A two-judge bench of the Court of Appeal last week, put off hearing the writ application filed by Gotabaya Rajapaksa until March 26, delaying the latest efforts by his lawyers to get his trial at the Permanent High Court at Bar blocked citing lack of jurisdiction.
Court of Appeal (CA) Justices Achala Wengappuli and Arjuna Obeysekera fixed the writ application for support at 1.30 p.m. on March 26, refusing to take the matter up for support on Tuesday, March 12 since some respondents had not been issued notice.
A CA bench to take up the matter had to be specially constituted after Justice Kumudini Wickremasinghe and Acting Court of Appeal President Justice Deepali Wijesundera declined to hear Rajapaksa’s case.
The petition filed by Gotabaya Rajapaksa 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 February 20, to issue a mandate in the nature of a writ of prohibition preventing judges from 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 former Defence Secretary stands accused of misusing public property to construct an elaborate memorial for his parents in Medamulana, Hambantota. (Commonly known as the D.A. Rajapaksa museum trial).
Gotabaya Rajapaksa is the first accused in the case, charged with embezzling Rs. 33.9 million from the Sri Lanka Land Reclamation and Development Corporation, to fund the private construction on the premises of the D.A. Rajapaksa Foundation in Medamulana.
At the outset of proceedings last Tuesday, Justices Obeysekera and Wengappuli sought clarifications from counsel for the former Defence Secretary and the Attorney General’s Department about whether there were any objections to their hearing the matter. Justice Obeysekera clarified that he had appeared against the petitioner when he served in the AG’s Department. Romesh de Silva PC, appearing for the former Defence Secretary, said he had no objections to either of the judges. Additional Solicitor General Milinda Gunethillake appearing for the AG, also reiterated that he had no objections to the Bench.
Since notice had not been issued to the third respondent in the case, Judge of the Permanent High Court Janaki Rajaratnam, the Judges decided to fix the case for support in two weeks.
ASG Gunetillake said notice to the third respondent had been mistakenly sent to the AG’s Department. “We immediately notified the instructing attorney. But it was never picked up,” ASG Gunetillake told Court.
The Judges asked Deputy Solicitor General Dileepa Peeris if the trial at the Permanent High Court would begin soon. DSG Peeris said that this was unlikely since counsel for the accused were still filing preliminary objections with the case due to be taken up again on Friday, March 15.
De Silva PC undertook to reissue notice to all the respondents ahead of March 26.
As proceedings were to be adjourned, de Silva told the judges that there was nothing personal about his appearance and that the lawyers were professionals appearing on behalf of their clients.
Justice Wengappuli responded that the judges were also carrying out their duties and were only concerned with the application of the law.
To which De Silva PC said, “Exactly. There is no need for these personal attacks.”
De Silva PC, appeared with Ali Sabry PCand Attorneys-at-Law Sugath Caldera and Ruwantha Cooray for the former Defence Secretary.
ASG Milinda Gunetillake, DSG Dileepa Peeris and Senior State Counsel Udara Karunatilake appeared for the Attorney General.
The writ application filed by Gotabaya Rajapaksa in a bid to stop his trial at the Permanent High Court has baffled legal practitioners since it marks the first time any lawyer could recall judges of a High Court being individually named as respondents in a writ application.
The case was initially listed to be taken up for support on March 8, before Court of Appeal Justices Deepali Wijesundara and Arjuna Obeysekara. The Attorney-General’s Department was not given prior notice of 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.
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 the morning of March 8. Due to the absence of Justice Wijesundara, the case was then heard before Justices Mahinda Samayawardena and Kumudini Wickremasinghe. When Justice Wickremasinghe recused herself on personal grounds, the case was put off for March 12.
On February 11, the Permanent High Court at Bar in an unanimous order, rejected the preliminary objections raised by the former Defence Secretary’s lawyers, challenging the court’s jurisdiction to hear the D.A. Rajapaksa case. The court refused his leave to appeal on February 20.
Legal professors said the correct remedy would have been for Rajapaksa’s lawyers to make an application in the Supreme Court, requesting leave to appeal, to challenge the PHC order on their preliminary objections.
“When an interim order is made by a judicial tribunal such as 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. They filed a petition of appeal rather than filing a leave to appeal. So the judges correctly refused it. This was perfectly in order. Only then did they file the appeal in the Supreme Court,” the senior legal practitioner and legal studies lecturer told the Sunday Observer.
(Additional reporting by Manoj Colambage)