The Weeratunga-Pelpita sil redi saga

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 Presidents 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 Presidents
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 Premadasas 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 Presidents 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 editors 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 Pelpitas 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 Weeratungas 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. Thats 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.
Posted by Thavam