Punishment delayed is punishment denied

by Rajeewa Jayaweera-September 30, 2017, 7:27 pm 

The appended visual says it all. It depicts former Secretary to President Lalith Weeratunga and former Director General of Telecommunications Regulatory Commission (TRC) Anusha Pelpita being led away after their conviction for misuse of state funds amounting to LKR 600 mil belonging to TRC and aiding and abetting the same in spending it. Each of them were sentenced to three years rigorous imprisonment (RI) for all the charges besides each being fined LKR 2 million and ordered to pay the TRC LKR 50 million.

The duo, suited, booted and handcuffed to each other, unlike other convicts, did not opt to cover their faces when being led away after sentencing but walked away with smiles on their faces, usually the hallmark of shameless politicians and their minions who are assured of little or no time in jail, regardless of the verdict. There were no signs of contrition or remorse. They insisted right to the end, they had done nothing wrong. Not being politicians, the duo did not hold up their manacled hands displaying V signs.

Weeratunga, during his long years of public service, especially since commencement of his association with Mahinda Rajapaksa in 2004, is reputed of being a down to earth, approachable and helpful person, accessible to all. It has earned him volumes of capital in goodwill from many, especially in the political arena and bureaucracy, which now seem to be working for him. Immediate transfer to Prison Hospital without even the completion of formalities for convicts and the sympathetic consideration of health and age when considering their bail applications are not considerations available to average citizens.

Both convicts have appealed to the Appeal Court. The Attorney General did not oppose their bail applications. Both have been granted bail. Therefore, both prison sentences and fines will be held in abeyance. In the event of a second conviction in the Appeal Court, it will automatically result in a further appeal to the Supreme Court. All this is bound to drag on for several years.

In the aftermath of the tsunami in 2004, Presidential Secretariat Circular No PA/272 dated December 29, 2004 directed all Secretaries: "On the direction of the President, a special bank account has been opened at the headquarters branch of People’s Bank to accept cash donations for relief operations that are now in progress. You are kindly requested to bring this information to the notice of all your staff of your ministry / institution, and any other institutions coming under your ministry and the general public who wish to make donations in cash for this very worthy cause. In the circumstances, you are kindly advised not to open any separate individual bank accounts to collect funds for relief operations." Despite the executive order, two days later on December 31, 2004, Weeratunga opened an official account in the name of ‘Prime Minister’s Punarjeewana Fund’ account No. 014100170136270 at the People’s Bank. The signatories to this account were Weeratunga, Additional Secretary Gamini Senarath, Senior Assistant Secretary Sunil Hewapathirana and Accountant S. Subasinghe. In 2005, investigative journalist Sonali Samarasinghe unearthed the transfer of Rs 82 mil from the ‘Punarjeewana Fund’ to a private account in the name of ‘Helping Hambantota’ maintained at the Rajagiriya branch of the Standard Chartered Bank A/C No. 01-1237322-01. Weeratunga, as Secretary to Prime Minister and therefore Chief Accounting Officer of the Prime Minister’s office was fully aware and involved in the opening and operation of ‘Prime Minister’s Punarjeewana Fund’ in violation of a presidential directive and the transfer Rs 82 mil to a private account. Even though the CID wanted to initiate an investigation, in a case of judicial misadventure (surgeons making mistakes are referred as surgical misadventure, judges making mistakes may be referred as judicial misadventure!), the matter was dropped and Weeratunga and his boss escaped investigation. Similar to the Sil Redi saga, Weeratunga did not use any of the Rs 82 mil for his personal use. Other similarities too are unmistakable.

Due to intervention of former President CBK, funds had to be returned to the state.

What is not known are details of similar acts of abuse / misappropriation of state resources which may have taken place between the Saving Hambantota and Sil Redi episodes.

What need be stated is this whole saga is bigger than the age and health of two former senior public servants. Firstly, other than the nodding ponies and dumb patriots, many ordinary citizens are eagerly awaiting to see at least a few perpetrators of corruption during previous regime (and present regime) behind bars. It is an election promise of the good governance government. These two stalwarts walking away, free at least for the moment is a grave disappointment for many. It will further erode the already depleted faith in rule of law among the nation’s citizenry. Secondly, it weakens the warning resulting from the verdict and sentence passed by the High Court, to all public servants, to be mindful of what could befall upon them when carrying out illegal directives from their political bosses.

A regular contributor to the media had stated "He (Weeratunga) has been imprisoned and heavily fined for a victimless crime" and gone on to compare the issue with that of the five Cambridge spies Burgess, Maclean, Philby, Cairncross and Blunt. What the writer has overlooked is why did Burgess and McLean in 1951 and Philby in 1963 flee Britain to rot away in Moscow for the rest of their lives if the establishment would have left them alone? Chances are they would have been hung at the end of a rope in the Tower of London. Cairncross who confessed in 1951 was dismissed from MI6 but avoided prosecution for some inexplicable reason. Blunt turned crown witness in 1964 in return for immunity. His comparison of Weeratunga with former civil servants such as Godfrey Gunatilleke, Neville Jayaweera, Tissa Devendra and Susil Sirivardhana to say the least, is a travesty.

A former civil servant had advocated mercy in view of Weeratunga’s previous service record. This writer begs to differ. Every financial transaction of Weeeratunga’s, right from the ‘Saving Hambantota’ episode narrated earlier should be investigated prior to coming to such a conclusion. Secretary to the President is the head of the public service and expected to conduct himself in an exemplary manner, for emulation by his juniors. Unfortunately, Weeratunga has conducted himself differently and defecated on the image of the public service, a finer point overlooked by many of Weeratunga’s defenders. Would the erudite former civil servant recommend new comers to the public service, emulation of the former top public servant Lalith Weeratunga?

Never before has the need been felt for a Criminal Justice Commission similar to CJC 2 set up in 1970s to punish those responsible for fraud, corruption and misuse of funds, expeditiously. The judiciary, after decades, is showing signs of asserting its independence and authority and should be up to the task.

"Justice delayed is justice denied" is a legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.

Punishment delayed is punishment denied may be understood as, if guilt of an accused party has been established beyond reasonable doubt, but punishment is not forthcoming in a timely fashion, it is effectively the same as no punishment at all.