Gota overcomes final legal hurdle ahead of poll | Sunday Observer

Gota overcomes final legal hurdle ahead of poll

With the stay order extending past Election Day, the trial will be on ice for the duration of presidency, if SLPP candidate wins Nov 16 poll

With the two appeals on the D.A. Rajapaksa case being pushed back as far as December this year and February next year by the Supreme Court, SLPP Presidential candidate Gotabaya Rajapaksa will be free from the hassle of facing trial for corruption until the conclusion of the Presidential Election next month.

When the appeals on the Writ application as well as the revision application was taken up before the Supreme Court bench comprising Justices Buwaneka Aluwihare, PC, Murdu Fernando, PC and Gamini Amarasekara, on Friday, October 11, both matters were re-fixed to be heard on another date. The appeal on the writ would come up on December 20, while the appeal against the revision application decision would come up again in February next year.

With the next hearing due a month after the Presidential elections, if Rajapaksa wins on November 16, the case in which he is the first accused, indicted for allegedly embezzling Rs 33.9 million in State funds, will be on ice for the duration of his term of office. In other words, Friday’s mention could become the last Sri Lanka hears of the D.A. Rajapaksa museum trial for five years or even a decade.

When indictments were served on the former Defence Secretary Gotabaya Rajapaksa, on September 10, 2018, prosecutors hoped to commence daily hearings of the matter by November last year.

He and six others were indicted at the Permanent High Court at Bar, for the misappropriation of State funds to build a memorial for his late parents in Weeraketiya, Medamulana.The Permanent High Court at Bar was specifically set up to try high profile cases such as money laundering, bribery and large financial crimes, dishonest misappropriation of property, and criminal breach of trust by public servants daily. The court set up under the Judicature (Amendment) Act No. 9 of 2018 provides expeditious hearing of cases.

Under section 12A(5) of the Act, cases at the Permanent High Court at bar must be heard on a daily basis and disposed of, which would result in reducing long gaps during case dates.

As per Section 12B of the Act any appeal on a decision by the Permanent High Court will only stand before a five-judge bench in the Supreme Court. The same applies to trials-at-bar conducted in regular High Courts.

But despite the appeals process from the Permanent High Court being clear, Rajapaksa’s legal team swamped the court with five appeals which have resulted in the trial being delayed by over a year.

When Rajapaksa and six others were handed indictments for misappropriation of State funds during the period September 2013 to February 2015 where LLRDC funds were used to construct the D.A. Rajapaksa Memorial and Museum; for committing the offence or aiding and abetting to commit the offence of misappropriation and criminal breach of trust under the penal code.

The second offence drafted in the indictment relates to misappropriation of LLRDC funds amounting to Rs 5.98 million, between the period November 2014 and February 2015 to construct the D.A. Rajapaksa Memorial and Museum. Soon after indictments were served, lawyers for the accused raised several preliminary objections. In February this year, the Permanent High Court (PHC) rejected the preliminary objections, explaining the reasons for its dismissal in depth and fixed the matter for trial. Rajapaksa opted to appeal the PHC ruling refusing preliminary objections. Instead of filing papers to the Supreme Court, they filed papers before the PHC. The court rejected the appeal. Soon afterwards, two actions were filed in the Court of Appeal simultaneously. One was in the form of a writ application while the other was a revision application.

The revision filed by Rajapaksa sought the second-highest appellate court in the country to reconsider the order of the PHC refusing appeal on the preliminary objections.

The writ application not only sought to quash the order of the PHC. It went further, naming the judges of the PHC by their name and seeking an order preventing Trial-at-Bar bench comprising High Court Judges Sampath Abeykoon (President), Sampath Wijeratne and Champa Janaki Rajaratne and the Permanent High Court-at-Bar from taking any steps relating to the hearing till the Court of Appeal gave a ruling.

Both these cases were thrown out from the Court of Appeal for want of jurisdiction two months ago, since the proper process to appeal a trial-at-bar order, was through a five-judge bench of the Supreme Court.

While these cases were being considered Rajpaksa’s legal team opted to exercise their only remedy available, to appeal to the Supreme Court challenging the order as well as the judicial power of the PHC to hear the matter.

The Supreme Court’s five-judge bench comprising Justices Sisira de Abrew, Priyantha Jayawardena, Prasanna Jayawardena, Vijith Malalgoda and L.T.B. Dehideniya dismissed the case in September this year. In other words, a five-judge bench of the Supreme Court had determined that the Permanent High Court-at-Bar was correct to dismiss the preliminary objections filed by Rajapaksa’s lawyers, and the trial could now commence.

But this was not to be, because Rajapaksa’s lawyers insisted on pursuing the old remedy, already dismissed for jurisdictional issues by the Court of Appeal. The Court of Appeal orders dismissing the writ and revision applications – on the same preliminary objections dismissed by a five-judge bench of the Supreme Court – are being appealed at the Supreme Court.

On July 25, a bench led by Justice Buvaneka Aluwihare issued another stay order on the trial set to begin at the Permanent High Court until the appeal on the writ application dismissed by the Court of Appeal was heard. The stay order was to remain in effect until October 1. This meant that even after the five-judge bench of the Supreme Court rejected Rajapaksa’s appeal against the PHC order, trial could still not begin because of the pending appeal hearings.

On October 3, when the case came up, it had to be postponed because the counsel for one accused was unavailable. Additional Solicitor General Milinda Gunatillake insisted the case be heard before October 15, when trial of the D.A. Rajapaksa monument case was set to begin. The bench was also insistent on taking up the case before the scheduled trial date. Date for argument was fixed for October 11.

When the case came up on Friday, it had to be kept down while the bench dealt with several other matters that had to be heard. Despite ASG Gunetillake’s efforts, with other matters dragging until 2 p.m., the case had to be postponed again. Based on counsel availability, the bench presided over by Justice Buvaneka Aluwihare, set the hearing for December 20. The stay order on trial would continue until that day.

Friday’s bench comprised two Supreme Court judges who had previously recused themselves from a case involving Gotabaya Rajapaksa.

Justice Aluwihare became the first to recuse himself in the fundamental rights application Rajapaksa filed to prevent his arrest in the MiG-27 deal investigation conducted by the FCID in 2015. In June 2018, Justice Murdu Fernando also recused herself from hearing the same case.