The preoccupation for lawyers appearing on behalf of Gotabaya Rajapaksa at the Court of Appeal last Thursday, was obtaining ‘an order or undertaking’ to prevent his trial from starting at the Permanent High Court at Bar hearing the D.A. Rajapaksa Museum case.
The former Defence Secretary stands accused of misusing public property to construct an elaborate memorial for his parents in Hambantota. 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.
On February 11, the Permanent High Court at Bar which is hearing the financial misappropriation and criminal breach of trust trial against the former Defence Secretary and six others, made a 20 page order, rejecting preliminary objections raised by Defence Counsel, which included challenges to the new court’s jurisdiction to hear the case.
Filing a Revision Application at the Court of Appeal under Article 138 of the Constitution, Gotabaya Rajapaksa’s lawyers are attempting to get a stay order against the trial proceeding at the Permanent High Court at Bar. Their case, aiming to ‘shock the conscience’ of the Court of Appeal into annulling the order by the three judges of the Permanent High Court would continue – likely for months. The revision application came up for support last Thursday (28) in Court Room 107.
No less than eight or nine times, President’s Counsel Romesh de Silva, who appeared for Rajapaksa, emphasised the ‘fears’ of his client that the trial would proceed if the Revision matter is not immediately taken up and interim relief granted. “My fear or problem is that the trial must not go on. All this will be academic if the trial proceeds,” de Silva reiterated.
When Court of Appeal Justice Achala Wengappuli suggested both the Revision Application and the Writ Application filed by the same petitioner be taken up on May 6, since both applications dealt with the same order, de Silva said: “What if in the mean time, daily trials begin?”
It all began when the Attorney General, represented in Thursday’s proceedings by Additional Solicitor General Priyantha Nawanna informed court that he was raising preliminary objections against the Court of Appeal hearing the Revision Application against an order made by the Permanent High Court, sitting at Bar.
The objections caught Rajapaksa’s lawyers by surprise, and briefly mystified the judges, who realised that the jurisdictional objection would also apply to Gotabaya Rajapaksa’s Writ Application filed before the same Court, seeking to quash the very same order made by the Permanent High Court in the D.A. Rajapaksa trial.
With the Writ Application set to come up for support on May 6, after court vacation, the judges felt both matters should be taken up together, but this caused consternation in Rajapaksa’s legal team that the trial would begin at the Permanent High Court, while the writ and revision applications proceeded at the Court of Appeal.
“I have no objection to that, provided the status quo is maintained pending the hearing of the Writ. There has to be some sort of order that the trial cannot proceed”, de Silva reiterated. The AG should at least provide an undertaking that the trial will not begin until mid-May, well after the Writ and Revision Applications are taken up at the Court of Appeal, he argued.
Having heard de Silva’s concerns, Justices Wengappuli and Arjuna Obeysekera decided to hear the AG’s preliminary objections to the CA hearing the case last Thursday.
Assistant Solicitor General Nawanna explained that while initially appeals against judgments, sentences and orders by a trial at bar were to be taken before the Court of Appeal, before a bench of five judges of that court, that provision in the Criminal Procedure Code had since been altered by Parliament in 1988. According to the amended Section 451, only a five judge bench of the Supreme Court, nominated by the Chief Justice could hear appeals against judgments, sentences and orders made by a trial-at-bar.
“So power was taken away by Parliament from the Court of Appeal and given to the Supreme Court. Parliament had a choice to give appellate jurisdiction to Court of Appeal or Supreme Court and it chose the Supreme Court,” ASG Nawanna argued.
He argued further that by Amendment to the Judicature Act in May 2018, the Permanent High Court at bar was established, and appellate power against orders, judgments and sentences handed down by the PHC was vested with the Supreme Court, before a bench of five judges nominated by the Chief Justice.
Citing the case of Thalangama OIC Sepala Ekanayake from February 2011, ASG Nawanna recalled that in that case the High Court had exercised appellate jurisdiction over an order made by a magistrate, and the petitioner had come before the CA with a revision application.
“The judges in that case ruled that when appellate power is with the Supreme Court, the Court of Appeal cannot exercise revisional jurisdiction,” the ASG argued. ASG Nawanna said that Parliament in drafting the Amendment to the Judicature Act to set up the Permanent High Court, had deliberately kept the Court of Appeal away in the steps between the PHC and the Supreme Court.
“While the Act lays this procedure out clearly, the petitioner is seeking to revise the order by way of a Revision Application under Article 138. As much as appeal is not available at the Court of Appeal, power of Revision is not available to Court of Appeal in this case,” the ASG argued.
He said that the Revision Application seeks to do exactly what an Appeal would also do. “The complaint against the order by the petitioner is that it is erroneous in law. Then the functional nature of this application by the petitioner is of paramount importance – to correct the order made by the PHC. That is what revision does, and that is what an appeal will also do,” ASG Nawanna explained.
“The law says in terms of Section 12 B, that appeal lies with the Supreme Court. In view of absence of jurisdiction your lordships should not entertain this revision application,” the ASG added. Responding to the ASG’s submissions, de Silva PC said revision and appeal could be made against the same order. “Criteria for revision and criteria for appeal are two different things,” de Silva argued. “Appeal is a lesser threshold – revision must shock the conscience of the court, apart from other things there must be extraordinary grounds, all of which I say there is in this case,” Counsel for the petitioner added.
The President’s Counsel said that under Article 138, Power of Revision lies with the Court of Appeal.
“My submission is that the Sepala Ekanayake case was wrongly decided but it is distinguishable because that was a revision from an appeal. There was an appeal from the Magistrate’s Court to the High Court and from there they came by way of revision. As your Lordship know, your Lordships are not bound by it. It is clear that in terms of article 138 the revisionary power is with your lordship’s court,” de Silva insisted.
De Silva was also gleeful that the ASG had helped him to prove that the order by the Permanent High Court rejecting his client’s leave to appeal was wrong, by claiming that the order made on February 11 was in fact appealable in the Supreme Court.
“So I adopt with gratitude my learned friend’s submissions that it is an order that is appealable in terms of Section 12(b) of the Judicature Act. In fact that is why we filed the appeal. And when that was rejected and why we have come to your Lordship’s court,” Rajapaksa’s Lawyer said.