Lawyers for Gotabaya Rajapaksa filed a fresh appeal at the Supreme Court last month, in a bid to stall the D.A. Rajapaksa Museum trial at the Permanent High Court (PHC) at-Bar, prompting another complaint from the Attorney General that the Department had not been issued notice in yet another case involving the former Defence Secretary.
Senior Deputy Solicitor General (SDSG) Milinda Gunethilleke complained about the failure by Rajapaksa’s lawyers to issue notice on the Attorney General when the former Defence Secretary’s writ petition came up for argument last Thursday (6).
Gotabaya Rajapaksa’s lawyers are embroiled in various types of litigation in the superior courts to stall his trial, now scheduled to begin on June 19.
Romesh de Silva PC and his team, appearing for the former Defence Secretary have filed (a) an appeal in the Supreme Court against the PHC order rejecting their preliminary objections (b) a writ mandamus and certiorari seeking to quash the same order in the Court of Appeal and (c) a revision application at the Court of Appeal seeking to reverse the ruling given by the PHC, dismissing Rajapaksa’s lawyers leave to appeal their order against the preliminary objections.
The latest appeal has been filed at the Supreme Court, arising from another preliminary objection raised on behalf of the sixth accused, which Rajapaksa’s counsel associated with, on the misjoinder of offences in the indictments served. The PHC dismissed the objection.
SDSG Gunethilleke objected to not being served notice in the latest appeal by Rajapaksa’s counsel in the Supreme Court, which was filed on May 8. Since he was not privy to the facts in the Supreme Court appeal because AG had not been served notice, Gunethilleke reserved the right to make full submissions in the writ application subject to the claims made in the freshly filed petition filed in the higher court.
The new appeal will be taken up at the Supreme Court on June 17. Rajapaksa’s lawyers are seeking through the petition to stay the proceedings of the PHC trial into the D.A. Rajapaksa museum case inter alia.
It has become standard practice in cases involving the former Defence Secretary and his legal team, for the Attorney General to complain in court that they had not been served notice to appear, even though they were cited as respondents.
On March 8 this year, when the writ application filed by Rajapaksa’s lawyers against the PHC was taken up for support before Court of Appeal Justices Deepali Wijesundara and Arjuna Obeysekara, the Attorney-General’s Department was not given prior notice of the application. However, officers of the Department rushed to court having got wind of the application and obtained a copy of the petition in time for the case.
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.
The practice of failing to properly serve notice began, legal observers noted, when 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.
The former Defence Secretary stands accused of misusing public property to construct an elaborate memorial for his parents in Medamulana, 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. Rajapaksa and six others were served indictments in the special court in September 2018. Rajapaksa is yet to enter a plea in the trial.
On February 11, the Permanent High Court at Bar in a 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, clearing the way for trial to proceed.
Rajapaksa’s latest appeal bearing number SC Misc. 5/2019 is on fresh grounds, his lawyers informed the court.
Arguments on behalf of the Petitioner – Rajapaksa and the state were heard before the Court of Appeal bench comprising Justices Achala Wengappuli and Arjuna Obeysekara.
President’s Counsel for Rajapaksa argued that they had come to court seeking a writ on several grounds. He said they were seeking a writ of Mandamus compelling the original court – the PHC – to transfer the appeal filed before them to the Supreme Court, and a writ of Certiorari quashing the decision of the original court which rejected the appeal.
“The court had only to forward the appeal to the Supreme Court and the Supreme Court could have rejected the appeal,” he said.
Secondly, De Silva PC said, that the order had breached the rules of natural justice because Rajapaksa’s counsel had not been heard prior to making that order which was made in chambers.
“Further the order is unreasonable and arbitrary because the court analysed its own order and came to the conclusion that the appeal could not be filed. The same judges should not have analysed the order. De Silva PC argued.
SDSG Gunethilleke said that the law relating to the appeals from the Special High Court is set out by the Judicature (Amendment) Act No 9 of 2018, which states that the appeal from the Special High Court is directly to the Supreme Court before a five-judge bench.
Secondly, he argued that what needs to be considered by the court was whether the Court of Appeal has jurisdiction to hear and determine this writ application since the petitioner has already lodged an appeal in respect of the order of the Special High Court in the Supreme Court.
“The law has made clear provisions with regard to judgments and orders and the law has made special provisions not just for the matter to be referred to the Supreme Court but for the matter to be heard by five judges. I would submit that it is in order to dispose of the issues with finality and expeditiously; so that there will be one appeal and it will be heard by a five-judge bench and that matter will end,” SDSG Gunathilleke argued.
The SDSG said that the direct appeal to the Supreme Court was the correct route that should be pursued and not a writ.
The writ petition will be heard again tomorrow before the Court of Appeal.