Gota’s interim order does not provide blanket immunity from arrest: SC

Tuesday, 9 June 2015 00:59 -     - {{hitsCtrl.values.hits}}

  • Order preventing ex-official’s arrest only related to investigations into his FR petition: SC
  • Supreme Court clarifies interim order preventing Gota’s arrest
  • Clarification issued by Court narrows ambit of stay order issued in favour of Gota, preventing his arrest
  • Says Order does not prevent his arrest on other allegations or charges
  • Order clarified in response to motion filed by AG, saying Gota’s interim order was ambiguous

By Dharisha Bastians

The Supreme Court yesterday issued a clarification regarding an interim order issued last month preventing ex-Defence Secretary Gotabaya Rajapaksa’s arrest, saying that only his arrest by respondents mentioned in his fundamental rights application had been stayed till the conclusion of the case.

The court also clarified that the former official could be arrested on other charges or allegations under the law that did not pertain to his fundamental rights application.

The Supreme Court order clarifying its previous stay order effectively narrows the ambit of the interim order it issued in favour of Gotabaya Rajapaksa.

The Court said that the order it had issued previously was only binding on the IGP, DIG of the FCID and CID Director, and only with regard to three specific incidents being investigated by these police units and mentioned in former Secretary Rajapaksa’s petition being heard before the Court.

Legal analysts point out that with the Supreme Court clarification, the interim order issued by Court on 14 May preventing the arrest of Gotabhaya Rajapaksa would no longer have a bearing on cases filed at the Bribery Commission or any other arresting authorities, including Wildlife officers and even the police investigating other allegations and charges against the former official.

The Attorney General had filed a motion in the Supreme Court requesting a clarification regarding the interim order issued to former Defence Secretary Gotabhaya Rajapaksa on the basis that it was ambiguous.

The motion was heard by the court yesterday.

On 14 May, the Supreme Court issued an interim order staying the arrest of the former senior official, until a fundamental rights petition he had filed in court challenging the legality of the Financial Crimes Investigation Division (FCID) was heard and concluded.

Assistant Solicitor General Yasantha Kodagoda pointed out when the motion came up for hearing yesterday that as per the literal reading of the order issued by the two-judge bench of the Supreme Court last month, the ex-Defence Secretary could not be arrested for any other allegations of past offences or even if he committed an offence in the future. ASG Kodagoda said the order appeared to confer upon former Secretary Rajapaksa, immunity over all arrests by all state officials and even the Bribery Commission.

Kodagoda PC said the impact of the interim order issued to Gotabhaya Rajapaksa was a carte blanche for the former Defence Secretary, conferring immunity over arrests by all state officials for any offence, virtually like the immunity conferred upon the President by the Constitution. The interim order subverts the course of criminal justice, the ASG further told Court.

Meanwhile, President’s Counsel Romesh De Silva, appearing for former Secretary Rajapaksa, told court that the Attorney General was abusing the legal process.

ASG Kodagoda sought clarification from the court that the order issued on 14 May was only related to matters concerned with Rajapaksa’s Fundamental Rights petition.

Having heard arguments, the Supreme Court bench comprising Justices Eva Wanasundera and Sarath de Abrew clarified that the interim order issued to the former Defence Secretary only pertained to allegations contained within the petition. The stay order preventing his arrest only pertained to investigations carried out by respondents named in the petition – namely the FCID and the IGP, the Justices clarified. The court explained that former Secretary Rajapaksa could be investigated and/or arrested for any other allegations if required by law.