Former Defence Secretary and Sri Lanka Podujana Party (SLPP) presidential candidate, Gotabaya Rajapaksa, who claims to have completely and successfully eradicated terrorism and wiped out any threats to national security, successfully applied for a stay order last Tuesday (24) against summons issued on him by the Jaffna Magistrate’s Court citing security fears.
The Jaffna MC is conducting a Habeas Corpus inquiry into the disappearance of human rights activists Lalith and Kugan who went missing in the Jaffna peninsula in 2011. The former Defence Secretary was summoned to appear before the Magistrate’s Court as a witness in the case. Rajapaksa’s lawyers filed a motion in the Court of Appeal on the basis that it was unsafe for him to travel to the country’s North, due to security reasons, given the threats to his life.
Rajapaksa has successfully petitioned several courts to stall trials and investigations against him over the past four years. Two weeks ago the CA ruled that the accused in the Avant Garde floating armoury trial must be discharged upholding an objection raised by Rajapaksa’s lawyers citing a technical glitch in the Sinhala text of the Bribery Act, ending another ongoing trial against the former Defence Secretary, even though the charges may be instituted the proper way again. With the latest stay order, Rajapaksa has managed to avoid appearing before a Magistrate even as a witness in a key missing persons investigation.
The stay order was issued by Justice Deepali Wijesundera of the Court of Appeal last week, but Counsel for the two missing activists told the Sunday Observer that respondents cited in the motion filed by Rajapaksa’s lawyers had not been noticed before the matter was taken up.
Attorney at Law Nuwan Bopage told the Sunday Observer that on Friday (27), when the Magistrate’s court matter was taken up in Jaffna, lawyers for Rajapaksa informed court of the stay order. Counsel for the missing activists informed the magistrate that since the SLPP presidential hopeful had cited security reasons for his unwillingness to travel to the north, that very reason should also prevent him from travelling to the area for any campaign purposes.
Accordingly it was recorded in the Jaffna magistrate’s court that in the event Rajapaksa does enter the area for any other reasons including for campaigning for the upcoming presidential election, they will take steps to file contempt papers.
Meanwhile counsel for the affected parties will appeal the stay order this week in the Supreme Court, Counsel Nuwan Bopage told the Sunday Observer. Rights activists Lalith Kumar Weeraraj and Kugan Muruganandan went missing a day before World Human Rights Day, on December 9, 2011. They were last seen in the Kaithady area in Jaffna, during which time they were laboriously documenting disappearances in the Northern Province during and after the end of the war in 2009.
Following a Habeas Corpus filed in the Court of Appeal the Jaffna Magistrate’s court initiated an inquiry into the matter and, earlier this year, it issued summons on Gotabaya Rajapaksa to give evidence at the inquiry.
When the matter was fixed to be taken up in June this year, lawyers for Rajapaksa informed that he will attend court, provided there is no security threat.
The motion that was filed seeking the stay order was taken up before the Court of Appeal bench comprising of Justices Achala Wenggapuli and Deepali Wijesundera. At the very outset when the case was taken last Tuesday, Justice Wenggapuli recused himself and the matter was heard by Justice Wijesundara who then granted the stay order.
Speaking to the Sunday Observer a senior counsel explained that when a justice recuses from a case the practise is to refer the matter to the President of the Court of Appeal.
“Whenever a judge recuses from a case, if in the Supreme court the matter is referred to the Chief Justice to refix the matter before a fresh bench and in this case ideally it should be sent to be refixed before a fresh bench. For some reason that had not happened,” he said.
The stay order directed that the evidence of the former secretary be examined at a competent court outside the northern and eastern provinces.
Counsel for Rajapaksa, Romesh de Silva PC informed court that it was imperative that the matter was heard on an urgent basis since the magisterial inquiry was scheduled to be taken up in two days.
Nuwan Bopage also pointed out that this order was sought by filing a motion to the main Habeas Corpus matter without giving notice to the petitioners. However, Senior State Counsel Wasantha Perera, appearing for the Attorney General, as instructed, informed the Court of Appeal that he had no objection to the interim relief Rajapaksa’s lawyers had prayed for.