CA extends IO till 25 Jan preventing action against Gota

By S. S. Selvanayagam

The Court of Appeal yesterday (15) extended till 25 January 25 the Interim Order preventing the FCID from acting on the Certificate (B Report) under the offences against the Public Property Act  in the Magistrate’s Court against former Defence Secretary Gotabhaya Rajapaksa.

 The Bench comprising Justices T. B. Dehideniya (President/CA) and Shiran Gooneratne fixed to be resumed on 25 January.

 When the matter was taken up yesterday, the Senior Deputy Solicitor General brought to the cognizance of the Court that, the Respondent Attorney General was not heard and the ex parte Interim Order was issued.

 Court directed Counsel Romesh de Silva PC for Petitioner Rajapaksa to make his submission.

 The President’s Counsel said that the Interim Order was made after the notice was issued to the Attorney General and the Attorney General was well aware that it was to be supported but he did not come to Court.

 He stated it is supported with notice and it is not ex parte Order. He said the Attorney General acted very strangely and under pressure.

 He said if the Interim Order is not granted, it would be nugatory and the Petitioner would have been arrested and remanded for three years.

 He said the Stay Order shall be issued as an interim measure in the interest of justice, while the Interim Order is issued on balance of convenience and to prevent irreparable loss and damage which could not be compensated by money.

 If the Interim Order is not granted, the petitioner would have been jailed, he said, adding that that his political masters have told the Attorney General to put him in jail.

 The petitioner, he said, is not denying the liability but the quantum of assessment. He alleged it is a mala fide application in which certain persons and Attorney General’s Department officers are involved.

 The counsel went on to say that the petitioner who was the Secretary of Defence as well to the Urban Development Authority had made a directive to the Sri Lanka Land Reclamation Board having sought the approval of the Board to pay and Rs. 10 million to commence the work for the construction of the Late D. A. Rajapakse foundation where all the expenses would be reimbursed by various sources. This fact has been suppressed, he charged.

 The senior lawyer contended that there has been no criminality and it would affect the rights of the subject. He stated it is a clear case to extend the Interim Order.

 Senior Deputy Solicitor General Viraj Dayaratne submitted that the Interim Order was obtained ex parte.

 He, elaborating on the background of the process in the Attorney General’s Department, noted that the Notice was dispatched to the Department at 4.00 p.m on the day before the Writ was taken before the Court, after which it was to be sent to the relevant officer.

 There is no number in the Notice and there is no sufficiency for the AG officer to be present in Court as such, he said.

 “This has nothing to do with personality,” said the counsel, adding that the police and the Attorney General’s Department have to function in accordance with the law.

 He said the petitioner in his petition did not ask the Court to prevent him from being arrested and remanded but quash the ASP’s certificate submitted to the Magistrate preventing the FCID from acting on it under the Public Property Act. So it is not the issue of a fundamental Rights violation and if so it should be referred to the Supreme Court.

 The police recorded the first information on complaint and submitted the report to the competent court, the Magistrate as well as the Attorney General for instruction, so the Attorney General had not violated any law and there is no suppression of facts. There is no violation of law, he repeated.

 Noting that there are six others in addition to the Petitioner, Dayaratne argued the Court of Appeal has no jurisdiction to hear.

 The Court on 29 November  initially  issued the Interim Order  till 6 December observing that  that it was a commercial transaction and there is no element of the offence of dishonesty under Penal Code and that the said B Report is ex facie (evidently, on the face of it) wrong.

 The Petitioner has stated that the D. A. Rajapaksa Foundation, a statutory body, entered into a contract with the Sri Lanka Land Reclamation Board for the construction of a monument at Madamulana Weeraketiya. He also has stated that there was no written contract.

 Petitioner Rajapaksa Rajapaksa in his application cited IGP Pujith Jayasundara, CID Director  Shani Abeysekera,  Financial Crimes Investigation Division DIG  Ravi Waidyalankara,  ASP Kamal Paliskara and the Attorney General as Respondents.

 Romesh de Silva PC with Ali Sabri PC and Sugath Caldera and Ruwantha Cooray instructed by Sanath Wijewardane appeared for the Petitioner. Senior Deputy Solicitor General Viraj Dayaratne with Deputy Solicitors General Thisith Mudalige and Dilan Ratnayake and Senior State Counsel Nirmalan Wigneswaran appeared for the Respondents and the Attorney General.