Former Defence Secretary’s lawyers continue to petition upper courts on legal technicalities to stay proceedings in the lower judiciary and prevent his arrest by law enforcement agencies:
In a new twist in the Avant Garde floating armoury corruption case filed against former Defense Secretary Gotabaya Rajapaksa, the Court of Appeal last week stayed the hearing of the case at the Colombo Chief Magistrate’s Court. The decision was taken based on a legal point raised by Defence Counsel, postponing the Magisterial case till October.
The case at Magistrate’s Court was filed under Section 70 of the Bribery Act by the Commission to Investigate Allegations of Bribery and Corruption (CIABOC).
Speaking to the Sunday Observer, a senior official at the Bribery Commission said that the stay order by the Court of Appeal was the result of a ‘legal hitch’.
When the revision application filed by Gotabaya Rajapaksa’s lawyers was taken up at the Court of Appeal on July 4, Romesh De Silva PC argued that without written sanction by the Bribery ‘Commissioner’ such cases cannot be instituted.
Section 78 (1) of the Bribery Act says ‘No Magistrate’s court shall hear cases under Bribery Act except by written consent by the Bribery ‘Commission’. In the Sinhala text of the Bribery Act alone, Section 78 (1) states “except by written consent by the Commissioner”. The position of Commissioner no longer exists for the following reason, legal experts pointed out.
Prior to amendments made in 1994, the Bribery Act referred to a “bribery commissioner” who was then head of what used to be the ‘Department of Bribery and Corruption’. With the amendment in 1994, the Department was replaced with the ‘Commission to Investigate Allegations of Bribery and Corruption.’
In the same amendment, the section referring to “Commissioner” was amended and henceforth replaced with ‘Bribery Commission’. In Section 78 (1) of the Bribery Act alone, the word “Commissioner” has not been replaced with “Bribery Commission” by oversight. The word Commissioner appears only in the Sinhalese text of the Act, while it has been changed to “Bribery Commission” in the English and Tamil versions of the legislation. However, under Sri Lankan law, in the case of any discrepancies in written law, the Sinhala version stands.
The former Defence Secretary’s lawyers argued before the Court of Appeal that the since there was no ‘Commissioner’ at the Bribery Commission, the CIABOC could not initiate prosecution under the Bribery Act. The Attorney General’s position that written sanction was not needed when the Bribery Commission initiates action on prosecution was countered by Gotabaya Rajapaksa’s lawyers, who said the prosecution had to be instituted by the Attorney General and not by the Bribery Commission.
Romesh de Silva PC submitted that the Commission was empowered to investigate the allegation of bribery and to direct to institute proceedings, but has no power to initiate prosecution, as per the provision 78 (1) of the Bribery Act since a Commissioner could not give written consent.
“This legal hitch led to the stay order by the Court of Appeal,” said the senior official at the Bribery Commission, “what is important is the intention of the legislation and not the interpretation.
Lawyers for Gotabaya Rajapaksa initially filed a revision petition in the High Court of Colombo, challenging the Chief Magistrate’s decision to dismiss preliminary objections raised by counsel for the defence. Dismissing the objections, the Chief Magistrate fixed the matter for trial. In his preliminary objections, Rajapaksa sought to have all charges against him dismissed in the Avant Garde case. The revision petition was also rejected by High Court Judge Sampath Wijeratne.
When the case was taken up at the Court of Appeal Defence Counsel Romesh de Silva PC argued that the order given by the High Court Judge on the same revision application could not stand, because the Judge had interpreted a non-existent section of the Bribery Act. In view of his argument the Court of Appeal temporarily stayed proceedings in the Magistrate’s court until the revision application was heard and determined by the Superior court. The Appeal court bench comprised Justices Achala Wengappuli and Arjuna Obeysekara.
With the trial coming up at the Magistrate’s Court on Monday (9), there was barely any time for the Court of Appeal to go into the merits of the arguments, legal sources told Sunday Observer. Experts said that when the Department of Bribery and Corruption was converted into a commission through amendments in 1994, this particular section 78 (1) had not been changed to reflect “commission” probably due to an oversight in Parliament and the Legal Draftsman’s Department.
When the case was taken up at the Court of Appeal on Wednesday, SSC Bandara noted in court that the intentions of the defence was very clear, that they wanted the case to drag. The SSC therefore requested an exact timetable for hearings on the issue.
As a result the next hearing of the Magistrate’s Court case which was fixed for July 9 will not be taken up until the Court of Appeal determination is issued. Hearings at the Court of Appeal have been fixed for September 28 and October 2.
The Bribery Commission filed a corruption case against former Defence Secretary Gotabaya Rajapaksa and seven others for allegedly causing a Rs.11.4 billion unlawful loss to the government by giving permission to a private company -Avant-Garde Maritime Services (Pvt) Ltd- to operate a floating armoury.
When Gotabaya Rajapaksa served as Secretary to the Ministry of Defence, a deal was secured with a private security firm Avant Garde. The Ministry allegedly supplied Avant Garde with military issue weapons to operate floating armouries off the Sri Lankan coast as part of its operation to provide security for commercial vessels.
Avant Garde, run by controversial former military officer Nissanka Senadhipathi, is itself under investigation for alleged money-laundering and weapons smuggling, with investigators still trying to locate thousands of weapons police said had disappeared from state inventories. Senadhipathi is also one of the accused in the Bribery Commission case filed at the Magistrate’s Court that has now been stayed.
State Counsel Janaka Bandara appeared on behalf of the Attorney General.