Police didn’t mention any offence by Basil

Police didn’t mention any offence by Basil – Counsel

June 5, 2015, 7:27 am 

By Chitra Weerarathne

Manohara de Silva, PC yesterday told the Supreme Court that the creation of the Financial Crimes Investigation Division was ultra vires and male-fide. It was only a political body meant to investigate the alleged acts of certain specified persons only.

Basil Rajapaksa and his allies had not taken a cent of Divineguma funds for their personal use. No such allegations had been levelled in the ‘B report’ filed by the police, he said.

At the outset, Senior Counsel for Basil Rajapaksa, Romesh de Silva PC, told the court that,the arrest of Basil was male-fide, politically motivated and wrongful. According to the way the Magistrate had behaved Basil Rajapaksa needed to ask for relief from the Supreme Court.

The Cabinet decision to set up the Financial Crimes Investigation Division had been done at the behest of the National Executive Committee, the court was told.

It had been set up to investigate alleged crimes committed under the previous regime. The Rajapaksas were to be obviously targeted. It showed political bias, the counsel argued.

Even the IGP could not set up a committee to investigate complaints that were filtered by a Cabinet Sub-committee. The Cabinet could not set up a unit in the police, he maintained.

All those pointed to male-fide action and they are ultra vires in terms of the Section 55 of the police ordinance, the counsel said.

On April 22, 2015, Basil Rajapaksa had voluntarily presented himself at the FCID. He had been questioned and arrested illegally. There had been no judicial order for the arrest. The arrest was wrong. Basil’s right to liberty had been violated  Counsel de Silva argued.

The Magistrate did not possess a judicial mind, the Counsel said.

The Director of FCID had telephoned the Magistrate and instructed him to be in chambers, the court was told. The police officers had spoken with the Magistrate in the latter’s chamber.

The prison bus had arrived even before Basil Rajapaksa was remanded, the counsel said.

Normally, the prison bus came after the suspect was remanded, the Counsel said. Basil had been taken into police custody at 7.00 p.m. and kept in detention till 11.00 pm until the Magistrate remanded him.

There had been an illegal detention for four hours. If the first arrest was wrong everything that flowed therefrom was wrong. The Supreme Court which was the apex court should not tolerate that kind of improper procedure, the counsel said, adding that the arrest was not necessary for effective investigation.

There was nothing wrong in Basil taking money in the bank to pay the VRS. He also used funds to build houses for the needy. He printed an almanac with pictures of leaders of many political parties. There was no bias in that, Counsel de Silva stressed.

Manohara de Silva, PC said that Part (V) of the Criminal Procedure Code referred to the investigation of offences. Police could investigate offences and not crimes. The FCID was made to investigate, not crimes, but political acts. The FCID was not made to investigate offences. The creation of the FCID was also ultra vires. The FCID was a political body meant to investigate acts of certain persons.

There was no allegation that Minister of Economic Development Basil Rajapaksa had misappropriated Divineguma funds for his use.

Counsel Manohara de Silva, PC said that the ‘B report’ did not allege cheating, criminal breach of trust, misappropriation of public funds, or money laundering by Basil Rajapaksa and other suspects of the Divineguma Department. The Minister paid the needy out of the money in the bank and got the amount reimbursed by the Treasury. That was an obligation of the state and the Treasury, the Counsel said.

Because of a political exercise, some public officials who did their duty were also languishing in jail at present. A law pertaining to public property was taken up to prevent them from asking for bail. None of the ‘B reports referred to cheating. Hence, the suspects could not be refused bail, for having cheated. Those persons should not have been brought before the Magistrate or even arrested, Counsel Manohara de Silva said.

If the ‘B report’ did not point out an offence then the entire process of arrest, detention and remanding was illegal, the Counsel said. The Magistrate should specify a reason for the remanding, the President’s Counsel stressed.

Romesh de Silva P.C., Manohara de Silva P.C., Sanjeewa Jayawardene P.C., M. U. M. Ali Sabry P.C., and Sugath Caldera appeared for Basil Rajapaksa and the allied petitioners who had complained of an illegal arrest, by the FCID, the IGP and the Cabinet of Ministers.

The Deputy Solicitor General, Viraj Dayaratne appeared for the Attorney General and the IGP.

The Bench comprised the Chief Justice K. Sripavan, Justice Priyasarth Dep and Justice Rohini Marasinghe.