Disparity in Bribery Act raised at revision application filed by Gota

Revision application filed by Gota in CA over Avant Garde case:

Counsel raises disparity in Bribery Act  

Romesh De Silva PC points out that HC had given order by interpreting ‘non-existing’ section in the Act

By Shehan Chamika Silva

Bringing an unexpected legal argument, President’s Counsel Romesh de Silva today contended that the order given by the High Court judge over the Avant Garde corruption case filed against former Defence Secretary Gotabaya Rajapaksa and others cannot stand as the Judge had interpreted none existing section of the Bribery Act.

Earlier, when the Bribery Commission filed the corruption case against the suspects in the Chief Magistrate’s Court, the defense took the stance that under the section 78 (1) of the Bribery Act there was a need of a written sanction by the ‘Commission’ so as to institute such an action by the prosecution, therefore the case should be dismissed.

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

High Court Judge too referring to the section 78 of the Bribery Act rejected to allow defense argument.

Consequently, the defense filed a revision application in the Court of Appeal against the High Court order.

Bringing a whole new aspect to the defense argument, Romesh de Silva PC yesterday challenged the High Court Judge’s order.

Mr. de Silva said that while High Court Judge was interpreting section 78 of the Bribery Act (upon which the defense’s legal argument is based on), he had referred to a wrong section which does not exist as law.

Mr. de Silva elaborated that the section 78 was prevalent since 1954 in the Country’s Bribery Act. Then in 1980 through an amendment to the Act (No: 2, 1980 Amendment Bribery Act) the section 78 had been removed and introduced a new section to it.

Then the amended section was the established law until another amendment introduced to the Bribery Act which came into effect in 1994 (No: 20, Amendment Bribery Act).

Mr. de Silva that the 1994 amendment into the section 78 had also included an amendment to a phrase which is not there in the 1980 amendment and therefore the 1994 amendment is wrong.

He was of the view that therefore the consolidated Bribery Act upon which the High Court Judge had given his order is therefore a wrong law.
In view of the submissions made by Counsel Romesh de Silva PC on the issue of law, Senior State Counsel Janaka Bandara appearing for the Attorney General pleaded time to study disparities carefully.

Court fixed the matter for further submission on tomorrow the 4th (Wednesday) whereas the High Court trial is billed for July 9.

Counsel Romesh de Silva PC informed Court that he will support for notice and Interim Relief on that date.

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 Gotabhaya.

Petitioner Gotabhaya Rajapakse filed Revision application in the Court of Appeal on the High Court rejection of his application sought to acquit and release him from Avant Garde Case.

He cited Director General of Bribery Commission as complainant-Respondent and Sujatha Damayanthi Jayaratne, Piyasiri Fernando, Banda Fernando Egodawela, Somathilake Dissanayake, Nissanka Yapa Senadhipathy, Kumarasiri Kolambage and Jayantha Perera as Accused-Respondents.

He states the Director General of Bribery Commission instituted proceedings in the Colombo Magistrate’s Court.

He states on the first opportunity available, his Counsel moved Court to raise a preliminary objection on the maintainability of the action wherein it was contended that the complainant had failed to satisfy a mandatory pre-requisite namely written sanction of the Commission.

He states the Magistrate on 17th November 2017 overruled the preliminary objections and moved to read the charges and ordered the suspects to record their plea for the charges which were read out in open Court.

Being aggrieved by the said orders of the Magistrate, he filed application in the Colombo High Court for revisionary jurisdiction.

The High Court Judge on 2nd February 2018 his order refused to issue notices and dismissed the petition.

Being aggrieved with this order he now filed revision application in the Court of Appeal seeking to stay the proceedings in the Magistrate’s Court until the final determination of this petition and to revise/set aside the orders of the High Court and allow him to revise the Magistrate’s Court.