The Writ Application (CA/Writs/254/2017) initiated against the Attorney General Jayantha Jayasuriya by the rights activist Nagananda Kodituwakku, for his failure to charge Ravi Karunanayake, the former Finance Minister was taken up yesterday for support before the President of the Court of Appeal Justice L T B Dehideniya and Justice A L Shiran Gunaratne. Originally Ravi Karunanayake had been charged on an indictment for his connivance in a case where an undeclared, sum of 3 million dollars received and deposited in the Standard Chartered Bank, Kirulapona, from Raj Rajarathnam, a criminal now serving 11 serving jail term in the US.
However, after the President Sirisena formed a government in January, 2015, and made Ravi Karunanayake, the Finance Minister, on 18th May 2015, the accused Ravi Karunanayake was discharged from the said case, citing a omission in the indictment, which however, did not affect the rights of the accused that permit the Court to proceed with the trial in terms of the provisions of Section 166 of the Criminal Procedure Code. At the High Court trial (HC/4648/2009), it was alleged that the date recorded in the indictment is unclear whether it referred to the date the said sum of money 3 million dollars received by the Bank (Standard Chartered Bank, Kirulapona) or the date the said money credited to Account. These objections were raised after the case was transferred from the High Court No 1 to Court No 4, and on 18th May 2015, the High Court Judge W Irangani Perera on the date of her retirement discharged the accused Ravi Karunanayake with two other suspects.
When this matter was taken up for support yesterday, the Attorney General raised preliminary objections on the maintainability of the action initiated by the Petitioner activist Nagananda Kodituwakku in the pubic interest.
The AG submitted to the Court that the Petitioner had come before the Court late and that the activist should have initiated action within a reasonable time from the date the said order made by the High Court of Colombo and the activist Nagananda has failed to do so with in a reasonable time. And it was further submitted to the Court that the AG has a unfettered discretionary power which cannot be questioned. And it was further submitted that the allege offence was not a money laundering and that the Petitioner cannot single out Ravi Karunanayake whereas 3 accused persons along with him had been discharged by the Court.
And the Attorney General submitted to the Court that the activist-lawyer Nagananda has no legal right to initiate the action against the Attorney General and Ravi Karunanayake, as he was not a party to the said case.
In response to the submission made by the Attorney General, the Petitioner-activist Nagananda submitted to the Court that not just him as a lawyer, but every citizen in the Republic has a constitutional duty to combat the abuse of public property and to uphold and defend the Constitution and the Rule of Law. And he submitted to the Court that the Attorney General, only exercises people’s executive power purely on trust, and the office of the Attorney General enjoy no such unfettered discretion and the AG was under duty to perform his statutory duty as required by law and should have charged the accused Karunanayake on an amended indictment as per the order made by the High Court, where there is special reference to that effect and also under the power vested in him in terms of the provisions of the Criminal Procedure Code.
Citing case law (Grand Central Case) activist submitted further to the Court that the government Sri Lanka is not monarch or emperor but a representative democracy where the Attorney General is exercise people’s executive power and he is under duty to protect and defend the people’s sovereign rights which include the legislative, executive and judicial power of the Republic of Sri Lanka. He submitted further that when the members hold office in the Legislature or Executive patently abuse power the Attorney General cannot turn a blind eye and the AG is under duty to enforce law against those elements who abuse sovereign rights of the people whilst holding public offices in the Executive and Legislature purely on trust.
The activist further submitted to the Court that his action initiated in the public interest, was not merely based on the High Court order that discharged the accused Ravi Karunanayake, but it was initiated against AG Jayantha Jayasuriya and his predecessor Yuwanjana Wijethilaka after both of them failed miserably to discharge their constitutional duty of defending the people’s sovereign rights and to charge Karunanayake on a fresh indictment, and therefore both of them were charged for corruption in the CIABOC for abuse of office of the AG to confer unlawful benefit to the accused Karunanayake which is an punishable offence under the Corruption law. The Activist further submitted that he initiated the case against the AG for the reason that he failed to perform his statutory duty, where the AG is required to exercise the discretion vested in him fairly and reasonably and according to law and the said discretion is not unfettered or absolute and hence always liable to be challenged before the Court of law.
Citing the recent Basil Rapaksa’s case, where the accused Rajapaksa was charged on an amended indictment, activist submitted to the Court that when an accused is in the opposition the AG act swiftly whereas the accused represents the ruling party AG becomes subservient and impotent against injustice violating the trust placed in the office by the people and said that is what had exactly happened in the case, compelling him to charged the Attorney General and his predecessor for corruption.
It was further submitted that accused Ravi Karunanayake, then the Finance Minister, played every trick in the book to protect his interests and he went to the extent of repealing the Exchange Control act with all penal sanctions removed in the Bill to be applied with retrospective effect, which however was unlawful compelling the activist the challenged the said Bill in the Supreme Court. And the Supreme Court held that the said provision was illegal and that all cases initiated under the old Exchange Control Act shall be tried under the old law and NOT under the new act, which was enacted in the Parliament in July 2017
Also citing the UNHRC Resolution of 01st Oct 2016 where the government conceded that people of Sri Lanka have lost faith and confidence in the Judiciary, the activist submitted to the Court that there is a bounden duty vest upon the judiciary to dispense justice speedily and appropriately and to restore trust in the people towards the judiciary and to regain the confidence of the people.
Having heard the submission made for the Petitioner and the Respondent AG the Court did make no order and reserved it subject to written submission that the parties were ordered to tender to the Court on or before 19th Oct 2017. (By Sachin Gunatilleka)