In a shocking move last week, notorious criminal Samarasinghe Arachchilage Madush Lakshitha, infamously known as Makandure Madush became the latest high profile suspect to file a fundamental rights petition in the hope of preventing his possible arrest by local law enforcement agencies.
Over the past four years, a string of such petitions have been filed in the Supreme Court, by persons of repute implicated in criminal investigations, asking the apex court to prevent their arrests, the move now appears to have become a common practice.
Former Chairman of the Reconstruction and Development Agency (RADA) Tiran Alles, former Secretary of Defence Gotabaya Rajapaksa, most recently former Commander of the Navy Wasantha Karannagoda and several other officials including a former IGP and a former Director of Military Intelligence, have all sought relief from the Supreme Court in a similar fashion.
In a prime example when in May 2015, Former Secretary of Defence Gotabaya Rajapaksa filed a similar petition seeking the prevention of his arrest, after hearing arguments including objections by then-Deputy Solicitor General Arjuna Obeyesekere, the Supreme Court granted Rajapaksa leave to proceed with his application and the interim order that he sought, directing that he not be arrested without charges against him first being presented directly to the Supreme Court and Rajapaksa being given an opportunity to present his defence.
Legal fraternity
At the time, the interim order shook the legal fraternity, since the case marked the first time that the court had ever made an order preventing police officials from arresting a person they may suspect of being involved in a criminal offence. Since then, several other orders have been made by the Supreme Court, preventing the arrest of petitioners.
Perhaps hoping he would be awarded the same kind of relief, drug kingpin Madhush in a continued bid to evade Sri Lankan law enforcement filed a fundamental rights petition through his aunt this week, seeking an order against his arrest by local law enforcement and his possible extradition to Sri Lanka. Arrested in Dubai during a raid carried out by the Dubai Police on February 4, Madhush has since been in custody of the country’s law enforcement officials.
The petitioner identifying herself as Sriyani Abeysekara Weerasekara of Hathporuwa, Sooriyawewa filed the petition through Attorney-at-Law Aruna Prabash Perera in which she states the arrest of Makandure Madhush by local law enforcement while he is in the UAE would violate his fundamental rights guaranteed under Article 13(1) of the Constitution.
While the petition names Police Special Task Force Senior DIG M.R. Latheef, OIC of the Organized Crimes Investigations Unit of the Criminal Investigations Department, OIC of the Police Narcotics Bureau, the Inspector General of Police and the Attorney General as respondents, Weerasekara bases her petition on the fact that there are no provisions to arrest a Sri Lankan citizen living in the UAE due to the absence of a ratified extradition treaty between the two countries.
According to the petition filed in the Supreme Court last week, the respondents are attempting to arrest Madhush while he is in Dubai despite these circumstances and such an arrest would be illegal, irregular and in violation of fundamental rights guaranteed by Articles 12 (1) and 13 (1) of the Constitution as such an arrest would not be according to the procedure laid down by law.
However, facts remain that Madhush is also a warranted suspect in connection to two cases being heard in local courts. He is accused of receiving stolen property in case No. 38761/L being heard in the Negombo Magistrates Court and more importantly in the murder of provincial politician Danny Hiththatiya, who Madhush’s family believed was behind the killing of his mother in 1989. The Police has also been hot on his trail for drug-related offences since 2010 prompting Madhush to flee the country in 2015.
When arrested in February by Dubai authorities he had been evading arrest for nearly three years. Since his arrest the Sri Lanka Police has launched widespread operations and nabbed a number of Madhush’s accomplices involved in the drug trade, but Makandure Madhush remains the most wanted criminal in the country’s efforts to stem the drug menace.
Though the petition appears to be based on the principle that Sri Lanka has no extradition treaty with Dubai, speaking to the Sunday Observer a senior official from the Ministry of Foreign Affairs said two countries need not always have an extradition treaty to obtain the custody of a wanted suspect. “As a goodwill gesture a country can decide to hand over a wanted suspect,” he said despite international law dictating that a State does not have an obligation to surrender an alleged criminal to another State.
The Government has put in extradition requests with the same country that now has Madush in custody – the UAE – after Udyanga Weeratunge, former Rajapaksa era Sri Lankan envoy to Russia who is wanted in connection with MiG-27 investigation was arrested by police in Dubai.
Investigators
While on several occasions investigators have voiced their concerns on wanted suspects linked to high profile cases seeking orders to prevent their arrests and its possible negative effects on investigations and victims as well as witnesses in the case, speaking to the Sunday Observer, a senior police chief seemed unfazed by Madhush’s latest tactic to evade arrest. “We are not bothered by the petition that has been filed,” he said.
According to the very senior cop, familiar with investigations into the drug kingpin, despite the criminal’s attempts the Police will continue its investigations on the suspect and his criminal dealings.
Weighing on the topic, President’s Counsel Saliya Peiris says if there appears to be an imminent infringement on one’s fundamental rights, the court is entitled to look at and decide if an individual can be arrested. However, according Peiris PC said the courts were usually reluctant to interfere with the question of arresting a suspect.
Therefore, as pointed out by the President’s Counsel there are only very few decided cases on imminent infringement of Article 13 (1). “You can argue that a person has the right to be protected from arbitrary arrest” he noted.
But after a spate of such applications by a number of ‘VIP’ suspects in prominent cases legal luminaries are now raising their concerns on what they see as a troubling trend of suspects attempting to evade arrest by filing FR petitions before the Supreme Court. Many now appear to see it as a tactic used to hinder Police investigations. While interim orders preventing their arrests been provided to a number of suspects, legal experts say until there is a final determination, the position of the courts will not be clarified in relation to these cases.
On a previous occasion, a senior prosecutor at the Attorney General’s Department told the Sunday Observer that the trend would only change with a “radical” interpretation of the law. According to him while the law gives Police the power to arrest, with sufficient checks and safeguards to prevent the infringement of rights, what those legal provisions seek to achieve is lost with such applications preventing arrest.
“There will be no end to it. Every petty criminal, with the means, will go to court to prevent arrest. What’s the use of investigators labouring hard to find evidence to initiate legal action?” the official said.
The question that must be raised, is that if an ordinary citizen in the country could make such an application and succeed in preventing his arrest, said a senior state counsel speaking to the Sunday Observer.
Perhaps the fundamental rights application filed by Sri Lanka’s most wanted criminal, Makandure Madush will provide an answer.