By Shehan Chamika Silva
Gamini Marapana PC who appeared for Arjun Aloysius and Kasun Palisena in the revision bail application filed before the Court of Appeal, today challenged the placing of ‘Bond report’ into the magisterial inquiry by the prosecution as it was inadmissible in court by law. Therefore, the materials, based on which the Fort Magistrate had given the bail order on suspects, cannot be regarded as evidence.
He was of the view that the insertion of the ‘bond report’ by the prosecution had prejudiced the court in a way of contaminating the magistrate’s mind against his clients to rebut the 'presumption of innocence' that his clients are entitled by the law.
At the onset of the submission, President’s Counsel Gamini Marapana who supported the revision bail application filed on behalf of Arjun Aloysius and Kasun Palisena, drew the court attention to consider over the repercussions sustained by his clients due to the Presidential Commission of Inquiry into the bond controversy as his client was almost tried by the Media.
Mr. Marapana was of the view that the prosecution in the magisterial inquiry had attempted to link the Public Property Act for a simple reason so that the Bail Act cannot be applied in the inquiry with regard to the suspects. He said it was clear abuse of law to lockup his client, as there was no danger of his client fleeing from the country.
Mr. Marapana reasoned that the 1982 Public Property Act (PPA) was introduced during a period where a lot of terrorist activities were prevalent and therefore it gave court the provision to safe guard the public properties by imposing heavy sanctions on culprits. He said that the PPA is now being used merely to lockup people by the prosecutions.
Mr. Marapana formulated his main legal argument in the backdrop of the legal concept of the Rule of Law considering the notion of the ‘presumption of innocence’.
Mr. Marapana challenged the inclusion of the Presidential Commission of Inquiry’s report on bond issue into the magisterial inquiry at the Fort Magistrate’s court by the prosecution.
He said, even though, the Attorney General can initiate criminal actions against individuals based on the materials transpired during the commission’s inquiry under the section 24 of the Commission’s inquiry Act, the materials of the Commission cannot be regarded as evidence in the court proceedings.
Elaborating on the legal nature of such Commissions, Mr. Marapana was of the view that commission’s materials are inadmissible in the court of law as commissions are not identified as judicial or quasi judicial body by the law.
Citing several previous Supreme Court judgments in connection with the nature of such commissions’ reports and recommendations, he said ‘a report of a Commission’ will not be regarded as evidence in any court according to the law. Thereby, he challenged prosecution placing the ‘Bond report’ into the magisterial inquiry and said ‘placing the report it self is illegal’.
He contested that the material (bond report) on which the Magistrate had given the bail order is inadmissible in court since, the report of a commission cannot be taken as evidence in court according to the law.
Citing several precedents, Mr. Marapana argued that commission’s recommendations have no consequential effect in nature; hence its findings or the report has no legal or binding effect by the court of law.
‘The reason behind placing bond commission’s report in Magistrate’s court by the state (prosecution) was to prejudice the court contaminating the mind of the Judge against the suspects’ Mr. Marapana said.
He also said that the Magistrate in her bail order had also quoted the bond report frequently by citing various findings of the Commission’s inquiry, hence, the illegal inclusion of the bond report had flawed the entire magisterial inquiry.
Mr. Marapana in his submission also contested the inclusion of the Public Property Act into the incident. He said that under the PPA, the public property is identified as a movable property, however, the allegations levelled against Arjuna Mahendran was in respect of criminally misappropriating and breaching the trust over a ‘duty’ assigned upon him (duty to collect borrowings for the government), therefore, the offence doesn’t fall under the Public Property Act.
Thereby, he requested the court to issue notices to the respondents of the revision petition and also requested for an interim relief to be given granting bail for his clients.
In the meantime, Additional Solicitor General Yasantha Kodgoda PC was also present in the court of appeal while Mr. Marapana was submitting his arguments and addressing the court, ASG Kodagoda said that he also wishes to reply petitioner’s submission as it was relating to the legality of the magisterial inquiry and also wishes to apprise on the legal jurisdiction of the court to hear the petition.
However, at that moment, the court was running out of time, hence, bench comprising Justice Shiran Gunaratne and Prithi Padman Surasena (President) re-fixed the further submission for May 18, 2018.
President’s Counsel Gamini Marapana and President’s Counsel Kalinga Indatissa appeared for the petitioners.
Earlier, the Fort Magistrate remanded the suspects considering the allegations levelled against them under the Public Property Act. And later, the suspects went to the High Court as the magistrate cannot release them on bail as per the PPA, where one who misappropriated public property causing more than Rs. 25, 000 damage to the state has no bail relief unless exceptional circumstances or by a high court judge.
However, Colombo High Court also refused to grant bail on suspects set a siding the suspects’ petitions. As a result, the suspects filed a revision bail petition in Court of Appeal to revise the bail order of the Magistrate and the decision of the High Court.
