POSTED AT 07:59 AM 17-02-2019
After four years in foxholes: Gota’s first trial-at-bar
If the D.A Rajapaksa Museum trial starts as scheduled on Friday (22), it will mark the first time the public will be exposed to evidence in a court of law, alleging illegal conduct by the former Defence Secretary after his lawyers spent years trying to stall criminal proceedings against him through a slew of investigations
An unanimous ruling last Monday (11) by the three-judge Bench of the Permanent High Court Trial, dismissing objections filed by President’s Counsel Romesh de Silva against the court’s jurisdiction to proceed with the trial of Gotabaya Rajapaksa and six others for charges including criminal misappropriation of Rs. 33 million of public funds for the construction of a mausoleum for Rajapaksa’s parents, may be the turning point for the former Defence Secretary’s nearly four-year-long effort to forestall various criminal proceedings against him.
While Gotabaya Rajapaksa has staked the most overt claim to a presidential candidacy of all his kin, by drawing attention to his discipline, patriotism and bravery, he remains the only member of the Rajapaksa family to shy from arrest and indictment. He sought and received superior court orders to block five different criminal proceedings against him over the last four years. Neither Namal nor Yoshitha Rajapaksa have sought residency or citizenship abroad, nor expressed the slightest hesitation to answer the charges against them in open court, notwithstanding the serious criminal charges they face.
The Criminal Investigation Department opened an investigation into the Defence Ministry’s complicity in the floating armouries of Nissanka Senadhipathi and Avant Garde Maritime Services. The new Financial Crime Investigation Division (FCID) began an investigation into the 2006 ‘MiG Deal’, and the Bribery Commission began investigating share price manipulation at Lanka Hospitals PLC, where Rajapaksa served as Chairman in his official capacity.
In March 2015, the Galle Magistrates Court ordered that the passports of Rajapaksa and four others be impounded, and their foreign travel barred, in connection with the floating armoury investigation underway by the CID.
On May 11, 2015, Gotabaya Rajapaksa filed Fundamental Rights Petition SC FR 163/2015 with the Supreme Court, seeking an order from the Supreme Court barring what he called his “imminent arrest”, which he characterized as an “imminent violation” of his Fundamental Rights. The case was heard on May 13, 2015 before a two-judge bench chaired by Justice Eva Wanasundera. Romesh de Silva PC and A. Sabry PC appeared for Rajapaksa. One judge, Buwenaka Aluwihare, recused himself from hearing the case.
After hearing arguments including objections by then Deputy Solicitor General Arjuna Obeysekere, 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.
This interim order took the entire legal fraternity by storm. It marked the first time in the thirty seven years since the introduction of the 1978 Constitution and its regime of fundamental rights violations being addressed directly by the highest court in the land, that the court ever made an order preventing law enforcement officers from causing the arrest of a person whom they may have reasonably suspected of complicity in a criminal offence, with or without a warrant from a lower court. The legal precedent for persons who feared their arrest had always been that they would make applications to the lower courts to seek anticipatory bail in the event of their arrest.
The closest thing to a precedent in the history of the Supreme Court, was the interim order granted on September 28, 2005 by a Bench of that court chaired by then Chief Justice Sarath Silva, which halted an investigation by the CID into alleged misappropriation of tsunami funds by presidential aspirant Mahinda Rajapaksa. Even this order, while estopping a criminal investigation, did not prevent the CID from arresting any suspect, as they are required by law to do if they already had enough material to form a reasonable suspicion of that person’s complicity in a crime.
An ambiguity in the order of the Supreme Court meant no law enforcement officer was certain whether or not Rajapaksa had been bestowed with blanket immunity from arrest by the Supreme Court or whether the restriction was to be limited to the specific law enforcement agencies or cases cited in Rajapaksa’s application to the Supreme Court. On that occasion, Chief Justice Silva opined that “in criminal law, there is no public interest,” and ruled that Mahinda Rajapaksa’s fundamental rights would be violated if the investigation continued.
After he won the November 17, 2005 presidential election and thus control of the police and Attorney-General’s Department, the State conceded that the case against the now head of State, was erroneous. Many years later, Sarath Silva was to publicly apologise for giving what he termed as a historically unforgivable determination in this case.
The interim order preventing Gotabaya Rajapaksa’s arrest in May 2015 had a piercing impact on the progress of the criminal investigations involving Rajapaksa. Some law enforcement officers feared that potential witnesses who were not familiar with the intricacies of the legal system may conclude that the former Dfence Secretary was above the law.
The order also obliged investigators, whose first and working language is Sinhala and whose judicial wheelhouse is Magistrates Courts, to depend on the Attorney General’s Department to polish their findings into Court-ready English and litigate on their behalf. In practice, investigators in many agencies coped by steering clear of Rajapaksa in their investigations to avoid being mired in additional days of consultations and drafting affidavits.
When the case next came up before the Supreme Court on June 8, 2015, the court clarified or narrowed the scope of its interim order, ruling that Rajapaksa’s arrest was only prevented in the specific criminal investigations cited in his FR application, namely, the CID floating armoury investigation, the FCID MiG Deal investigation, and the Bribery Commission’s share price manipulation investigation.
With this interim order preventing his arrest in hand, Rajapaksa and his counsel have since relied on a novel legal technicality to continue delaying the case before the Supreme Court in perpetuity, for over three and a half years. In the original application to the Supreme Court, Rajapaksa named the Cabinet of Ministers, and each individual Cabinet Minister, as a respondent.
On every occasion that the case has since come up, starting on October 6, 2015, Rajapaksa’s counsel have moved to postpone the case on the grounds that the composition of the Cabinet of Ministers had changed.
The journal entry from the case’s Supreme Court docket for October 6, 2015 reads: “Learned President’s Counsel for the Petitioner (Rajapaksa) states that the subsection functions of the Ministries have been re-allocated and Ministries have also changed. Accordingly, Counsel moves to amend the caption with notice to the Respondents. Caption to be amended within one month from today. Hearing is refixed for January 28, 2016.”
In January 2016, another judge, Priyantha Jayawardena, recused himself from hearing the case, causing it to be postponed until May 26, 2016. With every change in the composition of the Cabinet, Rajapaksa’s counsel successfully dragged the case out further, without objection from the Attorney General’s Department. In October 2017, Eva Wanasundera, who chaired the bench that granted the order protecting Rajapaksa from arrest, also recused herself from hearing the case, becoming the third judge to do so, leading to the case being postponed until May31, 2018. On May 31, 2018, a fourth judge, Murdu Fernando, withdrew from the case. With judges continuing to remove themselves from hearing Rajapaksa’s case, and with even the slightest change in the composition of the Cabinet of Ministers leading to postponement, law enforcement officers have had little hope of being able to conclude these sensitive investigations.
A review of records of the FR petition by the Sunday Observer revealed that Gotabaya Rajapaksa had undertaken repeatedly in his affidavit before the Supreme Court, not to undertake foreign travel without first seeking the sanction of the Supreme Court, should he be granted an interim order preventing his arrest.
Paragraph seven of the affidavit states “I undertake and promise your Lordship’s court that I will not leave Sri Lanka without obtaining the permission of Your Lordship’s Court in the event of the interim order being granted.”
This assurance is repeated in Paragraph 154 of the affidavit, which states “I undertake and promise your Lordships’ court that I will not leave Sri Lanka without the permission of your Lordship’s court in the event of the interim order being granted.”
However, there is no record in the Supreme Court docket pertaining to this case, of Rajapaksa or his counsel having ever sought or received permission from the Supreme Court to travel abroad, or of Rajapaksa having withdrawn this undertaking to the court. This is despite Rajapaksa having travelled several times to countries including his motherland the United States, having sought the permission of lower courts, since the granting of his interim order.
In the affidavit, Gotabaya Rajapaksa also pleaded that he was ready and willing to face a Case and defend himself, and that he was confident that he would be acquitted by any court. “I state that, this application is in no way or manner intended to prevent any action being instituted against me,” Rajapaksa said.
This confidence does not appear to have extended beyond the very narrow scope of his fundamental Rights application to the Supreme Court. When the Bribery Commission charged Gotabaya Rajapaksa and several others with corruption to the tune of Rs 11.4 billion in September 2016, Rajapaksa lost no time in petitioning the High Court to prevent the corruption action from proceeding against him.
This application to the High Court, which seemingly intended to prevent an action from being instituted against him, asked the court to prevent the corruption case from continuing on the technical grounds that the Director General had not demonstrated that the commissioners of the Bribery Commission had sanctioned the prosecution in writing. The High Court refused this application. However, on the eve of the commencement of the corruption trial in the Colombo Chief Magistrates Court in July 2018, the Court of Appeal accepted an appeal by Rajapaksa and stayed the trial from proceeding. In this proceeding too, a fifth judge, Janak de Silva of the Court of Appeal, recused himself from a matter involving Gotabaya Rajapaksa.
Until November 2017, the investigation into suspected financial crimes connected with the use of government funds to construct a mausoleum on land owned by the D.A. Rajapaksa Foundation, was the only investigation involving Gotabaya Rajapaksa that was able to develop to the stage where his arrest might ensue without intervention from the superior courts.
The investigation focused around the circumstances under which the Sri Lanka Land Reclamation and Development Corporation (SLLRDC) and the navy, under Gotabaya Rajapaksa’s Ministry of Defence and Urban Development, spent military manpower and tens of millions of rupees in SLLRDC funds to construct and landscape a memorial, mausoleum and museum for the former secretary’s parents.
The investigation, conducted by the FCID, indicated that Rajapaksa and several other officials were complicit in criminal breach of trust and other offences in connection with this use of public funds and labour to finance construction on private property. Rajapaksa and his attorneys claimed, for their part, that no misappropriation took place. Their position was that the D.A. Rajapaksa Foundation had entered into a “verbal contract” with the SLLRDC to loan the funds for the construction, which would be later repaid.
The former defence secretary’s attorney, Romesh R. De Silva PC, has stressed that no documentary evidence of such a contract needs to exist, because under Sri Lankan law, a legally binding contract could be either written or verbal. Nevertheless, no evidence of such a contractual arrangement has yet surfaced, either in the FCID investigation or in the audit queries undertaken by the Attorney General.
After considering the investigative material forwarded by the FCID upon completion of their investigation, the Attorney General wrote in November 2017 to the FCID an opinion that cleared the way for the arrest of Gotabaya Rajapaksa on non-bailable charges under the Offences Against Public Property Act.
The FCID, however, failed to take any action on the Attorney General’s recommendation in a timely manner, and days later, Rajapaksa, through his attorney Romesh de Silva, filed a writ application in the Court of Appeal seeking an interim order preventing his arrest by the FCID based on the D.A. Rajapaksa investigation. The Bench, led by Court of Appeal President L.T.B. Dehideniya, on November 28, 2017, immediately heard the case ex-parte, without the Attorney-General being noticed to present objections and counter arguments. The following day, this Bench granted Rajapaksa an interim order preventing his arrest by the FCID.
Without having sought or considered the submissions of the Attorney-General, Justice Dehideniya reached several conclusions in his order, including that “the Foundation had no intention of defrauding” the SLLRDC, and that “there is evidence to establish that there was no mental element of dishonesty and no misappropriation.”
In his writ petition, Rajapaksa stated that he was not seeking to prevent any indictment from being filed or case against him being heard, and that he was only seeking to prevent an unlawful arrest on false pretenses.
With Rajapaksa’s arrest forestalled, there was little urgency on the part of the FCID or the Attorney General’s Department to complete their examination of the available material and finalize indictments and criminal charges.
Meanwhile, in May 2018, Parliament passed into law the Judicature (Amendment) Act No. 9 of 2018, which allowed for new High Courts to be set up as “Permanent High Courts at Bar”. These would be permanent High Courts with three judges sitting together to hear and determine cases relating to certain financial and economic crimes. Per the amended law, these courts would hear cases on a day to day basis, without long pauses between trial dates, as is common elsewhere in the Sri Lankan courts system.
In the original Bill presented to Parliament by the Government, it was proposed that cases would be directed to these courts by the Attorney-General and the Director-General of the Bribery Commission, at their discretion.
However, due to vociferous opposition and claims of unconstitutionality by several legal heavyweights associated with the Rajapaksa-backed ‘Joint Opposition’, the Government amended their bill such that the Attorney-General and Bribery Commission Director-General would merely submit potential cases to the Chief Justice, who would alone determine whether a case was suited for the special high courts, or not.
It was this amended version of the bill, which left it up to the Chief Justice to determine which cases were suitable to be heard by the new courts, that was passed by Parliament and became the law of the land on May 15, 2018.
Three months later, the government completed the construction of the first Permanent High Court at Bar under the new law. The Chief Justice selected three eminent High Court judges to serve on the court, Sampath Abeykoon, Sampath Wijeratne and Champa Janaki Rajaratne, with Judge Abeykoon being selected as the Chairman of the Bench. The Court was formally opened on August 24, 2018. Meanwhile, the Attorney General wrote to then Chief Justice Priyasath Depp witha report on the Department’s criminal file CR5/32/2015, seeking the permission of the Chief Justice to return indictments against Gotabaya Rajapaksa and six other individuals at the newly opened Permanent High Court at Bar. The Chief Justice wrote back to the Attorney General authorizing him to file the case with the new Court.
Days later, on August 24, 2018, the Attorney General filed Case number HC/PTB/1/02/2018 before the Permanent High Court at Bar, returning indictments against Gotabaya Rajapaksa and six of his ministry’s officers at SLLRDC, who are jointly accused of charges under the Penal Code, Offences Against Public Property Act and Prevention of Money Laundering Act, connected with the embezzlement of Rs 33.9 million in connection with the construction on the premises of the D.A. Rajapaksa Foundation in Medamulana.
On September 10, 2018, Rajapaksa and his six co-defendants appeared before the Permanent High Court, were served their indictments, fingerprinted by police, and enlarged on bail. Each accused was required to submit cash bail of Rs 100,000 and two sureties of Rs. 1 million each. All seven accused were ordered to surrender their passports and to seek approval of the court for all foreign travel.
Rajapaksa and De Silva have found this particular court to be less amenable to their more novel legal requests and submissions than either the Supreme Court or Court of Appeal had been in the past. For example, at the time indictments were filed, De Silva moved the court not to place Rajapaksa in fiscal custody and enlarge him on bail, but instead to warn him and release him with an informal understanding that he would appear in court whenever necessary.
The Attorney-General’s Department objected to this proposal on the grounds that all accused should be treated equally under the law and that special accommodations cannot be made for any particular individual who is indicted, for any reason. The court sided with the State, took Rajapaksa into custody and enlarged him on bail. This watershed moment may have marked the end of a flawless streak of trailblazing victories through which De Silva had secured for Rajapaksa in the Court of Appeal and Supreme Court, hitherto unprecedented security from the criminal justice system.
Romesh de Silva P.C., informed the court that he would be filing objections on behalf of Rajapaksa, including an objection relating to the jurisdiction of the court to hear the case. These objections were ultimately made in court by De Silva over four months later, on Tuesday, January 22, 2019, when the court attempted to read out the indictments to the accused and record their pleas.
On this occasion, shortly before the proceedings began, as Rajapaksa entered the courtroom, flanked by a phalanx of security personnel accompanied by a larger detachment of armed guards in and around the court house,a prosecution witness, Geological Survey and Mines Bureau Chairman W.M.A.S. Iddawela sprung from his seat and rushed to shake the hand of the former Defence Secretary and greet him. When the proceedings began, Romesh de Silva sought and received permission to raise preliminary objections to the court’s jurisdiction to hear the case, before the indictments could be read out. His first objection was that the court lacked jurisdiction, because he said the case was improperly filed before the court, as the case alleged “common wrongdoings filed in courts every day” and “has no repercussion on national economy or finance”. He was critical of the role of the Chief Justice in evaluating the suitability of the case for the special court.
His second objection was that the charges against his client, abetting the primary offences and conspiring to commit the offences, were not specifically covered in the 6th Schedule to the Judicature Act and that these offences were not specifically spelled out in the Offences Against Public Property Act.
Deputy Solicitor General Dileepa Peeris, in his response, drew the attention of the Bench to the militarized atmosphere in and around the Court room. He warned that such factors could adversely affect or intimidate prosecution witnesses, stating, for example that all prosecution witnesses had to enter and exit the courtroom through its single entrance, which was arrayed with security personnel attached to the accused. DSG Peeris also drew the attention of the bench to the habit of attorneys not formally appearing for any party making derogatory statements to the media about the court and its proceedings within the Court premises, and the wide publicity such comments had received. The three-judge Bench advised those present to maintain a conducive environment voluntarily, without compelling the court to make Order on the matter, after which Peeris sought time to respond to the objections raised by defence counsel, and court adjourned.
As the case was taken up onJanuary 25, the judges took notice of the fact that the court room had been demilitarized since their comments from the bench earlier in the week. No security personnel except court security were apparent in the premises of the court. DSG Dileepa Peerisdrew attention to the incident that transpired at the previous hearing with prosecution witness Iddawela rushing to greet first accused Gotabaya Rajapaksa. The Bench, in turn, warned the witness to conduct himself in a proper manner, leaving no doubt in the minds of other witnesses that further ‘kissing of the ring’ would not be tolerated by the court.
The following week, on January 30, DSG Peeris responded to the objections made primarily by Romesh de Silva, regarding the court’s jurisdiction to hear the case and the validity of the charges filed against Rajapaksa. Before responding, Peeris acknowledged Rajapaksa having restrained himself from speaking to the media on the court premises.
DSG Peeris responded to De Silva’s objection against the Chief Justice having been involved and exercising his judgment in evaluating whether the case was fit to be heard by the court by drawing attention to the amended Judicature Act, which required the Chief Justice to get involved and exercise his judgment in evaluating which cases should be assigned to the new court.
DSG Peeris also highlighted the fact that the defence had previously, perhaps inadvertently, accepted the jurisdiction of the court over the case, by accepting the validity of the foreign travel ban on the accused and invoking that jurisdiction by requesting that the court temporarily lift the ban.
It was last Monday, 11 February, that the Court eventually made its unanimous order on the preliminary objections raised about its jurisdiction, affirming the validity of the charges and their jurisdiction to continue with the case.Regarding the role of the Chief Justice in sanctioning the indictment, the bench agreed with DSG Peeris that the Chief Justice exercised his discretion as he was required to do so by law.
“Even if we accept the argument in the preliminary objections for the 1st accused that the direction of the Chief Justice is merely an administrative one, nevertheless, such an administrative decision cannot be contested before this Court,” the bench ruled.
“It should be noted that the Chief Justice arrives at his decision after considering the facts placed before him and the argument that he bases his decision solely on whether it is a financial or economic crime cannot stand. Once a directive is made by the Chief Justice, this court is empowered to hear a matter and cannot deviate from its duty to serve indictment and initiate criminal proceedings.”
The Bench also addressed the claim that charges had been drawn up erroneously. “In order to consider such an argument, the Court’s jurisdiction must not be contested. The defence cannot reject the jurisdiction of the court and then bring such an argument before the court.”The Court nonetheless considered the objection and addressed them at great length, concluding that “the argument that the charges have been erroneously drafted, is baseless.”
Under the provisions of the Judicature Act, any appeal against this ruling would be heard expeditiously and directly by a five-judge Bench of the Supreme Court. Pursuing such an appeal, aside from whatever its legal merits, is unlikely to cause a significant delay to the case.
The case was postponed to this Friday, February 22, due to the absence of the 6th accused. On that day, Rajapaksa and six others are expected to plead their response to charges of criminal Breach of Trust and laundering of public funds.
If the case begins as scheduled, it would be the first time the public will be exposed to evidence in a courtroom alleging illegal conduct by Gotabaya Rajapaksa. The former Defence Secretary last year formed the ‘Eliya’ Foundation, to ‘bring to light’ concerns about the evolution of the Constitution and Human Rights law in Sri Lanka. Now, after four long years, at least some of the charges against him will finally be brought to light.