Investigating corruption of the Yahapalana Government

 It was during the time Sarath Nanda Silva served as the Chief Justice that the deterioration of the Judiciary commenced and was plunged into such an ugly and disgraceful level. Prior to that, notwithstanding some isolated drawbacks, the judicial service in Sri Lanka, on the whole, had maintained a good image of being an independent and credible institution enjoying a high degree of public respect – Pic by Shehan Gunasekara

Investigating into corruption alleged to have taken place during the Mahinda Rajapaksa regime was considered the most important responsibility of the Yahapalana Government during its initial years. 

However, following the cessation of the political alliance between the President and the Prime Minister, President Maithripala Sirisena has appointed a Presidential Commission of Inquiry to investigate into allegations of corruptions and malpractices of the Yahapalana Government that had taken place from 15 January 2015 to 31 December 2018. 

The large-scale corruption at State level did not begin in the Rajapaksa regime. Its origin goes back to 1977 when there was a UNP Government in power. Thereafter corruption became a “permanent feature” in State rule. However, the regime of Mahinda Rajapaksa can be considered a period in which the bribery and corruption reached a maximum height.

During the second phase of the Rajapaksa regime corruption became a thing done in the open while it is now being done secretly under the Yahapalana Government. This can be considered the only difference that exists between the two regimes i.e. Rajapaksa regime and the Yahapalana Government as regards corruption. 

Plundering public property can be considered a permanent feature of State rule since 1977. Despite having numerous institutions maintained by public money to prevent bribery and corruption, during the long period of past 42 years since 1977, Sri Lanka has not been able to bring to book and impose punishment to a single politician associated with State rule, which can be considered the main source of corruption. This explains the extent of inefficiency and the failure of the institutional system maintained in Sri Lanka to prevent bribery and corruption.

In March 1986, during the rule of President J.R. Jayewardene, a Presidential Commission of Inquiry chaired by Percy Colin-Thom, a Supreme Court Judge, was appointed to investigate into the allegations of corruption against ministers, MPs and high-ranking public officers of the Government. Complaints poured into the commission. There were complaints against a number of Government ministers as well. 

Eighteen months after the appointment of the commission and while it had not yet concluded its activities, the President dissolved it suddenly without assigning any reason. By the time the commission was dissolved in 1987, it had received 1,973 complaints and of which only 634 complaints had been investigated into. 

The current Presidential Commission of Inquiry appointed by President Maithripala Sirisena can be considered the second Presidential Commission of Inquiry appointed to investigate into allegations of corruptions and malpractices of a government while it is in power. 

 

Deterioration of Judiciary 

The Head of the Presidential Commission appointed by President J.R. Jayewardene was a Supreme Court Judge while that of the commission appointed by President Sirisena happens to be a retired Supreme Court Judge. His name is Upali Abeyratna. He is not a person with a good reputation in the history of judicial service in Sri Lanka. His administration of justice had been tinged in disrepute. 

In 2002, I authored and published a book in Sinhala, titled ‘Nonimi Aragalaya’. The English version of it was published in 2003 under the title ‘Unfinished Struggle’. It was written to highlight and expose the character of Sarath Nanda Silva who had been the Attorney General one time and later the Chief Justice of the country in particular and about the judicial service in general during his tenure as the Chief Justice. The book was published at a time when he was the serving Chief Justice. Interestingly, Upali Abeyratna, the Chairman of the Presidential Commission appointed by the President to investigate into corruption, is also an important character depicted in this book. 

As I remember, it was during the time Sarath Nanda Silva served as the Chief Justice that the deterioration of the Judiciary commenced and was plunged into such an ugly and disgraceful level. Prior to that, notwithstanding some isolated drawbacks, the judicial service in Sri Lanka, on the whole, had maintained a good image of being an independent and credible institution enjoying a high degree of public respect. Though J.R. Jayewardene can be considered a very strong and powerful President, even during his rule, the Judiciary did not subject itself to undue influence by the Executive.

Sarath Nanda Silva did not stop at making the Judiciary an instrument of the Executive. Even in a moral sense, the Judiciary was turned into an ugly institution during his administration. It can be said that Sarath Nanda Silva had been a close confidant of President Chandrika Bandaranaike, during the early years of her regime. 

The President perceived the independence maintained by the Judiciary as an anti-Government trend. Unlike the other Presidents, she could not act arbitrarily introducing amendments to the Constitution as she did not command a two-thirds majority in the Parliament. In the circumstance, she wanted to make the Judiciary an instrument of the Executive so that she could pursue her agenda without hindrance. It was with that objective in mind that she made Sarath Nanda Silva the Chief Justice, disregarding the law. 

There was no provision in the Constitution for Members of the Parliament to change their original party in which they were elected without losing their seats in Parliament. In this backdrop, Sarath Nanda Silva came to her rescue, passing a judgment making it legally permissible for MPs to cross the floor to join the Government without losing their parliamentary seats. In doing so, Chief Justice Sarath Nanda Silva not only violated the Constitution of the country but also made the entire system of governance a chaotic mess. It was as an outcome of this judgment that the nefarious system in which the MPs could cross over to support the Government or vice versa demanding exorbitant fees came into being.

The manner in which Sarath Nanda Silva was appointed to the position of Chief Justice by President Chandrika Bandaranaike was both ugly and contrary to the law. There had been two investigations initiated and being pursued by the Supreme Court against Sarath Nanda Silva, based on two complaints on corruption charges made by me and a Chemical Engineer named Jayasekara at the time he was appointed the Chief Justice of the country.

My complaint was against the Magistrate Lenin Ratnayaka while that of the Chemical Engineer Jayasekara was concerned with the District Judge Upali Abeyratna. Both of them were found guilty of the charges by two committees of inquiry comprised of the judges of the Court of Appeal appointed by the Judicial Service Commission. So, it looked easier for proving the corruption cases against the Attorney General. 

Consequently, Sarath Nanda Silva, the Attorney General, found himself gripped in a strangulated condition with no escape from the predicament. Under the circumstance, the President’s intention was to rescue her confidante from this predicament by making him the Chief Justice and in return to make the Judiciary an instrument that she could manipulate at her discretion. 

Sarath Nanda Silva’s appointment to the post of Chief Justice evoked widespread protest. No sooner the President made this appointment, Param Kumaraswamy, the Special Rapporteur dealing with the matters of judiciary and law, of the United Nations Organisation (UNO), expressed his protest and condemned the appointment. He asserted that the appointment of a person against whom an investigation was being held by the Supreme Court on corruption charges to the position of Chief Justice was contrary to the accepted law and the long-held traditions.

I expressed my protest by publishing the picture depicting the swearing-in of Sarath Nanda Silva as the new Chief Justice in the presence of the President Chandrika Bandaranaike upside down against a black background, with the text of the report printed in reverse white in the front page of the Ravaya Newspaper of which I was the Chief Editor. Perhaps, this must have been the first occasion in the history of newspapers that a controversial event had been reported in this fashion. 

 

District Judge Upali Abeyratna 

I was compelled to enter into a continuing row with Sarath Nanda Silva when he, as the Attorney General, had adamantly chosen to adopt a rigid policy of defending a fraudulent and rapist Magistrate called Lenin Ratnayaka whose true nature had been exposed by me with evidence proving that he is not the type of person to be tolerated in the judicial service. But, Sarath Nanda Silva was obdurate in safeguarding this person disregarding the findings of the inquiry, the report of which he had in his possession. 

Magistrate Lenin Ratnayaka, prior to joining the judicial service, had worked in Sri Lanka Insurance Corporation. After a formal inquiry, he had been dismissed from service over a deliberate financial fraud of cheating a third party. Later, he had joined the judicial service by hiding this fact.

Sarath Nanda Silva, the Attorney General, came to the rescue of this person when he had adequate evidence to realise that he was a person who had been dismissed from his previous employment over a fraudulent transaction. I complained about this matter to Professor G.L. Peiris, the then Minister of Justice. In response to a written request made to the Attorney General by the Minister of Justice to report on this matter, the former had sent a secret report to the Minister hiding the true facts and defending this fraudulent and rapist Magistrate.

After reading this secret report, the impression created in me about Sarath Nanda Silva, the Attorney General, was that he too was a corrupt person. I wanted to find out more evidence to justify my opinion on Sarath Nanda Silva. It was as a result of this endeavour for searching for evidence that I came across the story of the District Judge Upali Abeyratna and his close connection with Sarath Nanda Silva.

Sarath Nanda Silva while serving as a Judge of the Court of Appeal had an illicit affair with a wife of a close friend of his. He lived with this woman in his own house while he had not legally separated from his wife. The husband of this woman, a Chemical Engineer, tried to settle this matter amicably before it ripened further, but in vain. Ultimately, he filed a case in the District Court, Colombo, making his wife and Sarath Nanda Silva co-respondents of the case. 

The Chemical Engineer sought the approval of the Court to dissolve his marriage on account of the licentious conduct of his wife with Sarath Nanda Silva and to issue an order to the respondents to pay him Rs. 5 million to compensate the damage caused to him by ruining his family life.

Upali Abeyratna was the District Judge who heard this case. The District Judge dismissed the case without even informing the complainant about it. The Chemical Engineer, being unaware of what had happened to his complaint, after some time submitted a fresh complaint making his wife and Sarath Nanda Silva co-respondents. 

On that occasion too, this same Judge without even making any reference to the complainant ordered that the name of Sarath Nanda Silva be removed from the list of respondents and to issue summons only to the wife of Jayasekara, the Chemical Engineer. The District Judge Upali Abeyratna even went to the extent of blocking the opportunity of the complainant receiving a copy of his order within 14 days, preventing him making an appeal against the order.

At the next hearing of the case, the District Judge inquired from the complainant about the possibility of arriving at an amicable settlement to resolve the dispute. By then, a special application had been submitted to the Judiciary by the respondent to recover the cost of the case from the plaintiff. The District Judge, ordered the Engineer to make a monthly payment of Rs. 10,000 as maintenance and a sum of Rs. 50,000 being the cost of legal prosecution to the woman who had been carrying on a licentious relationship with Sarath Nanda Silva who was the Chairman of the Court of Appeal. 

It was contrary to the Maintenance Act to issue an order to pay the cost of the case to an accused who had committed matrimonial misconduct by having a licentious affair with a third party. This can be considered a new record that this District Judge had created in the history of divorce cases in Sri Lanka. 

The Counsel appeared for the Chemical Engineer, the plaintiff made an appeal against the order for payment of maintenance and the cost of legal prosecution to the accused. On the day of the hearing of the appeal, the Judge ignored the request and allowed respondent to divorce from her husband and ordered the Chemical Engineer, the Plaintiff, to pay Rs. 10 lakhs to her as the cost of legal prosecution.

By this time, the Chemical Engineer had filed two Appeals before the Court of Appeal against the two judgments given by the District Judge. The lawyers who appeared for the respondent warned the Engineer that they would obtain a Court order to acquire his properties to recover the compensation of Rs. 10 lakhs ordered by the Court unless he was prepared to withdraw the two petitions. Unable to resist the pressure and the humiliation that may be caused by the acquisition of the house in which he lived with his two children, the Engineer ultimately withdrew the two petitions filed by him. 

 

Sweeping the investigation report under the carpet 

Later, when he regained his proper sense, the Chemical Engineer made a complaint to the Judicial Service Commission which comprised of Chief Justice G.P.S. de Silva and two Judges, namely Justice Mark Fernando and Justice Tissa Bandaranayke. As Jayasekara happened to be known to the Chief Justice personally, he withdrew himself from the committee of inquiry and entrusted Justice Mark Fernando and Tissa Bandaranayke to proceed with it. 

These two Judges sent a copy of the complaint of Jayasekara to Upali Abeyratna and obtained his observations on it, in writing. Later, he was summoned before the Commission, questioned at length and subsequently issued a severe charge sheet asking him to show cause in writing as to why he should not be dismissed from the judicial service and/ or imposing any other punishment within a month. 

This charge sheet was issued to District Judge Upali Abeyratna on 12 February 1996; 12 March 1996 can be considered the last date for submitting the written reply. It was on 12 March 1996 that Sarath Nanda Silva was appointed to the Supreme Court. Being a strong supporter of the President Chandrika Bandaranaike, he was appointed as the Attorney General. 

In the meantime, Justice Tissa Bandaranayke went on retirement. Thereafter, Justice Mark Fernando was removed from the Judicial Service Commission, creating a situation which provided ample space for the Attorney General to manipulate the activities of the Judicial Service Commission informally by himself. By then, not only had District Judge Upali Abeyratna abstained from replying his charge sheet, but the enforcement of law against him had also been suppressed.

Thereafter, I was compelled to turn my struggle and the clamouring against Magistrate Lenin Rathnayaka towards District Judge Upali Abeyratna and Attorney General Sarath Nanda Silva. 

As I persisted with my struggle, making a big noise, Romesh de Silva, the then President of Lawyers’ Association, was compelled to convene a discussion of the former Presidents of the Lawyers’ Association to recommend what sort of a policy should be adopted in regard to the allegations I had levelled against Magistrate Lenin Rathnayaka, District Judge Upali Abeyratna and Attorney General Sarath Nanda Silva. 

The copies of the articles published by me from time to time about these three persons had also been attached to the letter sent by the Lawyers’ Association for convening the meeting. The discussion of the former Presidents of the Lawyers’ Association was held at the residence of H.L. de Silva who can be considered the most senior and eminent person among them.

The decisions arrived at this meeting were as follows. The Judicial Service Commission should conduct an inquiry regarding the allegations made by me against the Magistrate Lenin Rathnayaka and District Judge Upali Abeyratna. If the charges levelled against them were not proved, legal action should be instituted against the Editor of Ravaya. If, however, the charges were proved, then an investigation must be held to inquire into the allegations made against the Attorney General also. 

At the end, the Judicial Service Commission appointed two tripartite investigating committees comprising the judges of the Appeal Court. The Investigating Committee inquiry into the case against Lenin Rathnayaka found him guilty for joining the judicial service without disclosing his dismissal from the service of the Insurance Corporation and raping two women whose court cases were being heard by him. 

The committee recommended that Lenin Rathnayaka should be dismissed from the judicial service and file two separate cases against him, one for joining the Judiciary hiding his dismissal from the Insurance Corporation on a financial fraud and the other for the raping two women. 

This investigating committee comprised Appeal Court Judges viz. Hector Yapa, Asoka de Silva and T.B. Weerasooriya. Similarly, the investigating committee appointed to investigate into allegations against the District Judge Upali Abeyratna found him guilty for the charges levelled against him. The committee recommend that he too should be removed from the judicial service. 

On 31 July 1999, the Judicial Service Commission sent Upali Abeyratna on compulsory retirement. But, it can be clearly seen that the Chief Justice Sarath Nanda Silva had adopted a rigid policy of defending District Judge Upali Abeyratna who had looked after his interests in rescuing him from the charges levelled against him. Later, the Judicial Service Commission, deviating from their original recommendation to send him on retirement adopted a policy of mitigating the punishment. Accordingly, his promotion to the special grade was suspended for two years effective from 19 February 1999 and transferred him to Monaragala Courts as a punishment.

Thereafter, before the term of punishment was over, he was promoted to the High Court. Before Sarath Nanda Silva retired from the post of Chief Justice, Upali Abeyratna obtained an appointment in the Appeal Court. Eventually, he was able to get an appointment in the Supreme Court. After his retirement from the Supreme Court, it can be said that he had been lucky enough to become a Chairman of a Presidential Commission appointed for investigating into corruption.

The way he had acted in regard to the case against Sarath Nanda Silva was not only contrary to the law but also extremely corrupt and exceedingly vicious. In this case, it is obvious that District Judge Upali Abeyratna had acted on the dictates of Sarath Nanda Silva.

It cannot be considered a good thing to appoint a dishonest and unscrupulous person who had implicated himself in such a serious fraudulent act and corrupt practice concerning a judicial matter, as the Chairman of a Presidential Commission of Inquiry to investigate into allegations of corruptions and malpractices.