CA directs Magistrate’s Court to discharge Gota, 7 others

  Avant Garde Case

By Shehan Chamika Silva  

Allowing the revision application filed against the orders made by the Magistrate’s Court and the High Court over the maintainability of the Avant Garde floating armoury case, the Court of Appeal yesterday set aside them both and directed the Magistrate’s Court to discharge the eight accused including Gotabaya Rajapaksa from the corruption case filed by the Bribery Commission (BC).   

The Court also upheld the defence argument at the magisterial inquiry that the prosecution had failed to satisfy a mandatory pre-requisite of the written sanction of the BC when filing the case in Colombo Magistrate’s Court.   

Romesh de Silva PC challenged the High Court Judge’s order saying that while he was interpreting Section 78 of the Bribery Act (upon which the defence based its legal argument), he had referred to a section which did not exist in law   

However, the Bench comprising Justices Achala Wengappulli and Arjuna Obeysekara observed in the judgement that this determination of the Court will not act as a bar to the Bribery Commission initiating fresh criminal proceedings in an appropriate Court.   
The Court also ruled that if such proceedings are to be initiated in a Magistrate’s Court, the Bribery Commission should in writing sanction the institution of such proceedings. On an earlier occasion, when the BC filed the corruption case against the suspects in the Chief Magistrate’s Court, the defence took the stance that under Section 78 (1) of the Bribery Act there was a need of a written sanction by the BC to institute such action by the prosecution, therefore the case should be dismissed.   

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

High Court Judge referring to Section 78 of the Bribery Act rejected the defence argument.    Consequently, Petitioner Gotabaya Rajapaksa filed a revision application in the Court of Appeal on the High Court rejecting his application and sought his acquittal and release him from the Avant Garde case.   

In August last year, bringing a whole new aspect to the defence argument, Romesh de Silva PC challenged the High Court Judge’s order saying that while he was interpreting Section 78 of the Bribery Act (upon which the defence based its legal argument), the Judge had referred to a section which did not exist in law.    Thereafter, the Court of Appeal issued an interim order preventing the Magistrate’s Court from taking further action in the case and allowed the arguments to be submitted in connection with the revision application. The BC filed the corruption case against former defence secretary Gotabaya Rajapaksa and seven others for allegedly causing a Rs.11.4 billion loss to the government by permitting Avant-Garde Maritime Services (Pvt) Ltd to operate a floating armoury.   

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

High Court Judge referring to Section 78 of the Bribery Act rejected the defence argument.    Consequently, Petitioner Gotabaya Rajapaksa filed a revision application in the Court of Appeal on the High Court rejecting his application