By Mahinda Rajapaksa –
The former Secretary to the President Lalith Weeratunga and the former Director General of the Telecommunications Regulatory Commission (TRC) Anusha Pelpita were declared guilty by the High Court under Section 386 of the Penal Code of ‘dishonestly misappropriating’ a sum of Rs. 600 million belonging to the TRC by remitting the said sum to a bank account of the Presidential Secretariat to be used for the purpose of distributing sil redi during the last Presidential elections. They have each been sentenced to three years rigorous imprisonment, a fine of Rs. two million and either the payment of Rs 50 million in compensation to the TRC or a further two years of rigorous imprisonment. Many people including the media have asked me about this matter and I feel I should make my views known to the public.
To say that this conviction and sentence has shocked the country would be an understatement. The judgement itself states that neither Lalith Weeratunga nor Anusha Pelpita had appropriated for their personal use any of the money used to purchase sil redi. From my point of view, they only carried out legitimate instructions issued to them by the President of the country. The verbal instructions given by me in this regard have been recorded in the form of minutes placed by Mr Weeratunga on correspondence with officials of the Presidential Secretariat. On 20 March 2014, Mr Weeratunga wrote a minute to the Senior Assistant Secretary of the Presidential Secretariat outlining eight projects that I had ordered funded through the President’s Special Development Fund during the year 2014.
The sixth item on this list was providing ‘material aid’ to the devotees observing sil at temples on Poya days. The other projects on the list included funding for the IT section of the Kotelawala Defence University and assistance to construct houses for low income earners in the former ‘border villages’ etc. On 12 May 2014, in yet another minute to the Senior Assistant Secretary Mr Weeratunga had stated that I had given instructions that sil redi be distributed to devotees observing sil on Poya days. This was long before the declaration of the presidential election. The purpose of the President’s Special Development Fund which had an annual budget of Rs. 1,000 million and was started in 2012, was to fill the gaps left by other ministries and to meet requests made directly to the President. The Coordinating Secretary for Religious Affairs of the Presidential Secretariat Ven. Watinapaha Somananda Thera was in charge of implementing the sil redi project.
At the latter’s request, the Economic Affairs Ministry carried out a survey through Samurdhi Niladharis to identify the requirements of sil redi at temples countrywide. The suppliers were instructed to hand over the sil redi to a main temple in each Divisional Secretariat area from where they would be distributed to other temples. This was a project implemented countrywide, involving 11,021 temples. This was aid supplied to the temples, not to voters. After the sil redi reached the temples, the Chief Incumbent monk became the sole authority who could decide when, how, and to whom the sil redi would be distributed. No time frame was imposed on the temples to carry out the distribution. They could have been distributed either immediately or even a year later at the discretion of the Chief Incumbent of the temple.
The mode of distribution did not enable the beneficiaries to be selected on political grounds. School uniforms are also distributed towards the end of the year and cannot be withheld even if an election was on. Nobody would suggest that the receipt of school uniforms during an election would influence the result of the election. The sil redi was also general state aid distributed across the board to Buddhist devotees just like the school uniforms. In fact the suppliers of school uniforms to the government had been mobilised for the sil redi project as well. The sil redi was not meant just for adults of voting age but for daham pasal students observing sil on Poya days as well. It was stated in the judgement that the sil redi parcels contained a label which read “Mahinda Rajapaksa methithuman Mahinda Chinthana prathipaththi walata anuwa yamin karana daham pandurak”. (A religious offering made by Mahinda Rajapaksa in pursuance of Mahinda Chintanaya policies.)
This was only a label stating the provenance of the sil redi, and in any event, is not in violation of Sections 72 and 68(1)(e) of the Presidential Elections Act No:15 of 1981, which deal with the display of printed matter during elections. Section 77 of the Presidential Elections Act on ‘treating’ voters, also does not apply to this case because the sil redi was handed over to temples without any time frame for distribution and were provided to all regardless of the political affiliation of the temples and the devotees. Lalith Weeratunga and Anusha Pelpita were never charged for election related offences even though this is being portrayed as a case relating to the misuse of public property during election time. Under Section 164(4) of the Criminal Procedure Code, the charges brought against the accused have to clearly state the law under which the offence said to have been committed, is punishable.
The reason why money had to be obtained for this project from the TRC is because on 14 October 2014, the Chief Accountant of the Presidential Secretariat sent Lalith Weeratunga a note stating that the allocation of the President’s Special Development Fund for the year 2014 was Rs. 1,000 million and that Rs. 400 million of this had to be given to a project of the Kotelawala Defence University and that there was insufficient funds for the sil redi project. Lalith Weeratunga replied to this with a minute on 15 October 2014 instructing the Chief Accountant to release the money to the Kotelawala Defence University and that the money for the sil redi project will be obtained from the TRC to be reimbursed later. Mr Weeratunga had written to the Director General of the TRC on 30 October 2014, stating that it had been decided to obtain financial patronage (mulya anugrahaya) for this project from the TRC.
Thereupon, Anusha Pelpita Director General of the TRC had prepared a board paper for this purpose on the same day seeking the approval of the board, (a) to allocate Rs. 600 million to the Corporate Social Responsibility budget of the TRC as an extra budgetary allocation, (b) to approve the donation of Rs. 600 million to the President’s Special Development Fund and (c) to spend this amount from the corporate social responsibility budget of the TRC. This paper had been presented to the TRC board meeting held on 15 December 2014 and all three proposals had been unanimously approved by the Commission. The money from the TRC had been remitted to the Presidential Secretariat account on 5 December 2014. On 29 December 2014, Lalith Weeratunga sent a note to the Chief Accountant stating that the money from the TRC should be reimbursed as soon as the allocation for 2015 is received and that at least Rs. 200 million should be paid back in the first quarter of 2015.
According to Section 22F(3) of the Sri Lanka Telecommunications Act No: 25 of 1991 as amended by Act No: 27 of 1996, the board of directors of the TRC can authorise any payment in the performance of its tasks. Sections 218, 115, 65, 66, 68, 93 and 94 of the Financial Regulations of the Government of Sri Lanka also authorises ‘Chief Accounting Officers’ (who in the case of the Presidential Secretariat was Lalith Weeratunga) to transfer money between government agencies under his authority on the basis of reimbursement. Regrettably, the written evidence presented to courts in the form of Lalith Weeratunga’s minutes giving instructions to the Chief Accountant or the Senior Assistant Secretary of the Presidential Secretariat in relation to this project have not been considered in the judgement delivered by the High Court.
The prosecution brought 21 witnesses to prove their case against the accused. The High Court has not taken into account the evidence provided by prosecution witness No: 13 Hewage Emali Priyanthara, No: 20 Ruwani Saumya Gunaratne, No: 15 Rev. Watinapaha Somananda Thero, No: 04 Saputhanthrige Chandra Jagath, No: 14 Mallika Kanakanamlage Jayantha and prosecution witness No: 5 Amarasinghe Lekamge Don Gunaratne (the Chief Accountant of the Presidential Secretariat) on the grounds that they had worked with the accused in the Presidential Secretariat and the TRC and were also connected to the sil redi project and that they had been partial (lediyawak) or sympathetic to the accused. These were witnesses called by the prosecution – not the defence – and their evidence had been provided to courts under oath.
This has very serious implications for state employees at all levels. If for example an employee of the Customs Department is taken to courts for allegedly violating procedure, the only way to prove or disprove that such a violation took place is through written and verbal evidence from within the Customs Department itself. If in such cases, even the testimony of witnesses brought by the prosecution is not taken into account on the grounds that they had worked with the accused and were therefore partial, the accused government servant will have no defence at all. Another matter of grave concern in the case of Lalith Weeratunga, is that the handwritten instructions given by the highest State official in the land to his subordinates have not been considered by the courts.
If this becomes a precedent, no State employee charged in a court of law will ever be able to prove his innocence. The unanimous approval of Anusha Pelpita’s board paper by the TRC board of directors on 15 December 2014 has also not been taken into account in a situation where the authority with exclusive power to utilise the funds of the TRC is the TRC board of directors. This will have serious implications for all private sector and state sector bodies that are run by boards of directors. The severe sentence imposed on Lalith Weeratunga and Anusha Pelpita is not because they enriched themselves through corrupt means but because they carried out the instructions of the head of state to distribute sil redi to temples in pursuance of the government’s obligations under Article 9 of the Constitution to foster and protect Buddhism.
Under our constitution, the direction and control of the government is the responsibility of the cabinet of ministers (including the President) and the public service is expected to work in good faith to achieve the policy objectives of the government. Therefore public servants who carry out lawful instructions issued to them by the President and the Cabinet should be protected if there are no serious allegations of corruption against them.