Shehan Chamika Silva
Raising a preliminary objection in the case filed against former defense secretary Gotabaya Rajapaksa the Defense said today the Special High Court had no jurisdiction to hear the case under the Judicature (Amendment) Act.
At the outset, President’s Counsel Romesh de Silva appearing for Mr. Rajapaksa said when this Bill was proposed to establish the Special High Courts to try certain types of cases, it was challenged before the Supreme Court that it violated Article 12(1) (equality of law) of the Constitution as the establishment of such courts may discriminate the parties in other similar cases. Thereafter, the SC gave cognizance to the fact that such an amendment may unfairly discriminate accused and aggrieved parties in other cases.
However, PC De Silva said in order to justify that argument the Attorney General had submitted written submissions in the SC saying the Amendment was only against certain types of offences, such as serious financial and economic crimes that adversely effect the country’s economy. The AG had said that those types of offences will be dealt by specially trained judges at the Special High Court.
“Our position is that, in this case, the levelled allegations are common wrongdoings filed in courts every day, since this allegation has no repercussion on national economy or finance, therefore, the case should be dismissed from the Special High Court”, the PC said and that he was also of the view that the prosecution could still file the case in the normal High Court for the offence.
He also contended about the direction made by the Chief Justice appointing the Special Trial-at-bar to hear this case. PC De Silva was of the view that the Chief Justice had only looked at the public perception and circumstances when directing on this case and it is the Attorney General who should determine on the facts of the case. Therefore he said that direction was merely a administrative action and that the Chief Justice is not called upon to decide whether a matter is a serious financial crime.
He also moved that his client had been accused of ‘Abetting’ and ‘Conspiracy’, which are not covered in the Schedule 6 of the Act and under the Public Property Act there is no reference to such offences together with the principal offence unlike the Money Laundering Act which specifically has provisions for abatement and conspiracy.
He said abetting and conspiracy were brought in by the prosecution under the sections 102 and 113 of the Penal Code, and that there is legal impediment to bring in such offences combined with the Public Property Act under the schedule 6 of the Judicature (amendment) Act.
President’s Counsel Anil Silva said under the Section 12(a) of the Judicature (amendment) Act, there is an uncertainty on the definition over what exactly it meant as ‘serious financial crime’. Therefore he said in such an ambiguous situation the Court has no jurisdiction to decide on the offences.
Deputy Solicitor General Dileepa Peiris requesting further time to respond to the preliminary objection on the jurisdiction specifically informed the Trial-At-Bar that the prosecution is concerned by the atmosphere of the Court house and its premises as several apparent private guards standing here and there. He said there was concern over some individuals who are not appearing for the accused in the case making statements to the media after the case at the court premises as those things can adversely affect the mind of the witnesses of the prosecution. DSG said he will make comprehensive submission with regard to that on the next date seeking appropriate court orders.
The former defense secretary and six others were indicted on charges of misappropriating Rs.49 million in connection with the construction of the D. A. Rajapaksa Museum and Memorial in Medamulana using LRDC funds.
Trial-at-Bar Bench comprising High Court Judges Sampath Abeykoon (President), Sampath Abeykoon and Champa Janaki Rajaratne will resume the hearing on January31, 2019 with the response of the Attorney General with regard to the preliminary objection raised by the defense.