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More twists and turns

29 Jul 2019

By Skandha Gunasekara The inquiry into the Easter Sunday terrorist attack by the Parliamentary Select Committee (PSC) took more twists and turns this week, with the Central Bank (CBSL) revealing that loopholes in financial regulations had allowed the setting up of the Batticaloa Campus without raising any red flags; while the Attorney General told the PSC that a direct testimony by him would be a conflict of interest. The PSC sat three days this week, beginning on Wednesday (24) and ending on Friday (26). Criminal Investigation Department (CID) and Terrorism Investigation Division(TID) Head Senior DIG Ravi Seneviratne on Wednesday told the PSC that his department was now also carrying out investigations to determine as to why no action was taken in response to intelligence reports, both local and foreign, of the impending attack in April. SDIG Seneviratne told the Committee that despite the TID investigating the incident of the stabbing of two policemen in Vavunathivu, they were unable to link the suspects to the mastermind of the terror attack, Zahran Hashim, till after 21 April. Kumarsiri: There had been warnings from foreign intelligence agencies in addition to the many reports from local sources of the impending attacks. Why was there no mechanism to process all this and to take action to prevent it? Seneviratne: There is a separate CID investigation in progress to ascertain that. I would like to respond to that question off camera without the presence of the media. CID Director SSP Shani Abeysekara stated that top-level officials should not worry of such exposure as they do not engage in field operations. He also said that prior intelligence should have been shared with the CID while also refuting allegations that the Taj Samudra was not targeted due to the presence of a VIP in the building. Janatha Vimukthi Peramuna (JVP) MP Dr. Nalinda Jayatissa questioned whether intelligence had been openly shared among branches of the national security apparatus. Below is the exchange that followed. Dr. Jayatissa: You had been investigating Zahran’s group and their activities and arrests were being made with very little information. It is in that context the intelligence agencies here received a warning with exact places and times of the impending attack. Do you think that keeping that information from you was wrong? Abeyesekera: Yes. It should have been given to us. Dr. Jayatissa: Where had it gone it wrong? Abeyesekera: There were some mistakes in the intelligence processing. Dr. Jayatissa: There was an opinion that some VIPs stayed at the Taj on Easter Sunday and a suicide bomber who had been there did not explode himself because of those persons. Do you agree? Abeyesekera: No. We checked the video footage taken from the Taj four times. The footage showed that the suicide bomber himself attempted to explode himself twice but the bomb did not explode. So he left the place and went to his room in Dehiwala and tried to fix or examine it. The bomb went off at that time. TID Police Inspector T.R.K.R. Pathirana, testifying before the PSC on the same day, said that both had failed to provide the necessary assistance which could have prevented the attacks. He said that information could have easily been found on Facebook to help investigations into Zahran’s group. “We needed more information to move forward. The other solution we had before was to take him into custody. We monitored his movements and whereabouts, but those were not successful since we didn’t have the required information which could have been easily furnished through Facebook. If we got his phone details, we could have traced him and taken him into custody,” Pathirana said. Next in line to present evidence, TID Director DIG Waruna Jayasundara admitted that preventive measures could have easily averted the disaster. He said that he too had received the intelligence report on 10 April and had taken action in response to the findings. “I received the letter on 10 April. It was a ‘top secret eyes only’ letter. I called my immediate juniors and told them that Zahran is ready to attack. I showed them the letter and instructed them not to photocopy or take pictures. Thereafter, I wrote instructions to arrest Zahran immediately and gave it to two officers. They sent the message to the relevant units. Everybody in our Kalmunai unit searched for him but could not find Zahran, his brother, or supporters. The grama niladharis had informed our teams that they had left the area for good. On 10 April itself we wrote to Facebook and got them to block Zahran’s account.” Dr. Jayatissa then inquired as to what preventive action could have been taken. The exchange follows: Dr. Jayatissa: What action could have been taken to prevent the attack? Jayasundara: It was a threat. We could have eliminated it. We could have arrested Zahran and neutralised the threat. MP M. A. Sumanthiran: Who would have informed the churches of the attack? Whose responsibility was it? Jayasundara: We are investigators. It is not our duty to inform the churches without instructions from superior offices. The IGP has a senior DIG covering the area. He could have done that. The letter was also copied to the Senior DIG Western Range. He could have made that decision. More probes STF Chief SDIG M.R. Latheef, testifying before the PSC on Thursday (25), said the STF could have easily averted the attacks had the other security agencies shared information. Latheef: I have been asking to have the presence of the STF in the National Security Council as far back as during the times of the North and East conflict. Now, it is not so. Even now, we are not invited for the meeting and we have been asking repeatedly, but it has not been granted. Field Marshal Sarath Fonseka: The STF is currently used for VIP protection and narcotic operations. What could you have done if information of the imminent attack was provided to you? Could you have prevented it? Latheef: We could have. The STF could have launched its operations on its own. But the procedure is that we are summoned and given orders because there are other agencies working on various security issues. The STF acts only when the special task is given to them. If we had been given the information, we could have deployed our men and prevented those six attackers coming to those locations. We have contingency plans. We could have sent men to the churches and hotels. Our presence alone could have disrupted the plans of the attackers. Now, I gather from the media that there had been information of the possible locations of the attack on 20 April. If that information had been given to us even on the eve of 21 April, we could have prevented the disaster. In addition, he categorically said that there was no link between the 21/4 attack and the illegal narcotics racket. Responding to a question posed by Dr. Jayatissa, Latheef said that investigations had not uncovered any connections between the drug trade and the terrorist attacks. Dr. Jayatissa: Is there a link between narcotics and the 21 April incidents? Latheef: We have no information to that effect. Dr. Jayatissa: Is there any link between the Easter Sunday attacks and the arrest of Makandure Madush? Latheef: We do not think so. We have no evidence to prove it. Former IGP and current National Defence Advisor N.K. Illangakoon, on Thursday, told the PSC that there had been a lethargic response by defence officials to the intelligence reports of the attacks and that there was bad communication between the security branches. “The warning of the incident was a serious piece of intelligence. It came in the context after the end of the conflict in 2009. The security establishment could have been mobilised to prevent the attack without keeping it between only a few persons. Had I been the IGP, I would have informed all senior police officers. I would have informed all senior DIGs in all the provinces. It seems now that there had been no such communication.” He then pointed out that the IGP should have informed the Minister of Defence. Fonseka: Should the Minister of Defence have been informed? Illangakoon: He should have known. Fonseka: Isn’t it the duty and responsibility of the IGP to inform the Minister of Defence? Illangakoon: The IGP should have informed the Secretary to the Ministry under which the Police Department functioned. The IGP should have informed his Minister. Fonseka: Who is responsible to create a mechanism for that purpose? Illangakoon: It is the responsibility of the Ministry to ensure that such a mechanism is in place. Fonseka: What action had you taken during your tenure as IGP to prevent Islamic extremism? Illangakoon: I instructed the SIS (State Intelligence Service) and its Director – who is holding the same office. I also instructed the Director of the Police Special Branch (SB). That is another intelligence arm of the Police Department functioning under the IGP. We had appointed a committee which gathered lots of information on extremist groups. There are some groups which were very hardcore. A single group acted like one single family. If it attacks, all the members of the family attack, and all would fight till their death. I foresaw the growth of these groups and instructed the SIS and SB to continue to monitor them. Former Eastern Province Army Commander Major General (Rtd.) Lal Perera and former Ministry of Law and Order Secretary Padmasiri Jayamanne also testified before the PSC on Thursday (25). Loopholes revealed Certain loopholes in financial regulations had allowed those involved in the Panama Papers scandal to evade authorities as well as for the Batticaloa Campus to be set up without raising any red flags, the PSC was told by officials of CBSL. CBSL Governor Dr. Indrajit Coomaraswamy, Financial Intelligence Unit Director D.M. Rupasinghe, and Department of Supervision of Non-Bank Financial Institutions Director R.R. Jayaratne testified before the PSC on Friday (26). They were summoned to provide information with regard to financial transactions relating to the Batticaloa Campus (Pvt.) Ltd. and to any group or person connected to Easter Sunday attacks. Parliamentarian Prof. Ashu Marasinghe asked Jayaratne to clarify an earlier statement made to the PSC regarding a loophole in the Finance Act which had resulted in the authorities being unable to account for the funding that came into the country for the Batticaloa Campus. Jayaratne replied: “They did not inform us it was a loan. We wouldn’t have accepted it if so because they had not completed the procedures of obtaining a loan. There is no category to accommodate some transactions, which will then be categorised as personal remittances.” Dr. Jayatissa: Since there are such deficiencies in the Act, what would you suggest as a solution? Jayaratne: The Act was amended. The Suspicious Transactions Regulations were passed in 2017. But some funds were received in 2015. According to the new provisions, we could investigate funds received only as far back as six months before the new law was enacted, or a court action had to be initiated prior to the new law coming into force, delaying the investigation. Whatever investigations were in progress should have been completed within six months from the date the new law came into force. That is, by 20 May 2018. That was hindering some investigations with regard to procedural and transaction issues. Those who are investigated usually ask for time to submit documents, and that delayed the process and once the deadline had lapsed we had no legal powers to proceed. For example, there were investigations with regard to the Panama Papers. Those who were being investigated knew of that technical loophole and purposely caused delays and got away. Prof. Marasinghe: Does this mean that you have no legal provisions to investigate financial transactions of the Batticaloa Campus? Jayaratne: Currently, we do not. We are in the process of amending the laws. The existing provisions do not even define the term “offence” properly. Refusal to testify The next in line to appear before the PSC was Attorney General (AG) Dappula de Livera. However, he did not testify citing a conflict of interest. He stated: “My concern is if I testify before this Committee as a witness, it would compromise my role as AG in the future and particularly with regard to the cases I handle. I would not be able to discharge my duties. I appear for the President, Prime Minister, and Cabinet of Ministers. Some cabinet members are sitting as members of the Committee. That would mean I am testifying before my clients. There is a conflict of interest. “The next issue is that I am advising the Police investigating the same matter. These proceedings will be affected. My testimony here could be submitted before a court and made part of those proceedings. I would be cited as a witness where in the very same proceedings I am the counsel as the AG instructing the Police. I would be disqualified to appear before the Cabinet of Ministers and that would interfere with my duties. If I testify, then the criminal procedures on the Easter Sunday attacks too would be compromised. “Therefore, I would like to submit a written testimony so that the committee could make use of it in their investigations, and my junior officers could respond to any questions you may have.” Thereafter, the AG left the PSC, allowing Senior Deputy Solicitor General (SDSG) Sumathi Dharmawardena to respond to the PSC’s queries. De Livera had been summoned before the Committee regarding the Interpol Blue Notice on Zahran and cases filed in connection with him and his activities before the Colombo and Batticaloa Magistrate’s Courts. Several police officers who had testified before the PSC stated that they wrote to the AG’s Department seeking further instructions with regard to proceeding with investigations on Zahran but the AG’s Department had not instructed them accordingly. Dharmawardena’s testimony revealed that this had occurred from as far back as 2017. AG Department officials had taken two years to compile a report with regard to requests made by the TID of the Police, which was completed only a month after the attacks. The PSC accused Dharmawardena and Senior State Counsel Malik Aziz for failing to provide evidence and documentary proof to attest that they had acted diligently. However, both pointed out that they followed the procedures. Sumanthiran: So, even after they drew your attention to that one year later, they couldn’t receive the instructions they sought, is it? Dharmawardena: Yes. Sumanthiran: What was your response? Dharmawardena: The cyber laws in Sri Lanka do not contain provisions that enable the banning of a website on the grounds that had been raised in the letter. Sumanthiran: You did not reply? Dharmawardena: No. They sent us printouts of documents downloaded from a website. After studying them, Aziz invited them for a meeting on 12 March 2019 and it was found that there was no evidence to take action on the website. Sumanthiran: Are we to understand that even if nothing happened, there are minutes with you? We have a situation where witnesses are telling us that as far back as 2017, the Police took action against Zahran’s group and sought advice from the AG’s Department but did not receive it. Dharmawardena: That information is incorrect. There had been incidents in Kaththankudy. Had the Police reported those violent incidents to the Kaththankudy Magistrate’s Court and then indicted them before the Batticaloa High Court, that file would have been red-flagged and sent to a senior official of the AG’s Department. The Police did not do that. Instead, they sought information on how to ban a website and Facebook page. Sumantiran: We are not asking you what the Police should have done and what would have been the results. We are asking as to why you did not take any action. Dr. Jayampathy Wickramaratne: Didn’t the Police submit a brief to the AG’s Department? Dharmawardena: It did, but that brief was not complete. Dr. Wickremaratne: The Department could have contacted the Police and asked for a complete brief, is it not so? Dharmawardena: Without perusing the relevant file, I cannot respond to that. Prof. Marasinghe: The Police had specifically sought instructions on whether they could take action against Zahran under the ICCPR Act in a letter to the AG’s Department. How did you handle it? Dharmawardena: If you could give us that letter, we could see what we could do. Prof. Marasinghe: That letter was already been received by you. Dharmawardena: There is no reference to the ICCPR Act in the letters sent by the Police. Prof. Marasinghe: The police officers said so here under the oath. Sumanthiran: The Police sent you CDs containing video clips of Zahran. Did you receive them? Dharmawardena: Yes. Prof. Marasinghe: Did you watch them? Dharmawardena: You cannot ask me whether I watched them. Prof. Marasinghe: I am not asking you as an individual, but as a representative of the Department. Dharmawardena: Aziz had instructed another official to watch it and as per the minutes we have here, they had compiled a report on 12 May 2019. Dr. Wickremaratne: So you got the inquiry in 2017 and compiled the report only one month after the bomb went off? Sumanthiran: Did the Department ask for reports on the updated situation from the Police? Dharmawardena: No. Sumanthiran: Isn’t it usual practice to rely on contemporaneous evidence? Dharmawardena: I need to refer back to the file to respond to that question. The PSC is to meet next on 6 August.

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