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Wednesday, February 28, 2024

Magistrate Gamage Saga: Mockery of Judicial Independence in Sri Lanka

by Nirmala Kannangara.

The court journal that shows how  Kanishka Wijeratne has written that he allows the accused to pay the bail charges the following day!

In a new twist of events it has now come to light how controversial Gangodawila Magistrate Kanishka Wijeratne allowed former Colombo Additional Magistrate Thilina Gamage who is caught up in the midst of controversy, to deposit cash bail the following day without even a request by the counsel appearing for the accused.

Legal luminaries who wished to remain anonymous said it was the first time they had witnessed a magistrate rendering such ‘assistance’ to an accused even without a request being made.

“In the court journal, Magistrate Kanishka Wijeratne has put a note stating that he allows the suspect to deposit the cash bail the following day. This is against the law. There are instances where counsel appearing for suspects asks for a grace period to deposit cash bail and the bench has allowed it. Why we are saying that this is an extraordinary case is that a magistrate does not have the power to supersede the country’s law. Unless the counsel appearing for the suspect makes a written or an oral request seeking a grace period, the magistrate cannot allow the accused to pay the cash bail on another day. If so, until the cash bail is deposited, the accused has to be sent to remand prison,” sources said.

The sources further explained how the Gangodawila Magistrate’s Court has so far failed (from June 2 to June 17) to obtain the respective Grama Niladhari’s letters to confirm that the four parties that signed for the Rs. 2.5 million each sureties bond are in a position to pay the money in case Gamage does not report to CID and ensure that the national identity cards given to court are genuine.

“The court registrar should take sole responsibility and also in such an event the magistrate can cancel the bail immediately and arrest the suspect,” sources added.

Meanwhile questions have been raised as to whether Thilina Gamage was also allowed to surrender his passport to court the following day as the court registrar’s records show that she accepted Gamage’s passport after granting bail.

“Court registrar Thilani de Silva, like Magistrate Kanishka Wijeratne, is alleged to have violated the rules and regulations of court proceedings. The Judicial Service Commission should take quick disciplinary action against her for her alleged behavior in discharging her official duties. According to the bail document of Thilina Gamage, the registrar has stated that she accepted Gamage’s passport on June 2 but again she writes that she put the passport in the court safe on June 3.”

The sources further criticized the Gangodawila registrar for her high-handed act of not submitting the original documents of Gangodawila Magistrate’s June 2 ‘landmark’ court order although she was asked to send them to the Colombo High Court.

“When the Attorney General filed a revised application with the Colombo High Court on June 13 seeking to annul Thilina Gamage’s bail order and to remand him under the Public Property Act, Colombo High Court Judge Manilal Waidyathilake ordered the Gangodawila registrar to send the court order to which she did not respond. How can a registrar of a magistrate court ignore an order given by a high court judge? Could this be because she too is against the high court decision to annul the bail order given on Gamage?” sources added.

“In the meantime the Judicial Service Commission on Thursday had appointed District Judge Mapa Bandara to hear future cases regarding Gamage’s case. When we reported the facts to the Gangodawila Magistrate on Thursday in regard to the stay order, the District Judge declined to hear the case for a personal reason. Now it is up to the Chief Justice to send another judge from Colombo to hear the case,” sources claimed.

Meanwhile on Thursday, Gamage’s counsel had filed a motion asking the Colombo High Court Judge to give a clarification as to why he gave a stay order on June 13 annulling the Gangodawila Magistrate’s ruling.

“How can the accused’s counsel ask for a clarification from the high court judge? If this is allowed to happen, in future, in all cases, everyone will come and ask the judge to clarify why such a judgement was given. This is an insult to the judiciary,” sources added.

Meanwhile Director, Pinnawala Elephant Orphanage, Dhammika Malsinghe when contacted recounted how Thilina Gamage, when he was the Colombo Additional Magistrate, threatened Deputy Director, Pinnawala Elephant Orphanage Dinushika Manawadu for not allowing him to see his elephant which is now being kept at Pinnawala. After the Wildlife Department arrested illegally kept elephant calves, all such calves were kept under the care of a veterinary surgeon at Pinnawala.

Despite this order, Magistrate Gamage on December 23, 2015 had entered Pinnawala Elephant Orphanage illegally with a Buddhist monk and an armed police bodyguard in his jeep. “On this particular day, a jeep entered the orphanage. When the security asked why the vehicle was taken to a restricted area, the person who got down from the jeep said he was the Colombo Magistrate and that he received permission from the Deputy Director to feed fruits to his elephant calf who is being held at the orphanage.

It was at this time our Deputy Director arrived on the scene and when she inquired as to why the jeep was driven into the premises without permission, Gamage had said that he got permission from the Deputy Director without realising that he was talking to the officer concerned. While a magistrate, he forged documents to obtain ownership of a baby elephant and this time he once again lied to the orphanage employees,” Malsinghe said.

Following the release of the Auditor General’s initial report on the investigation into illegal elephant registrations by the Department of Wildlife Conservation (DWC), all eyes were focused on JSC as to what action they were going to take against Gamage.

According to the audit query of Deputy Auditor General A. H. M. L. Ambanwela, all documents that have been submitted to the Wildlife Department to get this elephant registered are fraudulent and the signatures of government officials have been forged.

According to the Fauna and Flora Protection Ordinance (FFPO) Section 22(A) as amended in 2009, any person who owns, has in his custody or makes use of an elephant which is not registered, and a license obtained in accordance with the provisions of this section, shall be guilty of an offence and shall on conviction be liable to a fine not less than one hundred thousand rupees and not more than two hundred thousand rupees or to imprisonment for a term not less than two years and not exceeding five years or to both such fine and imprisonment.

However, after this highly remarkable audit query was sent to the Secretary of Wildlife Resources Conservation Ministry on July 22, Deputy Auditor General A. H. M. L. Ambanwela, who conducted the investigation by recording statements from 43 officials involved in the illegal elephant registration, has been removed from all investigations he was conducting and was transferred to another section with less responsibilities.

According to the audit report, signatures of the Divisional Secretary Homagama, A. J. Karunaratne and Grama Niladhari H. P. Bandulasena and their official stamps have been forged.

The audit query report further states, “Although the address of the applicant in the elephant registration application has been given as 409, Meegoda, Ovitigama, it was revealed at the audit investigation that there is no such person by that name living in the given address.

Two former Grama Niladharis H. Bandusena and Ranasinghe Arachchige Ranjith Gamini, the present Grama Niladhari Thilan Attanayake and Divisional Secretary Homagama, A. J. Karunaratne confirmed in writing at the audit inquiry that an elephant calf was not born at the address given in the registration application and there is no evidence to prove that there was a she-elephant living in the area which had given birth to a calf.

Meanwhile giving evidence at the audit investigation, Priyanka Sanjeewani, Management Assistant at the DWC has admitted that she had to prepare the fraudulent documents and number them on the instructions of her superiors.

She has further stated that the documents pertaining to the elephant registration number 334 were inserted to the elephant registration book at the DWC removing some other documents in the book. She has also confirmed that although the application for registration was dated as November 12, 2008 the application had really been forwarded to the DWC at a much later date.

It was in 2009 that new amendments were brought to the FFPO where it was made mandatory for elephant owners to inform the DWC when a she-elephant gets pregnant and the department has to be informed within seven days of a birth of an elephant calf. These regulations were brought to prevent the elephants being captured from the wild.

The report states further, “The management assistant stated that she had to back-date this particular application as November 12, 2008 in order to circumvent the new regulations that said registrations are given only to the elephants that are born after the new regulations were introduced. Since this animal was not born to a domesticated elephant and was captured illegally from the wild, the wildlife officer had to put a bogus date to the application form.”

According to Priyanka Sanjeewani, although she had to put a date to the application and followed the superior’s instructions, she was not aware that the date that was put in the application was a public holiday, full moon poya day.

The audit officer in his investigation report has stated how the DWC had given the elephant’s details in the registration license which was the same as that given in the application form.

“In the fraudulent application submitted on November 12, 2008, the height of the elephant calf was given as four feet and six inches and his age as three years. However the DWC, in the certificate of registration too has given the same height as in the application but only changed the age of the elephant to five years,” the report states.

According to Pubudu Weeraratne, Director Species Conservation Centre, it was a noticeable miscalculation by the DWC to put the same details of the elephant calf given in the application in the certification of registration as well.

“This clearly shows how the DWC officials were desperate to give the registration to the party concerned in a rush. If not how could they include the same details in the certification of registration of the animal as per in the application form,” he added.

Although the DWC gave the registration license to the elephant calf in question on March 27, 2012 based on the fraudulent documents, in a letter dated October 26, 2012, Udeni Wickremasinghe, the then Acting Director General DWC cancelled the license of this elephant calf (registration number 334) claiming that the documents provided to obtain the registration were fraudulent thus ordering the owner to hand over the animal to the Wildlife Department.

However this decision was reversed on January 21, 2013 by the Director General H. D. Ratnayake.

In a letter dated January 21, 2013 to the Secretary, Ministry of Wildlife Resources Conservation, the Director General of Wildlife has stated that the investigations carried out by the Assistant Director (Investigation) Wildlife Resources Conservation Ministry has recommended the annulling of the October 26 decision and to give back the registration number 334 to the owner. According to the audit query, Assistant Director (Investigation) Wildlife Resources Conservation Ministry H. M. G. K. Kaluhendiwela has not conducted a thorough investigation to unearth the frauds that were carried out to get Thilina Gamage’s elephant registered as he (Kaluhendiwela) had considered what the Fort Magistrate and the wildlife officials have stated at the preliminary investigation as factual. However the audit officer, after speaking to the Divisional Secretary Homagama and three Grama Niladhari officers of the area and the wildlife officials, uncovered the fraud that took place in registering an elephant calf that was captured from the wild and not born to a domesticated animal.

(Original Caption: How Gamage And His Pal Made A Mockery Of The Law)

Sunday Leader


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