COI not a judicial tribunal but a fact-finding body; AG (COMPLETE LETTER TO COI)

He said, however, Nissanka Senadhipathi - the Chairman of Avant-Garde Maritime Services, does not fall within any of the said categories of persons.

The Attorney General strongly emphasized, a Commission of Inquiry is not a judicial tribunal and It is a fact-finding body functioning under the authority of the Executive.

In the circumstances, any attempt by the CoI 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 said the Attorney General.

22nd June 2020

Chairman,

“Presidential Commission of Inquiry to inquire into and obtain information in relation to the alleged political victimization of Public Officers, Employees of State Corporations, Members of the Armed Forces and the Police Service who held posts during the period commencing from 8th January 2015 and ending on 16th November 2019.”,

Room No 210, Block No 02, 2nd Floor,

Bandaranaike International Conference Hall,

Bauddhaloka Mawatha,

Colombo 7.

Summons and Notice dated 17th June 2020 served on Mr. Janaka Bandara, Senior State Counsel regarding Complaint No: PCI/PV/01/Com./50/2020

I refer to the Summons and Notice dated 17th June 2020 served on Mr. Janaka Bandara, Senior State Counsel regarding Complaint No: PCI/PV/01/Com./50/2020, which has been brought to my attention by Mr. Bandara.

It is observed at the outset that the said Summons dated 17th June 2020 has been sent by a Commission styled as “Presidential Commission of Inquiry to inquire into and obtain information in relation to the alleged political victimization of Public Officers, Employees of State Corporations, Members of the Armed Forces and the Police Service who held posts during the period commencing from 8th January 2015 and ending on 16th November 2019”.

This Commission, purportedly acting in terms of the Commissions of Inquiry Act (Chapter 393), No.17 of 1948 as amended by Acts, No.16 of 2008 and 03 of 2019, has named Mr. Janaka Bandara, Senior State Counsel as “a Respondent” under Section 16 of the Commissions of Inquiry Act and issued summons to present himself before the Commission of Inquiry (hereinafter referred to as “the CoI”) to give evidence on 23rd June 2020 at 11.30 am.

According to the accompanying Notice dated 17th June 2020, Mr. Bandara, Senior State Counsel has also been directed to be present before the Officer in Charge of the Investigation Unit of the CoI on 29th June 2020 at 9am to record a statement and present all relevant documentary evidence and other contemporaneous evidence.

However, section 16 of the Commissions of Inquiry Act as amended does not make reference to “a Respondent”, 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”.

Although the aforesaid Summons and Notice refer to a “complaint of political victimization made by Nissanka Senadhipathi, Chairman, Avant Garde Maritime Services (Pvt.) Ltd.” (Complainant), neither the purported complaint nor the purported allegation against Mr. Bandara, Senior State Counsel has been served or disclosed. Therefore, the basis on which the CoI considers him as “a person whose conduct is the subject of inquiry” or “is in any way implicated or concerned” in the said matter under inquiry by the CoI is not known.

In this context, I note that the Mandate of the CoI as set out in the Notification published in Gazette Extraordinary No. 2159/16 dated 22nd January 2020, the Mandate of the CoI is to inquire into allegations of political victimization of “public officers, employees of public corporations, and members of the armed forces and police service who held such office prior to the Presidential Elections and/or General elections held respectively in January and 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”.

I also note from the title of the CoI that, having undertaken such Mandate, the Commission itself has decided to confine its scope of inquiry into allegations made by the said categories of persons. However, a complaint from the said Complainant, Mr. Nissanka Senadhipathi, who does not fall within any of the said categories of persons appears to have been entertained and is being inquired into by the CoI.

In the absence of the complaint made by the said Complainant, Mr. Nissanka Senadhipathi being made known, it is assumed that such complaint arises from his involvement as an Accused in Case No. TAB/751/2019 in the High Court of Colombo, 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. I set out below a summary of the background to these cases:

The Complainant was initially the subject of an inquiry by the Presidential Commission of Inquiry to Investigate and Inquire into Serious Acts of Fraud, Corruption, and Abuse of Power (PRECIFAC), which was commissioned in March 2015 to probe large scale corruption and fraud involving public funds and instances of abuse of power. One of the complaints which the PRECIFAC inquired into concerned the role of Avant Garde Maritime Services Private Limited (of which the Complainant is the Chairman) and Rakna Lanka Private Limited in connection with a Floating Armoury off the Port of Galle and the possession of large quantities of firearms contrary to law.

Based on the statements that were recorded and evidence that was led before the said Commission, the PRECIFAC in its Report to His Excellency the then President of the Republic made a finding that Messrs Avant Garde Maritime Services Private Limited and Rakna Lanka Private Limited including members of the Senior Management of the said entities should be held responsible for Criminal Misappropriation of Public funds and Corruption. The PRECIFAC Report was thereafter forwarded by His Excellency the then President to the Attorney General and the CIABOC for necessary action.

Further to the findings made by the PRECIFAC in its Report, the Criminal Investigation Department (CID) initiated an investigation with regard to MV/Avant Garde, a ship which had entered Sri Lankan waters from the Red Sea.

Having considered all the evidence and the statements recorded, the Attorney General indicted the Complainant, Mr. Nissanka Senadhipathi for having committed offences under the Firearms Ordinance and the Explosives Act. In fact, based on the gravity of the offences disclosed in the Indictment, the Attorney General 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 His Lordship the Chief Justice having being satisfied with the material submitted for his consideration.

The Complainant is the 7th Accused in Case No. TAB/751/2019 and the trial before the Trial-at-Bar is to commence shortly.

Meanwhile, based on a complaint received directly by the Commission to Investigate Allegations of Bribery and Corruption (CIABOC) in connection with Avant-Garde Maritime Services Private Limited, Rakna Lanka Private Limited and the Floating Armoury off the Port of Galle, the CIABOC instituted the following two cases under the Bribery Act.

(a) A Corruption case bearing No. MC 59287/01/16 in the Magistrate’s Court of Colombo based on a complaint of causing loss to the State in a sum of Rs.11.4 Billion. The Accused in the said case included the Complainant, among others. The Accused in this case were subsequently discharged by the Magistrate due to a technical defect in the Charge Sheet.

(b) A Bribery case bearing No. HCB/25/2017 in the High Court of Colombo, where the Complainant and the former Chairman of Rakna Lanka Private Limited, Major General Palitha Fernando have been named as accused for offering and accepting a bribe in a sum of Rs.35.5 Million. The Prosecution is at the tail end.

In the circumstances, it appears that the complaint by the Complainant, Mr. Nissanka Senadhipathi has been lodged before the CoI 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.

Without prejudice to the above, your attention is also drawn to the fact that the law at present recognizes a Commission of Inquiry appointed under the Commission of Inquiry Act (Chapter 393) as amended by Act, No. 16 of 2008 and Act, No. 3 of 2019 or a Special Presidential Commission of Inquiry appointed under the Special Presidential Commission of Inquiry Law, No. 4 of 1978 as amended.

As such it would be misconceived in law for a Commission of Inquiry appointed under the Commissions of Inquiry Act as amended, to be styled as a Presidential Commission of Inquiry and to issue summons under the said name styled as “Presidential Commission of Inquiry to inquire into and obtain information in relation to the alleged political victimization of Public Officers, Employees of State Corporations, Members of the Armed Forces and the Police Service who held posts during the period commencing from 8th January 2015 and ending on 16th November 2019.”

Therefore, any Notice or Summons emanating from an entity styled as a Presidential Commission of Inquiry is misconceived in terms of the law.

It is also to be noted that the Notification published in Gazette Extraordinary No. 2157/44 dated 09th January 2020 which sets out the parameters of the Mandate of the CoI, specifically states in the eighth recital thereof that “the scope of the inquiry into the said matter under this warrant would not in any way impose a fetter upon the relevant authorities exercising their statutory and legal responsibilities” and that “the relevant authorities are empowered in terms of the applicable written laws to consider and, where, possible, pursue available action, in terms of the applicable written laws, notwithstanding the inquiry conducted in terms of this warrant”.

The ninth recital therein further states that “the inquiry under this warrant is, therefore, in addition to and without prejudice to any measures that have been taken or which may be taken by relevant authorities including the Sri Lanka Police, the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) and the Attorney General”.

Further, neither the officers of the Attorney General’s Department nor the Department itself have been named in paragraphs (a) to (d) of the Terms of Reference in the said warrant among the entities whose conduct may be inquired into by the CoI.

Furthermore, when the Mandate of the CoI was expanded by Notification published in Gazette Extraordinary No. 2159/6 dated 22nd January 2020, the scope of its inquiry was extended into the functions of the Criminal Investigation Department.

Therefore, any purported inquiry into the alleged conduct of Mr. Bandara, Senior State Counsel who is a prosecutor in the aforesaid cases where the Complainant is/was an Accused or any other officer of the Attorney General’s Department with regard to the discharge of his or her professional and statutory duties in such capacity would be contrary to the Mandate of the CoI as expressly set out in the aforesaid Gazettes.

Reiterating my observations above with regard to the Mandate of the CoI as set out in the Notification published in Gazette Extraordinary No. 2157/44 dated 09th January 2020, it appears that the purported Complainant has no locus standi to appear before and be heard by the CoI.

In this context, it is also relevant to mention that the Mandate of the CoI has been impugned before the Supreme Court in Fundamental Rights Application No. 32/2020, and the Chairman and Members of the CoI have been cited as the 4th to 6th Respondents therein.

The Attorney General too has been cited as a Respondent to the said Application in terms of Article 35 of the Constitution and as a necessary party under Article 134 of the Constitution. In the aforesaid Application, interim orders have been sought to restrain, inter alia, the CoI from taking any measures in the purported exercise of authority under the Mandate granted in terms of the said Notification published in Gazette Extraordinary No. 2157/44 dated 09th January 2020 as amended and to restrain the Attorney General or the Acting Inspector General of Police from taking any steps to halt any investigations or prosecutions on the basis of any orders made by the CoI.

It may also be noted that the Petitioner in the said Application has invoked the jurisdiction of the Supreme Court under Article 126 of the Constitution, alleging inter alia that the Chairman and Members of the CoI would in terms of its Mandate as amended by Notification published in Gazette Extraordinary Notification No. 2159/16 dated 22nd January 2020, be effectively exercising supervisory powers of Superior Courts in violation of the Constitution.

In this regard, it must be noted that while a Commission of Inquiry appointed under the Commissions of Inquiry Act as amended is not vested with any judicial powers contemplated under Article 4 (c) read with Article 105 of the Constitution, such a Commission of Inquiry would not be empowered to review any decision by the Attorney General in the guise of the powers of investigation or inquiry conferred in terms of the Commissions of Inquiry Act, as such a power could only be exercised by a Court of Law established in terms of Article 4 (c ) read with Article 105 of the Constitution.

These are matters of law which the Attorney General as a Respondent in the aforesaid Fundamental Rights Application, would be called upon to address in the course of submissions before the Supreme Court.

In this regard, it is relevant to mention that the relief prayed for in the aforesaid Fundamental Rights Application is sought against the Chairman and Members of the CoI, so as to ensure that the duties and functions of the Attorney General in the exercise of his independent duties and functions are not encroached upon, as such process would have a prejudicial impact on the administration of justice in the country.

In addition to the above, your attention is drawn to the fact that the Complainant is an Accused in the aforesaid cases pending before judicial fora, ie. in Case No. TAB/751/2019 in the High Court of Colombo and Case No. HCB/25/2017 in the High Court of Colombo. Therefore, the matters in respect of which an officer of the Attorney General’s Department has been summoned as a person of interest are sub judice.

Your attention is also drawn to the Order dated 24th January 2020 of the Permanent High Court at Bar in Case No. HC 1448/2020,which refused an application to stay its proceedings pursuant to a request made by the CoI to the Attorney General, consequent to such an application being made on behalf of the accused at the trial pending before the said Permanent High Court at Bar.

It is noted that as the CoI has not taken any steps against the said Order of the Permanent High Court at Bar, it is assumed that such Order remains in force. Therefore, it appears that, in view of such Order, the CoI cannot take steps which would directly or indirectly call into question ongoing judicial proceedings, including those connected with the Complainant in the aforesaid Complaint No.PCI/PV/01/Com./50/2020.

Since the Attorney General and all Law Officers assisting him are required in terms of the law to diligently prosecute all matters before any Court of Law and give effect to all lawful directives and/or orders of the Court, testifying before the CoI and being cross-examined by the very same Accused on matters in respect of which judicial proceedings are pending against him would tantamount to an affront to the exercise of the jurisdiction and powers of judicial fora established in terms of the Constitution and law and vested with judicial powers as opposed to a Commission of Inquiry under the Commissions of Inquiry Act as amended.

A Commission of Inquiry is not a judicial tribunal as it does not fall within any of the institutions contemplated under Article 4 (c) read with Article 105 of the Constitution. It is a fact-finding body functioning under the authority of the Executive. In the circumstances, any attempt by the CoI 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.

In this context, the attention of the CoI is specifically drawn to the provisions of Article 111C (1) and 111(C)(2) of the Constitution. As such, the aforesaid summons sought to be issued by the CoI appear to reflect a serious erosion into the judicial powers of the people vested in the judiciary in terms of the Constitution and law.

It must be noted in this regard that the mandate of a Commission of Inquiry being a fact finding body cannot be used to impede the functions of the judiciary, and the Attorney General and his Officers acting as Officers of Court could neither directly or indirectly be associated with any such process. On the contrary, the role of the Attorney General was aptly described by the Supreme Court per Chief Justice Samarakoon in LAND REFORM COMMISSION v GRAND CENTRAL LIMITED (1981 1 SLR 250) as follows:

“The Attorney-General of his Country is the leader of the Bar and the highest Legal Officer of the State. As Attorney-General he has a duty to Court, to the State and to the subject to be wholly detached, wholly independent and to act impartially with the sole object of establishing the truth. It is far that reason that all Courts in this Island request the appearance of the Attorney General as amicus curiae when the Court requires assistance, which assistance has in the past been readily given.”

In this context, it must be pointed out that section 24 of the Commissions of Inquiry Act as amended empowers the Attorney General to institute criminal proceedings in a court of law in respect of any offence based on material collected in the course of an investigation or inquiry by a Commission of Inquiry.

Further, section 23 of the Act provides for a Commission to obtain the assistance of a public officer in the manner set out therein and cause the conduct of investigations through such officer, and several Commissions of Inquiry have applied this provision in order to obtain the assistance of the Attorney General and his Officers. In the present instance, the CoI having sought the assistance of the Attorney General in terms of the said section 23, an Additional Solicitor General and a Senior Deputy Solicitor General have been assigned to the CoI and they continue to assist and fully cooperate with the CoI.

Furthermore, it must be noted that section 26(1) of the Act empowers the Attorney General to appear before a Commission of Inquiry and inter alia place before such Commission any evidence or other material relevant to the investigation or inquiry before it.

Moreover, section 26(2) empowers the Attorney General to request material from a Commission of Inquiry and makes it mandatory for such Commission to make available the requested material. As such, where the Legislature has expressly conferred these several powers on the Attorney General, naming an officer of the Department as “a Respondent” and at the behest of an Accused who is currently being prosecuted, inquiry into the discharge of professional and statutory duties of officers of the Attorney General’s Department would run contrary to the provisions of the Act.

The said position is further fortified by the express provisions in the aforesaid Gazettes bearing the warrant of His Excellency the President, specifically providing in the Mandate conferred on the CoI that the scope of the inquiry under the said warrant would not in any way impose a fetter upon the relevant authorities exercising their statutory and legal responsibilities and that the inquiry under the warrant is without prejudice to any measures that have been or may be taken by relevant authorities, including the Attorney General.

Accordingly, the summoning of Mr. Bandara, Senior State Counsel as “a Respondent” to testify and produce documents relating to the discharge of his professional and statutory duties as an officer of the Attorney General’s Department would be in serious conflict with the statutory powers conferred on the Attorney General by the Commissions of Inquiry Act as amended and, as such, would also render the said provisions of the Act, redundant.

The power of the Attorney General to prefer an indictment and prosecute a criminal case before a competent Court is aptly set out by the Supreme Court in Fundamental Rights Application No. 424/2015 in the case of Kaluhath Ananda Sarath de Abrew Vs.Chanaka Iddamalgoda, Chief Inspector of Police, Head Quarters Inspector, Police Station, Mount Lavinia, and others SC Minutes of 11th January 2016, where it has been observed thus:

“Where the legislature has confided the power on the Attorney General to forward indictment with a discretion how it is to be used, it is beyond the power of Court to contest that discretion unless such discretion has been exercised mala fide or with an ulterior motive or in excess of his jurisdiction”

Further, it is noted that any attempt to impede the proceedings which are ongoing in Case No. HCB/25/2017 in the High Court of Colombo and about to commence in Case No. TAB/751/2019 in the High Court of Colombo, by requiring the testimony of Law Officers prosecuting in such proceedings would tantamount to interference with the judiciary under Article 111C of the Constitution and thereby undermine judicial independence.

In the aforesaid circumstances, it would not be proper for an officer of the Attorney General’s Department Officers to participate in any act which would fetter the Attorney General from performing his statutory duties, including prosecution of pending cases before Courts of Law. Particularly in relation to the said Complainant, it appears that he has sought to misdirect the CoI by causing summons to be issued on the Prosecuting Officer involved in cases where such Complainant is an Accused.

It is clearly an attempt on the part of the Complainant to abuse the Mandate and process of the CoI for the collateral purpose of intimidating, harassing and embarrassing such officer and obstructing the discharge of his professional duties as a public officer, thereby attempting to derail the prosecution, subvert the course of justice and interfere with the judiciary, to the illegal and unlawful advantage of the Complainant.

Therefore, the aforesaid Summons and Notice dated 17th June 2020 served on Mr. Janaka Bandara, Senior State Counsel are contrary to the process contemplated by the law and, as such, invalid.

However, without prejudice to the above, the Attorney General and it officers would make every endeavor to facilitate the work of the Commission of Inquiry appointed by His Excellency the President under the Commission of Inquiry Act (Chapter 393) as amended by Act. No. 16 of 2008 and Act, No. 3 of 2019, subject strictly to the provisions of the Constitution, the law and the Mandate of the Commission of Inquiry.