The Presidential Solution: Gota’s only real way out | Sunday Observer

The Presidential Solution: Gota’s only real way out

28 July, 2019

The date fixed to start the trial before the Permanent High Court at Bar of Gotabhaya Rajapaksa and six others for criminal misappropriation of Rs. 33.9 million in public funds has come, and gone. Last Friday (26), following an interim order from the Supreme Court, the High Court put the brakes on the trial, postponing it until August 30.

The Supreme Court order, delivered by Justices Buwaneka Aluwihare, Sithampbarampillai Thurairaja and Gamini Amarasekara, prevented evidence from being led in the High Court until October 1, 2019. With the original indictment having been filed on August 20, 2018, this most recent stay order means that Rajapaksa will have successfully delayed the start of his trial at the Permanent High Court for over one year.

The Permanent High Court at Bar was set up by the 2018 Judicature (Amendment) Act, designed to speed up trials and reduce systemic delays in complex financial crimes cases. Parliament hoped that dedicating special courts with dedicated three-judge benches to carefully selected cases of public impact would ensure that justice was done under otherwise challenging circumstances. But legislators clearly did not bet on the former Defence Secretary’s penchant for writs, revisions and appeals.

In September 2016, Rajapaksa was charged by the Bribery Commission along with NissankaSenadhipathi and others, over an Rs. 11.2 billion corruption charge connected to the Avant Garde floating armoury scandal. That case dragged on in the Magistrate’s Court with typical delays for nearly two years before trial was set.

On the eve of the trial, Rajapaksa filed a revision application in the Court of Appeal. On June 20, 2018, he was able to obtain an order from that court stopping the corruption trial from proceeding. After over a year, the verdict in that Court of Appeal challenge is slated to be delivered on August 30, 14 months after the corruption trial was blocked from proceeding.

These orders are not unique. Through a review of superior court records and interviews with several senior lawyers, Sunday Observer has confirmed that the former Defence Secretary has secured more orders from the courts immunizing him from criminal proceedings than any Sri Lankan in history.

On May 13, 2015, the Supreme Court made an order preventing his arrest by the CID, FCID or Bribery Commission, after Justice Buwaneka Aluwihare recused himself from hearing Rajapaksa’s challenge due to a personal conflict. A month later, on June 8, the Supreme Court narrowed the scope of its order. Rakapaksa’s arrest was only forbidden in respect of the “MiG Deal” investigation by the FCID, the Avant Garde scandal under investigation by the CID and Bribery Commission, and Bribery Commission investigations into the lease of aircraft by Mihin Lanka and suspected share price manipulation at Lanka Hospitals.

Indeed, at the tail end of even the FCID investigation into the D.A. Rajapaksa monument scandal, Rajapaksa secured an order from Court of Appeal Justice L.T.B. Dehideniya preventing his arrest in that matter too.

As he remained beyond the reach of the long arm of the law, Rajapaksa’s attorneys in the United States have been working hard to demonstrate to courts in that country that it is indeed possible to hold Gotabhaya Rajapaksa to account in Sri Lankan courts. This, despite his arrest being prevented in at least seven criminal investigations, and trials against him in the Magistrates Court and High Court being halted by both the Court of Appeal and the Supreme Court.

With no sense of irony, Rajapaksa tried to make this point in US courts about judicial independence by tendering a sworn declaration by a former Chief Justice of the Supreme Court, Asoka De Silva. Retired CJ’s are barred from practicing law without the direct permission of the President, but that did not stop De Silva from taking up a brief in defence of the former secretary’s civil murder case filed by Ahimsa Wickrematunge in California on behalf of her slain father.

Wickrematunge’s response (excerpted separately on this page) only served to highlight the stakes of Rajapaksa’s proposed presidential candidacy. After her arguments against the claim that Rajapaksa could be given a fair trial were submitted to the California courts on July 15, the court made order dismissing Rajapaksa’s motion to dismiss the case “as moot”.

But as the near dozen cases against Gotabhaya Rajapaksa inch closer and closer to starting, and superior court remedies exhaust themselves, ascending to the executive presidency may be the only permanent solution by which the former Defence Secretary can avoid standing trial.

Article 35(1) of the Constitution states that “while any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity.”

In the absence of immunity, between the MiG Deal, Avant Garde scandal, D.A. Rajapaksa memorial saga, Keith Noyahr abduction, disappearance of Prageeth Eknaligoda, Lasantha Wickrematunge murder, Mihin Lanka aircraft lease fraud and Lanka Hospitals share price manipulation, to name a few, Rajapaksa may be in and out of court with his lawyers for many years to come.

In the MiG Deal alone, the FCID has exposed that middlemen kept an over 50% mark up on a $15 million arms purchase that the then Defence Secretary misled cabinet into believing was a bona-fide inter-government transaction. In reality, according to the FCID, the swindle was masterminded by Rajapaksa’s first cousin, UdayangaWeeratunga, whom he introduced to the air force commander at the very outset of the deal. Rajapaksa’s role in the case remains unclear.

With regard to the murder of Lasantha Wickrematunge, white van abduction of Keith Noyahr, assault on Upali Tennakoon and other coordinated attacks on journalists, the CID has already exposed to a high degree of certainty that these attacks were orchestrated by the Tripoli Platoon of the Directorate of Military Intelligence, which investigators say, in Colombo, functioned under the then Defence Secretary. Rajapaksa has denied any knowledge or involvement of the Tripoli team, and has said the attacks on journalists were the work of his estranged wartime army commander Sarath Fonseka.

One of the most critical obstacles to Rajapaksa’s much vaunted presidential escape hatch to his legal woes is the issue of his US citizenship. The presidential hopeful gave up his Sri Lankan citizenship in 2003 when he swore his oath of allegiance to the United States. He only applied to regain Sri Lankan citizenship in late November 2005, after his brother Mahinda Rajapaksa was elected President and he was offered the post of Defence Secretary.

Per the Constitution, as amended by the 19th Amendment in 2015, “a citizen of Sri Lanka who is also a citizen of any other country” is ineligible to contest the presidency. After years of prevaricating, Rajapaksa’s lawyers last month told the California courts that he had finally filed his application to renounce his US citizenship on April 17, 2019. However, it is not clear how long the complex inter-departmental American bureaucracy may take to finish processing his renunciation application and give Rajapaksa the Certificate of Renunciation that he will require to regain full Sri Lankan citizenship under domestic law.

Without this certificate from the US government, Rajapaksa would have to risk his entire party’s presidential ambitions on a gambit that his candidacy will not be rejected by the Elections Commission and derail the Podujana Peramuna entirely.

Especially in the wake of the damage done to Mahinda Rajapaksa’s reputation and electoral credibility after the events of October 26 last year, few in the Podujana Peramuna are eager to risk their party’s future on how the Elections Commission or Supreme Court will interpret the technicalities of American citizenship, making it unlikely that the former Defence Secretary will receive his party’s nomination without his renunciation certificate firmly in hand.

Indeed, if Gotabhaya Rajapaksa’s presidential ambitions are dashed by his citizenship choices, it is very likely that the superior courts have not yet seen the last of the former Defence Secretary, especially as his counsel make preparations to find ways of blocking the many pending cases against him.


Excerpts from Ahimsa Wickrematunge’s response to Rajapaksa’s gambit to dismiss her lawsuit

“The Rajapakas’ power over the judiciary was further demonstrated when the Chief Justice of the Supreme Court was impeached in 2013 after issuing a series of decisions against the government. Her impeachment by Parliament – led by Chamal Rajapaksa as Speaker – was confirmed by the President, Mahinda Rajapaksa. The President then appointed the Attorney-General, Mohan Peiris, a close ally of the Rajapaksas, as the new Chief Justice of the Supreme Court. The International Bar Association found serious procedural shortcomings in the impeachment proceedings and stated that the events undermined confidence in Sri Lanka’s already fragile rule of law.”

“Following the presidential election of 2015, the government of President Maithripala Sirisena announced an ambitious transitional justice plan that included calls for criminal accountability for human rights abuses committed during the Rajapaksa regime. However, despite some apparent advances in a few human rights cases, nearly all of the cases against military officials or Rajapaksa for human rights abuses have since stalled due to political pressures and witness intimidation.”

“Witnesses are also reluctant to come forward in politically sensitive cases because they fear reprisals. During the Rajapaksa regime, victims, witnesses, and lawyers were frequently intimidated or attacked. Due to Sri Lanka’s failure to implement an adequate victim and witness protection system, witnesses continue to face intimidation to this day. Although a new witness protection law was enacted in 2015, it only applies to witnesses in criminal cases and has been widely criticized as unsuitable for protecting witnesses in cases against public officials. The lack of an effective witness protection mechanism has contributed to a high level of impunity and has limited progress in the CID’s investigation into Lasantha’s killing. The possibility that Gotabhaya Rajapaksa will become Sri Lanka’s next president has further dissuaded witnesses from participating in the investigation related to Lasantha’s killing, as well as other investigations relating to Rajapaksa.”