SC stays Gota’s arrest

Published : 9:17 am  May 14, 2015 | No comments so far |  | 


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By S. Selvanayagam, Lakmal Sooriyagoda and Hafeel Farisz
The Supreme Court yesterday issued an interim order preventing the arrest of former defence secretary Gotabaya Rajapaksa until the full and final determination of the petition.

The Supreme court granted leave to proceed in the fundamental rights petition filed by him. The matter was fixed to be heard on October 6.
A two-judge bench comprising Justices Eva Wanasundera and Sarath De Abrew issued the interim order having heard submissions by counsel representing Mr. Rajapaksa and the Attorney General.

When the matter was taken up for inquiry at 10.45 a.m., Supreme Court Judge Buwaneka Aluwihare who was appointed to hear the case with the other two judges stepped down, citing personal reasons at which point Justice Eva Wanasundera sent the file to the Chief Justice for his direction.

Counsel Romesh De Silva PC said he would remain in courtroom 502 until the CJ’s direction was received. It was delivered within five minutes. He directed Justice Eva Wanasundera and Sarath De Abrew to hear the petition.
After an interval in which other cases were taken up, Justice Buwaneka Aluwihare recused himself from the bench at 12.30 p.m.
The case resumed soon after with Counsel Romesh De Silva PC making his submissions.

He said that the Financial Crimes Investigation Division (FCID) was ultra vires and all action flowing from it are therefore illegal.
Mr. De Silva said the FCID had arrested 10 people so far after each of them were summoned for questioning. Justice Wanasundera asked Counsel whether any person who had visited the FCID had walked out without being arrested.

“No. Not to my knowledge” he replied and said Mr. Rajapaksa himself had visited the FCID previously. Counsel said the move to arrest Mr. Rajapaksa was politically motivated and submitted paper cuttings from daily newspapers stating that the “National Executive Council had unanimously decided to arrest” Mr. Rajapaksa.

“The Cabinet Spokesman Rajitha Senaratne has said the National Executive Council has decided to arrest Mr. Rajapaksa. How could he have said that? This newspaper report has not been denied to date,” he said.
Mr. De Silva while elaborating on the Police Ordinance said the IGP had transferred his powers to the Cabinet, through the FCID.
“The IGP is acting carrying out his duties like a puppet,” he said.

Mr. De Silva spoke on the concept of arrest, and said a suspect could only be arrested in the event he was likely to abscond Court or interfere
with the investigations.
Speaking on behalf of the respondents, Deputy Solicitor General Arjun Obeysekara said the FCID was constituted by the IGP under the law of the land and the Police Ordinance on the direction of the Cabinet of Ministers.

“The Cabinet of Ministers or the executive has the power to give such directions in the wake of serious financial crimes which have taken place” he said.

The DSG said the FCID was an independent unit and acted only on the instructions of the IGP and was not politically motivated. He said though various politicians made various statements the FCID took decisions on the instructions of the IGP and within the law. The DSG said an arrest was made according to the Criminal Procedure Code and such action was not arbitrary nor was it an infringement of a person’s fundamental right.

gota3Having heard the submissions of the Counsel the Court granted interim relief as prayed for in the petition, which “prevents his arrest until the final determination of the case”. The relief sought is not confined to the FCID and stays the arrest of Mr. Rajapaksa by any officer of the state.

Romesh De Silva PC with Ali Sabry PC and Sugath Caldera instructed by Sanath Wijewardane appeared for the petitioner while Deputy Solicitor General Arjun Obeysekara with Gayesha Wijemanne appeared for the respondents

The petitioner cited Prime Minister Ranil Wickremesinghe and the members of the Cabinet, Secretary to the Cabinet, Secretary to the President, IGP N.K. Ilangakoon, CID Director B.R.S.R. Nagahamulla, FCID DIG Ravi Waidyalankara and the Attorney General as respondents.

The petitioner filed the FR petition seeking an Interim Order preventing the police from arresting him over several purported investigations and a declaration that the gazette notification on the FCID was ultra vires.

He said in his petition that consequent to the presidential election held on November 17, 2005, his brother Mahinda Rajapaksa was elected president and he accepted the post of defencc secretary in December 2005 — an area in which he possessed a wealth of knowledge and experience having served in the Sri Lanka Army. Mr. Rajapaksa said the members of the National Executive Council (NEC) had in several newspapers and media channels continued their malicious and vicious campaign against him and the members of his family alleging that they had staged a coup on the night of the elections to cling to power contrary to the mandate of the people.

The members of the NEC who were instrumental in articulating the allegations continued with their efforts to make false and baseless allegations against him over the floating armoury docked at the Galle harbour with a large consignment of weapons and ammunition, allegations of corruption and irregularities in the purchase of MiG 27 in 2006, purported share manipulation at Lanka Hospitals Limited and the leasing of aircraft during his tenure as Chairman at Mihin Lanka.

Mr. Rajapaksa said against this backdrop and the events that had transpired, there was a serious likelihood that, if he appeared before the FCID, he would be arrested pending investigations, without rationally considering the explanations and clarifications he could provide.
Mr. Rajapaksa said the FCID was established to look in to complaints forwarded by the cabinet sub-committee headed by the Prime Minister who was also a member of the National Executive Council.

He said in the light of the complaints being forwarded by the sub-committee, there was a likelihood that the FCID is biased and coerced and could make a finding adverse to him.

Counsel de Silva said the Cabinet had the power to supervise the investigation of the FCID and the FCID Secretariat was under the patronage of the Prime Minister. He said the petitioner was expected to attend an inquiry at the FCID within three days. Mr. De Silva said every person has the right to life and their liberty could not be considered on narrow grounds and that it was just an allegation.


The DSG countered these submissions in terms of Section 20 of the Police Ordinance and said the IGP could frame any orders and regulations and was empowered to set up any divisions similar to the TID and the Fraud Bureau.
He said there was a need to set up a separate unit to investigate the crimes with the magnitude and manner they had been carried out.
“The FCID is under the IGP and headed by a DIG and not supervised by the Cabinet,” the DSG said.

He said Section 109 of the Criminal Code of Procedure would apply and a B Report filed in the Magistrate’s Court and Magistrate’s permission would be sought for judicial custody of the suspect and that there was no mad rush to arrest the petitioner.
The DSG said there was a law under which the investigation should be conducted and under Section 24 of the Criminal Code of Procedure, the judiciary could make an order for the arrest to assist the investigation.

He said that the petitioner was given enough time to come to the FCID but on his request, the date for his appearance before the FCID was extended and that nowhere was it stated that he would be arrested.