The Supreme Court today issued an interim order staying the arrest of former defense secretary Gotabaya Rajapaksa and granted leave to proceed in the fundamental rights petition filed by him.

A two-judge bench comprising Justices Eva Wanasundera and Sarath De Abrew issued the interim order having heard submissions by counsel representing Mr. Rajapaksa and the Attorney General.

When the matter was taken up for inquiry at 10.45 a.m., Supreme Court Judge Buwaneka Aluwihare who was appointed to hear the case with the other two judges stepped down, citing personal reasons. He said he was unable to hear the case, at which point Justice Eva Wanasundera sent the file to the Chief Justice for his direction.

Counsel Romesh De Silva PC said he would remain in courtroom 502 until CJ’s direction was received. The direction was delivered within five minutes. He directed Justice Eva Wanasundera and Sarath De Abrew to hear the petition.

Thereafter after an interval in which other cases were taken up, Justice Buwaneka Aluwihare recused himself from the bench at 12.30 p.m. The case resumed soon after with Counsel Romesh De Silva PC making his submissions.

He said that the Financial Crimes Investigation Division (FCID) was ultra vires and all actions flowing from it are therefore illegal. Mr. De Silva said the FCID had arrested 10 people so far with each of them being called in for questioning and then arrested. Justice Wanasundera asked Counsel whether any person who had visited the FCID had walked out without being arrested.

“No. Not to my knowledge” he replied, having said that Mr. Rajapaksa himself had visited the FCID previously.

Counsel said the move to arrest Mr. Rajapaksa was politically motivated and provided paper cuttings of Daily Newspapers which stated that the “National Executive Council had unanimously decided to arrest” Mr. Rajapaksa.

“The Cabinet Spokesman Rajitha Senaratne has said the National Executive Council has decided to arrest Mr. Rajapaksa. How could he have said that? This newspaper report has not been denied to date,” he said.

Mr. De Silva while elaborating on the Police Ordinance said that the IGP had derogated his power to the Cabinet, through the FCID.
“The IGP is acting like a puppet and is carrying out his duties like one,” he said.

Mr. De Silva spoke on the concept of arrest, saying a suspect could only be arrested in the event he was likely to abscond Court or interfere with the investigations.

Speaking on behalf of the respondents, Deputy Solicitor General Arjun Obeysekara said the FCID was constituted by the IGP under the law and the Police ordinance upon direction by the Cabinet of Ministers.

“The Cabinet of Ministers or the executive have the power to make such direction in the wake of serious financial crimes which have taken place” he said.
The DSG said the FCID was an independent Unit and acted only on the instructions of the IGP and was not politically motivated. He said though various politicians made statements the FCID took decisions on the instructions the IGP and within the law.

The DSG said that an arrest is made according to the Criminal Procedure Code and the actions are not arbitrary nor is it an infringement of a person’s fundamental right.

Having heard the submissions of the Counsel the Court granted interim relief as prayed for in the Petition, which “prevents his arrest until the final determination of the case”. The relief sought is not confined to the FCID, and prevents the arrest of Mr. Rajapaksa by any officer of the state.

Romesh De Silva PC, with Ali Sabry PC and Sugath Caldera instructed by Sanath Wijewardane appeared for the petitioner while Deputy Solicitor General Arjun Obeysekara with Gayesha Wijemanne appeared for the respondents.

The petitioner cited Prime Minister Ranil Wickremesinghe and the members of the Cabinet, Secretary to the Cabinet, Secretary to the President, IGP N.K. Ilangakoon, CID Director B.R.S.R. Nagahamulla, FCID DIG Ravi Waidyalankara and the Attorney General as respondents.

The petitioner filed the FR petition seeking an Interim Order preventing the police from arresting him over several purported investigations and a declaration that the gazette notification on the FCID was ultra vires.

He said in his petition that consequent to the Presidential Election held on November 17, 2005, his brother Mahinda Rajapaksa was elected the President and accepted the post of Defencd Secretary in December 2005 - an area in which he possessed large wealth of knowledge and experience having served the Sri Lanka Army.

Mr. Rajapaksa said the members of the National Executive Council (NEC) had in several newspapers and media channels continued their malicious and vicious campaign against him and the members of his family alleging that they had staged a coup on the night of the elections to cling to power contrary to the mandate of the people.

The members of NEC who were instrumental in articulating the allegations continued with their efforts to make false and baseless allegations against him over the floating armoury docked at the Galle harbour with a large consignment of weapons and ammunition, allegations of corruptions and irregularities in the purchase of MiG 27 in 2006, purported share manipulation at Lanka Hospitals Limited and the leasing of aircraft during his tenure as Chairman at Mihin Lanka.
In the light of the backdrop of the events transpired, there was a serious likelihood that, if he appeared before the FCID, he would be arrested pending investigations, without rationally considering the explanations and clarifications he could provide, he bemoans.

Mr. Rajapaksa said the FCID was established to look in to complaints forwarded by the cabinet sub-committee headed by the Prime Minister who was also a member of the “National Executive Council.

He said in the light of the complaints being forwarded by the Sub-Committee, there was a likelihood that the FCID is biased and coerced and could make a finding adverse to him.

Counsel de Silva said the Cabinet had the power to supervise the investigation of the FCID and the Secretariat of FCID is under the patronage of the Prime Minister.

He said the petitioner was expected to attend an inquiry of the FCID within three days.

Mr. De Silva said that every person has the right to life and their liberty could not be taken on narrow grounds and it is just allegation.

The DSG countered these submissions in terms of Section 20 of the Police Ordinance and that the IGP could frame any orders and regulations and was empowered to set up any divisions similarly as the TID and the Fraud Bureau.

He said there was a need to setup a separate unit to investigate the crimes with the magnitude and matter they had been carried out.

“The FCID is under the IGP and headed by a DIG and not supervised by the Cabinet,” the DSG said.

He said Section 109 of the Criminal Code of Procedure would apply and a B Report was filed before the Magistrate’s Court and Magistrate’s permission would be sought for judicial custody of the suspect and that there was no mad rush to arrest the petitioner.

The DSG said there was a law under which the investigation should be conducted and under Section 24 of the Criminal Code of Procedure, the judiciary could make an order for the arrest to assist the investigation.

He said that the petitioner was given enough time to come to the FCID but on his request, the date for his appearance before the FCID was extended and nowhere was it stated that he would be arrested. (S. Selvanayagam, Lakmal Sooriyagoda and Hafeel Farisz)