When the application made by Ms Maureen
Seneviratne, President’s Counsel to the Court of Appeal for a
Writ of Certiorari to quash the decision of the Attorney
General; to indict the late Eardley Seneviratne, Attorney-at-Law
for attesting a Power of Attorney alleged to bear the forged
signature of Upali Wijewardene, on a complaint made by his two
sisters Anoja Wijesundera and Kalyani Attygalle to the CID was
resumed before Justice I S Imam, Mr R K W Goonasekera, Senior
Counsel for the Petitioner continuing his submissions stated to
Court that since the Attorney-General had not filed any
objections to the Petitioner’s application, he cannot be heard
on any matters referred to in the Petition, nor could the
Solicitor General who appeared for the Attorney General (1st
Respondent) speak for the 2nd Respondent, Rienzie Arsecularatne,
since he has filed objections by way of affidavit to the
petitioner’s application. He further submitted that the
preliminary objections taken by the 1st Respondent
(Attorney-General) and the 2nd Respondent that the Petitioner
had no locus-standi and that there was no live issue since
Eardley Seneviratne is dead could not be determined by way of
preliminary issues of law. Before making a determination on
these preliminary issues one must first consider the merits of
the application and then only decide on the said issues.
Mr Goonesekera submitted that on the question,
whether the decision of the Attorney-General to indict the late
Eardley Seneviratne could be challenged by way of Judicial
Review, he stated that in the United Kingdom the Attorney
General who holds very high office is vested with prerogative
powers and therefore the Courts in the United Kingdom are slow
to interfere with these prerogative powers although it reserves
the right to do so in cases of dishonesty, mala fides, abuse of
the process of Court and exceptional circumstances. He relied
for this submission on the case of R vs. Director of Public
Prosecution ex parte, Kebaline and others reported in 1999 AER
page 801 in which the House of Lords whilst recognizing the
prerogative powers of the Attorney-General in exercising its
jurisdiction in matters relating to indictment, held that it was
snot amenable to judicial review in the absence of dishonesty,
mala fides, abuse of process and exceptional circumstances. In
Sri Lanka, however, the Attorney-General was not vested with
prerogative powers, except those powers given to him under the
Constitution. Other than those powers, there is no distinction
between the powers given to the Attorney-General and other
Bodies. His powers are not absolute or unfettered. This was the
dicta in Victor Ivan’s case reported in 1998(1) S.L.R. 340 in
which the issue raised was that the Attorney-General’s powers
cannot be scrutinized by a Court of Law. The Supreme Court,
quite categorically held that no power is absolute. All power is
subject to the power being reasonably exercised, if not so
exercised it can be judicially reviewed. Likewise, even and
indictment can be judicially reviewed, when the person vested
with the power of indicting, abuses, the exercise of that power
and has railed to act reasonably.
Mr Goonesekera also referred to another case in
which Victor Ivan, complained to the Human Rights Committee that
he has been indicted several times for allegedly having defamed
Ministers and high level officials of the Police and other
departments in articles and reports published in his newspaper.
He claimed that these indictments were indiscriminately and
arbitrarily transmitted by the Attorney-General to Sri Lanka’s
High Court without proper assessment of the facts as required
under Sri Lanka Legislation and that they were designed to
harass him. As a result of these prosecutions, Victor Ivan
alleged that he has been intimidated, his freedom of expression
restricted and the publication of his newspaper obstructed, that
the Attorney-General failed to explain why a direct indictment
was preferred to a non-summary inquiry. The Human Rights
Committee held that the State is under an obligation to provide
Victor Ivan with an effective remedy, including appropriate
compensation and that the State is also under an obligation to
prevent similar violations in the future.
Mr Goonasekera submitted that in this case too,
forgery like Defamation is a summary offence triable by a
Magistrate’s Court. The High Court also has power to try it on
indictment. The normal procedure is to try it in the
Magistrate’s Court, but in this case the Attorney General,
preferred a direct indictment to a non-summary inquiry - why?
Obviously there is a hidden hand behind it. The Attorney-General
when he decided to proceed by way of direct indictment against
Eardley Seneviratne is expected to exercise that power
exceptionally, in the best interest of justice, fairly and
reasonably, taking into consideration all the circumstances of
the case, for the reason that when he decides to indict a
person, peoples rights and liberty are in jeopardy. In this case
when the Attorney-General decided to indict Eardley Seneviratne
on a charge of forgery, he failed to exercise his power in the
best interests of Justice and unreasonably without taking into
consideration all the circumstances of the case. The
Attorney-General has failed to explain the reasons why he
preferred a direct indictment to a non-summary inquiry. In fact,
he has said nothing.
However, Rienzie Arsecularatne, who took the
decision to indict Eardley Seneviratne states in his affidavit
that he is aware that the CID obtained the protocol copy of the
purported Power of Attorney from the late Eardley Seneviratne
for purposes of investigation and that since the protocol of a
notoriety executed document is on which is contemporaneously
signed together with the original as such for investigation
purposes the examination of the protocol obtained from the late
Eardley Seneviratne by the CID to consider whether a charge of
forgery can be maintained on a purported forged protocol would
suffice.
Rienzie Arsecularatne before making the decision
to indict Eardley Seneviratne on a protocol, failed to ask the
EQD why his report was on the protocol and not the original or
duplicate of the Power of Attorney. He did not direct the EQD to
obtain the original from the Public Trustee or the Duplicate
from the Registrar of Lands and then make his report. Instead,
he states that the CID could not trace the original or the
Duplicate of the Power of Attorney and they had therefore no
alternative but to rely on the Protocol. This is a blatant
falsehood for the reason that that the CID cold have obtained
the Power of Attorney either from the Public Trustee or the
Registrar General. Lakmini Welgama, the former wife of Upali
Wijewardena has filed an affidavit in which she has stated that
the Power of Attorney is and has been in her possession and that
neither the CID, the EQD or the Attorney General’s Department
made a request of her to release it. Rienzie Arsecularatne makes
no mention of the complaint made to the CID which geared them
into action. No one knows what the contents of this complaint
are. Rienzie Arsecularatne should have and ought to have called
for the complaint. He should have asked the CID to produce the
document on which the complaint was made. He makes no mention of
the complaint or that he examined it. The total failure to
produce the complaint is a big lacuna in the case of the
prosecution. Up to date, neither the CID, the Attorney General
or Rienzie Arsecularatne have seen the original Power of
Attorney or the Duplicate. Despite this, Rienzie Arsecularatne
in his affidavit has stated that the attestation of Eardley
Seneviratne contained in the Power of Attorney clearly made out
a case that Eardley Seneviratne aided and abetted a person to
the prosecution to place the signature on the purported Power of
Attorney. This is blatantly false in the teeth of the admission
by Rienzie Arsecularatne that neither the CID nor the Attorney
General or the EQD has seen the original Power of Attorney or
the duplicate. In the indictment referred to in his affidavit he
has also indicted Eardley Seneviratne for using as genuine a
forged document by tendering the Duplicate to the Registrar
General for registration. He refers to this as cogent material
for having taken the decision to indict Eardley Seneviratne,
when in fact neither he, the EQD or CID have seen the duplicate.
This again is a blatant falsehood.
Mr Goonasekera submitted further that ‘forgery’
as defined in Section 452 of the Penal Code is committed by
making a false document with intent to cause damage or injury.
Intention is the essence of the offence. The making of a false
document by itself is not an offence. It must be coupled with
the intention to cause damage. In this case, a protocol even if
it bears a forged signature cannot be used to commit a fraud. It
is the property of the Notary, which is in his possession, which
he maintains in terms of the Notarized Ordinance. It is not
registered like in the case of the original Power of Attorney or
its duplicate. It has no legal standing attached to it. There is
a special statute which provides for Powers of Attorney. In this
case the document that was examined by the EQD was not the
original Power of Attorney, but a Protocol. Did Eardley
Seneviratne have the intention to use a Protocol to commit a
fraud? For the EQD to arrive at a conclusion that the Power of
Attorney bears a forged signature, he must examine the original
of the document, which should have been handed over to him by
the CIF on completion of its investigation. The CID failed to do
so.
It is beyond doubt that the report of the EQD is
not on the original Power of Attorney, how then could Rienzie
Arsecularatne who admits that the EQD report is based on the
Protocol, state that the Reports clearly conclude that the
signature of Upali Wijewardena contained in the purported Power
of Attorney is a forgery when the EQD himself admits that the
reports are on the Protocol. If Rienzie Arsecularatne carefully
examined the ingredients of the offence of forgery, the first
thing he should have done was to call for the complaint made by
the sisters of Upali Wijewardene and the original of the Power
of Attorney. Rienzie Arsecularatne has repeatedly stated in his
affidavit that the evidence he is replying on to indict Eardley
Seneviratne was the attestation contained in the purported Power
of Attorney when there was no such document that the CID or the
EQD produced or which Rienzie Arsecularatne had ever seen, why
did he not indict Eardley Seneviratne on the Protocol? He did
not do so for the simple reason that a charge of forgery could
not be maintained on a Protocol even assuming the signature on
the protocol to be a forgery.
Rienzie Arsecularatne also failed to consider
the statement made by Eardley Seneviratne to the CID which is
filed of record wherein he draws the attention of the CID to
Section 85 of the Evidence Ordinance which states that the Court
shall presume that every document purporting to be a Power of
Attorney and to have been executed before and authenticated by a
Notary Public was so executed and authenticated. Furthermore the
CID has stated that in order to carry out investigations
relating to complaints of forgery made against Eardley
Seneviratne by the two sisters of Upali Wijewardene, he
requested Eardley Seneviratne to hand over to the CID the
original of his Protocol copy which Eardley Seneviratne under
protest handed to the CID on condition the he returns it to him
without undue delay.
Rienzie Arsecularatne totally failed to take
into consideration any of these matters when deciding to convert
a summary offence into an indictable offence. He can do so only
after a careful consideration of all these matters which he
failed to do. His decision shows that he acted arbitrarily,
unfairly and failed to take into consideration that he EQD
Report was not on the original Power of Attorney which was
alleged to be forged or that the complaint on which the CID
acted was not produced. He made a decision to convert a summary
offence to an indictable offence only on the reports of the EQD
which reports were on the Protocol. There is no doubt that there
is a hidden hand behind this.
The Petitioner suffered great pain of mind as a
result of so much publicity being given in the Leader Newspaper
all for what purpose? But to proclaim a dead man, who was unable
to defend himself a forger. Mr C R De Silva, Solicitor General
replying to the submissions of Mr RKW Goonesekera submitted that
protocol is made as a result of a statutory requirement which
must be made contemporaneously with the original and duplicate.
The Protocol was not prepared for mere reference. It was part of
a scheme for the purpose of committing a fraud. There is nothing
to prevent an indictment being based on a protocol. The
indictment was to establish a charge both on the protocol and
circumstantially on the original Power of Attorney. He submitted
that, even though an original is not available, the charge can
be made on circumstantial evidence to establish that the
original is also a forgery. If the protocol is a forgery, then
the other documents too are forgeries. The case can be
prosecuted on the protocol with out the original.
Mr C R de Silva was continuing his submission
when Court adjourned for further hearing on the 8th October,
2004.
R K W Goonasekera with S C Crosette Thambyah
appeared for the Petitioner, instructed by Sheila Jayatillake.
C R de Silva, President’s Counsel, Solicitor General appeared
for the Attorney-General and the Additional Solicitor General,
Wijedasa Rajapakse, President’s Counsel appeared for the
Intervenient Respondents - Anoja Wijewardene and Kalyani
Attygalle.
