Heated arguments take place in SC as Court dismisses FR bribery case filed by former CEA Chairman

The Supreme Court recently dismissed the FR application filed by Supun Shashindra Pathirage, the former Chairman of the Central Environmental Authority without granting leave to proceed. The application had been filed against the Commission to Investigate Allegations of Bribery Or Corruption, its three former members, Justice Eva Wanasundara, Justice Deepali Wijesundera, Chandra Nimal Wakishta and also against newly appointed members Justice W.M.N.P. Iddawala (Chairman), Chethiya Gunasekera PC and K.B. Rajapaksa.

According to papers filed in the FR application the CEA Chairman had been arrested together with former Parliamentarian Anuruddha Polgampola and another, who had been remanded thereafter by the Magistrate. 

It transpired that the B report filed by the Bribery Commission had divulged the involvement of the petitioner. The complainant had been a Director of a company which purified furnace oil, who had applied for an Environmental Protection Licence, after the petitioner took over as Chairman of the Central Environmental Authority, the issuance of the licence had been suddenly delayed and the complainant states that during discussions that the complainant had been asked for 200 lakhs through an intermediary and thereafter the amount had been reduced to 70 lakhs.

Attorney-at-Law Kamran Aziz appearing for the petitioner made submissions on the petition he had filed. Senior State Counsel Shaminda Wickrema who appeared for the Attorney General and the Bribery Commission informed the Court that submissions were not consistent with the petition and that facts were being misrepresented to the apex court. Attorney-at-Law Kamran Aziz made submissions that both the arrest and detention of the petitioner was illegal. However Senior State Counsel Shaminda Wickrema pointed out to the Court that the detention of the petitioner had not been contested in the papers filed. Court considering this ordered the petitioner to make submissions only on the arrest. Thereafter at another point Attorney-at-Law Kamran Aziz made submissions on the petition that various other Parliamentarians and Ministers such as Premanath Dolawatte and Ahamed Zainulabdeen and third parties as being connected to the bribery. However Senior State Counsel Shaminda Wickrema pointed out that none of these persons had been made necessary parties and objected to these submissions as well. Court agreeing with these objections prevented Kamran Aziz from referring to these third parties.

According to the papers filed, the petitioner had been appointed by President Ranil Wickremasinghe in October 2022, when Ahamed Nazeer Zainulabdeen had been the Minister of Environment. However the petitioner had continued as the Chairman even after Minister Keheliya Rambukwella had taken over as the Minister of Environment.

Heated arguments arose in Court when Senior State Counsel Shaminda Wickrema accused the petitioner Counsel Kamran Aziz of “lying” to Court and Court warned both Counsels. Attorney-at-Law Kamran Aziz submitted to the Court that his client had been needlessly removed from the post of Chairman of the Central Environmental Authority and Senior State Counsel Shaminda Wickrema replied “thankfully”, after which the Chief Justice warned Wickrema to observe the practices of the Supreme Court.

Justice Thurairaja observed that the Magistrate had “killed the case” in the Magistrate Courts and had also commented on the lack of evidence against the petitioner when considering bail. His Lordship the Chief Justice commented that the order made by the Magistrate was regarding bail and not necessarily applicable to the Fundamental Rights application filed by the petitioner.

Senior State Counsel Shaminda Wickrema pointed out to the Court that the full details in the B report filed by the Bribery investigators was suppressed by Kamran Aziz. The Supreme Court Judges got Aziz to read the full contents of the B report which divulged the connection of the petitioner to the incident of bribery. The said contents of the B report divulges how the petitioner had initially solicited a bribe of 200 lakhs through an intermediary and thereafter negotiated the amount through an intermediary named Ashoka to 75 lakhs. The contents of the B report also divulge how the petitioner Chairman of the CEA had met the decoy of the Bribery Commission and solicited an amount of 70 lakhs through the decoy of the Bribery Commission. According to the B report the Chairman of the CEA, had later said that he was going to Australia and that the bribe be given to him in Australian dollars. However the complainant had not agreed to this request. 

Later, according to the B Report, ex-Parliamentarian Polgampala had met the complainant and the decoy of the Bribery Commision, at the Water’s Edge Hotel in November 2023, where Polgampala had stated that the petitioner Chairman had again requested 100 lakhs to issue the Environmental Protection Licence. To confirm this the complainant and the decoy from the Bribery Commission had met the petitioner-Chairman at the Central Environmental Authority where the petitioner had once again solicited 100 lakhs to be paid through ex-Parliamentarian Polgampala for the Central Environmental Authority Chairman to issue the Environmental Protection Licence. According to the B report a sum of Rs. 10 million had been given to ex-Parliamentarian Polgampala by the decoy of the Bribery Commission on 10 November 2023 and ex-Parliamentarian Polgampala and his associate, one Tenyson Fonseka, were both been taken into custody at Keels Rajagiriya. Thereafter the Bribery officers had proceeded to the Central Environmental Authority and arrested the petitioner-Chairman for soliciting a bribe of Rs. 7 million and for thereafter increasing the amount to Rs. 10 million and arranging that amount to be paid to the ex-Parliamentarian Polgampala. 

It was pointed out in submissions, that the matters in the B report had been filed before the Chief Magistrate of Colombo and the officers of the Bribery Commission had pointed out to Chief Magistrate Prasanna Alwis, that there was “political interference” regarding the investigations in the case and that the bail should not be granted to the petitioner. However the Chief Magistrate Prasanna Alwis had granted bail to the petitioner just 3 days after his arrest. In the bail order, the Magistrate had mentioned that the Bribery Commission could have obtained audio and video recordings connecting the petitioner to the crime. Many of the matters alluded to in that B report were not seen in the order of the Magistrate when granting bail to the petitioner. Justice Thurairajah criticised the order and commented in open Court that the “Magistrate had killed the investigation” at the initial stage. 

Halfway during the heated submissions the petitioners’ Counsel Kamran Aziz talked to his client in open Court and attempted to withdraw the Fundamental Rights petition filed by them, stating that it would affect the future of the petitioner. Senior State Counsel Shaminda Wickrema strongly objected to this application and the Supreme Court ordered that submissions should continue and that the Court would make an appropriate order.

Finally the Supreme Court dismissed the Fundamental Rights application of the petitioner –Central Environmental Authority Chairman. Upon dismissal, Senior State Counsel Shaminda Wickrema made an application for costs. However this was refused by the Supreme Court.

Chief Justice Jayantha Jayasuriya together with Justices S. Thurairaja and Mahinda Samayawardhena, heard the case. The petitioner was represented by Attorney-at-Law Kamran Aziz and the Attorney General and The Bribery Commission were represented by Senior State Counsel Shaminda Wickrema, assisted by Assistant Director Legal Ama Wijesinghe and Legal Assistant Officer Kethimini Weerakkodi. Sub Inspector Saman Prasanna conducted the investigation under the instructions of Bribery Director General Kanishka Wijeratne, assisted by Director Investigations SSP Nuwan Asanka.