Spate of FRs to prevent arrests: Lawyers, prosecutors weigh in | Sunday Observer

Spate of FRs to prevent arrests: Lawyers, prosecutors weigh in

3 February, 2019

Three more fundamental rights petitions were filed in the Supreme Court last week, with petitioners seeking to prevent their arrest in an investigation into floating armouries run by the controversial security firm Avant Garde.

Former Additional Secretary to the Defence Ministry, Saman Dissanayake, CEO Avant Garde Maritime Services B.F. Egodawela and former Rakna Arakshaka Lanka staffer General (Rtd) Palitha Fernando filed petitions citing imminent infringement of their fundamental rights through ‘arbitrary’ arrest, and seeking an order preventing the petitioners from being taken into law enforcement custody.

The three FR petitions are the latest in a spate of similar legal actions by high profile persons under investigation for alleged corruption and misappropriation of state funds. Prosecutors and law enforcement officials are dismayed by the tactic, which some lawyers claim is a way of bending the law to stymie important police investigations.

The petitioners state that they have sought to uphold their Fundamental Rights from ‘arbitrary arrest…. as they have become reliably informed that there are mala fide moves underfoot to arrest and detain, on spurious matters which cannot and do not withstand objective scrutiny and where the petitioner is to be rendered as collateral damage,”.

Recently former Defence Secretary Gotabaya Rajapaksa, Avant Garde Chairman Nissanka Senadhipathi, former RADA Chairman Tiran Alles and former Director of the Directorate of Military Intelligence Brig. Amal Karunasekera are among the high profile persons of interest in key FCID and CID investigations that have sought redress through imminent infringement applications in Supreme Court

President’s Counsel J.C. Weliamuna, told Sunday Observer that the right to investigate is with the police and the Attorney General’s Department and that this was therefore, a good example where the process is abused by petitioners.

“Now this has created a precedent which was not available previously. From about 2015 onwards there’s been a series of cases with eminent people whenever they were about to be arrested they went to court,” Weliamuna PC said.

Explaining the law behind such applications, the senior lawyer noted that the question was whether there was a violation of fundamental rights.

“Whatever the consequences the court is entitled to make orders, but what is lacking is still there is no final determination where the courts can be bound by. These are interim orders they are asking for but until there is a final determination, the position will not be clarified,” he said.

Irate officials connected with law enforcement said the constant FR cases seeking to prevent arrest were demoralising and hampered investigative work. One official recalled that the tactic had been first used by former President Mahinda Rajapaksa, when he petitioned the Supreme Court in the Helping Hambantota case involving the alleged misappropriation of tsunami funds.

Former Chief Justice Sarath N. Silva who was presiding in the case, upheld his fundamental rights and the investigation ended, the official told Sunday Observer. Arrests are made after proper investigation and evidence to support the decision, the official explained.

A senior prosecutor at the Attorney General’s Department also weighed in on the trend, saying it would only change with a “radical” interpretation of the law. The law gives Police the power to arrest, with sufficient checks and safeguards to prevent the infringement of rights. What those legal provisions seek to achieve is lost with such applications preventing arrest,” the prosecutor said.

“There will be no end to it. Every petty criminal, with the means, will go to court to prevent arrest. What’s the use of investigators labouring hard to find evidence to initiate legal action,” the official said.

However, President’s Counsel Sanjeewa Jayawardena said arrest must be the last line of an investigation because it deals with liberty and a constitutionally entrenched principle of presumption of innocence.

“Even a simple traffic accident where a pedestrian is knocked down and dies, the driver is arrested even though the fault may lie with the other party. For the slightest thing now, especially when it comes to political enemies they resort to arrest.

Then it may result in a conviction or exoneration. What are you going to do about damage caused to that person’s life for a false arrest?” he questioned.

In some cases, someone will make a false complaint and arrest will be made and then they will work backwards, he claimed. “Can any compensation repair the damage caused by arrest and the disgrace a family faces?” Jayawardane PC charged.

The practice in the UK was that flight risk is assessed and if there was potential for investigations to be hampered, suspects can be bound or sureties obtained, but arrests are not made.

“It is important to safeguard an individual’s right against arbitrary arrest,” Jayawardane PC explained.

“If someone makes a false complaint they’ll first arrest the person and then work backwards. Why do you need to waste time and money and seek compensation for malicious prosecution and can any kind of compensation repair the damage that is caused by arrest and the disgrace you and your family will face,” Jayawardane PC questioned.