SC halts Helping Hambantota probe
 

by Wasantha Ramanayake and Sarath Malalasekara

The Supreme Court yesterday stopped the CID investigation into the alleged misappropriation of Rs. 82.9 million tsunami funds against Prime Minister Mahinda Rajapakse until the final determination of his Fundamental Rights application against the CID.

The order was a sequel to an application by the petitioner, Premier Rajapakse who complained to Court that the Criminal Investigations Department in violation of the Provisions of the Criminal Procedure Act was investigating into the allegations made against him to tarnish his image as the Presidential candidate of the SLFP in the forthcoming election.

The Bench comprised Chief Justice Sarath N. Silva PC, and Justices Nihal Jayasinghe and Nimal Dissanayake.

The court granted the interim relief staying the investigation by the CID considering the merits of the submissions by the counsel for the Premier mainly that the CID had suppressed the five hour long statement of the Secretary to the Prime Minister to the CID in its B report to the Magistrate and that the complaint logged by the fourth respondent UNP MP Kabir Hashim on the basis of newspaper articles published in certain newspapers without any independent evidence.

Chief Justice Sarath N. Silva PC observed that there was merit in the submissions of the President's counsel and warranted interim order against the CID.

He noted that the CID could not entertain complaints of this nature asking to inquire into the allegations made in newspaper articles without any independent evidence to support the same which was against the criminal law.

The Chief Justice further noted that in recording the statement of the Secretary to the Treasury the CID had simply failed to verify the validity of the whole procedure adopted by the Secretary to the Prime Minister in connection with the funds in question.

The Chief Justice observed that in terms of the statement of the Secretary to the Treasury the CID had never queried as to wether the procedure adopted by the Secretary to the Prime Minister was correct or not.

President's Counsel D.S. Wijesinghe for the Premier contended that the fourth respondent who neither being affected by the tragedy nor contributed a cent to the Prime Minister's Fund solely on the basis of a newspaper canard that was triggered just before the SLFP Central Committee met to decide on the next Presidential candidate did not have locus standi to make the complaint.

President's Counsel D.S. Wijesinghe submitted in terms of the statement made to the CID by Secretary to the Prime Minister Lalith Weeratunga the Prime Minister's Office had published the full details of the funds received by the Prime Minister in connection with the Tsunami disaster in three languages on February 2.

He submitted that none of the donors nor recipients complained about the same for six months until the Sunday Leader and the Irudina newspapers came out with slanderous articles just before the SLFP decided on the Presidential candidate in July.

He submitted that his client took the leadership role when the tsunami hit the country on December 26, 2004 since the President was out of the country. Since the Prime Minister was too busy to manage the activities of the relief funds, the PM appointed his Secretary manage the activities.

According to the President's Counsel the PM Office had been receiving money from various local and foreign donors right from December 27. He submitted that the some donors wanted to the funds to be allocated specifically to relief and development work in the Hambantota District for various reasons and the funds were credited to the Prime Minister's Special Account.

There were 20 such donors who had donated 82.9 million rupees which was later transferred to the account of Helping Hambantota, an account established under the auspices of the Rajapakse Foundation, a charity organisation established by a Parliamentary act with excellent tract record since the government machinery was not equipped with to cater to the situation.

The counsel submitted that there was no dishonesty on the part of the PM and that the PM's Secretary had ensured the money thus transferred to Helping Hambantota could not be withdrawn without his approval. He had also notified the Secretary to the Treasury that the money would not be withdrawn form the account for any purpose without the sanction of the Secretary to the Treasury. He submitted that the PM noted the Cabinet of Ministers on this regard.

The petitioner, Prime Minister Mahinda Rajapakse cited Inspector General of Police Chandra Fernando, DIG Lionel Gunathilake, Criminal Investigation Department (CID), IP P. Ampavila of the CID, UNP MP Kabir Hashim and the Attorney General as the respondents.

The petitioner sought a court declaration that his Fundamental Rights to the Equality and the Equal Protection of Law had been violated by the 1-4 respondents and\or there was imminent infringement to his rights guaranteed under the Articles 12 (1) and (2) of the Constitution.

The petitioner sought an interim order to suspend forthwith investigation into the complaint made by the fourth respondent MP Kabir Hashim to CID on July 19 alleging that the petitioner had committed an offence of Criminal Breach of trust\misappropriation in a sum of Rs. 82,956,247 pending the final determination of the application and further sought suitable compensation determined by the court.

The petitioner stated that the fourth respondent had made the allegation maliciously as an integral part of the UNP orchestrated campaign to tarnish the image of the petitioner as the SLFP presidential candidate in the eyes of his own party and that of the electors of the country.

The petitioner stated that the third respondent IP filed the B report in the Fort Magistrate Court alleging that the petitioner had committed criminal breach of trust\misappropriation of money was totally false and malicious.

Kabir Hashim MP had made the allegation on the basis of a newspaper canard and not on his personal knowledge, without Locus Standi to make the complaint since he had not donated money to the Helping Hambantota Fund or to the PM's office in connection with the Tsunami relief operation.

The petitioner further stated that the third respondent IP had suppressed in the "B report" certain vital material and the respondents were prolonging the investigation contrary to the provisions in the Criminal Procedure Act.

He stated that the there was no material available to establish that the transfer of funds by the Secretary to 'Helping Hambantota' account was done without any dishonest intention which was a sine qua non to establish any charge of misappropriation or a criminal breach of trust under the Penal Code.

The petitioner stated that the conduct of the respondents was arbitrary, mala fide and was in violation of rights.

The hearing was fixed for January 27, 2006.

Meanwhile, Colombo Fort Magistrate Namal Balalla yesterday directed the Criminal Investigation Department (CID) probing the 'Helping Hambantota Fund' to obtain instructions from the Attorney General and submit a report to court on October 19.

The CID commenced investigations into the Helping Hambantota Fund on a complaint made by UNP MP Kabir Hashim. As the Attorney General is directing investigations into the complaint in connection with the "Helping hambantota Fund" the court is not going to interfere with the investigations at this stage, the Magistrate observed.

On an application by Sub Inspector Roshan Masibula of the CID the Magistrate directed the Manager, Tangalle People's Bank to assist the CID to obtain information regarding the 'Helping Hambantota Fund'.

According to the statements recorded by the CID an account of 'Helping Hambantota Fund' had been opened at the Standard Chartered Bank.

Upul Jayasuriya, senior counsel for the complainant, submitted to court that according to the complaint funds received for the tsunami had been misappropriated. Earlier Magistrate had allowed an application by the CID to obtain bank particulars in connection with their investigations.

Jayasuriya said that the CID had not mentioned the names of the persons who are alleged to have been involved in this case.

Jayasuriya requested court to direct the CID to conduct an impartial inquiry into the complaint and name the persons who are involved and submit a report to court as early as possible. U.D.M. Abeysekera, senior counsel for the aggrieved party, submitted to court to direct the CID to complete the investigations as early as possible and submit a report to court.

Submitting a further report CID told court that they commenced investigations on the order of the Attorney General and had obtained statements from three banks.

The CID was unable to obtain particulars from the Standard Chartered Bank Rajagiriya Branch, but the bank officials had promised to give the necessary particulars to the CID, SI Roshan Masimbula added.

Upul Jayasuriya with Sujeewa Senasinghe, Nalin Amarajeewa and Nandana Kularatne appeared for the complainant.