… given time till Monday

By Rathindra Kuruwita

Shavindra Fernando, PC, who represented Deputy Solicitor General Azard Navavi, on Thursday night, urged the PCoI investigating the Easter Sunday attacks to name State Counsel Nishara Jayaratne, the coordinating officer to the Attorney General, guilty of contempt of the commission.

Fernando made this request expressing his displeasure at the way Jayaratne had responded to his questions. Earlier, the PCoI too had advised Jayaratne to mind the manner in which she responded to Fernando’s questions.

AG Dappula de Livera’s Coordinating Officer, State Counsel, Nishara Jayaratne, was ordered to appear before the PCoI following a request made by Shavindra Fernando, PC, on 15 December 2020. On that day, it was revealed that the Attorney General had recommended disciplinary action against Deputy Solicitor General Azard Navavi and State Counsel Malik Azeez, who had been entrusted with a file on National Thowheed Jamaat (NTJ) and its leader Zahran Hashim, for lapses on their part in handling the case. A preliminary inquiry by a three- member committee has also been concluded and its report including the charge sheets had been sent to the Public Service Commission (PSC) and Additional Solicitor General, Sumathi Dharmawardena, yesterday, told the PCoI.

The report had been sent on 27 November 2020, through the Secretary to the Ministry of Justice, but there had not been a response so far, he said.

On 05 December, Deputy Solicitor General Navavi said that the Attorney General’s Department had paid attention to the file on NTJ leader Zahran Hashim, sent by the Terrorism Investigation Division (TID) seeking their advice, only three weeks after the Easter Sunday attacks. Chairman of the PCoI asked Navavi what the AG’s Department had done about the file on Zahran, sent by the TID for legal advice. Navavi said that he had received the file on 07 June 2017 and tasked State Counsel Malik Azeez, who was under him, with the handling of the file. Both men insisted that the TID had not furnished the information they had about NTJ and Zahran until 2019.

Additional Solicitor General Sumathi Dharmawardena was called before the PCoI to shed more light into the matter. Dharmawardena is also in charge of administration at the AG’s Department.

Dharmawardena said that in 2019, he had testified before the Parliamentary Select Committee (PSC) on the Easter Sunday attacks on the file TID had sent.

Dharmawardena added that he had brought Attorney General Dappula de Livera’s attention to the final report of the PSC on or around 24 February 2020. The following day, de Livera had recommended that an inquiry be conducted in respect of Navavi and Azeez. Initially, the investigation was to be conducted by Deputy Solicitor General, Susantha Balapatabendi.

However, on 13 March 2020, a three-member committee consisting of Senior Additional Solicitor General, Sarath Jayamanne, Balapatabendi and Senior Deputy Solicitor General, Mayadunne Corea was appointed. Jayamanne had resigned from the committee on 29 May 2020 and on 01 June 2020, Additional Solicitor General, Priyantha Nawana had been appointed the head of the Committee, Dharmawardena said.The committee had finalised the investigation in July 2020 and sent it to him, Dharmawardena said. The report also contained draft charge sheets. It had been given to Acting Solicitor General, Sanjay Rajaratnam for further recommendations. On 27 July 2020, Rajaratnam also recommended disciplinary action, Dharmawardena said.

Shavindra Fernando, PC, who appeared for Navavi then brought Dharmawardena’s attention to a letter the AG sent to acting IGP on 18 June 2020. In the letter de Livera has said law officers of the AG’s Department had done nothing wrong.

Fernando: “On 10 June 2019, the Coordinating Officer to the AG repeated the claim in a press release. It is obvious that AG didn’t think Navavi and Azeez did anything wrong.”

Fernando then asked the PCoI to summon State Counsel, Nishara Jayaratne as she was responsible for issuing press releases.

Jayaratne appeared before the PCoI on Thursday and told the Commission that the press release on 10 June 2019 had been issued in response to a statement given by Ven. Magalkande Sudantha Thera on a file sent to the AG’s Department by the TID on Hashim and the NTJ.

Jayaratne said: “We issued the statement in response to false allegations the Thera made. He arrived near our office and said that the TID had handed over a 300-page file on Zahran and the NTJ to our department on 07 July 2018. However, we had only received the full set of documents, on 06 May 2019, after the terrorist attacks. Based on that allegation, the AG sent a letter to the acting IGP on 18 June 2018. He asked me to issue the press release prior to sending the letter.”

Chairman of the PCoI:

“Does this press release say that law officers of the AG’s Department had done nothing wrong with regard to the file sent by the TID?”

Jayaratne said: “It says so. When the AG sent a letter to the Acting IGP, the internal investigation on Azeez and Navavi had not commenced. We also didn’t issue this statement to explain whether we had done things right or not. This was only a response to allegations levelled by the Thera.”

Chairman of the PCoI:

“If the AG’s Department has recommended the Public Services Commission (PSC,) on 27 November 2020, to take disciplinary action against Azeez and Navavi, doesn’t that contradict the press release you sent?”

Jayaratne said: “The press release was issued before a three-member committee carried out an internal investigation.”

Fernando, PC appearing for Navavi, then commenced cross examination. He asked Jayaratne whether the opinion of the AG in June 2019 was that Azeez and Navavi had done nothing wrong about the files sent by the TID.

Jayaratne said that the letter the AG sent to the acting IGP was a letter offering advice and that it did not reflect his opinion. “If you are trying to make me say these two officers have done nothing wrong, I won’t say that.”

Fernando asked: “Who is in charge of your discipline?”

Jayaratne said: “I came to give evidence about a press release. I am not sure that these questions are within the mandate of this Commission. Do I have to answer these questions?”

Chairman of the PCoI:

One of the objectives of the commission is to find out if the irresponsibility or negligence of state officials contributed to the terror attacks. The AG’s Department first issues a letter and a press release saying that the two law officers had done nothing wrong about the TID file. Later, your department urged the PSC to take disciplinary action against the two men. So, you must answer these questions. You are a witness. You can’t argue the questions posed by lawyers. If you want to you can have legal representation.”

Jayaratne said:

“I came alone. I don’t need legal representation.”

Fernando, PC asked the witness again whether the press release she sent reflected the AG’s opinion that the two law officers had done nothing wrong.

Jayaratne said that the letter had been prepared by the AG and that she was in no position to make a statement on his opinion. “If had I prepared the letter, I could have commented on it.”

Chairman of the PCoI then stated that although Jayaratne had said she had come alone, the attendance registry of the PCoI stated that a lawyer had come with her.

Chairman of the PCoI:

“I am giving you a final warning. Answer the questions posed by the lawyer. You have come with a lawyer, you can get his assistance.”

Attorney Tenny Fernando, who was present there rose and stated that he did not represent the witness and that he had only arrived as a friend.

Fernando, PC, then said Jayaratne was not answering his questions and that she had arrived to ensure that Azeez and Navavi would be further inconvenienced. Therefore, he urged the commission to declare the witness guilty of contempt.

Jayaratne said she had never intended to cause an affront to the PCoI. “I also have no intention of inconveniencing Azeez or Navavi. They are my colleagues. It is not fair to allege that I am guilty of contempt of the PCoI because he is not getting the answers he wants. I now feel that I need legal assistance and for this I need to request the AG. So please give me another appointment?”

Chairman of the PCoI:

“The witness initially said that she didn’t need legal representation. But now she says she needs to. So, I order her to appear at the PCoI again on Monday at 10 am with legal representation.”