CA extends Interim Order preventing action against Gota until 15 February

• Question on Stay Order resumes on 14 February

 By S.S. Selvanayagam

The Court of Appeal yesterday further extended until 15 February the Interim Order preventing the Financial Crimes Investigation Division (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 Gotabaya Rajapaksa.

The bench comprising justices P. Padman Surasena (CA President) and Shiran Gooneratne fixed submissions to be resumed on 14 February on the question of the extension of the Interim Order.

When the matter was taken up yesterday, Romesh de Silva PC submitted that it was a question of whether to extend the Interim Order and he maintained that the Interim Order granted was a comprehensive one.

He submitted that the case of the petitioner was prima facie and the Court had issued notices and granted an Interim Order.

He pointed out that now the court has to consider balance of convenience (the question is to balance the relief given to the party against the injury that will be done to it in light of the harm it will do to him or her) whether to extend the Interim Order given.

He said there was a purpose of mala fide (in bad faith; with intent to deceive) intention to arrest or remand the petitioner and that granting the Interim Order was mandatory and was the inherent power of the Court.

He said there was no application to stay the proceedings in the Magistrate’s Court and there was mala fide intention to arrest him and his liberty was at stake.

He submitted that the investigation had started in 2015 and no steps had been taken to indict him.

He contended that the construction of the D.A. Rajapaksa memorial and museum was a civil matter and there was no criminal breach of trust and the petitioner had not misappropriated money but they wanted to remand him on misappropriation whereas the money incurred was paid as estimated by arbitration and the question of quantum of estimate by the government valuer.

He added that there was no request made to stop the investigation or indictment and that the petitioner had instructed the Sri Lanka Land Reclamation Corporation to undertake construction from an outsider on contract.

When the matter came up on 15 December last year, the Senior Deputy Solicitor General told Court that at the time the matter was taken up for Interim Order the respondent Attorney General was not heard and the ex parte Interim Order was issued.

Romesh de Silva had submitted the petitioner, who was the Secretary to Defence and Urban Development Authority, has made a directive to the Board of the Sri Lanka Land Reclamation Corporation after having sought the approval of the Board to pay and Rs. 10 million was paid to commence construction of the D.A. Rajapakse Foundation where all the expenses would be reimbursed by various sources and he alleged this fact was suppressed.

Senior Deputy Solicitor General Viraj Dayaratne had maintained the Interim Order was obtained ex parte.

He had said the petitioner did not ask the Court to prevent him from being arrested and remanded but to 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 an issue of a fundamental rights violation and if so it should be referred to the Supreme Court.

He had also said that the police recorded the first bit of information on the 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 was no suppression of facts. There was no violation of the law, he said.

He had said there was not only the petitioner but six others as well. He argued that the Court of Appeal had no jurisdiction to hear the case.

The Court on 29 November last year, initially  issued the Interim Order until 6 December observing that it was a commercial transaction and there was no element of dishonesty under the penal code and that the said B Report was ex facie (evidently, on the face of it) wrong.

The petitioner had 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 in Madamulana, Weeraketiya. He also had stated that there was no written contract.

Rajapaksa in his application cited IGP Pujith Jayasundara, CID Director Shani Abeysekera, FCID 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 Attorney General.