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Justice de Abrew FR case: ASG rules out recording statements of more witnesses
Additional Solicitor General Yashantha Kodagoda, PC, appearing on Friday on behalf of the Attorney General, ruled out the possibility of recording statements of additional witnesses suggested by the defence lawyers of Supreme Court Judge Sarath de Abrew who has been indicted for committing grave sexual abuse and harassment of his domestic aide.
Mr. Kodagoda made this observation when the fundamental rights (FR) petition filed by Justice de Abrew was taken up for hearing by a three-judge Supreme Court Bench comprising Chief Justice K. Sripavan, Justices Priyantha Jayawardane and Upali Abeyratne.
Justice de Abrew was indicted on November 20 for sexual assault on a female domestic aide at his home this year. The indictment has been filed under two counts of committing grave sexual abuse.
ASG Kodagoda said that the AG is empowered with statutory powers to direct the police to make further inquiries if he decides that the investigation done by them so far is inadequate or not comprehensive.
“But in this case, the AG’s department was satisfied with the investigations completed by the Criminal Investigation Department (CID). It was only then, that it was decided to serve the indictment on the sitting Supreme Court judge”, he argued.
He said that it is up to the Attorney General’s Department to analyse all material available regarding a case before a decision is taken to lodge an indictment.
Earlier this week when the petition was taken up, Manohara de Silva, PC counsel for Justice de Abrew demanded that the AG’s Department record additional statements of witnesses suggested by the defence. A letter to this effect had also been sent to the AG.
The Bench requested the AG to consider the possibility of recording statements of other witnesses as requested by defence counsel.
Rejecting the claims made by the defence that the decision to indict the Supreme Court judge is a politically motivated move due to the fact that he was not supportive of the incumbent government as baseless, ASG Kodagoda said the AG’s Department acted in good faith and he exercised his powers and added that at least three preliminary reports within the department hierarchy with different opinions were circulated for more than five months and the opinion of a Senior Additional Solicitor General also was sought before the Attorney General decided to prosecute in this case.
A possibility of charging Justice de Abrew under the Immigration and Emigration Act for illegally holding back the maid’s passport was also considered but later was dropped.
Concluding his submission by handing over all the documents regarding the case to the Bench, the Additional Solicitor General asked the Bench to forget for a moment that the petitioner is a Supreme Court judge, as his department acted in an independent manner when deciding to prosecute him.
Manohara de Silva, PC., questioned how the AG’s Department could determine the relevance of the witnesses without considering all the possible evidence in a case.
He also alleged that this whole process was set up by establishing selective witnesses supporting the indictment which left out another maid’s statement.
Claiming that the ongoing investigation was ‘unfair prosecution’ defence counsel said that even though the Mount Lavinia magistrate directed the police to further inquire, the police sought the advice of the AG’s Department.
Mr. Kodagoda said it was only a verbal inquiry and the necessary directives were issued by the department for further investigation.
Mr. de Silva referred to the indictment on the Supreme Court judge being issued in such a short time when there are many cases under the Prevention of Terrorism Act (PTA) that have piled up for years in the department.
According to the defence, at least 21 statements of witnesses including that of nurses, doctors, and police security officials were recorded, but the additional witnesses suggested by the defence counsel were not recorded.
The defence also brought to the attention of the bench that while the Judicial Medical Officer (JMO) termed the condition of the victim as post traumatic distress, days after the alleged abuse, it was not in the first CID statement obtained from her, but in a second statement.
Mr. de Silva concluded his argument that the decision to serve the indictment was an arbitrary decision of the Attorney General abusing his powers without considering all the facts and evidence in the case.
The Bench reserved for January 11, the order on the FR application.