By Hafeel Farisz and S.S. Selvanayagam
The Court of Appeal yesterday confirmed its order, granting a stay order till December 3 in favour of Gotabaya Rajapaksa preventing him from being summoned as a witness to the Jaffna Magistrate’s Court.
The Court of Appeal held that the initial stay order given on September 24 was not made “by lack of due regard to the law or facts”.
Justice Deepani Wijesundara sat alone giving the order. Justice Achala Wengappuli who was seated beside her during yesterday’s hearing which took heated turns, remained silent during the entire proceeding. He had recused himself from hearing the case when it was supported by Mr. Romesh De Silva PC appearing for Mr. Rajapaksa on September 24.
The Petitioners to the main applications were the father of Lalith Weeraraj Arugugam Weeraraj and the wife of Kugan, Murugananthan Janatha.
Mr. Rajapaksa was not named as a Respondent in the main Habeas Corpus application in the Court of Appeal.
He filed an application to “recall summons issued by the Magistrates Court ” and named himself as the Petitioner in the same case. Arumugam Weeraraj and Murugananthan Janatha were named as “ Petitioner- Respondents”.
Mr. Rajapaksa was previously summoned as a witness at the Jaffna Magisterial Inquiry in to the disappearances. He was scheduled to give evidence on September 27. Mr. Rajapaksa filed the Petition to the Court of Appeal seeking interim orders to “recall summons”.
Justice Wijesundara granted the interim order on the same day it was supported September 24 extending till December 3. The order was made despite the practice of court being to refer any matter in which a judge recuses themselves to the President of the Court. Rule 2 (1) (b) of the Appellate procedure rules for Ex-Parte interim orders read that they “shall be for a limited period not exceeding two weeks”.
Attorney-at-Law for the Petitioners in the Habeas Corpus case Mr. Nuwan Bopage ( the disappeared persons) informed court that the Court of Appeal ( Appellate Procedure ) rules are clear that an ex-parte interim order (on a application filed without hearing the other side) can only be given for a period of two weeks.
At the end of the hearing despite heavy objections by Mr. Bopage, Justice Wijesundara refused the said position after which she made the order giving time till December 3 for Mr. Rajapaksa to file objections.
Earlier, following the order made by Mrs. Wijesundara on September 24th, Mr. Weeraraj ( The main Petitioner) filed a motion before the President of the Court of Appeal asking that the order be vacated. They said that the order had been made “per incuriam” and that Mr. Rajapaksa had suppressed material facts to the Court when obtaining the order.
The motion was supported before the President of the Court of Appeal Justice Yasantha Kodagoda PC and Justice Arjuna Obeysekara on the 24th of October.
During the hearing on the 24th of October SSC Wasantha Perera appearing for the Attorney- General informed court that the order made by Justice Wijesundara was factually incorrect as it had stated that the Attorney General had no objection to granting the interim order. He said that the Attorney General had specifically said that any order has to be made in the Presence of Mr. Weeraraj, Mrs. Kugan the Petitioners. The President thereafter made order that the case be transferred back to Justice Wijesundara as she had made the initial order and sent the case back to Court No 107.
When the Petitioner informed court that the next hearing at the Jaffna Magistrate’s Court was on November 11, the President directed that the case be heard before Justice Wijesundara urgently.
Accordingly, the matter was taken up yesterday.
At the outset of yesterday’s hearings Counsel Nuwan Bopage informed court that the Court of Appeal Rules are clear and that an interim order Ex-Parte can only be only given for a period of two weeks and that the order preventing Mr. Rajapaksa from being summoned till December 3 was illegal. However, his position was rejected.
Mr. Romesh De Silva PC appearing for Mr. Rajapaksa continuously objected to portions of evidence being read and stressed that he needed time to” file objections”.
The Court erupted with Mr. De Silva screaming to Mr. Bopage to “shut up”. Mr Bopage continued with his submission where he read out portions of evidence of Mr. Keheliya Rambukwella. Mr. Bopage also reacted strongly saying this “is a court of Justice, a court for the people”. He insisted on his application being recorded that the “rules say a stay order can be given only for two weeks and I don’t accept the order” . Justice Wijesundara said that she does not think her order is “per incuriam” and that it can be appealed against if the Petitioners so wish.
Earlier, Mr. Bopage pointed out that the Magisterial inquiry was to be held on 11th of November and that Mr. Rajapaksa had lied in his affidavit saying he “had a security threat”.
“ He went to Jaffna for a political rally , but can’t come to court to give evidence” Bopage said. Mr. Rambukwella had at the Magisterial Inquiry said that he was made aware that Lalith and Kugan were both alive by the “Secretary of Defence”. It was based on his evidence that Mr. Rajapaksa was summoned.
“The statement that I made that the information received from the Government security sources on or around December 15 stating that the two political prisoners are alive is hundred percent correct. I stated that based on the information I received from the Government and the Defence Secretary” Mr. Rambukwella the then Defence Spokesman had said in evidence.
Based on his evidence, Mr. Rajapaksa was summoned by the Magistrate’s Court. He was first issued summons on March 28, to be present on May 3rd. However a lawyer appearing on his behalf stated that Mr. Rajapaksa was in a personal difficulty.
Thereafter he was re-summoned to be present in court on June 21. He provided medical reports on the date and said that he was not in a position to be present after which he was summoned on September 27 on a “date convenient to him” . No application with regard to “Security threats” were made then.
The court fixed for December 2 objections by Mr. Rajapaksa to the application made by the Petitioners.
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