Avant Garde case: Defence submits Preliminary Objection in writing over maintainability of the inquiry

By Shehan Chamika Silva

Questioning the maintainability of the inquiry, the defence today submitted their written preliminary objection before court into 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 floating 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.

Subsequently, Colombo Chief Magistrate Lal Ranasinghe Bandara directed the prosecution to tender their counter objection on the matter within two weeks. The case was put off for May 29.

Earlier, raising an oral preliminary objection at the onset, Romesh de Silva PC moved that the prosecution had violated the law vested in Bribery Act (BA) when bringing 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.

According to the Senior State Counsel Janaka Bandara who argued against saying that unde 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 under 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.