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By Chitra Weerarathne-
May 13, 2015
The Supreme Court yesterday granted interim relief to former Defence Secretary, Gotabhaya Rajapaksa, by restraining the respondent authorities from arresting him until the final determination of the fundamental rights violation petition filed by the former frontline combat officer.
The respondents cited in the rights violation petition are the Prime Minister, the entire Cabinet of Ministers, the IGP, the Director CID, the Financial Crimes Investigations Division, and the Attorney General. By this order the FCID, the IGP and the CID, are restrained from arresting the petitioner.
Leave to proceed with the petition was granted.
The respondents were given time to file objections.
The petition will be argued on October 6, 2015.
The petitioner has complained of an imminent illegal arrest by the FCID on the order of the National Executive Committee.
Counsel for the petitioner Romesh de Silva PC told the Supreme Court that the petitioner was primarily responsible for ending the 30-year-old war. The nation owed him a debt of gratitude for that. He worked night and day with dedication to end the war. Anybody with an iota of patriotism would not attempt to arrest him. Patriotism should come before petty partisan politics. The petitioner was also responsible for getting Colombo and its environment cleaned and improved.
The Cabinet Spokesman had recently said that the National Executive Committee had directed the Financial Crimes Investigation Division to arrest the petitioner on an alleged false accusation. The Cabinet Spokesman's statement had been published in 'Dinamina'. It had not been denied. The gazette which created the FCID was ultra vires. Everything that flew from that gazetted was ultra vires. The gazette was politically motivated. The gazette enabled a police division to investigate crimes subject to cabinet decision. Hence, a new police division was set up subject to cabinet supervision. Only the IGP was empowered to investigate crimes. He could not be subjected to Cabinet decisions, the President Counsel pointed out.
PC De Silva submitted that the FCID had been established on January 15, 2015 on a Cabinet decision. The gazette had only four paragraphs. The Cabinet could not decide to set up a police division. It was illegal and politically motivated from the inception. The IGP could not transfer his powers to the Cabinet of Ministers to establish a unit to investigate and arrest people. In such a situation the IGP acted as a puppet, Counsel de Silva contended.
He said that a secretariat under the patronage of the Prime Minister had been enabled to investigate alleged crimes. The gazette was ultra vires. The FCID could not be set up that way.
The investigation of Crimes was referred to a secretariat under the patronage of the Prime Minister. It was political malice, the counsel argued.
The President’s Counsel said after the FCID had been started the petitioner received a letter dated May 8, 2015. The FCID wanted the petitioner to visit it to make a statement. He was asked to come on May 12, 2015, for the investigations. They wanted to investigate a matter that occurred in 2006. He was not given enough time to prepare the answers. That was arbitrary.
The issues, he said, were regarding the lease of aircraft by Mihin Lanka, the purchase of MIG 27 Aircraft for the Sri Lanka Air Force to fight the war and also pertaining to the alleged manipulation of shares of Lanka Hospitals. Neither the petitioner nor his family had a single share. He was the government nominee in a public company. The floating armoury was carried in the ship 'M.V. Mahanuwara', to curtail piracy, in the seas off Somalia. The United Nations Convention on Law of the Sea wanted Sri Lanka to assist in fighting the menace.
Rajapaksa was being called to FCID to be arrested. His Basil went there. He was not allowed to return home. The special unit was politically biased, Counsel de Silva said.
He said the Air Force had wanted to purchase the fighter jets, long before Rajapaksa became the Defence Secretary. The Cabinet had then decided to purchase those fighter aircraft. The money had been paid to a recipient recommended by the Ukrainian government. Anyone who visited the FCID was arrested.
The Counsel for the petitioner said the right to life was the most basic fundamental right. Right to liberty went hand in hand with that. A suspect should be charged in Court and he should be asked whether he is guilty or not guilty. He might be then put on trial before a court of law. If he was evading trial or interfering with witnesses he might be arrested. The liberty could be deprived only on legally prescribed grounds.
The impounding of his passport was also wrong.
Gotabhaya had always cooperated with investigators and he should not be arrested, the counsel added.
The PC pointed out that already ten who visited FCID had been arrested. The petitioner wanted the undue arrest stopped. The unit which had been created was ultra vires and could not arrest people. The unit was headed by the Prime Minister. The investigations were carried outside the police.
The petitioner was willing to go before the normal police to give a statement, counsel added.
Deputy Solicitor General, Arjuna Obeysekera said the IGP was empowered under section 55 of the police ordinance to frame orders to be observed by the police officers. The setting up of FCID was done with the approval of the Cabinet to set up a separate unit to investigate serious crimes including serious financial crimes. Investigating crime was the primary duty of the police. They could set up especially skilled units to investigate various forms of crimes. It was within the powers of the IGP.
The DSG said paragraph (3) allowed the FCID to function under a DIG under the supervision of the IGP. The IGP had not abdicated his power to the institution or any person. The complaints were forwarded to the IGP by the Cabinet Secretariat. The IGP only investigated. The PM was only the head of the Cabinet sub-committee. There was nothing wrong in that. The IGP had the overall supervision of the FCID. The investigations were done only under the purview of the IGP.
The IGP or the police department did not take orders from the National Executive Committee, the Deputy Solicitor General said. The NEC could not direct the police department which was independent. The police did not make arrests at the behest of any politician, he maintained.
Romesh de Silva PC appeared with M. U. M. Ali Sabry, PC and Sugath Caldera for Gotabhya Rajapaksa, the former Defence Secretary, who is the petitioner.
Deputy Solicitor General Arjuna Obeysekera appeared for the Attorney General.
The Bench comprised Justice Eva Wanasundera and Justice Sarath de Abrew, Justice Buwanaka Aluwihare declined to hear the petition.
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