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AG’s coordinating officer pleads for legal representation

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… 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.”

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MCC inconsistent with Constitution

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AG agrees with Prof. Gunaruwan report

By Shamindra Ferdinando

Attorney General Dappula de Livera, PC, has informed President Gotabaya Rajapaksa that the Millennium Challenge Corporation (MCC) Compact, Project Implementation Agreement, as well as Articles of Association of MCA (Millennium Challenge Act), Sri Lanka, are violative of cerain provisions of the Constitution.

The AG has said so in a 20-page report sent to Dr. P.B. Jayasundera, Secretary to the President.

The President’s Office on Sept. 3, 2020, sought the AG’s opinion on the MCC Compact and related matters in the wake of the Cabinet-appointed Prof. Gunaruwan Committee strongly advising against going ahead with the US initiative. The US sought Sri Lanka’s consent for the Acquisition and Cross Servicing Agreement (ACSA), Status of Forces Agreement (SOFA) and MCC. The previous government finalised ACSA in early August 2017.

Dr. Jayasundera made available the Gunaruwan report to the AG.

The outgoing US administration in Dec 2020 announced Sri Lanka had been left out of the MCC project.

AG’s Coordinating Officer State Counsel Nishara Jayaratne confirmed the MCC et al were inconsistent with the Constitution and other laws.

The Island,

 however, learns that the AG’s Department on two previous occasions, in letters dated Oct 10, 2018 and June 10, 2019, addressed to Jonathan G. Nash, Chief Operating Officer, MCC, and Director General, External Resources Department, respectively, asserted that the Compact and the Programme Implementation Agreement (PIA) were in line with the Sri Lankan law.

The first letter was sent during Jayantha Jayasuriya’s tenure as the AG and the second under incumbent AG without his approval, sources said. Dappula de Livera succeeded Jayasuriya in April 2019 about a week after the April 21 Easter Sunday carnage. Jayasuriya is the incumbent Chief Justice.

Prof. Gunaruwan’s Committee soon after the last presidential election in Nov 2019 failed to obtain the AG’s Department opinion in spite of making representations through the Prime Minister’s Office.

In the run-up to 2019 parliamentary election, then Finance Minister Mangala Samaraweera said the Attorney General had approved the US project though the Sri Lanka Podujana Peramuna (SLPP) called it a sell-out.

The following is the text of the letter dated Oct 10, 2018 captioned ‘Legal Status of Proposed MCC Compact signed by Sanjay Rajaratnam, PC, Senior Additional Solicitor General, addressed to Jonathan G. Nash, Chief Operating Officer, MCC:

“I refer to your communication dated 27th September, 2018 in respect of the above captioned matter. In this regard, I am made to understand that the delegation from the Government of Sri Lanka was able to have fruitful discussion with the Millennium Challenge Corporation Team in resolving some of the outstanding issues.

“Having gleaned through the proposed Millennium Challenge Compact, the draft Program Implementation Agreement (PIA) as well as the Points of Discussion (without prejudice) between the negotiating parties which has been made available to me, I wish to at the very outset opine that no existing laws of Sri Lanka inhibit the Compact and the PIA being implemented in Sri Lanka. If I may elucidate further, the covenants of the Compact and the PIA do not infringe any existing domestic law or any previous undertakings given by the Government of Sri Lanka. It is acknowledged that the Compact imposes legal obligations on both parties to the Agreement

“Further, consequent to the negotiations and discussions had between parties, it is proposed that the Government of Sri Lanka would seek the passage of a law in Parliament to establish the MCA- Sri Lanka as a non-profit Company limited by guarantee under the Companies Act No.07 of 2007 to implement the provisions of the Compact. It is envisaged that the proposed enactment would encompass the Compact and the PIA as Annexures, which would form an integral part of this enactment.

“Thus, I am of the view that the passage of the said enactment by Parliament would result in the Compact and the PIA, having the parity of status of a domestic law in Sri Lanka.

“In the Context of the above, it is requisite that Section 7.1 of Article 7 of the Compact referring to the provisions on Entry Into Force, would be revised with the deletion of the sentence pertaining to the Compact prevailing over the domestic laws of Sri Lanka.

“However, in order to assuage any concerns with regard to the implementation of the Compact, by an unlikely event of a legislation in the future which may impinge or infringe the said compact, upon notification by the Ministry of Finance and Mass Media (the relevant Ministry) of this fact, a legal opinion would be tendered that the proposed legislation if proceeded with would violate the covenants of the Compact. This would enable the relevant Ministry to forward its observations to the Cabinet of Ministers and Parliament, that the Attorney-General has opined that the proposed Bill if enacted would violate the Compact.

“In the circumstances, I believe that the aforementioned matters would confirm the legal status of the Compact and its entry into force.”

“Copies were sent to Ms. Caroline Nguyen, Managing Director- Europe, Asia Pacific and Latin America Millennium Challenge Corporation and J. Charitha Ratwatte, Head of Policy Development and Chief of Party MCC- Sri Lanka Project.”

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Environmentalist accuses Govt. of resorting to trickery to hand over 800,000 acres to pvt. companies

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By Rathindra Kuruwita

President Gotabaya Rajapaksa’s ‘Gama Samaga Pilisandara’ is a psychological operation to counter people’s resistance to a move to hand over chena and grasslands to large companies, environmentalist Sajeewa Chamikara said yesterday.

Chamikara claimed that the government had earmarked 800,000 acres of land to be given to corporations, and those lands would mainly consist of forests and areas used for chena cultivations and to feed cattle by small scale farmers.

“The Gama Samaga Pilisandara is an attempt to misguide the people by giving them false promises. The government tells people they could cultivate lands belonging to the Forest Conservation Department and instructs officials not to punish people who send cattle into forests. People walk away feeling good but a few months later they will find that these same lands handed over to big companies.”

They had conducted a survey on the lands that had been given to corporations by the government during 2020 Most of those lands in fact were those used by cattle herders and chena cultivators, he said.

For example 70,000 acres in Demaliya and Wandama were being given to a company engaged in sugarcane cultivation, and almost all those lands were those used by small scale farmers and cattle herders, Chamikara said. Among the lands that were given were those earmarked for those displaced by the Uma Oya project. The previous administrations tried to provide irrigation water to those lands through the Handapanagala scheme.

Chamikara said: “Another 62,000 acres have been earmarked in Moneragala, Ampara and Badulla districts for sugarcane cultivation. 80% of these lands are chena cultivations. In Rambaken Oya 5,426 acres have been earmarked for 15 companies to carry out various agro projects and most of these lands are now used by small scale cattle herders. Recently, the Department of Agriculture wrote to the Forest Conservation Department requesting that 80,000 acres in Moneragala, Anuradhapura and Badulla districts be released. These lands are to be used for corn cultivation. The Forest Conservation Department then asked the Department of Agriculture to identify the lands and we know that these lands for the most part are those used by small scale cattle herders and chena cultivators.”

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Contempt of Court case against GMOA President re-fixed for hearing on March 03 and 10

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By Chitra Weerarathne

The Court of Appeal yesterday re-fixed for hearing on March 3 and March 10, the Contempt of Court application against the President of the Government Medical Officers’ Association Dr. Anuruddha Padeniya.

Counsel Ravindranath Dabare said that his client Dr. Padeniya was under self-quarantine and was unable to attend Court.

Dr. Padeniya was summoned for Contempt of Court under Article 105/3 of the Constitution of Sri Lanka for allegedly having criticised a Superior Court ruling in respect of the admission of students to the Sri Lanka Institute of Technology and Medicine, Malabe, at a public rally on April 7, 2016, disrespecting a Supreme Court order pertaining to the enrolment of a student in the Private Medical College, which will ultimately lead to an MBBS degree.

The Court of Appeal bench comprised Justice Arjuna Obeysekera (President) and Dr. Mayadunne Corea.

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