Pay or not to pay? Cabraal has to pay

• Colombo High Court Judge Mohammed Mihal granted permission under Section 67(1) of the Anti-Corruption Act, allowing the withdrawal of indictments against Cabraal on the condition that he remits a sum of Rs.1.84 billion as compensation to an account specified by the Central Bank of Sri Lanka within a period of three months.
• We cannot agree to pay an amount that we never received- Cabraal’s lawyer
• Prosecution will take steps to reinstate the indictments if he fails to pay- Bribery Commission

Colombo, Dec. 18 (Daily Mirror) - The Colombo High Court on December 10 permitted the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) to withdraw the indictments filed against former Central Bank Governor Ajith Nivard Cabraal in connection with the controversial Greek bond transaction, subject to stringent conditions recommended by the CIABOC.

Colombo High Court Judge Mohammed Mihal granted permission under Section 67(1) of the Anti-Corruption Act, allowing the withdrawal of indictments against Cabraal on the condition that he remits a sum of Rs. 1.84 billion as compensation to an account specified by the Central Bank of Sri Lanka within a period of three months.

The Court ruled that Cabraal would be released from the case on the basis of the withdrawal of indictments. However, the prosecution, the Bribery Commission made it clear during its submissions that failure to deposit the stipulated amount within the prescribed three-month period would result in the reinstatement of indictments against Cabraal under Section 67(5) of the Anti-Corruption Act.

Meanwhile, the Court also allowed the Bribery Commission’s request to withdraw indictments against the other accused Dharmasena Dheerasinghe, Don Vasantha Ananda Silva and M.A. Karunaratne without any conditions under Section 194(3) of the Code of Criminal Procedure. Accordingly, they were released from the case.

Following are excerpts from the submissions made by the parties in case number CHB/303/24:

Asitha Anthony, Assistant Director General, Bribery Commission

“Your Honour, President’s Counsel Dilan Ratnayake, appearing on behalf of the first accused, Ajith Nivard Cabraal, has made a written request to the Bribery Commission seeking that this matter be considered in accordance with Section 67 of the Anti-Corruption Act.

The Bribery Commission and the Director General of the Commission, having taken this request into consideration, are seeking this Court’s permission to withdraw the indictments.

The Commission has paid due attention to the provisions of the Anti-Corruption Act and now seeks the Court’s permission to withdraw the indictments on the condition that the first accused, Mr. Cabraal, remits a sum of Rs. 1.84 billion to the bank account maintained by the Central Bank of Sri Lanka.

I wish to inform Your Honour that the prosecution will take steps to reinstate the indictments against the first accused in terms of Section 67(5) of the Anti-Corruption Act if he fails to comply with this condition.

I further seek this Court’s permission to withdraw the indictments against the second, third and fifth accused in terms of Section 194(3) of the Code of Criminal Procedure Act.”

President’s Counsel Dilan Ratnayake appearing for Cabraal

“Your Honour, based on the legal facts pertaining to this case, I informed the Bribery Commission that these proceedings cannot be maintained. I am tendering before Your Honour a copy of the request made by us under Section 67 of the Anti-Corruption Act.

It is impossible to sustain either criminal charges or an offence of corruption against my client. I am making this application at this stage, without wasting the valuable time of this Honourable Court, despite having opted for a trial, and reiterate the same request to be considered at the earliest opportunity.

We have set out five reasons explaining the inability to maintain the indictments. Against this backdrop, the defence does not accept any liability to pay the amount claimed by the State.

We categorically reject the allegation contained in the indictment that this transaction was entered into with the intention of causing a loss to the Government.

We cannot accept the condition stipulated by the Assistant Director (Legal) of the Bribery Commission, as we do not admit the commission of any offence. We are prepared to contest this case. We cannot agree to pay an amount that we never received.

This was an investment decision taken by the Monetary Board of the Central Bank. Nine out of ten investment decisions taken during the relevant year were successful, and the country benefited from those investments.

Your Honour has granted permission to withdraw the indictments against the other accused without any conditions. The investment decision was not taken by the first accused alone. It is therefore unfair to require the first accused to bear the liability alone, as this was a collective decision. Accordingly, we are not agreeable to this condition.”

High Court Judge Mohammed Mihal

“I have paid due attention to the request made by the prosecution. The prosecution has sought permission to withdraw the indictments against the first accused in terms of Section 67(1) of the Anti-Corruption Act, subject to the conditions stipulated by the prosecution.

The prosecution has further sought permission to withdraw the indictments against the second, third and fifth accused under Section 194(3) of the Code of Criminal Procedure.

Having considered the facts presented to Court, this Court permits the withdrawal of indictments against the first accused in terms of Section 67(1) of the Anti-Corruption Act, subject to the conditions stipulated by the prosecution. Consequent to the withdrawal of indictments, the first accused is released from the case.

The Court also permits the withdrawal of indictments against the second, third and fifth accused under Section 194(3) of the Code of Criminal Procedure. Consequent to such withdrawal, the second, third and fifth accused are released from the case. Accordingly, the case proceedings are terminated.”

Case Background

The case has a prolonged procedural history. In 2024, the CIABOC initially filed indictments against the accused before the Colombo High Court. However, on May 31, 2024, the Court ordered the accused to be released without service of indictments due to a technical defect concerning the date on which the indictments were signed. The Bribery Commission subsequently re-filed the case under Anti-Corruption Act on August 21, 2024, leading to the present order.