Two more SC judges recused from Gota’s petition

By S.S. Selvanayagam

Two more Supreme Court Judges yesterday recused themselves from hearing the rights petition of former Defence Secretary Gotabaya Rajapaksa.

The fundamental rights petition was filed by Rajapaksa, who sought an order from the Court preventing the police from arresting him over several purported investigations and a declaration that the gazette notification on the Financial Crimes Investigation Division (FCID) was ultra vires (beyond one’s legal power or authority).

 The matter yesterday came up before a bench comprising Justices Priyantha Jayawardane, Vijith Malalgoda and Murdu N.B. Fernando.

The court directed the Registrar not to list his matter before the bench of Eva Wanasundera, Buwaneka Aluvihara, Priyantha Jayawardane and Murdu Fernando and fixed the hearing on 27 November at the top of the list.

When the matter came up on 24 October, Justice Eva Wanasundera declined to be a member of the bench hearing this petition.

When petition came up on 13 March, the Additional Solicitor General said that the investigation against him was continuing and that if there was a cognisable offence (meaning a police officer had the authority to make an arrest without a warrant and could start an investigation with or without the permission of a court) against him, the integral part of such an offence was a mandatory requirement for an arrest.

He, appearing for the respondents and the Attorney General, had also told Court that the interim order preventing the FCID from arresting him granted on 13 May 2015 was still in operation.

When the petition was, in the first instance, taken up on 13 May 2015 for support for granting leave to proceed, Justice Buwaneka Aluvihara had declined to be a member of the bench and two judges from the bench comprising Justices Eva Wanasundera and Sarath de Abrew had granted an interim order preventing the FCID and others from arresting Rajapaksa for alleged financial crime.

They had also granted leave to proceed with his petition for the alleged imminent infringement of his fundamental rights to equality and equal protection by the law, to freedom from arbitrary arrest and detention as well as his right to the freedom of movement.

Petitioner Rajapaksa cited Prime Minister Ranil Wickremesinghe, Cabinet members, Secretary to the Cabinet, Secretary to the President, IGP N.K. Ilangakoon, CID Director B.R.S.R. Nagahamulla, FCID DIG Ravi Waidyalankara and the Attorney General as respondents.

Romesh de Silva PC with Ali Sabry PC, Sugath Caldera and Sanath Wijewardane appeared for the Petitioner. K. Kanag Iswaran PC with Suren Fernando appeared for the Prime Minister. Additional Solicitor General Yasantha Kothagoda appeared for the respondents.

Petitioner Rajapaksa filed the petition seeking an interim order preventing the police from arresting him over several purported investigations and a declaration that the gazette notification on the FCID was ultra vires.

He stated in his petition that consequent to the Presidential Elections held on 17 November 2005, his brother Mahinda Rajapaksa was elected President.

He adds that he accepted the office of Secretary of Defence in December 2005 - an area which he possessed a wealth of knowledge and experience in after having served the Sri Lanka Army.

He stated that the National Executive Council (NEC) and its members through several newspapers and media outlets had continued their malicious and vicious campaign against him and the members of his family, alleging that they had staged a coup on the night of the elections to hold on to power contrary to the mandate of the people.

The NEC members, who were instrumental in articulating the allegations, continued with their efforts to make  false and baseless allegations against him over the floating armoury which was found to have been docked at the Galle Harbour with a large consignment of weapons and ammunition, allegations of corruption and irregularities in the purchase of a MiG 27 in 2006, purported share manipulation at Lanka Hospitals Ltd. and the leasing of aircraft during the tenure of then Mihin Lanka Chairman, he lamented.

The FCID investigative unit was established to look into complaints forwarded by the Cabinet sub-committee under the patronage of the Prime Minister who was also a member of the purported National Executive Council, he complains.

In light of the complaints being forwarded by the subcommittee, he said there was a likelihood that the FCID was being biased and coerced and could make a finding which was damaging to him.