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Searchlight
on Bribery Comm.
By
Dilrukshi Handunnetti
The
very body ambitiously created to weed out bribery and corruption in the
country seems to have become highly questionable as startling
revelations emerge about the conduct of the body itself which had at
times amounted to violations of secrecy and confidentiality.
Euphoria
The
Commission, established in 1994 by a newly elected People's Alliance
government to put an end to growing corruption, a stick they often beat
the outgoing United National Party with, was created with much euphoria
in the afterglow of a massive electoral win.
Established
with a two-thirds majority in parliament with the fundamental desire to
create a society that was free of corruption, the pertinent question
today is whether the body is actually serving the desired purpose.
A
private plaint filed before the Fort Magistrate against one of the
bribery commissioners has begun to unravel that the Commission that
should be fundamentally above board and independent is far from being
independent.
Twin
problems plague the Commission. In the first instance, the Commission's
absolute lack of vibrancy in highlighting issues of corruption proves
that it has been rendered yet another ineffective institution that fails
to serve public purpose.
This
has been compounded by the fact that the incumbent government's inaction
and the recently established Constitutional Council in breathing new
life to it.
The
more pertinent issue, however, is whether it is contravening the very
purposes it sought to serve when it was created with such hope, as
transpired in the cited action.
Evidence
Inspector
of Police, Konara Mudiyanselage Sarath Nandasena giving evidence in a
magisterial inquiry into a private plaint filed last year urging the
issuing of summons against accused Kingsley Wickremesuriya, one of the
bribery commissioners, had declared that the said commissioner had
exerted influence on him to violate the secrecy laws and divulge vital
information pertaining to an investigation against Minister S.B.
Dissanayake while the inquiry was in progress.
Mind
you, the person who had conspired with Wickremesuriya, if the evidence
is true, to get Nandasena to violate the secrecy provision was none
other than President Chandrika Bandaranaike Kumaratunga.
The
Sunday Leader investigations have revealed that the senior police
officer was serving the Commission and headed its Investigations Unit
when Kingsley Wickremesuriya functioned as the third commissioner.
The
investigations against former Samurdhi and Rural Development Minister
S.B. Dissanayake commenced in July 2001, at a time when the relationship
between the President and the Minister plummeted. The startling
information that transpired in court shed light on how easily influenced
the institution was at a politically decisive time.
Investigating
S.B.
IP
Nandasena, according to our investigations, has stated in his evidence
that he was conducting investigations into Dissanayake in relation to
Samurdhi banks on Commissioner Kingsley Wickremesuriya's instructions,
and that on certain occasions he (Nandasena) had been ordered to take
the relevant file to the President's house.
Nandasena
in evidence disclosed that on July 11, 2000, he was escorted by the
Commissioner to President's House where she had asked him to brief her
on the investigation into S.B. Dissanayake's Samurdhi banks and the fact
that he did disclose information to the President as requested.
The
officer had maintained in court that while he was compelled to disclose
the information to the President in her status as the first citizen,
that under no circumstances would he have done so if he was not taken to
the President by the commissioner himself.
A
Director of the Commission, Senior Superintendent of Police, Peter
Gunatillake who was also the first witness for the prosecution has
confirmed before the Fort Magistrate, Justice Priyantha Fernando that
Commissioner Wickremesuriya had summoned him to his room and asked him
to accompany IP Nandasena to President's House which he had turned down.
Gunatillake
too had stated in evidence that he had refused to go when Wickremesuriya
had reportedly said that since the President had summoned them, they
were duty bound to go. The SSP has also defended the inspector in charge
of the Investigations Unit by stating that the officer had refused to do
so as it would be inappropriate during an investigation to disclose
material.
Questionable
conduct
Both
the police officers have maintained in court that the suspect,
Wickremesuriya had revealed to the President that an internal audit was
to be conducted in order to ascertain whether any misappropriation has
taken place with regard to the Samurdhi banks.
What
has transpired in court does throw light on how questionable the conduct
of this independent commission is. Section 22 of the Commission to
Investigate Bribery and Corruption, Act No 19 of 1994, clearly states
that a duty and a responsibility is imposed on every member of the
commission to maintain secrecy, which establishes that Wickremesuriya
has acted in contravention of this sacred duty.
Violating
responsibility
In
the evidence led by the prosecution, it has been clearly established
that the commissioner by disclosing to the President what came to his
knowledge from the investigation work and by exerting influence on IP
Nandasena to reveal such information that formed the basis of an
investigation, has violated the responsibility imposed on him to
maintain secrecy.
The
developments, to say the least, leaves a lot to be desired and would
make the public question as to how independent the commission is. Both
the government and the Constitutional Council would do well to remember
the old adage that Caesar's wife should be necessarily above suspicion,
if people are to keep faith with the system and the very institutions
created in the name of democracy and transparent governance in a
backdrop where the first citizen seems to be hunting her political
opponents through the very institutions established to de-politicise the
system.
Over
to you, Mr. Ranil "Clean" Wickremesinghe.
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Sarath
Nandasena's evidence
Konara
Mudiyanselage Sarath Nandasena: Age 57 5/B, Inspector of Police -
Commission to Investigate Bribery or Corruption, Malasekera
Mawatha, Colombo 7. (affirmed).
Your
Honour, before I give evidence I wish to invite Your Honour's
attention to the fact that I have not come to give this evidence
on my free will. I have come on the summons issued by court. I
have given an oath under the Police Ordinance to maintain secrecy.
Since
these facts may be disclosed in giving my evidence, I wish to
invite Your Honour's attention thereto.
I
joined the police service in 1968. I am presently employed as an
Inspector of Police in the Commission to Investigate Allegations
of Bribery or Corruption.
As I
remember it was in August 1998 that I was seconded to the
Commission. By November 2001, I was incharge of the assets and
special investigations of the Investigations Unit. By that time,
Mr. Kingsley Wickremesuriya was functioning as Commissioner No. 3.
During my period of service, investigations were made against Mr.
S.B. Dissanayake. These investigations were done by me.
As
far as I could remember these investigations commenced by the end
of August 2001 or the beginning of September. By 02.11.2001, I had
been conducting investigation work in connection with Mr. S.B.
Dissanayake. This investigation in relation to Mr. S.B.
Dissanayake was done on the instructions of the Commissioner, Mr.
Kingsley Wickremesuriya. It was he who gave me orders. I cannot
remember the date well. On a certain occasion I was ordered on
11.07 to take this file to Temple Trees.
When
I was on duty on the morning of that day, I was summoned to his
room. I went there. Then I was told that Her Excellency the
President wanted to know the facts regarding this investigation.
'At 10.30 a.m. today I have to go with you to President's House,
so get ready,' I was told.
At
that time our director entered the room. He is Mr. Peter
Gunatillake. He too was asked to go. But he refused. Later he
called me and said that this is the person who conducted the
investigation who knows the information. So I was asked to
get ready to go. I told the Director about it. He said that he
would not be going and said, "Nandasena, you do what's
appropriate."
Thereafter,
I went and told Mr. Kingsley Wickremesuriya that it would not be
correct for us to go and give information. I said so at his
office. He said that he had already promised to go and asked me to
get ready. We left in Mr. Wickremesuriya's car. The file relating
to the investigation was not taken.
We
went to the President's House. The President's House situated at
Fort not at Temple Trees. We went there at about 10.15 a.m. We
were seated by the side of the Nuga Tree at President's House. We
were called at about 3.50 p.m. We met Her Excellency the President
at that time. We went into the hall. Mr. Kingsley Wickremesuriya
took me to this hall. He introduced me to the President as the
officer investigating the matter regarding Mr. S.B. Dissanayake.
Thereafter,
the President asked me to explain to her the position regarding
the investigation. I agreed. The President asked me questions. I
answered those questions. She asked me to explain about the
investigation file of Mr. S.B. Dissanayake. I did so. She said
when Samurdhi was being implemented throughout Sri Lanka,
difficulties may have arisen.
Then
Mr. Kingsley Wickremesuriya said that it would be difficult,
usually the investigation ought to be done after an audit. He said
so in reply to the query made by the President. He categorically
stated that an audit in relation to the activities of the Samurdhi
Banks. I told what I know to the questions put to me by the
President.
I
went to that place as Mr. Wickremesuriya called me to go. I went
because the President was the chief citizen of the country. Mr.
Kingsley Wickremesuriya provided an opportunity for the President
to question me. I said that an audit should be done in relation to
the Samurdhi Banks. Mr. Kingsley Wickremesuriya confirmed it. That
was part of the investigation. I said that this required a
considerable length of time. He said that since these banks are
all over Sri Lanka, this cannot be done within a short period.
All
the officers and members of the commission were bound to maintain
the secrecy of the commission. If he had not taken me to disclose
these facts to the President, I would not have disclosed them. It
was explained to the President in my presence that an audit into
the Samurdhi banks should be done.
Mr.
Kingsley Wickremesuriya made no other clarifications in this
regard. The President asked me questions. Mr. Kingsley
Wickremesuriya had no opportunity to speak. He informed the
President that an audit into the activities of the Samurdhi banks
should be done, which is a material part of the file. He confirmed
the statement made by me.
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Peter
Ronald Gunatillake's evidence
Peter
Ronald Gunatillake: Age 47, Roman Catholic, Senior Superintendent
of Police, Director Commission to Investigate Allegations of
Bribery or Corruption, No. 36, Malalasekera Avenue, Colombo 7.
(Sworn).
I
joined the service of the Police Department on 10.07.68 as a sub
inspector. I am now attached to the Commission to Investigate
Allegations of Bribery or Corruption as the Director thereof. I
was attached to the commission on 31.03.2000. I have been in
continuous service at the Commission from that day until this
date. By July 2000, an investigation was commenced by the
commissioner regarding Tilan Manjith Wijesinghe.
In
July 2000, Mr. Kingsley Wickremesuriya was working as a
commissioner of this Commission. On a certain day in July 2000, he
inquired from me regarding the investigation that was being
conducted regarding Tilan Manjith Wijesinghe. This inquiry was
made from me on July 8, 2002. (Counsel informed to redirect the
said question).
Q. I
am not asking about Tilan Ranjith Wijesinghe. That question was
asked by mistake. Was an investigation being conducted during this
period regarding S.B. Dissanayake?
This
was an investigation regarding S.B. Dissanayake. Mr. Kingsley
Wickremesuriya functioned as a commissioner during this period. On
07.11.2001 when I was in my office, Mr. Kingsley Wickremesuriya
telephoned me and asked me to come to his official room. I went to
his official room. I saw Mr. Nandasena, Inspector of Police there.
The
Commissioner spoke to me in English and asked me to accompany him
to meet Her Excellency the President, to discuss about the
investigation regarding Mr. S.B. Dissanayake. I refused to go.
Then he told Nandasena, Inspector of Police to accompany him since
the President had asked them to come. He refused to go and said
that it would not be correct to do so.
He
said it is not appropriate to go since an investigation is being
conducted and information may have to be disclosed. It was
Nandasena, the Inspector of Police who said so to Mr. Kingsley
Wickremesuriya. Mr. Wickremesuriya said that we should somehow go
since we have been asked to come. On that occasion I left his
official room.
When
I was walking along the corridor, Mr. Wickremesuriya and the
Inspector of Police, Nandasena came out of the room and got into
the official vehicle of the Commissioner. I went back to my
official room. Although Inspector of Police Nandasena had stated
that it would not be appropriate to go, he got into the official
vehicle of Mr. Wickremesuriya and left.
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Fort
Magistrate's order
This
is an action commenced upon a complaint filed under Section
136(1)(a) of the Criminal Procedure Code and it has been filed
alleging that the accused had committed an offence punishable
under Section 22 of the Commission to Investigate Allegations on
Bribery or Corruption Act.
Two
charges are made according to the amended charge sheet and the
charges are:
1.
That the accused bound by secrecy as a member of the commission to
maintain secrecy discussed with, and disclosed to, the President
information, and,
2.
That on the said occasion the accused exerted influence upon
Police Inspector Nandasena, a member of the commission to disclose
such information to the President. In supporting these charges the
evidence of two witnesses for the prosecution were led.
In
terms of Section 139(1) of the Criminal Procedure Code summons or
warrant against an accused in a private plaint of this nature can
be issued when the magistrate is of opinion that there is
sufficient ground for proceeding against the accused.
The
judgement in Court of Appeal case no. 279.93 Malini Gunaratna ADJ
Galle B. Abeysinghe clearly lays down the manner in which the
magistrate should be satisfied in determining that there is
sufficient grounds in proceeding against an accused in a private
plaint. As stated in the said judgement, the magistrate ought to
be satisfied about the offence alleged to have been committed as
well as about the evidence regarding the commission of the said
offence.
According
to the facts of this case, the offence alleged to have been
committed is an offence punishable under Section 22 of the
Commission to Investigate Allegations of Bribery or Corruption.
Section 22 states that an act committed in contravention of the
breach of the duty to maintain secrecy imposed by Section 17.
According
to the evidence given, this accused is a member of the Commission
to Investigate Allegations of Bribery or Corruption. Accordingly,
he is a person to whom the provisions of Section 17 of the said
Act will apply. Police Inspector in his evidence before this court
stated that he conducted the investigation relating to Mr. S.B.
Dissanayake and that on 07.11.2002 the Commissioner, Mr. Kingsley
Wickremesuriya ordered him to go to Temple Trees with the said
file relating to the investigation.
He
further stated that the Director, Mr. Peter Gunatillake also
arrived at that place but he had refused to go. According to the
evidence given by this witness it becomes evident that Kingsley
Wickremesuriya had gone to the President's House at Fort
accompanied by this accused and had discussed with the President
on that day the position relating to this inquiry file.
Further,
according to the evidence given by him, certain facts that he
mentioned to the President in connection with the said file were
also confirmed by the accused to the President. Peter Gunatillake
has also given evidence before this court confirming the fact
which was stated by Police Inspector Nandasena that when he was
called to go to discuss this matter with the President, Director
Peter Gunatillake had also come to that place and that Peter
Gunatillake had refused to go to meet the President.
Accordingly,
it appears to me that there is sufficient grounds to proceed
against the accused upon this complaint. Counsel for the
prosecution had asked for the issue of warrant against the
accused. But no evidence has been placed before this court that
this accused would disobey summons or that he would avoid court,
for a warrant to be issued, prior to the issue of summons.
In
the above premises, I am being of the opinion that there is
sufficient grounds to proceed against the accused, issue summons
on the accused.
Call
on 06.06.2002.
Sgd,
(K.
Priyantha Fernando)
Magistrate Colombo, Fort
18.03.2002.
I
hereby certify that the foregoing is a true copy of the journal
entries in Colombo Fort, Magistrate Court Case No. 55895.
Registrar,
Magistrates Court,
Colombo, Fort |
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