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If FCID is illegal why did Basil R. volunteer a statement to it?: PM’s Counsel
View(s):Counsel appearing on behalf of Prime Minister (PM) Ranil Wickremesinghe, who has been cited as a Respondent in the Fundamental Rights (FR) application filed by former minister Basil Rajapaksa, on Friday told court that the former minister should have refrained from going before the Financial Crimes Investigation Division (FCID) if he thought it was an illegally set up body.
K. Kanag Iswaran, P.C. observed that the Petitioners should prove the FCID was set up illegally.The former minister, along with former Economic Development Ministry Secretary, Dr Nihal Jayatillake and two other ex-officers of the Divineguma Dept currently in custody, have filed FR cases. All the cases have been taken for hearing together.
The Petitions were taken up before a Supreme Court Bench comprising of Chief Justice (CJ) K. Sripavan, Justice Priyasath Dep and Justice Rohini Marasinghe. If the petitioners claim that the FCID is illegal and consider their arrest was a violation of their fundamental rights then why did Mr. Rajapaksa turn up before that body and give a statement on the allegations levelled against him, Mr Kanag Iswaran asked.
“If he thought that this body was illegal and not lawful, he should have informed the police earlier, before he appeared before it. After informing the Inspector General of Police (IGP) through his lawyer Mr Palitha Fernando, that he will appear before the FCID on his return to the country, and giving a statement on the following day, he made it clear that he recognised this body as a legal one,” he said.
Mr Kanag Iswaran argued that Cabinet has the authority and legislative power to set up such a body, which nobody can challenge, as there was a clear mandate from 6.2 million people of this country to initiate such a mechanism to bring rogues and fraudsters to book.
He said the petitioners are now of the view that a certain group of people from the previous government are being targeted for ‘political victimisation’, but the government intends to take legal action against whoever tried to corrupt the system by bribing or other illegal activities that undermined the State and its national security.
According to the gazette notification, the FCID has been given a mandate to investigate grievous crimes including abuse of public resources, money laundering, misuse of official power, and posing a threat to national security. Mr Kanag Iswaran said that the FCID was created on a directive of the IGP and it will continue to function under him and nobody other than him can direct investigations.
“Now, it is interesting to note that, while the Petitioners are challenging the legality of the FCID, none of them are challenging the Kaduwela Magistrate’s order that Mr Rajapaksa should be kept in remand for further investigations.” he said.He also argued that there is no distinction between the two terms, “crimes” and “offences”, in which the word “crimes” is used as the legal term for “offence”. “I will discount the submissions made by the Petitioners, saying the two terms are totally different. They are common words in criminal proceedings.” he said.
He said nowhere in the gazette notification is there ‘provision’ that suggests a layman cannot lodge a complaint at the Anti Corruption Secretariat against any individual that served the government in the past or is serving currently.
Mr Kanag Iswaran pointed out to the Bench that naming the whole Cabinet as Respondents in these submissions, made it clear that they are challenging the decisions made by the Cabinet which drives the government and executes the people’s mandate given on January 8.To further strengthen his argument, he quoted from a statement by United States Senator Patrick Leahy saying that, “former president Mahinda Rajapaksa, his brothers Basil and Gotabaya, and their close associates, sought to dismantle the institution of democracy, subvert the rule of law, and enrich themselves. Rather than support reconciliation, they encouraged corruption and exacerbated ethnic, religious, and political divisions.”
In conclusion, he said, “if he is not guilty, then he can prove it through a judicial system, but attempting to get immunity from arrest through FR applications, would not be helpful to prove his innocence.”
Anura Medagoda, appearing on behalf of the second Respondent, Minister of Public Order and Christian Affairs, John Amaratunga, made it clear to court that the FCID was set up following a Cabinet decision and on a directive of the IGP.
He stated that some people are of the view that this particular police division is to arrest and prosecute certain people from the previous regime, whereas it was clearly mentioned that this Unit has been set up to fight financial irregularities in future too.
“This police division was set up after it became apparent that there should be a special investigation team with special powers to look into such crimes. To achieve this purpose, international assistance too was sought,” he said. When CJ Sripavan asked why complaints are channelled through a Cabinet subcommittee and an Anti-Corruption Committee located near Temple Trees, the Respondents said anybody can lodge complaints at these secretariats, even against those in the present government.
Considering the two Cabinet papers presented to court, that deals with the legality of the FCID, the Bench ordered the Attorney General’s Dept to submit copies of the relevant Cabinet papers and decisions that gave birth to such separate police division.
Further hearings have been fixed for June 24 and 25.