Question of ethics mires ‘MiG deal’ litigation | Page 2 | Sunday Observer

Question of ethics mires ‘MiG deal’ litigation

13 January, 2019
The pall bearers at Lasantha Wickrematunge’s funeral AFP
The pall bearers at Lasantha Wickrematunge’s funeral AFP

At a recent event to commemorate the ten-year anniversary of the murder of veteran journalist Lasantha Wickrematunge, AFP Correspondent for Sri Lanka, Amal Jayasinghe remarked that “The same lawyer who appeared for Lasantha in the MiG case was one of his pall bearers and that same lawyer is now appearing for Gotabhaya Rajapaksa in the MiG case.”

While Jayasinghe declined to name the lawyer, photos have circulated of senior lawyer Romesh de Silva PC, TNA MP M.A. Sumanthiran PC and several other lawyers prominently carrying Wickrematunge’s casket at the Borella General Cemetery. Both Sumanthiran and de Silva represented The Sunday Leader at various stages of litigation in connection with their reporting on the ‘MiG deal’, a controversial 2006 arms deal that is under investigation by the Financial Crime Investigation Division (FCID).

The litigation began when The Sunday Leader in 2007 published two articles and several editorials alleging impropriety in the Air Force’s 2006 purchase and overhaul of military aircraft of Ukrainian origin. Wickrematunge alleged that the aircraft, which the Defence Ministry insisted were transacted with Ukraine on a government-to-government basis, had been procured using a shell company, Bellimissa Holdings Limited, which had siphoned a substantial sum from the deal to offshore bank accounts.

In response, Defence Secretary Gotabhaya Rajapaksa, who had not been directly accused of wrongdoing in the articles, filed action in the Mount Lavinia District Court against Wickrematunge and Leader Publications (Pvt) Ltd, the publisher of The Sunday Leader, claiming defamation of character and seeking damages of over one billion rupees. Wickrematunge was initially represented by a team of lawyers led by G.G.Arulpragasam in the Mount Lavinia District Court.

However, when Rajapaksa sought to have the case transferred from Mount Lavinia to Colombo, and this transfer application was to be heard in the Court of Appeal, Lasantha Wickrematunge retained the services of close friend and trusted confidant Romesh de Silva, P.C. to represent him in the Court of Appeal. With the assistance of de Silva, Wickrematunge was able to quash the Transfer Application, according to the case record at the Court of Appeal.

As the defamation case was set for trial in early 2009, Wickrematunge was ambushed and murdered on Thursday January 8, 2009, an act that the CID has told the Mount Lavinia Magistrates Court has the fingerprints of a secret Military Intelligence team coordinated through the Ministry of Defence.

Wickrematunge’s daughter has told the CID that her father expected to be murdered for his reporting and litigation on the MiG deal, a claim on which she elaborated in an article written to mark the tenth anniversary of her father’s killing (See Page 10).

Rajapaksa pursued the defamation action even after Wickrematunge’s murder, remarking to a BBC reporter that he was “not concerned” by the killing, and expressing his determination to prove the newspaper’s reporting about the MiG deal wrong.

Following Wickrematunge’s murder, his brother, Leader Publications Chairman Lal Wickrematunge, took over the management of the litigation, he told the Sunday Observer. “When Lasantha was killed, he had to shoulder the burden of the pending litigation, such as the MiG case and one filed by Ronnie Peiris. Up to that time we were assisted in both by G.G. Arulpragasam and Romesh de Silva, both of whom had always appeared pro bono,” a former executive at Leader Publications recalled.

“But when he visited Romesh de Silva to follow up on the cases he declined to continue appearing for us in any of our cases. Later we found that he was appearing against us in the Ronnie Peiris case where he had appeared for us before,” the executive said.

“Lasantha had a very close relationship with Romesh de Silva, so much so that he even took his son for an internship at The Sunday Leader before he finished his law degree,” they reminisced. “Newspapers would often carry photographs of Romesh de Silva appearing triumphantly in front of court houses after defending Lasantha, who would swear by him and confide in him fully on all his legal strategies.”

Lal Wickrematunge, speaking to the Sunday Observer, recalled the fate of the MiG defamation case after his brother was murdered. “After Lasantha was killed and our original lawyers refused to continue appearing in the case, I went to Mount Lavinia and found other lawyers practicing in the area to appear.” He declined to comment on matters pertaining to any particular attorneys.

“On the day of the case Gotabhaya Rajapaksa came to court accompanied by the Navy Commander, Army Commander and the IGP. Snipers were positioned around the court house. There were check points every 50 yards. The military top brass arrived in full uniform. The lawyers from Mount Lavinia withdrew on their feet when the case was called up. I was left entirely alone. I moved to court to allow time for us to find lawyers willing to appear for us, as I had a right to representation and asked for another date. It was granted.”

“That was when I went to M.A. Sumanthiran and he took the case. At the next court date, Sumanthiran and Upul Jayasuriya brought 40 lawyers to court for solidarity,” the slain editor’s brother said. These lawyers were later branded “traitors in black coats” by the Defence Ministry in a formal statement for having appeared for Leader Publications.

Lal Wickrematunge says he was later forced to sell the newspaper. The new owners settled the defamation litigation with Rajapaksa and had an unconditional apology tendered to the former defence secretary retracting the articles that alleged irregularities in the MiG deal.

In 2015, the Financial Crime Investigation Division (FCID) opened a criminal investigation into the ‘MiG deal’, which has brought a number of startling facts to light and largely vindicated the reporting spearheaded by Wickrematunge and The Sunday Leader. The FCID has reported that the Ukraine Government was not involved in the deal, and the contract ostensibly between that government and the air force was forged to allow over US $6.8 million in Sri Lankan treasury funds to be siphoned off to the offshore shell company Bellimissa Holdings, precisely as Wickrematunge and The Sunday Leader alleged.

Based in part on this criminal investigation, former Defence Secretary Gotabhaya Rajapaksa filed a Fundamental Rights Petition SC FR 163/2015 in the Supreme Court, seeking an order to prevent the FCID from arresting him in their MiG deal investigation. The proceedings of Rajapaksa’s defamation case in the Mount Lavinia District court were attached as an exhibit to the petition.

Romesh de Silva, P.C., who had earlier represented Wickrematunge and Leader Publications in the Court of Appeal on the ‘MiG deal’ transfer application, appeared for Rajapaksa and successfully secured an order preventing Rajapaksa’s arrest. Since this order was granted, four successive Supreme Court Justices have recused themselves from hearing the case.

It is unclear how de Silva’s appearences could be interpreted through the lense of the Supreme Court rules for Attorneys-at-Law, as no party is known to have made a complaint as of yet. Rule 33 states that the duty of an Attorney-at-Law to protect a client’s confidential information persists indefinitely, even after the death of a client.

Rule 35 says: “It would be contrary to professional etiquette for an Attorney-at-Law possessing such confidential information concerning his client to undertake any professional work for the opposite party in the same matter or in some other matter where there is or is a likelihood of a conflict between his client and another party to such matter. Further, if such information could be used to the prejudice of his former client in any other professional matter, the said Attorney-at-Law shall not undertake such work.” The facts of the ‘MiG deal’ were central to the defamation proceedings in the Mount Lavinia District Court, as they are to the criminal investigation underway at the FCID. Both the Court of Appeal transfer application and the Supreme Court application for which de Silva appeared for Wickrematunge and Rajapaksa respectively, were ancillary matters that required counsel on both sides to command some familiarity with the facts of the case.