Justice Eva Wanasundera recuses herself from Gotabaya FR petition

By S. S. Selvanayagam

Justice Eva Wanasundera has declined to be a member of the Bench hearing the Fundamental Rights petition filed by former Defence Secretary Gotabaya Rajapaksa seeking an order preventing his arrest over ongoing investigations.

The Bench comprising Justices Eva Wanasundera, K.T. Chitrasiri and Vijith K. Malalgoda re-fixed hearing of the petition for 23 January next year.

Registrar is directed to fix a Bench where Justice Eva Wanasudera is not a member.

Former Defence Secretary Gotabaya Rajapaksa filed his Fundamental Rights petition seeking an order from the Court preventing Police from arresting him over several purported investigations and a declaration that the gazette notification on the Fraud Crimes Investigations Division was ultra vires.

When the petition came up on 13 March, the Additional Solicitor General informed that the investigation against him was continuing and that if there was cognisable offence (meaning a Police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court) against him, the integral part of such offence was a mandatory requirement to arrest.

He appearing for the Respondents and the Attorney General also told Court that the Interim Order preventing the Financial Crime Investigation Division from arresting him granted on 13 May 2015 was still in operation.

When the petition was in the first instance taken up on 13 May 2015 for support for granting leave to proceed, Justice Buwaneka Aluvihara had declined to be a member of the Bench and the two-judge Bench comprising Justices Eva Wanasundera and Sarath de Abrew had granted an Interim Order preventing the FCID and others from arresting former Defence Secretary Gotabaya Rajapaksa for the alleged financial crime.

They had also granted leave to proceed with his petition for the alleged imminent infringement of his Fundamental Rights to equality and equal protection of the law, to freedom from arbitrary arrest and detention as well as his right to the freedom of movement.

Petitioner Gotabaya 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, DIG of the Financial Crime Investigation Division Ravi Waidyalankara and the Attorney General as Respondents.

Romesh de Silva PC with Ali Sabry PC, Sugath Caldera and Sanath Wijewardane appear for the Petitioner. K. Kanag Iswaran PC with Suren Fernando appeared for the Prime Minister and Additional Solicitor General Yasantha Kothagoda appeared for the Respondents.

Petitioner Gotabaya filed the petition seeking an Interim Order preventing Police from arresting him over several purported investigations and a declaration that the gazette notification on the Fraud Crimes Investigations Division was ultra vires.

He states in his petition that consequent to the Presidential elections held on 17 November 2005, his brother Mahinda Rajapaksa was elected the President.

He adds he accepted the office of Secretary of Defence in December 2005 – an area in which he possessed a large wealth of knowledge and experience having served the Sri Lanka Army.

He states the National Executive Council (NEC) and its members via 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 hold on to power contrary to the mandate of the people.

The members of NEC who were instrumental in articulating the allegations continued with their efforts to make false and baseless allegations against him over the floating armoury which was found to have been docked at the Galle Harbour with a large consignment of weapons and ammunitions, allegations of corruption and irregularity in the purchase of MiG 27 in 2006, purported share manipulation at Lanka Hospitals Ltd. and the leasing of aircraft at the time of tenure in the office of Chairman at Mihin Lanka, he laments.

The investigative unit FCID was admittedly established to look into complaints forwarded by the Cabinet sub-committee under the patronage of the Prime Minister who was also a member of the said purported ‘National Executive Council,’ he complains.

In the light of the complaints being forwarded by the Sub-Committee, there was a likelihood that the FCID was being biased and coerced and could make a finding adverse to him, he bewails.