Gota’s D.A. Rajapaksa trial delayed again | Sunday Observer

Gota’s D.A. Rajapaksa trial delayed again

Lawyers say ex-Defence Secretary needs six weeks to recuperate from medical treatment in Singapore, after two CA rulings last week cleared the way for trial:

The Court of Appeal issued two rulings last Tuesday (18), dismissing separate applications filed by former Defence Secretary Gotabaya Rajapaksa against the Permanent High Court at Bar and clearing the way for his long-awaited trial into the alleged misappropriation of state funds to begin the very next day.

But early on Wednesday (19), Rajapaksa’s legal team, led by President’s Counsels Romesh De Silva and M. Ali Sabry marched into the Permanent High Court with a new plan. Their client, the former Defence Secretary has been in Singapore for medical treatment since May. He was due to return to the island on June 2, but his lawyers told court that he had been held back for urgent treatment. Last week, they told the three judges of the Permanent High Court that Rajapaksa would have to remain in Singapore for six weeks from June 2, to convalesce.

Rajapaksa was served indictments in the D.A. Rajapaksa museum case in September 2018. The Permanent High Court at Bar, set up by an amendment to the Judicature Act specifically to expedite trials into financial crime cases, has been ready to hear the trial since at least February 2019, when preliminary objections raised by Rajapaksa’s lawyers were rejected by the three Judges.

But Rajapaksa’s attorneys filed a spate of new court cases to try and overturn the order. In addition to two applications filed in the Supreme Court, the legal team also sought judicial remedy by filing two applications in the Court of Appeal, even though the question of jurisdiction loomed large.

First, Romesh De Silva PC and his team fought a Writ application in the CA against the three Permanent High Court judges hearing the case, seeking to quash their order rejecting Rajapaksa’s objections. Soon afterwards, Rajapaksa also filed a Revision Application at the Court of Appeal. A revision is the regular process whereby a higher court can revise an order made by a lower court if the order can be proved to be erroneous in law.

With the 2018 amendment to the Judicature Act clearly stipulating that appellate power over the Permanent High Court at Bar lies with a five judge bench of the Supreme Court, as with all High Court trials at bar, the applications were seen in Hulftsdorp as a last ditch bid by Gotabaya Rajapaksa’s legal team to stall his trial into the alleged misappropriation of state funds.

The former Defence Secretary, who has repeatedly announced and emphasised that he intends to run in presidential elections due later this year, stands accused of misappropriating tens of millions of rupees belonging to the Land Reclamation and Development Board to build a memorial for his late parents in Medamulana, Hambantota in 2013.

On Tuesday, in separate 18 page and 30 page rulings, Court of Appeal Justices Achala Wengappuli and Arjuna Obeysekera dismissed both Rajapaksa’s petitions on the basis that the CA had no jurisdiction to hear the cases since the Permanent High Court at Bar was not a “court of first instance”.

While High Court orders and judgments may be appealed to the Court of Appeal, when a High Court sits at bar – with three judges presiding, appellate jurisdiction lies only with a five-judge bench of the Supreme Court. A famous recent case in point was the Bharatha Lakshman Premachandra murder trial when former MP Duminda Silva and five others were pronounced guilty by a High Court Trial at Bar. That conviction was subsequently upheld by a five judge bench of the Supreme Court led by former Chief Justice Priyasath Dep.

Justices Wengappuli and Obeysekera ruled last week that the same was true of the Permanent High Court at Bar, set up by amendment to the Judicature Act.

Counsel for the petitioner, arguing the Writ petition, insisted that the Permanent High Court was a court of first instance.

In both cases, the judges dismissed the petitions without cost.

Two separate applications seeking to overturn the orders made by the Permanent High Court are also pending in the Supreme Court. However, because both applications were filed at the Supreme Court 28 days after the order was pronounced, it remains to be seen whether the Supreme Court will entertain the applications.

Section 12B (1) of the amended Judicature Act states that “an appeal from any judgment, sentence or order pronounced at a trial held by a Permanent High Court at Bar under section 12A, shall be made within twenty eight days from the pronouncement of such judgment, sentence or order to the Supreme Court and shall be heard by a Bench of not less than five Judges of that Court nominated by the Chief Justice.”