Avant Garde case: Counsel points out disparity in Bribery Act

Raising an unexpected legal argument, President’s Counsel Romesh de Silva said today the order given by the High Court Judge in the Avant Garde corruption case filed against former defence secretary Gotabaya Rajapaksa and others could not stand because the Judge had interpreted a none existing section of the Bribery Act.

Earlier, when the Bribery Commission (BC) filed the corruption case against the suspects in the Chief Magistrate’s Court, the defense said under the section 78 (1) of the Bribery Act there was a need for a written sanction by the BC to institute such an action by the prosecution, therefore the case should be dismissed.

However, this argument was overruled by the Chief Magistrate and resulted in the defense filing a revision application in the High Court against the Chief Magistrate’s order.

The High Court Judge too referring to Section 78 of the Bribery Act rejected argument by the defense.

Consequently, the defense filed a revision application in the Court of Appeal against the High Court order.

Bringing a whole new aspect into the defense argument, Counsel Romesh de Silva PC challenged the High Court Judge’s order.

He said while the High Court Judge was interpreting section 78 of the Bribery Act (upon which the defense’s legal argument is based on), he had referred to a section which did not exist as law.

Counsel said Section 78 was existed since 1954 in the Country’s Bribery Act. Then in 1980 through an amendment to the Act (No: 2, 1980 Amendment Bribery Act) the section 78 had been removed and introduced a new Section to it.

He said this resulted in the amended Section being established as law until another amendment introduced to the Bribery Act which came into effect in 1994 (No: 20, Amendment Bribery Act).

Counsel said the 1994 amendment of Section 78 had also included an amendment to a phrase which was not there in the 1980 amendment and therefore the 1994 amendment is wrong and was of the view that therefore the consolidated Bribery Act upon which the High Court Judge had given his order was wrong in law.

In view of the submissions made by Counsel Romesh de Silva PC on the issue of law, Senior State Counsel Janaka Bandara appearing for the Attorney General pleaded time to study the disparities in detail.

Court fixed the matter for tomorrow for further submissions whereas the High Court trial has been fixed for July 9.

The Counsel informed Court that he would support for notice and interim relief on that date.

Romesh de Silva PC with M.U.M. Ali Sabry PC, Sugath Caldera, Ruwantha Cooray and Farith de Mel instructed by Sanath Wijewardane appeared for Mr. Rajapaksa.

He filed the revision application in the Court of Appeal based on the High Court rejecting his application which seeks to acquit and release him in the Avant Garde case.

He cited Director General of the Bribery Commission as complainant-respondent and Sujatha Damayanthi Jayaratne, Piyasiri Fernando, Banda Fernando Egodawela, Somathilake Dissanayake, Nissanka Yapa Senadhipathi, Kumarasiri Kolambage and Jayantha Perera as accused-respondents.

He states the Director General of the Bribery Commission instituted proceedings in the Colombo Magistrate’s Court and that on the first opportunity available, his Counsel moved Court to raise a preliminary objection on the maintainability of the action wherein it was contended that the complainant had failed to satisfy a mandatory pre-requisite -- a written sanction of the Commission.

The petitioner said the Magistrate on November 17, 2017 overruled the preliminary objections and moved to read the charges and ordered the suspects to record their plea for the charges which were read out in open Court.

Being aggrieved by the said orders of the Magistrate, he filed an application in the Colombo High Court for revisionary jurisdiction.

The High Court Judge in his order on February 2, 2018 refused to issue notice and dismissed the petition.

Being aggrieved with this order he has now filed a revision application in the Court of Appeal seeking to stay the proceedings in the Magistrate’s Court until the final determination of this petition and to revise or set aside the orders of the High Court and allow him to revisit the Magistrate’s Court. (S.S. Selvanayagam and Shehan Chamika Silva)