Avant Garde case:Defence raises Preliminary Objection over maintainability of the inquiry

By Shehan Chamika Silva

Colombo Chief Magistrate Lal Ranasinghe Bandara today allowed defence to file the preliminary objections in writing before court on March 15 over the case where former Defence Secretary, Gotabaya Rajapaksa, Nissanka Senadhipathi and six others were accused of corruption charges in connection with the Avant Garde Maritime Services by the Bribery Commission.

The Bribery Commission alleged that the suspects had committed the offence by permitting the Avant Garde Maritime Services to operate a loating AGMS to earn Rs. 11.4 Billion incurring a financial loss to the state.

Other suspects are Sujatha Damayanthi, Palitha Piyasiri Fernando, Karunaratne Bandara Adhikarai, Somathilaka Dissanayake, Jayanath Sirikumara Colambage and Jayantha Perera.

Raising a preliminary objection at the onset, Romesh de Silva PC moved that the prosecution had violated the law vested in Bribery Act (BA) when put forwarding charges against the suspects.

He said that when a purported charges were brought in before court under section 70 (Corruption), the prosecution should obtain a mandatory sanction, a written consent, from the Bribery Commission according to the section 78 (1) of the Bribery Act.

However, in this case there was no such sanction visible in court, therefore, the proceedings of the case should not be continued, and straight away be discharged the suspects from the inquiry.

Appearing for the prosecution Senior State Counsel Janaka Bandara argued that according to the section 11 of the No. 19, 1994 Bribery Act, the Director General of the Bribery Commission is permitted to file charges in court with the direction of the Commission, and no certification of the commission is required in court because the direction is sufficient compliance.

However, Mr. de Silva contended that the section 78(1), which requires a sanction from the Commission, was brought in with the No. 20, 1994 Bribery Act, which passed after the No. 19 Act, thereby, the Mandatory sanction requirement is in force after the new inclusion.

But the State Counsel further elaborated and argued that there was a Supreme Court decision pertaining to a similar dispute which held that the Bribery Director is allowed to file charges with sufficient compliance of the authority of the Commission under section 11 of No.19, 1994 Bribery Act.

Considering the both parties submissions, Colombo Chief Magistrate allowed the defence to file their objections in writing.

The Magistrate also directed the prosecution to conduct the inquiry in the absence of the second accused Sujatha Damayanthi Jayaratne following the evidence led by the Prosecution confirming that the suspects is being resided in abroad.