Prosecution against Gota untenable devoid of BC Written Sanction

By S. S. Selvanayagam

When the Revision Application filed by former Defence Secretary Gotabhaya Rajapaksa came up yesterday, President’s Counsel Romesh de Silva, appearing on behalf of the same, raised legal issue on the prosecution of the bribery case against his client.

He contended that in terms of the Bribery Act, there is a barrier, and that the Magistrate’s Court cannot entertain the prosecution, except by the Written Sanction of the Bribery Commission. He asserted that the High Court Judge had relied on a non-existent section, whereas the Written Sanction is essential to prosecute bribery charge.

He recollected that the Attorney General had maintained that the Written Sanction is not needed when the Bribery Commission initiates the action of prosecution. The prosecution has to be instituted by the Attorney General, with his consent, but it is different here, he submitted, underlining that the Bribery Commission cannot institute prosecution. He submitted that the Bribery Commission is empowered to investigate the allegation of bribery and to direct to institute proceedings, but has no power to institute prosecution action.

He said it is clear when one looks at the law, and that the Written Sanction should have been filed in Court. He prevailed that the Section interpreted by the High Court Judge is non-existent, and hence the order made by the High Court cannot stand.

In view of the submissions made by Counsel Romesh de Silva PC on the issue of law, Senior State Counsel Janaka Bandara, appearing for the Attorney General, pleaded time to study the disparities carefully. The Court fixed the matter for further submission tomorrow (4 July), whereas the High Court trial is billed for July 9. Counsel Romesh de Silva PC informed the Court that he will support for notice and Interim Relief on that date.

Romesh de Silva PC with M. U. M. Ali Sabry PC, Sugath Caldera, Ruwantha Cooray, and Harith de Mel, instructed by Sanath Wijewardane, appeared for Gotabhaya.

Petitioner Gotabhaya Rajapaksa filed Revision Application in the Court of Appeal on the High Court rejection of his application sought to acquit and release him from the Avant Garde case.

He cited the Director General of Bribery Commission as complainant-Respondent and Sujatha Damayanthi Jayaratne, Piyasiri Fernando, Banda Fernando Egodawela, Somathilake Dissanayake, Nissanka Yapa Senadhipathy, Kumarasiri Kolambage and Jayantha Perera as Accused-Respondents.

He states the Director General of Bribery Commission instituted proceedings in the Colombo Magistrate’s Court. He states on the first opportunity available, his Counsel moved Court to raise a preliminary objection on the maintainability of the action, wherein it was contended that the complainant had failed to satisfy a mandatory pre-requisite, namely, Written Sanction by the Commission.

He states the Magistrate on 17 November 2017 overruled the preliminary objections and moved to read the charges, and ordered the suspects to record their plea for the charges, which were read out in open Court. Being aggrieved by the said orders of the Magistrate, he filed application in the Colombo High Court for revisionary jurisdiction.

The High Court Judge on 2 February 2018 refused to issue notices and dismissed the petition. Being aggrieved with this order, he then filed revision application in the Court of Appeal, seeking to stay the proceedings in the Magistrate’s Court until the final determination of this petition, and to revise/set aside the orders of the High Court and allow him to revise the Magistrate’s Court.