Gota won the war, or so he proclaimed. After winning the war, he held several symposia to teach the other nations how to crush terrorists.
While all this was happening, a man called Sarath Fonseka was languishing in jail. We saw on TV SF in prisoner’s garb. The battle in Court was not on whether SF was guilty as charged, but whether SF, who had sustained severe injuries, should be treated by a specialist in a private hospital. True to form, the then AG vehemently opposed the application and the Court had to write lengthy orders either accepting or refusing such applications.
The Rajapaksas have drawn a great deal of flak for corruption under their government. The then Opposition heavyweights like Anura Kumara Disanayake and Champika Ranawaka said that the money spent on Highways was sufficient to pave them with gold.
People accepted it as the gospel truth. Then, there was a talk about discovery of weapons on a ship in Galle, which was supposed to be owned by a company called Avant Garde Security Services (Pvt) Ltd. Criminal Investigations Department inquired into various allegations against this company. Social media went to town with information supposed to be in the possession of investigators. The report was submitted to the AG.
The question was whether the suspect should be produced in Court under the Firearms Ordinance under which a person who has in his possession unlicensed firearms is remanded till the conclusion of the trial. Today, there may be hundreds of people languishing in remand without bail for having possessed ‘galkatas’ or shotguns to protect their chenas against wild beasts. So, it was contended that the ship had loads of firearms not licensed by the authorities and everyone should be arrested and remanded. But, there were other opinions that the firearms were being kept at the behest of the Secretary to the Ministry of Defence and, therefore, they could not be charged under the same Ordinance. Then, the newly established Financial Crimes Investigation Bureau inquired into other allegations and corruption involving powerful members of the former regime and Basil Rajapaksa was taken in for questioning and remanded.
Pro-government social media websites constantly announced that Gotabhaya Rajapaksa would be taken into custody over the famous ‘Mig Deal’. Gotabhaya retained Romesh de Silva, PC, the present chairman of the Law Commission, and the Supreme Court decided to stay the arrest of Rajapaksa. The order is now known in Hulftsdorp as Gota’s Law. The Prime Minister and others, like the former President of the Bar Association of Sri Lanka were critical of the order.
The question some of them raised was whether two Judges of the Supreme Court could grant leave in a fundamental rights application, especially, when one of the Judges has withdrawn, citing personal reasons. But, it is abundantly clear that the rules of the Supreme Court and the Constitution permit two Judges to grant leave or refuse leave in a fundamental rights application. But, most experts of constitutional law say that two Judge of the Supreme Court cannot grant an order staying the arrest of the petitioner.
Today, most practitioners know the difficulty in obtaining leave to proceed. Sarath N Silva, as the former Chief Justice, started the procedure where, before refusing or granting leave, the matter is discussed in Court with AG for a settlement out of Court. Then, the matter is mentioned until finality is reached. If the AG and the petitioner cannot agree to the terms of settlement, the matter is either argued and leave is granted. In most cases, where no settlement is reached, leave is refused. So, when two Judges grant leave without even noticing the other respondents and further grant a stay order preventing the arrest of the petitioner, Hulftsdorp was shocked.
The order was made on May 13 and everyone interested in knowing the fate that would befall the suspects, who were to be questioned by the FCID and other institutions, were expecting the AG to move in revision and seek this matter to be argued before a fuller bench. Nearly 15 days have passed and there is no intimation that the AG would file an application in revision. Instead, we hear that the AG would instead file direct indictment without the suspects having the luxury of full medical checks done at government hospitals, though allegedly being in remand.
If this is the policy of the AG, then no suspect should be arrested and remanded pending investigations, nor should any suspect be remanded till the conclusion of the trial. An ordinary person who commits an offence in respect of state property worth more than Rs. 50,000 is normally remanded without bail till the conclusion of the trial. Where is justice when a person alleged to have robbed millions of rupees is never produced in the Magistrate’s Court and will only be indicted at the pleasure of the AG?
If the AG is of the view that the decision of the Supreme Court is correct and cannot be assailed, then all those who cherish freedom of not being arrested must compliment Gota and his law will become a permanent feature in investigations conducted by the Police.