Impending arrest of Gotabhaya Rajapaksa
* Prez. Sirisena desperately woos JO for his political survival
* UNP in frantic moves to expedite elections to hobble Sirisena
* JVP in bid to wash off its sins in voting for new elections laws
by C. A. Chandraprema
Virtually everything said in this column about the local government elections and the possibility of the yahapalana government postponing them with a Puthukudiirippu-Maritime Pattu style operation by petitioning courts came true last week with the Appeal Court issuing a stay order on the local government delimitation gazette. Every political maneuver that this government makes can be accurately predicted months ahead. Frantic talks are now being held by the SLFP with their estranged colleagues in the Joint Opposition to form an alliance to contest the local government elections. However this can’t happen without some significant political changes. Virtually all SLFP parliamentarians in the Joint Opposition have been sacked from their SLFP electoral organizer positions and others have been appointed in their place. A tie up cannot take place unless President Sirisena re-appoints all the sacked SLFP parliamentarians to their former positions and sacks those whom he appointed to those positions not so long ago.
Furthermore, the speaker will have to recognize the Joint Opposition as a separate group in parliament so that the Opposition Leadership goes to the Joint Opposition. The most important change required will be that the SLFP will have to leave the government before the elections because it will be impossible for members of the Joint Opposition and the SLFP to stand together on the same platform if the latter remains a part of the government. If the SLFP ministers in the government try to participate in a JO rally while still remaining in the government, they will all be hooted off the stage and not one will be allowed to speak. Those that have gathered around the JO is an uncompromisingly anti-government crowd. So even though the SLFP central committee passed a resolution last Thursday to the effect that they will contest together with the JO, many changes will have to be made before that can even be contemplated.
Even though this tie up is still at the discussion stage, yahapalana circles are highly agitated at the mere prospect of such a thing taking place. The banned Lanka e News website reported that several yahapalana officials involved in investigating the corrupt deals of the Rajapaksas had rung them up and said that they are making plans to flee the country and seek political asylum overseas as their lives are now in danger. This columnist has been saying all along that President Sirisena’s objective was to destroy the hierarchy of the UNP and to ensure that when the next Presidential election comes around, that the UNP voters have no option but to support him for another term. A part of that has been achieved because the image of the UNP has been seriously damaged by the bond commission and they are in no position to face a presidential election.
However, if the expectation was that the UNP would begin to disintegrate when the Prime Minister was called before the Bond Commission that did not take place. When Ranil Wickremesinghe went to the Commission, he was accompanied by dozens of UNP ministers to make a public show of standing by him and the UNP backbenchers expressed their solidarity with their leader by lashing out at President Sirisena and the SLFP. The Sirisena camp’s grand strategy had misfired, the UNP was still in once piece and no one in the UNP seems prepared to abandon Wickremesinghe and the UNP and to join Sirisena’s SLFP. This columnist has been saying all along that the way the UNP can finish Sirisena off before he finishes the UNP off was by having the local government or PC elections. The UNP seems to have realized this. Last week, UNP backbencher Mujibur Rahaman was suggesting that if there are complications in the gazette notification relating to the new system of elections, they can with a simple majority in parliament reintroduce the provisions of the former system of proportional representation and go ahead with the election – a suggestion which certainly has merit and can be resorted to if all attempts to expedite the elections under the new system fail.
In the meantime, the UNP has joined the Joint Opposition and the JVP in doing everything possible to expedite the holding of elections. At the party leaders meeting held on Friday, the Attorney General had agreed to file a motion in the Court of Appeal calling for the early hearing of the petition filed before the Court of Appeal against the gazette related to local government polls. So there is the possibility that the CA may take up the matter as early as Thursday next week. The Chairman of the Elections Commission Mahinda Deshapriya had also attended the meeting and had said that elections could be held to 133 local government bodies which had not been affected by the gazette. Thus the noose is tightening around President Sirisena. It is in this context that rumors began flying around Colombo that Gota was to be arrested. One story said that it was the UNP faction in the government that was trying to get Gota arrested in order to make a tie up between the SLFP and the JO an impossibility and that therefore President Sirisena had blocked it.
Corruption involving a burial ground
In the meantime UNP sources have been saying that it is not they but Sirisena himself who is trying to have Gota arrested and prosecuted so that he will be eliminated as a possible contender at the next presidential elections. The only thing that everyone seems to agree on is that he is to be arrested over the allegation that government money was misappropriated in building the D.A.Rajapaksa memorial in Medamulana. However, arresting Gota over the Medamulana memorial is going to be a bad mistake. The facts of that case are not known to the wider public at the moment. Only the readers of The Island and the Divaina would have some understanding of that case because this writer wrote about it to both newspapers. However those articles were written at a time when there was no national focus on this particular case.
Now however if Gota is arrested over the Medamulana memorial, every newspaper, TV Station and Website in the country will start looking for details of this case and what they will find will not confer any advantage on the government. In fact the government is going to end up with egg on their faces on this matter. When this government first came into power, they spoke of massive corruption running into billions of US dollars in kickbacks. But now when the Rajapaksas are being arrested, it will be over insignificant matters that hardly merits mention and which government in its right senses would ever have tried to characterize as corruption. If the government is expecting to discredit Gota by arresting him over the Medamulana memorial, the final result will most probably be the opposite of what they expect.
If as has been reported in news websites such as Colombo Telegraph the AG is showing diffidence in arresting Gota over the Medamulana memorial matter, that is because this will be a political witch hunt and not a genuine case of misappropriation of state funds. The issue in a nutshell is as follows. In early 2014, the D.A. Rajapaksa Foundation, a public body created by statute wanted to build a proper memorial at the spot where D.A. Rajapaksa was interred. It was by the Board of Directors of a body that was under Gota, the Sri Lanka Land Reclamation and Development Corporation (SLLRDC) which undertook the construction of the memorial in the basis that the cost would be reimbursed to them by the Foundation. The SLLRDC board minutes specifically states that funds for this project will be received from various sources, and that the collection of the same would be done by a committee.
It is not clear whether this committee referred to was to be a body of the SLLRDC or of the D.A.Rajapaksa Foundation or of both. Be that it may, it was the responsibility of the D.A.Rajapaksa Foundation to reimburse the money to the SLLRDC. The construction was to be done by the Navy and it was the latter who had given an estimate of Rs. 33.9 million for the entire memorial. The memorial had in due course been completed, and on 21 August 2015, the General Manager of the SLLRDC had informed the Rajapaksa Foundation that they were in the process of preparing the final bill which will be sent to them shortly, and asking for an advance payment of Rs. 25 million. This money was duly paid by the Rajapaksa Foundation. However when the final bill arrived, the Rajapaksa Foundation was in for a shock. The SLLRDC had sent a final bill for Rs. 81 million. There had been no revision of the original estimate and no change to the design of the memorial had been made and the Rajapaksa Foundation had said that this could not have cost that much.
Then the SLLRDC sent a letter of demand through a law firm to the D. A. Rajapaksa Foundation asking for the remaining Rs. 56 million. A valuation of the memorial was carried out by the Chief Government Valuer in January 2017 and it has been valued at the originally estimated cost – Rs. 33.9 million. The Rajapaksa Foundation had since paid a further Rs.9 million thus meeting the full cost of the project as originally estimated.
We learn that the final bill had ballooned to an estimate of Rs. 81 million is because the construction of the D. A. Rajapaksa memorial had been lumped together with some other minor projects being carried out by the SLLRDC in that area including the building of a police station and referred to collectively the ‘Weeraketiya Project’. The costs of the other projects too had been included under the D. A. Rajapaksa memorial project and charged to the Foundation. So there is no reason why the D.A.Rajapaksa Foundation should pay the extra charge. There is no way that the original estimate could have ballooned to over twice the original cost within the short time it took to build the memorial. This is the issue over which Gota is to be arrested. If the SLLRDC feels they have not been paid their dues and they have sent a letter of demand, that should be pursued as a civil suit. But then again, if the original cost was estimated at Rs. 33.9 million and the government valuer has estimated it to cost that much and nothing more, is there even a case for a civil suit, if that money has already been reimbursed?
The reason why this government is failing on all fronts is because they spend so much of their time and effort pursuing such inanities. Prof. G.L.Peiris the Chairman of the SLPP and himself a former Professor of law told the Sunday Island that this government since it came into power has arrested over a dozen MPs as well as several other senior officials on flimsy grounds for no other reason than to keep them in jail and to convey the impression to the public that they may have done something wrong. Most ordinary people are unaware that the courts are bound to remand a person charged under certain laws. It is the police that files charges and it is possible for the political authorities using the police, to get their political opponents remanded by misleading the courts. A recent example of this was the remanding of Mahinda Rajapaksa’s former chief of staff Gamini Senarath. After having spent two weeks in jail, the Magistrate’s court granted him bail on the grounds that the offence he is supposed to have committed did not involve state funds.
Prof. Peiris said that the Joint Opposition will in due course initiate action against the individual police officers responsible for filing charges against the political opponents of the government. He stated that the police will be subject to a delictual liability for their actions. A delict, is defined as a violation of public or private duty which includes wrongful acts which, while directly affecting some individual, also have public consequences. He points out that The International Covenant on Civil and Political Rights confers on any person who has been the victim of unlawful arrest or detention, an enforceable right to compensation and that the common law remedy of a delictual action for damages for false imprisonment and malicious arrest is available to a victim of unlawful arrest or detention.
When Basil was arrested in 2015
One of the cases that will clearly qualify as an instance of wrongful arrest and detention was that of Basil Rajapaksa when was arrested and kept in remand for three months in 2015. That was on the charge that in October 2014, Rs. 2,500 had been released to each Divineguma recipient to make improvements to their houses under the Isurumath Niwahanak programme and that the money had been advanced to the Divineguma Department from the Divineguma Prajamula Bank until it was reimbursed by the Treasury. The FCID had submitted to courts that according to article 44 (b) of the Divineguma Act, the money in the Divineguma Prajamula Banks was state property and therefore came under Article 5(1) of the Offences Against Public Property Act No: 12 of 1982.
However, Article 44 of the Divineguma Act did not declare that the Divineguma Prajamula Banks was state property. What Article 44 of the Divineguma Act sought to do was to repeal the The Samurdhi Development Authority Act No.30 of 1995, the Southern Development Authority Act No.18 of 1996 and the Udarata Development Authority Act No.26 of 2005. Upon the repeal of these Acts, “all property movable and immovable, belonging to the Samurdhi Development Authority, Southern Development Authority and Udarata Development Authority were deemed to be the property of the Government.” Article 44(b) of the Divineguma Act refers only to the ‘movable and immovable property’ of the Samurdhi Authority and other bodies that had been abolished and not to the deposits of members in the Samurdhi Banks which had been seamlessly converted into Divineguma Prajamula Banks with the passage of the Divineguma Act.
The provision that applies to the Divineguma Prajamula Banks is not article 44(b) as stated by the FCID to courts but Articles 44(g) and 45. By Article 44(g) of the Divineguma Act, all Samurdhi Banking Societies and Samurdhi Banking Federations that were in operation were deemed to have become Divineguma Prajamula Banks and Divineguma Prajamula Banking Societies respectively. Article 45 of the Divineguma Act stipulated that the trusts and funds established by the Samurdhi Development Authority shall be managed by the Divineguma Department without any change in the beneficiaries and the objectives and the purposes for which such funds were established. Hence the funds in the Divineguma Prajamula Banks do not belong to the State but to the Divineguma beneficiaries and the money disbursed to the Divineguma recipients to make improvements to their houses was their own money and not money belonging to the state.
Furthermore, according to Article 28(d) of the Divineguma Act, one of the functions of the Divineguma Prajamula Banks was to ensure ‘the welfare of the depositors and members of their families’ and providing a grant to make improvements to the houses of Divineguma beneficiaries was well within the scope of the Prajamula Banks. Furthermore the Rs. 2,500 advance had been paid only to 1.1 million Divineguma beneficiaries and not to the general public. Basil Rajapaksa was arrested at a time when the yahapalana government was still new and the JO was not organized in its present form. So the details of his case were not made public the way they should have been. Now however the situation is different. If any of the Rajapaksas are arrested, the details of the case will be released to the media along with the relevant documentation. In fact On Friday last week, The Maubima Surekeeme Jathika Sanvidhanaya led by Ven. Muruttetuuwe Ananda held a press conference and explained at least in part what the Medamulana issue was all about. If Gota is indeed arrested there will be many more people explaining in greater detail what this was all about.
Politically speaking, arresting a Rajapaksa on the eve of the local government elections will be what the Joint Opposition needs to add that extra element of energy or elemental energy (whichever way one likes to put it) to the election. If the expectation of the government is that such an arrest will discourage the JO, the effect it will actually have will be exactly the opposite. The bid to have elections held has gathered strength from the fact that the JVP has also joined in the campaign. They will in fact be very eager to prove their bona fides before the public by shouting louder than the others, because they too are responsible for the postponement of elections by going along with the government to change the electoral system for reasons of their own survival. Now because of the ignominy of having collaborated with the government, they are at risk of losing what they tried to preserve through that very collaboration and they will have to take a leadership role in the campaign to win elections if they are to retain at least their existing vote base.
Despite JVP leader Anura Kumara Dissanayake roaring in Parliament that they are willing to join with anybody to win elections and invited the JO to join them in the struggle, JO leader Dinesh Gunawardena was quick to point out that it was the JVP for their own selfish reasons who provided this government with the two thirds majority needed to pass the law that effectively postponed the PC elections. If not for what the JVP did, we would by now have been in the middle of the elections to the Sabaragamuwa, North Central and Eastern elections. As we go to press the news is just in that the Elections Commission has decided to call for nominations to 93 LG institutions which are not affected by the disputed gazette. Thus the fat is now in the fire.