Sunday Times 2
Helping Hambantota: Lawyers acquiesced when ex-CJ perverted justice
It is reported that the former Chief Justice Sarath N Silva has confessed that he did not give the right judgment in 2005 and tendered an apology for his ‘mistake’. The 2005 judgment referred to is his judgment in the fundamental rights application filed by the then Prime Minister Mahinda Rajapaksa to quash a CID investigation against him for allegedly diverting Rs. 83,000,000 from the Tsunami Fund, which was a public fund, to the ‘Helping Hambantota Fund’ which was a private fund.
Investigations were initiated by the CID under DIG-CID Lionel Goonetillake on the orders of Attorney General K.C. Kamalasabayasan following a complaint made by UNP Parliamentarian Kabir Hashim to the effect that the Prime Minister was siphoning tsunami aid for a private fund. Initial inquiries revealed prima facie evidence of misappropriation and the CID filed a B report in the Fort Magistrate’s Court (Case No B/1294/5) with the concurrence of the Attorney General.
Based on the CID report the court immediately called for details of the several bank accounts involved in the Helping Hambantota episode. This investigation opened a can of worms. In August 2005, the money was returned after seven months of holding it in a private account, which was further evidence of the alleged misappropriation. Everyone acquainted with the facts of the case was aghast at Sarath N. Silva CJ’s judgment, quashing the investigation on the basis that the allegations were false and politically motivated.
The complaint may have been politically motivated, but that does not per se make the allegation false. Moreover, DIG Goonetillake and Attorney General Kamalasabayasan who were responsible for filing the ‘B’ report were both public servants of the highest integrity. They would not have filed the ‘B’ report if there was no prima facie evidence to justify further investigations. The CJ, however, not only arbitrarily quashed the investigation but also ordered the following compensations to be paid to Prime Minister Rajapaksa, the petitioner in the FR case:
- MP Kabir Hashim (complainant/informant): Rs. 100,000
- Inspector General of Police Chandra Fernando: Rs. 100,000
- DIG Goonetillake: Rs. 100,000
- State: Rs. 200,000
It may be noted that the imposition of these compensatory fines was against the Rule of Natural Justice – audi alteram partem, which means no punishment can be meted out to any person without affording that person an opportunity to defend himself. In this case no formal charges were served on these public servants and hence the punishments were arbitrary and in violation of a principle of Natural Justice. There is enough and more law authority to support my contention. It is unfortunate that lawyers appearing for police officers acquiesced to the arbitrary judgments of this CJ, probably, to insulate their practice before him. It is only attorney Kishali Pinto Jayawardena who had the spunk to take him to task for his perverted judgments, in her columns in the Sunday Times.
A mistake is an error of judgment, but a deliberate malversation in an alleged crime against the nation, with a view to unscrupulously enhance one’s personal ambitions is no ‘mistake’. This statement of the ex-CJ has now exposed a string of crimes committed by him and hitherto kept under cover by arbitrary judicial process. On his own admission, besides perjury, he has connived to foist a person facing serious criminal allegations as the Executive President of the country.
In the perpetration of the above criminal acts, it would now be clear that the arbitrary imposition of compensatory fines amounts to extortion.
It is also revealed that he has committed a heinous crime of extortion against honest public servants who had performed their duty conscientiously. Should he not be made to pay back the arbitrary fines to the innocent public servants with compensation, apart from any other action deemed fit against him?
(The writer is a Rtd. Senior Superintendent of Police)