Determined to establish their position that the Permanent High Court at Bar (PHCB), does not have jurisdiction to try former Defence Secretary and six others for misuse of public property in constructing the D.A. Rajapaksa memorial, lawyers filed papers before the Court of Appeal seeking to stay proceedings of the special court by way of a writ application.
This application is the fourth filed by the former Defence Secretary and first brother, seeking to prevent an arrest or stop a trial from taking place. Rajapaksa successfully petitioned the Supreme Court in 2015 to prevent his arrest by the police on the ‘MiG Deal’, ‘Avant Garde’ scandal and Lanka Hospitals share price manipulation, marking the first time that the Supreme Court had ever intervened to prevent the arrest of a suspect in criminal investigations. In this petition, Rajapaksa assured the court that “if there is a case against me on any of the aforesaid charges, I am ready and willing to face the case and defend myself and I am confident that I will be acquitted by any court.”
He doubled down that “this application is in no way or manner intended to prevent any action being instituted against me.”
However, when Rajapaksa was charged with corruption to the tune of Rs 11.2 billion in the ‘Avant Garde’ scandal, he successfully moved the Court of Appeal in July 2018 to suspend his trial and prevent it from taking place until a revision application he filed can be concluded.
Similarly, in 2017, Rajapaksa successfully petitioned the Court of Appeal to prevent his arrest in the investigation into criminal misappropriation of SLLRDC funds to build a mausoleum for his parents. In this petition too, he stated that he was prepared to face trial in any court and that he is not seeking to prevent his indictment and trial. It is, however, this very trial that Rajapaksa now seeks to block through his new writ application to the Court of Appeal.
The action that has attracted criticism on Hulftsdorp hill has baffled legal practitioners as it marks the first time anyone could recall judges of a High Court being individually named as respondents in a writ application.
The Petition filed by GotabayaRajapaksa primarily seeks to prevent the hearing of the case until their petition is allowed in the apex court and further seeks to direct the special high court to forward the appeal petition to the Supreme Court to be considered.
“The Petitioner seeks a writ of certiorari quashing the original order refusing appeal dated 20 February, to issue a mandate in the nature of a writ of prohibition preventing judges to proceeding with the case or taking any further steps including the trial at the special High Court, to Issue a mandamus directing the respondents to forward the appeal petition to the SC and for an interim order preventing the high court from proceeding with the case until the hearing of the writ application,” the petition reads.
The case was listed to be heard last Friday (8) and was listed before court of Appeal Justices DeepaliWijesundara and ArjunaObeysekara. The Attorney-General’s Department was not given prior notice to the application. Similarly, in Rajapaksa’s last three petitions to the Supreme Court and Court of Appeal to prevent his arrest and stop his criminal trials, the Attorney-General was not given prior notice to appear. In the last instance, a bench of the Court of Appeal granted the former Defence Secretary an ex-parte order preventing his arrest without even hearing the argument of the State.
However, officers of the Department had gotten wind of the writ application, obtained a copy and rushed to court in time for the case on Friday morning. Due to the absence of Justice Wijesundara, the case was then heard before Justices MahindaSamayawardena and KumudiniWickremasinghe.
The case was rescheduled for March 12 after Justice KumudiniWickremasinghe recused herself on personal grounds.
Several senior lawyers who spoke to Sunday Observer identified this action to be a desperate attempt to buy time and a long shot of preventing the original bench from hearing the matter.
Accordingly, lawyers of GotabayaRajapaksa will be in position to go back before the bench of the special high court at bar and ask for a fresh bench.
“After the consideration of this appeal irrespective of what the decision is GotabayaRajapaksa may go before the Permanent High Court at Bar and say that the bench should be reconstituted as they are prejudiced against them. This is just another way around the trial seeing its end,” a very senior practitioner told Sunday Observer.
A President’s Counsel and highly respected lecturer in legal studies weighing in on the issue said that he it was the first time he has seen such a thing in 30 years of legal practice.
The senior lawyer added: “This is a serious insult and will set a bad precedent. Does this mean that anyone who is denied bail can make a writ application? There may be provisions for such action, but it should be used with caution and not frivolously,” he said.
President’s Counsel J.C. Weliamuna who explained the law stated that there was nothing in law preventing such actions as the constitution provides for writ applications to be heard against the courts of first instance.
“In a writ application the respondents either judges or even arbitrators whomever the writ is sought against should be named in their personal capacity, that is procedure,” he said.
Article 140 of the constitution states that “Court of Appeal shall have full power and authority to inspect and examine the records of any Court of First Instance or tribunal or other institution and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any Court of First Instance or tribunal or other institution or any other person”
The petition emphasizes on the argument that “the special high court does not have jurisdiction to hear the matter” where the former secretary and six others are accused of misappropriating 33.9 million rupees to build a mausoleum for Rajapaksa’s parents.
“On the very first day the matter came up namely on the 10 September 2018 the counsel appearing on behalf of the Petitioner stated that the said court namely the Permanent High Court at Bar has no jurisdiction to hear and determine the indictment against the Petitioner,” the Petition states.
The counsel made submission on preliminary objections on January 22 on the basis that the court doesn’t have jurisdiction to hear the matter. A unanimous Order rejecting these preliminary objections was given on February 11. Rajapaksa appealed the order on February 18. The court refused his appeal on February 20.
The Petitioner states that the bench comprising of High Court Judges SampathAbeykoon (President), SampathWijeratne and ChampaJanakiRajaratne, who are named in their personal capacity in the petition, “had not given them the opportunity to be heard prior to the order dated February 20 and therefore asks for the appeal petition to be forwarded to the Supreme Court.”
The PC argued that lawyers for Rajapaksa had chosen this route after having “missed the bus” on appealing the PHC order against their preliminary objections.
“After the High court delivered an order rejecting the objections, they should have gone by special leave to appeal to the Supreme Court. They missed their remedy. When an interim order is made by a judicial tribunal like a special high court, in this case, their remedy was to go by way of special leave to appeal to the Supreme Court. Their lawyers did not know the law and messed it up. They filed a petition of appeal rather than filing a leave to appeal. So the judges correctly refused it. This was a perfect order. Then only they filed the appeal in the Supreme Court,” the senior counsel said.
“This is dirty politics this is very dirty,” the senior counsel said highlighting that this was an attempt to make a mockery of the whole system.