By Hemantha Warnakulasuriya Courtesy The Island

President of the Court of Appeal L.T.B. Dehideniya, on the 29th November 2017, issued a ‘Stay Order’ preventing the arrest of Gotabhaya Rajapaksa. In his order, the learned President of the Court of Appeal has stated “in this instance, the monument was constructed by the Corporation on a contract entered into with the Foundation, and the Foundation had no intention of defrauding.” He further says that, “in the present case there was no mental element for dishonesty or, misappropriation.”

I do not want to burden the reader with the treaties on criminal misappropriation and the Offences against Public Property Act. Suffice it to say that the Act at issue was brought to deal with the situation where the JVP and the LTTE wreaked havoc in the country, by burning buses, damaging power plants, etc. The government of the day found even the Emergency Regulations did not permit the suspects to be remanded for any length of time. Within three months, if no proper prosecution was instituted, the suspects had to be discharged. Therefore, the Emergency Regulation did not act as a deterrent to prevent misguided youth from thinking they could usher in a revolution of the proletariat. The lawmakers hurried through this legislation and called it the Offences Against Public Property Act.

No one then bothered about the draconian features of the law, but they just raised their hands and thumped their desks in approval. It was meant to be used against the Public Enemy Number One; the DJV and the LTTE. In drafting this legislation, the Law Makers forgot the basic principles of the Constitution of J. R. Jayewardene, which guarantees the personal liberty of the subject; that every person is presumed to be innocent until and unless proved guilty by a competent Court. One of the essential norms of the presumption of innocence also provides, according to the Constitution, the freedom of movement, freedom of expression and other basic rights.

But then, if legislation imposes a fetter on a person who is not even charged, but arrested merely on suspicion, and the law imposes a burden on the Magistrate to deprive the subject of being released on bail, it is indeed a serious matter.

No one in the Legal Profession or any Non Governmental Organization, mandated by their masters to protect the liberty of subject from such legislation, uttered a word. There were many reasons. Of all the suspects, alleged to have committed grave misdeeds , by burning buses and other terrorist related incidents, never had anyone representing them when facing their prosecutors in a Court of Law. Instead, they only had the pleasure of having their limbs tied and being garlanded with a burning tyre and being dumped on a street without even anybody recognizing who they were.

On the other hand, there were a few state officials who were brought to court for allegedly committing an offence as prescribed in the Offence Against the Public Property Act. They were remanded and very rarely were the accused given an opportunity to explain their innocence. But after being in remand a few months, they ultimately had to appeal to a Higher Court, and bail was granted. In most cases the reason adduced for granting of bail was nowhere comparable to the reasons given by Higher Courts, which played on the words, “exceptional circumstances”. At the same time there were exceptionally brilliant Magistrates who were clever enough to interpret the Law, when they found that suspects’ were being kept in remand and if the law was strictly interpreted, there was no hope for them to get bail, and neither did the accused have an opportunity of facing a trial in the immediate future; and they dared; without any contradiction, to release the suspects on bail. Once bail was granted, unless in a very rare and exceptional case; the Attorney General would never seek to revise such an order.

Although the Prevention of Terrorism Act was misused and abused by the then government nobody except the LTTE and its sympathisers raised a hue and cry. The present government is using the Offences Against Public Property Act to frighten the Opposition into submission. The Public Property Law is also used to back the governent.

It is unfortunate that the provisions of this Act are used by the law enforcement authorities to deal with matters which have nothing do with Section (2), (3),( 4) and (5) of the Act, at the behest of their poltiical masters.

If Gotabhaya Rajapaksa had not made an application to the Court of Appeal and secured an Interim Order, he would have been arrested and remanded till the conclusion of the case.

Irrespective of the utterly wild interpretation, the prosecuting authorities gave to a transaction, which is nothing more than a civil transaction, where the loss was based on a contractual obligation, to bring forth and waive the offences against the Public Property Act, that Gotabhaya has misappropriated Government funds; there is a limit to which a Prosecutor could extend his sardonic pleasure of remanding a person to satiate the mean pleasures of their political masters.

We should be grateful to our Courts for having issued the relative ‘Stay Order’, preventing such abuse of political authority to condemn a man without an iota of evidence of criminal misappropriation.

The following are facts which we should take cognisance of.

(1) No person charged with an offence against Public Property has been convicted whilst being in remand,

(2) the legislature in its wisdom, has made it mandatory that these cases be heard and concluded, and given priority over and above the other cases,

(3) When a person is suspected of having committed an offence under this Act, though he has to be remanded until the conclusion of the trial, the possibility of the trial being given priority is a matter that should concern every reasonable and prudent man,

(4) As the Act does not specify in which Court the action could be filed, the Legislature should have envisaged that the urgent nature of the matter needed urgent attention of the Prosecutors to file action even in the Magistrate’s Court, which gives ‘special powers’ to the Magistrate to hear and determine a case against a suspect.

(5) Today, with the subsequent Amendment to the Criminal Procedure Code, all matters are referred to the Attorney General for him to determine the sufficiency of evidence. It takes a number of years to file an indictment against the Accused.

(6) Therefore, the present stalemate and the delay of filing charges should be a matter that should be taken seriously and Courts’ should not act as an appendage to the Government in power by remanding political opponents with or without evidence.

Currently, the independence of the judiciary has been demonstrated by Justice Dehideniya, as the President of the Court of Appeal. Though there may be some critics of the procedure adopted and the manner in which the stay order was issued, the end justifies the means, and the stay order would enshrine and further bestow the independence of our judicial system.