgment ordered ‘in the case of Ossen v Ponniah, 34 New Law Report page 50, an Excise Inspector had spread a frame of iron spikes on a highway to stop a car. He argued that the placing of spikes in that way had been sanctioned by the Excise Commissioner. The Excise Officer was charged and convicted of the offence of obstruction and criminal restraint. In that case, the Supreme Court also warned the Excise Department not to use such methods in their work since innocent users of the highway will be seriously injured by such method’. (Source: The Law Governing Public Administration in Sri Lanka by Dr. Wickrema Weerasooria, p.188)
Dr. Weerasooria’s book on the sub heading ‘Superior Officers’ liability for acts of Subordinate Officers’, p.188’, further adds thus: ‘However, if a subordinate official acts directly under the orders of his superior, both officials may be sued: See Brainbridge v Postmaster General. (1906) 1KB 178’. The fundamental principle of law that an illegal order carried out by a subordinate officer cannot argue that he/she acted under orders of a superior. The famous Nuremberg Law established that fundamental principle of law without any dispute. Hitler’s henchmen couldn’t invoke that defence.
Weeratunga and Palpita were not mere scapegoats. They apparently knew that they were carrying out had been illegal orders. What they did not know was the impermanence of power! Mahinda Rajapaksa and his corrupt clan headed by his siblings did not know the impermanence of power either. The malignancy of corruption and its inevitable spread across the body politic is now visible. An order from the High Court had to deliver that bitter and cruel truth.
Those who sympathize with the two officers need to realize that the victims in this case were not Lalith Weeratunga and Anusha Palpita. On the contrary, Weeratunga and Palpita were the perpetrators of a white collar crime and there are 600 million threads woven into that gross and unpardonable crime!
‘Sil Redi’ was not a donation with compliments of the President of the country. They were a bribe shrouded in cloth.
The Joint Opposition is now trying to portray the two convicts as heroes and victims. The whole country knows who would pay their fine of Rs.52 million each. An Officer in the ‘Allied Control Commission’ at the groundbreaking Nuremberg Trials, which was held to pay homage to six million Jews and others and issue a warning to future would-be-offenders, characterized the accused at the trials thus:, “So grotesque and preposterous are the principle characters in this galaxy of clowns and crooks that none but a thrice double ass could have taken them for rulers.”
The white collar crimes so committed, as per the judgment of High Court Judge Kulatunga, belong in the arena of yet-untold stories of our innocent men and women who had immense faith and trust in the past regime that the so-called ‘pious’ acts were piloted by the then rulers were in the genuine interests of the suffering masses. It is far from the truth. With the impending elections in 2015 in mind, a group of ruthless rulers abused and pilfered the government coffers to enlist the support of millions of pious men and women living in the most rural hamlets. The effort failed. Success of such ill-conceived thoughts and objects of politicians are far from assured. Those who willingly carried out these orders never ever doubted the outcome of the elections.
A 10-year-rule from 2005 to 2015 seemed too short for them. The passage and enactment of the 18th Amendment removed the term-limit imposed on individuals from contesting for the highest office of the land for more than twice. Enjoying a two-thirds majority in the House of Parliament, this majority was not received at the elections but ensured via many an improper and unethical political deal – the Rajapaksas resorted to illegal, unethical and undemocratic means to ensure an extension of their immoral political life. By controlling the power of Presidency, Premiership and other major portfolios, they controlled the lives of millions of Sri Lankans.
One would realize that changing the political heads of the country is not enough. A culture of corruption, a culture of warped human values, and a culture of abundant avarice has destroyed our national character. What is even more demeaning is the ‘culture of apathy’ on the part of the masses.
No meaningful outcome is possible after the Kulatunga-ruling, if the country at large decides to move on without making the essential ethical and moral adjustments. A willingness and determination on the part of the masses not to disregard such corrupt practices, but to seek justice and punish the perpetrators, whether they come from the highest ranks of government or of civil life, with a view to enhancing the character and soul of a nation is a prerequisite for the country to go forward.