Kishali Pinto Jayawardene
Out of the welter of distasteful controversy surrounding the transfer of a colossal sum of Rs. 600,000,000/= from the public fund of the Telecommunication Regulatory Commission of Sri Lanka (TRCSL), to the account of the Secretary to former President Mahinda Rajapaksa to distribute ‘sil redi’ or white cloth to Buddhist devotees just prior to the 2015 Presidential Elections, a few facts stand out.
‘Sil redi’ packages on the eve of an election
As we may recall, the packages of ‘sil redi’ handed out to temples contained a leaflet stating that this was a religious offering made by Mahinda Rajapaksa in pursuance of Mahinda Chinthanaya policies,’ as was publicly justified by the former President himself as (merely) indicating the ‘provenance’ of the cloth, whatever he may have meant by that. The transfer took place during 30th October 2014 and 5th January 2015 on the written request of Lalith Weeratunge (Secretary to President Mahinda Rajapaksa and Chairman of the TRCSL) to Anusha Palpita who was Director General.
This is the general context to the convictions by the Colombo High Court of Weeratunge and Palpita in 2017 of inter alia, criminal misappropriation with those convictions being overturned this week by the Court of Appeal.
The two decisions are sufficiently important in the context of examining alleged transgressions of Sri Lanka’s public purse to warrant analysis in the spaces of this column, though a more detailed legal treatment must be kept for later. Suffice to say at the outset that neither of these individuals had ‘personally’ taken the moneys as blared to the high heavens at the time by their defenders.
Nevertheless, that lack of personal enrichment made no impact on the elements of the offence as per the High Court convictions of both Weeratunge and Palpita (2017) to three year terms of rigorous imprisonment and fines after a lengthy trial. It sufficed that the money had been put to the ‘unauthorised’ use by another in a manner as to amount to criminal misappropriation in terms of inter alia, Section 386 of the Penal Code read with Sections 113 (b) and 102 as well as acting contrary to the provisions of the Sri Lanka Telecommunications Act, No 25 of 1991 as amended by Act No 27 of 1996.
An initial additional charge under the Offences Against Public Property Act, No 12 of 1982 was later withdrawn in the High Court.
Lack of written approval a ‘bone of contention’
The High Court had considered it of the highest importance, the testimony of the former Deputy Director General of the TRCSL that, when making the transfer, he had not seen any written authorisation or approval for the transfer by the Commission. The Director General had only issued verbal approval for the same. In overturning the convictions however, the Court of Appeal concluded that the requisite components of the offence had not been established and that, the transfer of funds was in pursuance of the ‘corporate social responsibility’ of the TRCSL.
The Appeal Court cited a board paper dated 30th October 2014 where Weeratunge had set out the purpose of the transfer in accepting testimony that the transmission of funds had been approved verbally by the Commission. In so doing, it differed from the High Court’s insistence that written approval for such a transfer was mandatory. The fact that the prosecution failed to lead evidence of any Board members that no verbal approval was given or that anyone had objected to the transfer is pointed to by the Appeal Court judges in support thereof.
The Court indeed observes that it is ‘unthinkable’ to insist on decisions being taken by all coming together at a place physically in what it terms as ‘the modern day transactions of the corporate world’ and states that the law does not prohibit verbal decisions in any event.
Further, in overturning the convictions, the Court agreed with the defence that the programme to distribute the ‘sil redi’ was initiated months earlier to the Presidential election being announced. This is taken to indicate the absence of wrongful purpose.
Consultation with monks to distribute the ‘sil redi’
Moreover, it castigates as a ‘vital misdirection’ that the High Court had proceeded on the basis that this ‘charitable exercise’ had been initiated by the former President after consulting with Weeratunge.
The Appeal Court observes to the contrary that, a Buddhist priest Ven. Watinapaha Somanada Thero had testified before the High Court that it was after ‘consulations with monks’ that the President had decided to go ahead which was before the announcement of a presidential election. The failure to take that evidence into account by the High Court is seen by the Appeal Court as a ‘culpable omission.
However, as close scrutiny of the High Court decision entering upon the convictions immediately reveals, the High Court had indeed taken the Ven Thero’s evidence into account but had been sceptical regarding the value of his testimony, assessing that as ‘sympathetic’ to the accused (see at page 13 of the High Court decision).
Allied testimonies of other persons linked to the Presidential Secretariat or the TRCSL management were treated by the High Court with similar caution.
This is in accordance with the well known principle that it is within a trial judge’s province to pronounce upon the credit worthiness of witnesses. In contrast to witnesses linked to the accused or the entities in which they were serving, the High Court relied on the evidence of other witnesses (‘independent’ public servants) as entirely trustworthy. These included Chairman of the Elections Commission at the time who testified that the distribution of the while cloth packages was a clear violation of election law.
Was this money ever reimbursed to the public purse?
That said, it was the Court of Appeal’s firm conviction that Weeratunge had not been ’ prosecuting an agenda to confer a wrongful benefit or gain to another person.’ The Court repeatedly adverted to the fact that Weeratunge had informed the Presidential Secretariat that the sum will be released only upon condition that it will be ‘reimbursed.’
Further, that he had gone so far as to remind the chief accountant of the Secretariat that at least, Rs 200 million had to be made to the TRC in the first quarter of 2015 as reimbursement thereof when budgetary allocations are made by the Secretariat.
But shorn of all this legal nitty gritty, the question which Sri Lankan citizens would probably be most interested in is whether that colossal sum of Rs 600,000,000/= or even a part thereof had been, in fact, reimbursed to the public fund of TRCSL as per the passionate rebuttals of the former Secretary to the President that the Appeal Court notes with great emphasis as it were?
Details are sparse on this. It appears that this ‘reimbursement’ did not happen with the Sirisena Wickremesinghe coalition that came to power in 2015 not pursuing the matter further. And therein hangs a tale.
No doubt, this outright disbursement of Rs 600,000,000/- by Presidents and priests in the name of the Gautama Buddha whose message was to shun all wordly riches, has a rich irony attached to it.
For the uninitiated in the mysteries of such charities, it would appear that such inexpensive ‘sil redi’ is given to devotees by their own families as acts of ‘metta’ and ‘karuna’ (loving kindness) not by Presidents as thinly veiled patronage.
Regardless, while the hearts of corporate social responsibility advocates the world over may be gladdened, Sri Lanka’s public purse is poorer for this ‘charitable exercise’ that Weeratunge and his President indulged in at the time.
That too is a fact and a sadly uncontroverted one at that.