by C.A.Chandraprema Courtesy The Island

September 30, 2017, 8:01 pm
The ‘sil redi’ judgment against former presidential secretary Lalith Weeratunga and former Telecommunications Regulatory Commission Director General Anusha Pelpita continues to make waves. Indeed the discussion of this judgment is fully justified. This writer cannot think of another judgment at the High Court level which is fraught with such serious implications for the way the most important institutions and the public service in this country functions. The sil redi judgement itself says that no part of the money involved was taken by Lalith Weeratunga and Anusha Pelpita for their personal use yet they were sentenced to three years RI and a fine of two million rupees as well as an unprecedented fine of Rs 50 million each on the grounds that they had misappropriated Rs 600 million from the Telecommunications Regulatory Commission (TRC) to be spent on sil redi to confer an advantage on Mahinda Rajapaksa at the last presidential elections.

Even though the last presidential election is mentioned as the pivotal event in this whole judgment, Weeratunga and Pelpita were never charged under the Presidentail elections law. The sil redi judgment would have been more comprehensible to the ordinary man on the street if an election related offence was proved first and they were subsequently convicted of having ‘misappropriated’ Rs. 600 million from the TRC to commit that election related offence.  The reason why Weeratunga and Pelpita were never charged under the Presidential elections law is obviously the state of utter confusion that prevails with regard to election offences. If our elections laws are properly implemented, there will in fact be no election campaigns of any kind in this country.

Sections 69 and 74 of the Parliamentary Elections Act of 1981 for instance prohibits candidates from distributing handbills, putting up posters and cut outs or holding processions from the time nominations are handed in until the poll ends. Section 75 prohibits the candidate from canvassing for votes during the same period. If a politician is unable to canvass for votes and display his symbol, distribute handbills and put up posters after handing nominations, how is he to even inform the public that he is contesting?  All these impractical Sections of the elections law are openly flouted according to an understanding arrived at between the Elections Commission, the police and the political parties – but without changing the law. When selected sections of the elections law are openly ignored by everybody in that manner, it is impossible to sustain a charge in courts against someone for having committed an offence under another Section of the same Chapter of the various Elections Acts.

This whole matter is at least partly due to the confusion that prevails in this country with regard to what constitutes an election offence. In contrast to the chaos we have here, the elections law in India is crystal clear and practicable.

Who was seen distributing the sil redi?

If this was actually a case of distributing sil redi to voters to make them vote for Mahinda Rajapaksa, one would think that the presidential candidate himself or at least his supporters would be conspicuously involved in the distribution of the goods in order to influence potential voters. The fact that very few (if any) politicians were seen or photographed distributing sil redi clearly shows that the distribution of sil redi was not done by politically connected persons. Had politicians been seen distributing the sil redi in a widespread manner, that would undoubtedly have been presented to courts as evidence that the distribution of sil redi was indeed a political gimmick on the eve of the elections. The sil redi had been handed over to the temples countrywide to be distributed. In the very few instances when a local politician may have been seen distributing sil redi, that could only have been on the invitation of the chief incumbent of the temple.

Though it is said that the sil redi was distributed on the eve of the election, the evidence points to the fact that it had been in the pipeline as a project to be implemented in 2014 even when there was no election anywhere in sight. The earliest indication of this was in a minute written on 20 March 2014 by Lalith Weeratunga to the Senior Assistant Secretary of the Presidential Secretariat outlining eight projects that President Mahinda Rajapaksa had ordered funded in 2014 through the President’s Special Development Fund. One of the projects on this list was providing ‘material aid’ to the devotees observing sil at temples on Poya days. On 12 May 2014, Weeratunga had written another minute to his Senior Assistant Secretary saying that this material aid was to be in the form of ‘sil redi’. Even though the decision to distribute sil redi had been taken earlier in 2014, the project had apparently been delayed till the requirement of sil redi had been ascertained through a countrywide survey carried out by Samurdhi Niladharis at a request made by the presidential secretariat.

Once the programme got under way, the consignments of sil redi were handed over in bulk to various temples nominated in each divisional secretariat area. No instructions had been given as to when the goods were to be distributed. The chief incumbent of the temple was the sole authority as to whom and when these goods would be distributed. This was a project that was implemented with the cooperation of over 11,000 temples countrywide. If the distribution of sil redi is considered to be a case of ‘treating’ voters to influence the outcome of the election, the provision of the law that applies is Section 77 of the Presidential Elections Act, No. 15 of 1981 which states that every person who ‘directly or indirectly’ provides any provision with a view to influencing the way people vote will be guilty of the election offence of treating which means that the 11,000 and more temples that participated in the programme had been ‘indirectly’ promoting the candidacy of Mahinda Rajapaksa.

Moreover, Section 77 of the Presidential elections law states very clearly that both the giver and the taker of such provisions are equally guilty of the offence of treating. This would mean that all the Buddhist devotees who obtained the sil redi are also guilty of the offence of ‘treating’. The inherent absurdity of such a proposition should convince anyone that Section 77 of the Presidential elections law was obviously never meant to apply to government aid that was distributed to members of the public across the board regardless of political loyalties but to goods that are selectively distributed with a view to influencing people to vote for a particular candidate. The sil redi judgement stated that the sil redi parcels contained a label which read “Mahinda Rajapaksa methithuman Mahinda Chinthana prathipaththi walata anuwa yamin karana daham pandurak”.  It was argued by former President Rajapaksa in a statement he put out that this label only stated the provenance of the sil redi, and was not in violation of Sections 72, 85 and 68(1)(e) of the Presidential Elections Act No:15 of 1981, which deal with the display of printed matter during elections and in fact he is right. This is obviously another reason why Weeratunga and Pelpita were never charged under the elections laws – there were no charges that could be brought and sustained.

Was borrowing money from TRC illegal?

Originally, the money for the sil redi project was to come from the President’s Special Development Fund. But due to a sum of money that had to be given to the Kotelawala Defence University there was not enough money in the programme to do the sil redi project. It is at this juncture that Lalith Weeratunga had decided to obtain the money from the Telecommunications Regulatory Commission. Several Sections of the Government Financial Regulations authorizes Chief Accounting Officers of the various ministries to transfer money between agencies under their authority. To give an example from the past, when R.Premadasa was the Prime Minister and Minister of Local Government, Housing, Construction and Highways in the J.R.Jayewardene government of 1977-1989, he used to borrow the money for his Gam Udawa programmes from the Colombo Municipal Council. When the Treasury released the money to the housing ministry the CMC would be reimbursed.

After President Premadasa’s death, some of his own loyalists working together with the SLFP members in the CMC in a joint conspiracy to oust the then Mayor of Colombo Rathnasiri Rajapaksa brought several charges against him one of which was giving CMC money to the Housing Ministry to be used for the Gam Udawa programme. The argument was that even if the money had been always been reimbursed, the shifting of money around like that was illegal. The then retired President J.R.Jayewardene, had on behalf of Rathnasiri Rajapaksa gone voluntarily before the Commission appointed to look into the matter to say that this was a perfectly above board arrangement. Rathnasiri Rajapaksa was later exonerated. Now decades later, we see Lalith Weeratunga being pilloried for having done something that had been a standard practice in the administrative system under all governments.

Weeratunga had written to the Director General of the TRC which was an institution under the Presidential Secretariat on 30 October 2014, asking for Rs. 600 million. The latter had prepared a board paper on the same day seeking the approval of the board, firstly, to allocate Rs. 600 million to the Corporate Social Responsibility budget of the TRC as an extra budgetary allocation, secondly to approve the donation of Rs. 600 million to the President’s Special Development Fund and thirdly, to spend this amount from the corporate social responsibility budget of the TRC. This paper had been formally presented to the TRC board meeting held on 15 December 2014 and all three proposals had been unanimously approved by the Commission. Section 22B(2) of the Telecommunications Act states very clearly that  The Director-General shall, subject to the ‘general direction and control’ of the commission, be charged with the direction of the transactions of the commission. The phrase ‘general direction and control’ indicates that the Director General as a responsible officer has some leeway in these matters.

At the time when the TRC transferred Rs. 600 million to the Presidental Secretariat account, on 5 December 2014, strict formal sanction from the board of directors may not have been available. However, according to subsections (1) and(2) of Section 3A of the Telecommunications Act, the quorum for a meeting of the board is just three members and one of those three has to be the Chairman. Decisions have to be made by a majority of the members present which means that two directors can take a binding decision when three are present. In this instance, Lalith Weeratunga was the Chairman of the TRC and Anusha Pelpita an ex officio director. So the number required to take a binding decision was already present and there was only the technical detail that a third director was not present to make it a formal quorum. When a formal meeting of the board was in fact called on 15 December 2015, all the directors had unanimously approved of this transaction.

Pedantic insistence on procedural minutiae is never the best way to go about anything. We pointed out earlier that if the Elections Commission and the police insist on the pedantic implementation of the elections laws in this country, there will be no more election campaigns. It has been said that the money from the TRC had been remitted to the Presidential Secretariat account on 5 December 2014 – ie. ten days before formal sanction had been obtained from the TRC board. But it should be remembered that this was only a transfer of money from the TRC account to an account in the Presidential Secretariat. This was the movement of money from one account to another operating under the same ‘Chief Accounting Officer’ Lalith Weeratunga. On 29 December 2014, after the money was actually disbursed, 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.

The sil redi judgment has not taken into account the minutes written by the highest public official in the country to his subordinates about this transaction. Everyone knows that the public service runs entirely on the minutes written by officers on the margins of official letters. These minutes are documents that can be presented to courts of law as evidence. We all know how important the contents of the Sunday Leader editor’s note book were in the white flag case. Similarly, when it came to the bond scam, the notes made on the margin of an official document by the then Superintendent of Public Debt of the Central Bank was a key piece of evidence. However, the minutes written by Lalith Weeratunga the highest public official in the land have not featured at all in the sil redi judgment.

Vital witness statements

Another noteworthy feature of the sil redi case is that the prosecution brought 21 witnesses to prove their case against the accused and when the statements made by six of them to courts under oath were such as to exonerate Lalith Weeratunga and Anusha Pelpita, the evidence thus presented had not been taken into account on the grounds that these prosecution witnesses had worked with the two accused and that they had been ‘partial and sympathetic’ to the accused. All the witnesses whose statements were not taken into account were those who were in a position to provide details regarding the goings on within the presidential secretariat and the TRC. The remaining witnesses were outsiders like the traders who supplied the sil redi and other individuals who had been cited as witnesses only as a formality and did not have any worthwhile evidence to provide.

Readers should ask themselves whether any meaningful investigation into the Central Bank bond scam for instance can be carried out without taking any of the evidence presented by officials of the Central Bank and Finance Ministry into account. The only way to find out whether something had going wrong in an institution is from the evidence that can be gleaned by taking statements from officials of the institution concerned. They would be the only persons to know what happened and whether any wrongdoing had occurred. With regard to the sil redi case, if every witness brought by the prosecution who could give any worthwhile evidence about the presidential secretariat and the TRC had said that nothing untoward had taken place, one would assume that the benefit of the doubt should have been given to Weeratunga and Pelpita.

The judgment had also said that even if the board had agreed to the release of this money, the TRC Act did not empower the Commission to spend money for a task like the purchase of sil redi and that therefore, the transaction was invalid. There are several provisions in the Telecommunications Act that have to be taken into account here. 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 authorize any payment in the performance of its tasks. What then are the ‘tasks’ of the TRC? Section 4 of the Telecom Act states that the Commission shall exercise its powers in a manner best calculated to promote the national interest. Having said that, Section 4 goes on to specify ‘in particular’, nine matters which all have to do with telecommunications.

There is a clear break between the general exhortation to promote the national interest and the particular tasks mentioned in Section 4 which makes it obvious that the general exhortation stands on its own separate from the specific tasks. The sil redi project obviously falls into the general rather than the specific tasks of the TRC. An ordinary person would not argue that maintaining a social responsibility budget was not a valid task for a cash rich government owned corporate body like the TRC. The TRC did have a social responsibility budget like all major corporations and this increased from Rs. 100 million to Rs. 600 million as a result of Anusha Pelpita’s board paper dated 30 October 2014 which was unanimously approved on 15 December 2014. The increase itself is well within the scope of 22F(3) of the Sri Lanka Telecommunications Act.

Furthermore, it is noteworthy that this Rs. 600 million was never actually meant to be spent as social responsibility expenditure of the TRC. It was only a loan from the TRC to the Presidential Secretariat which was to be reimbursed in full the moment the annual allocation for the presidential secretariat was received. In fact the allocation for the Presidential Secretariat for the year 2015 had already been passed by parliament, when this money was spent. Since this was only a loan from the TRC to the presidential secretariat, what should take centre stage are the provisions in the Financial Regulations which allows for such transfer of funds between institutions controlled by the same Chief Accounting Officer.

Lalith Weeratunga’s minute to the Chief Accountant of the Presidential Secretariat of 29 December 2014 stating that this money had to be paid back to the TRC and that at least Rs. 200 million should be paid back in the first quarter of 2015 is also of vital importance in this matter as this minute is in effect a binding instruction to effect repayment. Someone may argue that even though the sil redi project may have been in the pipeline from at least May (if not March) 2014, Lalith Weeratunga was wrong to have got it going so close to a presidential election. The question however is that no one really knew whether a presidential election would actually be called in 2014 or not. That was a very personal decision of President Mahinda Rajapaksa. A whole lot of people including D.E.W.Gunasekera, Prof. Tissa Vitarana, Athureliye Rathana thera and even Maithripala Sirisena himself were exerting pressure on MR not to have an early election.

Until the last moment on 20 November 2014, no one except MR himself knew for certain whether a presidential election would be called early or not. That’s the nature of the presidential form of government – one person makes the final decision. One would think that the benefit of the doubt should be given to Weeratunga and Pelpita if they claim to have been simply pushing through a programme that was to have been implemented earlier in 2014 but had got unavoidably delayed due to its unwieldy nature.