The Court of Appeal last week ordered the discharge of the Sri Lanka Podujana Party (SLPP) Presidential hopeful, Gotabaya Rajapaksa and seven others in a Rs. 11.2 billion corruption case involving the Avant Garde floating armoury. The case had been filed in the Colombo Chief Magistrate’s Court in 2016 by the Commission to Investigate Allegations of Bribery and Corruption (CIABOC).
The Court of Appeal judgment was on technical grounds, and left the door open for the case to be refiled, stating that “this determination will not act as a bar to initiate a criminal prosecution afresh.”
The case is one of seven legal actions filed in the superior courts by the former defence secretary to forestall action against him by the criminal justice system. Since May 2015, Rajapaksa has filed two cases to prevent his arrest, and five cases to prevent trials against him from proceeding.
The original case was filed by the CIABOC alleging that Rajapaksa’s sole decision to take away the maritime security service providing operation from the Sri Lanka Navy and award it to the private security business operator Avant Garde Maritime Services (AGMS) Limited was a corrupt decision.
It resulted in the Sri Lanka Navy losing a multi-million dollars operation which brought about a great revenue to the government. Instead, it resulted in magnificent profits being earned by a private company, AGMS.
In May 2015, Rajapaksa petitioned the Supreme Court to prevent his arrest for the MiG Deal, Mihin Lanka frauds, Avant Garde floating armoury scandal and other criminal investigations. The court made an order preventing his arrest, and Rajapaksa has for four years since successfully postponed the case from being finally heard and disposed of. Three Supreme Court judges, Buwaneka Aluwihare, Eva Wanasundera and Priyantha Jayawardena had recused themselves from hearing the case. Wanasundera recused after having granted the initial order preventing his arrest.
In his affidavit to the Supreme Court in May 2015, Rajapaksa stated that “if there is a case against me on any of the aforesaid charges, I am ready and willing to face the case and defend myself and I am confident that I will be acquitted by any court.”
He said the application was “in no way or manner intended to prevent any action being instituted against” him.
However, when the Bribery Commission charged him with corruption in September 2016 on the Avant Garde scandal, the former defence secretary changed his approach. His attorneys filed objections to the case proceeding, arguing that the case had been signed by the Director-General of the Bribery Commission and not by the Commissioners.
In lengthy submissions, Presidents Counsel Romesh De Silva assembled the laws that govern the bribery commission and several amendments, comparing the English and Sinhala texts and showing the courts that according to an error in translation when the law was passed by Parliament, the practice followed by the Bribery Commission in filing corruption cases over the years under the signature of the Director-General was technically illegal, and that cases should be signed by the Commissioners themselves.
It was this argument that the Court of Appeal examined and agreed with last week, thanking De Silva for his efforts in spotting the technical mistake, and stating that the Bribery Commission could file the case again using the proper procedure “if the Commission is of the view that the investigation discloses the commission of an offence under the Bribery Act and directs the Respondent to institute proceedings before the appropriate Court. If that court is the Magistrate’s court, then the Commission must sanction the institution of such proceedings by a written communication to that effect, addressed to that Court,” the order states.
By ‘discharging’ instead of ‘acquitting’ the accused, the court has left Rajapaksa and the other accused vulnerable to a fresh prosecution based on the facts of the case, which CIABOC painted as a corrupt decision which resulted in loss to the Sri Lanka Navy and profit to a friendly private company.
An ‘acquittal’ would require a court to have examined the merits of the case, and not just the technical details of how it was filed. After an acquittal, an accused person cannot be retried on the same facts unless the acquittal is revised by a higher court. The five other cases filed by Rajapaksa from November 2015 onwards were all focused on preventing first his arrest, and subsequently his trial, in relation to the alleged misappropriation of public money to construct a mausoleum and monument for his parents, including former MP D.A. Rajapaksa. The investigation is known as the ‘monument case’.
In November 2017, Rajapaksa filed a writ application in the Court of Appeal to prevent his arrest by the FCID in connection with the monument case.
The Attorney-General was not given notice to appear and the case was taken up ex-parte on November 28, 2017 before Justices L.T.B. Dehideniya and Shiran Gunaratne. The two judges heard Rajapaksa’s arguments, presented by President’s Counsel Romesh de Silva, and granted an order blocking his arrest.
The following year, in August 2018, the Attorney-General indicted Rajapaksa and six others in relation to the monument case before the Permanent High Court at Bar. That trial has yet to begin over a year later, as the accused, including Rajapaksa, have been successful in their legal maneuvers to delay the trial.
Since the indictment was filed, Rajapaksa has filed four cases before the Supreme Court and Court of Appeal to prevent the trial from starting.
On June 18 this year, the Court of Appeal rejected the two applications filed by Rajapaksa in that court on the grounds that the court had no jurisdiction to hear appeals or writ applications arising from the Permanent High Court at Bar.
The Judicature Amendment Act that set up the new court stated that all appeals and revisions from that court must be heard by a five-judge bench of the Supreme Court.
Rajapaksa then filed two applications in the Supreme Court. One was an appeal of the Appeal Court’s ruling that they lacked jurisdiction to hear a writ pertaining to the Permanent High Court at Bar.
The other was a revision that was taken up before five judges and dismissed by the court on Wednesday, September 11. However, the fate of the trial, which was due to start on October 15, remains uncertain. On July 25, Supreme Court Justices Buwaneka Aluwihare, S. Thurairaja and E.A.G.R. Amarasekara granted an order preventing the trial from starting until October 1, when the case next comes up before the Supreme Court.
Meanwhile, the fate of the corruption case involving the Avant Garde floating armoury remains unclear. While the Bribery Commission is bound to discharge Rajapaksa and the other accused next week, it remains to be seen whether the commission will refile the case as suggested by the Court of Appeal or seek alternate legal remedies.
The Bribery Commission had calculated the loss to the state from Rajapaksa’s decision to take the maritime business away from the Navy in 2011 and give it to Avante Garde until 2015 amount to over Rs. 11 billion.
Since the government halted the Avant Garde operations after coming to power in 2015 and handed over operations to the Navy as they were before the contract was given to Avant Garde by Rajapaksa, the maritime security business has been immensely profitable to the state. According to Navy sources, the profits generated from 2015 to date approach Rs. 10 billion.