PCoI criticised for entertaining complaints from private businessmen

Inquiries have been carried out into the role of Avant-Garde Maritime Services in connection with a floating armoury off the Port of Galle

• The decision to reopen the closed Avant-Garde file by Attorney-General Dappula de Livera has been hailed by legal luminaries in the country
• Soon after the Avant-Garde issue came to light in 2015, Yuwanjan Wijethilake wanted the then Additional Solicitor General (ASG) Wasantha Navaratne Bandara to conduct an inquiry
• In the report, it has been recommended to level charges against the suspects and to obtain further statements from the accused
• The AG has raised his objections in terms of Section 16 of the Commissions of Inquiry Act
• Commission is not empowered to review any decision of the AG
• PCoI is not a judicial Tribunal 
• The Commission is alleged for not attending to problems faced by public officers but entertaining complaints from private businessmen and those indicted by AG 
• AG informed PCoI that the summons and notice issued on SSC is contrary to law 

Questions have been raised as to why the Presidential Commission of Inquiry (PCoI) that was appointed by the President to probe political victimisation of public officers, employees of state corporations, members of the armed forces and the police, are probing into complaints lodged by private individuals. 

The Mandate of the Presidential Commission of Inquiry (PCoI) as set out in the Extraordinary Gazette notification No. 2159/16 of January 22, 2020, is to inquire into allegations of political victimization of public officers who have held office prior to the Presidential Elections held in January 2015 and/or General Elections held in August 2015, being persons who had either resigned from or otherwise ceased to hold public office with the change of Government or continued to hold such office after such change, during the period commencing 08th January 2015 and ending 16th November 2016.

However, allegations have been levelled against the commission for not looking into the grievances faced by public officers, but have entertained complaints from private businessmen and those who have been indicted by the Attorney General (AG) and are facing legal battles in courts. 

Despite the Attorney General’s (AG) letter dated June 22, 2020, to the Commission, that the  PCoI is not a judicial tribunal, but a fact-finding body functioning under the authority of the Executive and that, any attempt by the PCoI to directly or indirectly inquire into or investigate matters pertaining to the role of the Attorney General in prosecuting cases pending before the relevant judicial fora would tantamount to an interference with the judiciary, questions have been raised as to why the three-member committee has overruled the scope of their vested duty.

According to the AG’s letter, Section 16 of the Commissions of Inquiry Act (as amended) does not make reference to a Respondent of a case, but to every person whose conduct is the subject of inquiry under this Act, or who is in any way implicated or concerned in the matter under inquiry. Having undertaken such a mandate, the PCoI has surprisingly decided to confine its scope of the inquiry into a complaint lodged by accused who have been indicted by the Attorney General (AG) and their respective cases are now pending in courts although the complainants do not fall within any of the said categories of persons, but appear to have been entertained.

"The complaint has been lodged before the PCoI on the basis of unfounded allegations against Prosecutors of the Attorney General’s Department, with the objective of maliciously targeting and intimidating Prosecutors'

Be that as it may, out of the many accused parties that have sought relief from the PCoI are Nissanka Senadhipathi (Complaint No: PCI/PV/01/COM/50/2020) Chairman Avant-Garde Maritime Services on the Avant-Garde floating armoury. Senadhipathi is the 7th accused in Case No. TAB/751/2019 which the trial is to commence before the Trial-at-Bar shortly. He has also been accused in case No: HCB/25/2017 in the High Court of Colombo and Case No. MC 59287/01/16 in the Magistrate’s Court of Colombo. 

Among the others who have lodged complaints are Senior DIG Lalitha Jayasinghe (Complaint No: PCI/PV/01/COM/115/2020) who has been indicted by the AG for releasing a murder suspect Mahalingam Shashi Kumar in the Vidya murder case which is before the Jaffna High Court (Case No: HC 2681/19) and Former Navy Spokesman DKP Dassanayake (Complaint No: PCI/PV/01/COM/02/2020) who is the 6th accused in the abduction and disappearance of 11 youths. He too has been indicted by the AG and the case is before a Trial-at-Bar (Case No: HC TAB 1448/2020). 

The three-member Commission is headed by Retired Judge of the Supreme Court Justice Upali Abeyrathne, and the other two members are Retired Judge of the Court of Appeal Justice Daya Chandrasiri Jayathilaka and former

IGP Chandra Fernando.
Complainant Senadhipathi was initially the subject of an inquiry conducted by the Presidential Commission of Inquiry to Investigate and Inquire into Serious Acts of Fraud, Corruption, and Abuse of Power (PRECIFAC), which was appointed in 2015 by the previous Yahapalana regime, to probe large scale corruption and fraud involving public funds and abuse of power.

On a complaint the PRECIFAC received during the previous regime, the former inquired into the role of Avant-Garde Maritime Services and Rakna Lanka in connection with a floating armoury off the Port of Galle and the possession of large quantities of firearms in it, contrary to law.

Based on the statements that were recorded and evidence that was led before the said Commission, the PRECIFAC has made a finding that Avant-Garde Maritime Services and Rakna Arakshaka Lanka including members of the Senior Management of the said entities should be held responsible for the misappropriation of public funds and their involvement in corruption. The report was forwarded to the Attorney General and the Commission to Investigate Allegation of Bribery or Corruption (CIABOC) for necessary action.

Further to the findings, the Criminal Investigation Department (CID) initiated an investigation with regard to the controversial MV Mahanuwara and MV Avant-Garde, the latter was in the territorial waters and was brought to the national waters on the instruction of Sri Lanka Navy.

Having considered all the evidence and the statements recorded, AG Dappula de Livera indicted Nissanka Senadhipathi and few others on 7573 counts for their involvement in the floating armoury under the Firearms and Explosive Ordinance for committing unauthorized importation of firearms to the country, possession of firearms and ammunition without valid licenses and conspiracy. Based on the gravity of the offences disclosed in the indictment, the AG later made an application to the Chief Justice to consider nominating a Trial-at- Bar to hear and determine this case and, accordingly, a Trial-at-Bar was duly constituted by the Chief Justice having to be satisfied with the material submitted for his consideration.

A decision hailed by many

The decision to reopen the closed Avant-Garde file by the present Attorney-General Dappula de Livera has not only been hailed by legal luminaries in the country, but also by all law-abiding citizens for taking consideration into facts that have come to light at the investigations. The then AG Yuvanjan Wijethilake by an unorthodox move claimed that his opinion was that no offences under the Firearms Ordinance, Explosive Ordinance or the Prevention of Terrorism Act are disclosed in the investigation which was with the then Additional Solicitor General (ASG) Wasantha Navaratne Bandara’s report on the floating armoury findings.

Soon after the Avant-Garde issue came to light in 2015, Yuwanjan Wijethilake wanted the then Additional Solicitor General (ASG) Wasantha Navaratne Bandara to conduct an inquiry and the inquiry report based on the CID investigations have revealed Avant-Garde Maritime Services had earned billions of rupees which would have been an income to the country had the Sri Lanka Navy was allowed to continue operating the armoury.  Investigations have further revealed that in the process of the above operation, under Section 23 of the Weapons Ordinance, offences of unauthorised importation of firearms to Sri Lanka, possession of firearms and ammunition without valid license and conspiracy, aiding and abetting to commit the above offences have been committed.

In the report, it has been recommended to level charges against the suspects and to obtain further statements from the accused to which the then AG has shown displeasure. Hence the report has been submitted to a three-member committee headed by the then Solicitor General Jayantha Jayasuriya, Yasantha Kodagoda PC and Sarath Jayamanna PC seeking their opinions. The three-member committee too has supported the recommendation made by Wasantha Bandara.

Despite the recommendations made, Yuwanjan Wijethilake by letter dated June 17, 2015 (Ref: CRI/ 58/ 2015) to the Inspector General of Police has stated that his opinion in regard to the Floating Armoury in Galle is that no offences have been committed under the Firearms Ordinance.

A copy of this letter, which is in possession of this newspaper, states, ‘I have considered the statements, investigation notes, observations and documents submitted by the CID and the Ministry of Defence and I am of the opinion that no offences under the Firearms Ordinance, Explosive Ordinance or the Prevention of Terrorism Act are disclosed. 

‘However, the aspect of whether the Government of Sri Lanka was deprived of an income over and above what was paid to the State, causing a financial loss to the State due to corruption must be fully investigated. If you have any evidence which points towards corruption, you must furnish that evidence to the Commission to Investigate Allegations of Bribery and Corruption which is now investigating the aspect of corruption in this matter.

‘Please note that if you come into possession of any new evidence that will establish a criminal offence you must bring that to my notice without delay, for me to reconsider the opinion mentioned above’.

It was in 2019, that the closed Avant-Garde file was re-opened by the present AG and the case is now pending before a Trial-at-Bar.

Not empowered to review any decision of the AG

Although the Presidential Commission of Inquiry is taking up cases that are now pending in courts, the AG has informed that the Commission is not empowered to review any decision of the AG which could only be challenged in Court of Appeal.

Empowering the scope of duty vested on the Commission, the gazette notification states, ‘It has been brought to notice that the alleged process of political victimisation has created a substantial negative impact on the performance of public officers, employees of public corporations and members of the armed forces and police service, and, as a result, such officers, employees and members have shown and show reluctance to take decisions while discharging their duties and prefer to adopt a passive approach towards work, thereby causing a prejudicial impact on the functions of Government.

"Having undertaken such a mandate, the PCoI has surprisingly decided to confine its scope of the inquiry into a complaint lodged by accused who have been indicted by the Attorney General (AG) and their respective cases are now pending in courts"

 ‘Therefore, it is necessary that an inquiry should be held and information obtained as to the matters hereinafter referred to in this warrant, being matters relating to the administration of public bodies, the administration of law and/or justice, the conduct of public officers, including the identification of any person, persons or entities, if any, who have been involved in or are responsible for the alleged political victimization, and/or matters in respect of which an inquiry would, in my opinion, be in the public interest’.

 “On what grounds can the PCoI hold an inquiry-based on complaints lodged not by a public officer but by a private individual about his private company though the commission has been vested powers only to probe political victimization of public officers but not to take up private cases that are now pending in courts? The Commission is not empowered to review any decision of the AG which could only be challenged in Court of Appeal.,” sources claimed.

Following the summons issued on June 17, 2020, on a Senior State Counsel by the PCoI to appear before the Commission in connection with a complaint (No: PCI/PV/01/Com/50/2020) the Avant-Garde floating armoury, the Attorney General Dappula de Livera by letter dated June 22, 2020, to the Commission has objected for summoning the Senior State Counsel (SSC) Janaka Bandara before the Commission.

The AG has raised his objections in terms of Section 16 of the Commissions of Inquiry Act. In his letter, the AG has stated that the mandate that has been granted to the PCoI does not extend the scope of inquiry to involve the Attorney General or his officers and that the Commission has been appointed to look into alleged political victimisation of public officers, employees of state corporations, members of armed forces and the police, therefore Nissanka Senadhipathi, Chairman of Avant-Garde, who is a complainant has no legal standing in the light of the above.  

The complaint has been lodged before the PCoI on the basis of unfounded allegations against Prosecutors of the Attorney General’s Department, with the objective of maliciously targeting and intimidating Prosecutors and obstructing ongoing prosecutions against him, by seeking to vilify and bring in to disrepute the good name of the Attorney General and the Attorney General’s Department, and preventing Officers of this Department who are also Officers of Court from carrying out their professional and statutory duties as Prosecutors.

AG’s letter to the Commission further states that the said summons and notice refer to a ‘complaint of political victimization made by Nissanka Senadhipathi, Chairman, Avant-Garde Maritime Services (Pvt.) Ltd.’. The letter further states, ‘Neither the purported complaint nor the purported allegation against SSC Janaka Bandara, has been served or disclosed.

Therefore, the basis on which the PCoI considers him as a person whose conduct is the subject of an inquiry or is in any way implicated or concerned in the said matter under inquiry by the PCoI is not known.

‘In terms of Article 4 (c) read with Article 105 of the Constitution the Commission of Inquiry was not empowered to review any decision of the AG and could be exercised by only a Court of Appeal law established according to above laws in the Constitution.

Accordingly, the AG reiterated, summons and notice served on SSC Janaka Bandara to appear at the PCoI is contrary to law and is invalid.  

 Considering the facts, the AG in his letter to the PCoI has stated that the summons and notice SSC Janaka Bandara is contrary to the process contemplated by the law and, as such, invalid.

 Meanwhile, the Public Health Inspectors Union raised concern the way the PCoI is conducting the inquiries without following quarantine laws of the country.

 “The commission work is carried out in a tiny packed room at the BMICH, where social distancing law has been ignored. Although anyone committing such an offence is liable to be arrested without a warrant and punishable with a six months jail term we and other senior health authorities are puzzled as to what to do when those who are expected to protect the law are breaking it. This situation is very much different to the way how the Supreme Court, Court of Appeal, Civil Appellate Court, Commercial High Court, District Court and Magistrate Court in Hulftsdorp follow the quarantine rules,” PHI Union sources told the Daily Mirror.