When Serving the Public, Intention Matters
By Shivanthi Ranasinghe
Lalith Weeratunga and Anusha Palpitiya’s nightmare that began in 2015 finally ended on 19 November 2020. The Appeal Court found charges insufficient against them to justify three years of rigorous imprisonment plus the demanded fines and compensation. Both Weeratunga and Palpitiya stated the verdict was no personal victory but a victory for the State’s entire Civil Service.
No personal benefits
When the Judge’s hammer banged on 7 September 2017 sealing their fate, the whole State sector went into a state of deep shock. Weeratunga, as Secretary to President Mahinda Rajapaksa, had simply followed orders to borrow money from the Telecommunications Regulatory Commission (TRC) for the distribution of Rs 600 million worth of cloth to over 1,500 temples Islandwide. The money had been used for the said purpose and neither of the accused had personally benefitted.
Within the legal framework
Then Palpitiya as Director General TRC had followed proper official procedures required prior to handing over the money, including getting the green light from the Commission to proceed with the President’s order. The money subsequently had been returned to the TRC! After careful examination of facts the two-bench panel at the Appeal Courts noted the two senior Civil Servants were within the legal framework of their duties.
Caution when executing directives
The Opposition’s lack of reaction speaks of Weeratunga and Palpitiya’s obvious innocence as well. It appears in this case the High Court read the law to the letter. Its true TRC funds cannot be used for such a venture. The TRC funds were not used per se only temporarily lent and more importantly repaid to the TRC. The message to the State sector was simple: executing a directive even with the President’s signature can hold dire consequences. As a result the entire State sector was paralysed into inaction. Files were passed from desk to desk without signature to execute the task. Simple matters were dragged for months on end. No brave soul was willing to attend to it.
Therefore, this recourse in our legal system to appeal against a verdict and for facts of the case to be examined afresh without prejudice is an important safeguard. Today, the State sector can take comfort from the turn of events where both Weeratunga and Palpitiya had been declared innocent before the law. Speaking to the press soon after the Court proceedings that exonerated them, Weeratunga noted that, “there is nothing wrong in executing decisions that are not self-serving but for the sole betterment of the public”. At the same time he observed that in the quest to resolve issues before the people, decisions taken might overstep the boundaries of the legal textbook.
Consequences of judgement
One may correctly argue the legal Courts are empowered to only interpret the law as per the letter. Certainly, the law must not be interpreted in any other manner. However, if the legal systems are to be improved to ensure that justice in its truest sense is to be delivered and not blindly, then perhaps Judges should be empowered to also take into consideration both the intention behind the action and the possible consequences the judgement may hold. This is a debate for the legal brains to engage with very seriously.
The tragic Meethotamulla Garbage-slide that killed over 30 people including toddlers should not be forgotten. Both the Yahapalana Government and its predecessor regime of President Mahinda Rajapaksa were accused of allowing the garbage dumb to build to the point of collapse. It is unfortunate that as citizens we did not factor our own contribution to the disaster. The reader may recall that few years before the tragedy, all the major supermarket chains in the country tried to address the growing problem of polytene overuse. Collectively, they took the decision to charge their customers for the plastic bag. This actively encouraged customers to use biodegradable products such as cardboard boxes. Supermarkets even rewarded customers who brought their own recyclable bags.
Reading the law to the letter
It was most unfortunate that just as customers were getting used to this new discipline, a Fundamental Rights case before the Supreme Court overturned the Supermarkets’ decision. Of course the Supreme Court was reading the law to the letter and delivered its verdict accordingly.
Sitting on an armchair, it’s not possible to predict if the Meethotamulla disaster could have been averted or at least postponed had the Supreme Court verdict that day supported the Supermarkets’ initiative. The point however is the prevailing law did not stand by this very important and most responsible act of the corporate sector to save our environment and the Meethotamulla disaster underscored, our lives as well.
MI Careers ruined
Palpitiya stated that with this verdict ended the Yahapalana Government’s era of vengeance that began in 2015. Unfortunately, this is not the case. The Military Intelligence (MI) officers and men who had been entangled with similar legal messes are still fighting their cases in Courts.
According to the evidence given by the Former Army Commander General Mahesh Senanayake before the President’s Commission of Inquiry (PCoI) into the Easter Attack, over 300 MI personnel were detained by the CID during his tenure. This severely hampered the MI activities, he noted.
It is true that these officers and men are no longer incarcerated in CID holding cells or remand prisons. It is also true that they are no longer dragged off to Courts in chains and cuffs under the glare of the Media. It is also true that their careers in MI are over.
The evidence gathering before the PCoI into Political Victimisation is shocking. Wife of one MI Officer broke down before the Commission as she recalled her humiliation as the CID officers who stormed into her home at around 5.30 a.m. in search of her husband, forced her to change cloths in front of them. She was not allowed to relieve herself or even take a drop of water until about 2 p.m. Even then, she was not allowed due privacy as the CID officer stood by the door watching her throughout the process.
Hearing this account, the Commission noted that this harassment was in line of sexual misconduct. Chairman of the Commission Supreme Court Judge, Justice Upali Abeyratne observed that this attests the politicisation of the National Police Commission. He further questioned the need of such a Commission that failed to find fault with this officers’ misconduct.
Distorted HRC concerns
The conduct of the Human Rights Commission (HRC) Sri Lanka is remarkable. The HRC questioned all relevant authorities in charge of Prisons, Health Ministry and COVID-19 Task Force as to the wellbeing and whereabouts of Fathima Sadiya (the notorious Zaharan Hashim’s wife). The HRC’s inquiries came forth after unsubstantiated rumors surfaced that Sadiya’s life was threatened. Their concern for a terrorist’s wife is noteworthy; however, the HRC’s concerns failed to extend to an MI officer’s wife.
Another MI officer recounted efforts by the CID team led by the then CID Director Shani Abeysekera to get him intoxicated, presumably to get the specific confession demanded from this officer. All of these MI personnel speak of the duress they were put through to force a confession from them to link Gotabaya Rajapaksa into the alleged crime.
The intelligence of a country, whether provided by the military or any other legal force, act as the eyes and ears of that State. Brewing anti-State activities or potential threats to National Security are not uncovered by pursuing suspects by uniformed law enforcement officers. Neither is it gathered by getting the suspects to the area’s Police Station for a statement. This requires infiltration into these cells and organisations of extremists and terrorists and winning their trust to understand the objectives, source of funding and other support to understand their macabre plans. This means that the State Intelligence (whether it be MI, SIS, CNI or the intelligence unit attached to each Security Force) needs to be the terrorist or be in a position to manipulate or at the very least eavesdrop into the plans.
The ‘Double-Edge’ Operation is a case in point. After the LTTE was annihilated in May 2009, the MI apprehended key LTTE cadres. Instead of prosecuting these cadres, this MI team spent considerable effort over the next few months to change these cadres’ mindset. They were successful in convincing these cadres that terrorism instead of serving the Tamil community had destroyed it.
Finally, these cadres too were keen to disallow resurgence and lead the next generation of Tamil youth through their failed path. They thus cooperated with the MI to root out the instigators. They, in the guise of resuscitating the LTTE began to reach out to their old contacts - the cadres who were in hiding as well as their funders and supporters outside Sri Lanka. Through this operation the MI team was able to uncover the activities and other vital information taking place outside Sri Lanka against Sri Lanka.
Damage cannot be undone
None of these falls within the framework of existing law. In fact, if these MI operations were to be interpreted by the letter of the law, then these officers would not escape from the legal arm. The current damage done to the Double-Edge Operation team as well as the other Intelligence teams is enormous. The Easter Attack is a testament to this damage. Unfortunately unlike the sil-redi case, this damage done using our own legal systems cannot be undone in an Appeals Court.
It is on this basis that we must reflect on Lalith Weeratunga’s observation that sometimes in the line of duty to serve the public; officers need to step out of the boundaries of the legal textbooks. Currently, Sri Lanka is forming a new Constitution. It is fervently hoped that these lessons are taken aboard and current lacunae are fully addressed.
For the benefit of Dr. Dayan Jayatilleka:
These views are the writer’s alone and do not reflect on any organisation the writer may be attached to