Supreme Court grants leave to proceed in Basil’s FR case

• Stops short of issuing interim order against ex-Minister’s arrest by FCID
• AG argues that FCID is legal administrative police unit; acts within law

By Dharisha Bastians

The Supreme Court yesterday granted leave to proceed in fundamental rights cases filed by former Minister Basil Rajapaksa and three other Divineguma officials, challenging the legality of the Financial Crimes Investigation Division (FCID), but stopped short of issuing an interim order preventing their arrest.

The former Minister and officials serving in a department run by his ministry challenged their arrest by the FCID on the basis that the gazette regarding the establishment of the special police division was illegal.

Making submissions in the case, Deputy Solicitor General Viraj Dayaratne told court that in the past the setting up of special police divisions had never been gazetted. The DSG said that the FCID was gazetted by the Government in the interest of transparency. The document that enabled the FCID to function was a police internal circular issued by the IGP, DSG Dayaratne noted. He argued that even if the Gazette was deemed illegal, the internal order would continue to stand. DSG Dayaratne also said that since the FCID carried out its investigations under existing legal provisions, the fundamental rights of any persons had not been violated.

K. Kanag-Iswaran PC appeared on behalf of the Prime Minister, while Attorneys at Law Saliya Peiris, Anura Maddegoda, Kolitha Dharmawardane and Suren Fernando appeared for Ministers Lakshman Kiriella, John Amaratunga and Ravi Karunanayake respectively, who were cited as respondents in the cases.

The Counsel argued that while the petitioners were claiming that complaints channelled through the cabinet subcommittee on corruption made complaints made to the FCID politically motivated, in fact there was no bar against any member of the public making complaints to the unit. They also argued that the FCID was manned by police officials and not personnel from other forces, and in most cases police officials had the right to arrest persons if they had information laws had been broken, provided the arrestees were produced before a magistrate.

Attorney at Law Fernando, appearing on behalf of Minister Karunanayake, told court that while the petitioners were claiming to be political victims, in fact they had been politically privileged in the past. What they were taking objection to was the loss of that privilege, he argued.

Fernando added that complaints were being made at the FCID by the Cabinet, which is part of the Government. He argued that as the custodians of state property, the Cabinet had every right to complain about the abuse of that property.

Lawyers for Minister Rajapaksa and the other petitioners did not push for an interim order against their arrest since the High Court had already granted bail in the Divineguma cases, after the AG stopped objecting to bail on the basis that the FCID had now concluded its investigations into the case.

Romesh de Silva PC, Sanjeewa Jayawardane PC, Ali Shabry PC and Manohara De Silva PC appeared on behalf of Minister Rajapaksa and the other three Divineguma officials under investigation.

Counsel De Silva is also appearing in similar Fundamental Rights cases filed by former Defence Secretary Gotabaya Rajapaksa and former RADA Chairman Tiran Alles. In the ex-Defence Secretary’s case, the Supreme Court issued an interim order preventing his arrest by the FCID and the CID in the cases referred to in his petition.