By Kamal Mahendra Weeraratne Courtesy Ceylon Today

A landmark judgment by the Court of Appeal on Thursday (19), became the hot topic of this week.

That was none other than the verdict which acquitted Lalith Weeratunga, former Secretary to President Mahinda Rajapaksa and Anusha Palpita former Director-General of the Telecommunications Regulatory Commission (TRC) from the charges in the controversial Sil Cloth case. 

Weeratunga and Palpita were found guilty on three counts by the Colombo High Court earlier for using Rs 600 million of TRC funds to distribute Sil Cloth during the run-up to the 2015 Presidential Election. 

On 17 September 2017, Colombo High Court Judge Gihan Kulatunga found them guilty and imposed a sentence of 3 years rigorous imprisonment, a fine of Rs 2 million each and a compensation of Rs 50 million each.

The verdict of the Court of Appeal stated that the above High Court verdict given by Judge Kulatunga was not fair and reasonable.

Drama at Temple Trees

The sole reason behind setting up the Financial Crimes Investigation Division (FCID) by the ‘Good-Governance’ Government was to imprison or give death sentence to those who were named by the Anti-corruption Unit at Temple Trees. The case against Weeratunga and Palpita was one of such cases. 

Filing of the case had been handled by Deputy Solicitor General Thusith Mudalige. 

Accordingly, the Attorney General’s Department served indictments at the Colombo High Court on 28 August 2015. Following that, Weeratunga and Palpita were produced before the Court after naming them as defendants.

Drama at the Court

This so called ‘Sil Cloth case’ was taken up for the first time before Colombo High Court Judge Kusala Sarojani Weerawardena. Although the FCID requested to remand the defendants after serving them indictments, President’s Counsel Kalinga Indatissa requested the Judge to release them on bail considering their good conduct as State Officials in the past and appreciations they receive for their service which the Judge accepted. 

Transfer of the Judge

However, Judge Weerawardena was transferred to the Kandy High Court after a few days. High Court Judge Nishanka Karunathilake was appointed to fill the post according to the seniority. When the case was listed to call before Judge Karunathilake, Judge Gihan Kulatunga who was serving at Kuliyapitiya Court had been appointed to the Court No. 3.

But as he could not be appointed to the Court No. 3 based on seniority, Judge Kulatunga was appointed to Court No. 6.  Then in a miracle move two cases: 413/17 and 414/17 against Weeratunga and Palpita were transferred to the Court No. 6. 

After that, the case hearing was started before Judge Kulatunga from January 2017. Although the defendants opposed it and made a request to the Chief Justice, it was dismissed.

Judge Kulatunga who was in a firm stance regarding the objections of the defendants’ party, delivered the verdict on 7 September 2017 and announced the defendants were guilty of the offences. 

It was following this, Weeratunga and Palpita decided to appeal against this judgment by petitioning the Court of Appeal. 

Judgment 

Allowing an appeal filed against their conviction by the Colombo High Court (CHC) over the so-called Sil Cloth (white cloth) case, the Court of Appeal on Thursday (19), acquitted former Director General of the Telecommunications Regulatory Commission (TRC), Anusha Palpita and former TRC Chairman and former Secretary to the President, Lalith Weeratunga, and set aside the conviction and sentences thus imposed in connection with the charges of criminal misappropriation, conspiracy, and aiding and abetment. 

The appellants in the appeal case (CA 413 – 414/2017) were Palpita and Weeratunga, while the respondent was the Attorney General (AG).

Previously, the first accused Palpita and the second accused Weeratunga were indicted in the High Court (HC 8026/2015) by the Attorney General over alleged criminal misappropriation, conspiracy, and aiding and abetment, under the Penal Code.  

The incident connected to the indictments was that between 30 October 2014 and 5 January 2015, Rs 600 million in funds belonging to the TRC had been transferred through the alleged dishonest misappropriation by Palpita to an account in the name of Weeratunga (in his official capacity) for a Sil Cloth (white cloth) distribution programme which was part of a special national project initiative undertaken by the then President Mahinda Rajapaksa and undertaken as per a directive by the latter to Weeratunga due to requests from Monks that those who observed Sil had to be furnished with cloths. Both accused pleaded not guilty to the indictments. The High Court found the accused guilty of the charges. Both accused were then sentenced to one-and-a- half years of rigourous imprisonment (RI) and a fine of Rs 1 million each (if the fine was defaulted, six months of RI), while Palpita and Weeratunga were each given another one- and-a-half years of RI and a fine of Rs 1 million (if the fine was defaulted, six months of RI). Further, both were ordered to pay Rs 50 million each as compensation to the TRC (if defaulted, two years of RI).         

The Court of Appeal Bench comprised Justices K.K. Wickremasinghe and Devika Abeyratne. Palpita was represented by Attorneys-at-Law Kanchana Ratwatte, Janaka Ranatunge, Thushari Samanpali Amarasiri and Amani Pilapitiya, while Weeratunga was represented by President’s Counsels Faisz Musthapha, Shavindra Fernando and Faiszer Musthapha, and Attorneys-at-Law Faisza Marker, Shantha Jayawardhana and Keerthi Thilakaratne. Deputy Solicitor General Thusith Mudalige and State Counsel Chathuri Wijesuriya appeared for the AG.  

Justice Wickremasinghe’s judgment, which Justice Abeyratne concurred with, observed that the question that arises in the case was whether the grant or appropriation facilitated from the TRC for the distribution of Sil Cloth could expose the accused, who sourced the funds to criminal prosecution and sanctions because Weeratunga wrote to Palpita requesting funds for the said project and the latter directed the transfer of the funds.

Could these two items of evidence alone constitute a manifestation of a dishonest intention to misappropriate,” Justice Wickremasinghe queried, noting that one cannot take items of evidence piecemeal and hold that the mens rea (fault element) and actus reus (physical element of the misappropriation or conversion of moveable property to one’s use) have been established she further noted that evidence has to be holistically looked at in order to ascertain the mens rea.” 

Justice Wickremasinghe further observed that particular evidence adduced, Clearly shows that Weeratunga was not the initiator or originator of the Sil Cloth project” and that neither is there evidence to show that he had anything to do with the choice of the project.”

It was noted by the Court that at the time the project was initiated on 20 March 2014 (Weeratunga wrote to Palpita requesting funds for the project on 30 October 2014 by which time no Presidential Poll was declared), the Presidential Election held on 8 January 2015 had not been in sight and had in fact been initiated long before the said Poll was called. 

Justice Wickremasinghe added that it would appear that the High Court Judge has not properly appreciated nor assessed the evidentiary value” of certain items of evidence (which it was noted had the effect of unequivocally showing that Weeratunga was not prosecuting an agenda to confer a wrongful benefit or gain to another) and of a culpable omission to take cognisance of certain testimony, because the High Court Judge had arrived at the erroneous finding that the decision to distribute the Sil Cloth was taken by the President after consulting Weeratunga.”   

Justice Wickremasinghe opined, This appears to be a vital misdirection on the part of the High Court Judge.”

It was noted that following a discussion with the President and by a way of a minute, Weeratunga had informed the Chief Accountant of the Presidential Secretariat that steps can be taken to obtain an advance of 

Rs 600 million from the TRC, but had also made it clear that this grant was subject to reimbursement as soon as the budgetary allocations for 2015 are received by the Presidential Secretariat, before subsequently formally writing to Palpita, making a request for the said sum in order for it to be used for the Sil Cloth project.   

These items of evidence show the dutiful conduct of an exemplary public officer,” Justice Wickremasinghe noted. Further, it was mentioned in the judgment that by virtue of the fact that the project was meant to promote the welfare of devotees, it was a charitable project, and that by the time the Coordinating Secretary to the President on Religious Affairs brought it to the attention of Weeratunga, the special Presidential initiative fund did not have sufficient funds and that therefore Weeratunga had decided to source funds from the TRC (which also engaged in social responsibility projects such as assisting the Kotelawala Defence Academy, and made donations for public causes and social welfare) just as anyone in his shoes would do, in such circumstances.” 

In no way can this conduct be condemned as blameworthy,” as there was nothing blameworthy in requesting funds from an institution known for its involvement in charitable activities and which  had a separate budget for corporate social responsibility (CSR),” Justice Wickremasinghe further pointed out.

The judgment also observed that in December 2014, when vouchers were being submitted for payments to be made to the suppliers of the cloth, Weeratunga had repeated his consistent stance that the TRC must be paid back what it had granted and had reminded the Chief Accountant” by way of a post pasted on the voucher that at least a part payment of Rs 200 million had to be made in the first quarter of 2015.”   

There is un-contradicted evidence that Weeratunga had at all times the intention to ensure that the TRC was recouped. He attempted to ensure that there was no wrongful loss to the TRC. His conduct was consistent with an attempt to ensure that there was no wrongful gain to anyone, leave alone the fact that not a dime ever went to him. In my view, it would be a figment of the widest imagination to ever suggest that Weeratunga entertained a dishonest intention. His conduct is anything but dishonest.”

Justice Wickremasinghe: The keenness displayed to source the funds for a social cause and the alacrity to pay back the money that are vital to a finding of the absence of a dishonest intention have gone unnoticed by the High Court Judge and the social spirit shown as a public servant is manifestly clear. How can a man who sticks to his last that the money obtained from the TRC must be a loan be characterised as dishonest? The vital ingredient of dishonesty in the charge has received a manifestly wrong interpretation and I am of the firm view that having regard to the law as well, there is a mis-appreciation of the facts on the part of the High Court Judge.

There is a mis-direction on the mens rea,” Justice Wickremasinghe noted, adding that it is crystal clear that when the intention is recoupment and restitution, it is inconsistent with a guilty mind and would definitely be consistent with an innocent state of mind.”

On the question of there, allegedly being no formal approval before the transmission of the funds from the TRC to the Presidential Secretariat, Justice Wickremasinghe noted that a TRC Board paper, dated 30 October 2014, establishes that the transmission of money was approved verbally prior to the date of transfer (the TRC Act does not place a statutory prohibition against a verbal decision of the Board).   

Despite this evidence, the High Court Judge arrives at an erroneous finding that there was no approval for the transfer of money” Justice Wickremasinghe emphasised. 

It is to be highlighted that despite the presence of voluntary undertakings and donations that could be engaged in or given by the TRC, Weeratunga had the objective of making this grant a loan subject to the obligation of the Office of the President to reimburse this amount. Evidence is so glaring that Weeratunga only tried to source funds subject to reimbursement long before the Presidential Election was called. He was thus motivated by laudable objectives. It defies logic and common sense that a Chairman of a corporate body who attempted to ensure the recoupment of money belonging to the Corporation should face an ordeal of a sardonic prosecution despite his responsible and prudent decision as the Chairman of the corporate body.”

The Court also observed that no dishonest intention could be attributed to Palpita either. When one holistically analyses the steps taken by Palpita in regard to the request for funds made by Weeratunga, one does not see anything clandestine. He put up a Board paper dated 30 October 2014 giving an introduction and a rationale for the grant. He suggested a donation of Rs 600 million for this purpose in light of the previous engagements of the Corporation in such activities. He also stated that the funds could be sourced from the budgetary allocation for CSR of the TRC. The steps taken by Palpita do not partake of the characteristics of dishonesty.”

It was finally noted that such appropriations as was done in this case for a charitable objective of providing Sil Cloth cannot be classified as misappropriations when donations for charitable causes and disbursements have continued to be authorised by the Board as permissible activities. No Chairman of a corporation and a Director in the position of Palpita and Weeratunga would ever characterise the apportionment of funds for providing needy devotees with clothes as criminally dishonest. I have to observe that if directors of companies or corporate entities are to be visited with prosecutions and sanctions under the Penal Code for making validly authorised donations, no one would ever wish to serve as a director of a company or for that matter as a Director of a corporate body such as the TRC. If directors or a corporation are going to be in peril of a prospective prosecution for a business, judgment or a bona fide engagement in a consistent practice of CSR for which there is a separate budgetary allocation, is to entail prosecution and humiliation, no recognised public servant or anyone distinguished in a profession such as law or accountancy would ever like to run the risk of an appointment on a Board of a Corporation such as the TRC.”

Justice Wickremasinghe also pointed out that it was a collective decision of the Board to appropriate this money for this project and that it was not the individual decision of Palpita or Weeratunga. On 15 December 2014, the decision to give formal approval to the oral approval and the transmission of money was taken by all these four Members present (out of five with the quorum being three). It must be taken that they were all aware of the facts and circumstances of the request and with this knowledge, ratified all these steps. There was nothing done in secrecy and the prosecution witnesses as well as the evidence given from the witness box and the dock statement all establish the inescapable inferences of the absence of dishonest intention. When the money allotted thus became the authorised activity of the Corporation, this Court finds that only Palpita and Weeratunga have been cherry picked and selectively prosecuted. The facts clearly show that these two accused should not have been chased after in the way they were pursued. In this backdrop, the authorised donation became a lawful activity of the TRC and Palpita and Weeratunga could not be said to have intended a wrongful gain or a wrongful loss because if at all a donation was a voluntary disbursement which cannot be classified as wrongful. In such a situation, since the appropriation of the money was authorised, it cannot become a misappropriation. Thus, there is not only an absence of the mens rea but also a lack of the actus reus necessary to constitute the offence of criminal misappropriation. There are no unlawful means that have been employed and an act done in accordance with the consensus of the Board and the provisions of the TRC Act cannot be considered to be a dishonest act, and would not justify the conclusion of the offence of criminal misappropriation.”

There was also no concert or complicity between Palpita and Weeratunga, Justice Wickremasinghe held.

Also, Palpita and Weeratunga had nothing to do with the distribution of Sil Cloth itself, the Court noted. 

 The Court therefore held that there was neither the mens rea of dishonest intention nor the actus reus of misappropriation. 

I hold that the prosecution did not establish its case beyond a reasonable doubt and conclude that there is gross misdirection on the part of the High Court Judge both in fact and law which amounts to a non-direction, and in the circumstances, I conclude that the conviction and sentence of both the accused appellants must be set aside and that they should be acquitted.”

Justice Wickremasinghe, addressing the question of the importation of personal knowledge, noted that the High Court Judge has stated that there was a prevailing political culture during the said regime. There is no evidence to support this observation. The Judge has perhaps imported this knowledge from a Commission of which he was a Member of or even from an unknown source. The importation of this personal knowledge into his conclusions has coloured his judgment and lends credence to the submission that the accused did not have a fair trial. I take the view that on this misdirection of the importation of personal knowledge of an alleged political culture, the judgment stands liable to be quashed and set aside.”

There has also been misdirection by the High Court Judge based on inadmissible evidence Justice Wickremasinghe noted.   

On the matter where the High Court Judge was engaged in questioning the witnesses, specially Weeratunga in an inappropriate manner, biased towards the prosecution case, the Court observed that the incessant questioning by the High Court Judge unconsciously dragged him into an uncontrollable stage where he has lost his control over the examination of evidence of the witnesses. It is observed that whilst Weeratunga was giving evidence, the High Court Judge intervened continuously on 66 occasions and had 287 interjections. Looking at the incessant questioning despite the inherent limitations of the powers entrusted to a trial Judge to question witnesses, I take the view that there was an indiscriminate use of the powers of questioning a witness and the complaint made that Weeratunga was denied a fair trial is well founded.”

It was further noted regarding the manner in which the case was transferred, that the procedure followed was in violation of the practices followed in the High Court and that there is no minute or journal entry assigning this case from Court Number Three to Court Number Six. The circumstances in which the presiding High Court Judge came to hear the case created a serious doubt on the impartiality and validity of the proceedings adopted in the case.”

Finally, Justice Wickremasinghe held that the prosecution has failed to establish the ingredients of the offences laid in the indictment. There is no dishonest intention with which both accused appellants have acted. They were not actuated by mens rea or actus reus. There has been a bona fide exercise of their powers and duties. Neither accused was enriched. Whilst the Board authorised a transaction which is protected by law and CSR, it is a travesty of justice that only two Members of the TRC had to endure the traumatic experience of a selective prosecution at a prolonged trial, causing a senior public servant of long years of meritorious public service, humiliation and anguish. Palpita, who only followed the request of his Chairman for assistance, also underwent the infamy of a long drawn out trial. I cannot reach any other conclusion except that of the innocence of the two accused appellants fully vindicated on oral and documentary evidence. ” 

Justice Abeyratne also wrote a separate but concurring opinion reaching the same verdict. 

Victory to public service

Former Secretary to the President, LalithWeeratunga, who was acquitted and ordered to be released from the controversial Sil Cloth case, by the Court of Appeal, described the verdict as historic for the country’s State sector and public service.

Speaking to the Media soon after the announcement of the verdict, he said it would be a landmark judgment for those engaged in the State sector, as they would be able to perform their duty sans any duress whether political or otherwise henceforth.

Both expressed their gratitude to this newspaper and affirmed that during the aforesaid period both Mawbima and Ceylon Today, had reported the case in its entirety sans any distortions and asserted it had also contributed in no small measure for their ultimate acquittal and release from the high profile case.

They added that the verdict would go a long way to reclaim the lost trust and confidence of the public in the country’s State service.

Both Weeratunga and Palpita urged those in the State sector to repose their trust in the present regime, as it would look to further enrich their lives during the next five-year period.

Speaking further Weeratunga said: I take this opportunity to convey my gratitude and deep appreciation to the Judiciary which decided to issue an order to acquit us from this case. This decision will also further strengthen the State service. The order given by the Colombo High Court only contributed to destabilise this sector, but now this landmark verdict has put the record straight.”

Speaking to the Media, Palpita stated This verdict is not something that has been given to us at a personal level. It will have an impact on the entire State service. During the past five years those in the State service were afraid to take decisions on their own due to being politically victimised by the previous regime. But, this historic verdict would no doubt strengthen this sector. If those in the State service were to take honest and brave decisions on behalf of the people, the Judiciary has proved they will protect them.”