CA stays MC bribery proceedings against Gotabhaya on Avant Garde

By S. S. Selvanayagam

The Court of Appeal yesterday issued an Interim Order staying the proceedings in the Colombo Magistrate’s Court of the alleged Avant Garde Bribery case against former Defence Secretary Gotabhaya Rajapakse and eight others till 3 October.

The Magistrate Court trial had earlier been fixed to commence from 9 July.

The Bench, comprising Justices Achala Wengappuli and Arjuna Obeysekara, issued the Interim Order following the submission by the Attorney General conceding to the fact that there is ambiguity in the Bribery Act, a matter raised by Romesh De Silva PC appearing for petitioner Gotabhaya Rajapaksa.

Romesh De Silva PC, making submissions on 2 July, pointed out that there were disparities in the Bribery Act and the High Court judge had given an order based on a ‘non-existent’ section in the Act.  

The Appeal Court, after issuing the interim order yesterday, fixed the matter for support on 25 August and 2 October.

When the Revision Application filed by former Defence Secretary Gotabhaya came up, Senior State Counsel Janaka Bandara yesterday told Court that they accede to the fact that there is ambiguity, and that there is a consolidated version.

He submitted that at the same time, the High Court has given interpretation to the non-existent provision in the Bribery Act, and given the order based on it, and that the Petitioner is now challenging it in his revision petition.

He said the High Court order was delivered on a non-existent Section of the said Act and told the Court that they are in square one in this context.

He said preliminary objections was raised in the Magistrate Court, and that last amendment to the said Act was brought 24 years ago, and there are several cases based on the English version of the provision in the Act.

 He brought to the cognizance of the Court that since 1994, there have been hundreds of cases. He submitted that the Counsel for the Petitioner is now raising a matter on the interpretation purportedly given on the non-existence provision of the Act.

Romesh de Silva PC responded that they raised preliminary objections in the Magistrate’s Court and sought to make clarification in the High Court, but were not heeded.

 President’s Counsel Romesh de Silva on the last sitting had raised legal issue on the prosecution of the bribery case against his client, and contended that the prosecution is untenable and will not stand because of the interpretation given on the non-existent Section of the Act.

He had contended that in terms of the Bribery Act, there is a bar, and that Magistrate’s Court cannot entertain the prosecution, except by or the Written Sanction of the Bribery Commission.

He had asserted that the High Court Judge too 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.

The prosecution has to be instituted by the Attorney General, with his consent but it is different here, he submitted, underlining that Bribery Commission cannot institute prosecution.

He submitted 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 a non-existent section in the law, and hence the order made by the High Court cannot stand and the prosecution is untenable because of the devoid of Written Sanction of the Bribery Commission. 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 Rajapakse.

 Petitioner Gotabhaya Rajapakse 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 the 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.

Petitioner Gotabhaya 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 in his order on 2 February 2018 refused to issue notices and dismissed the petition.

Being aggrieved with this order he now 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.