Justice Deepali Wijesundara sitting alone today held that her order giving a stay order till December 3 to Mr. Gotabaya Rajapaksa against him being summoned as a witness to the Jaffna Magistrates Court was not made “by lack of due regard to the law or facts”.
Mr. Gotabaya Rajapaksa, who was not even named as a respondent in the main Habeas Corpus application in the Court of Appeal filed by Arumugam Weraraj, the father of Lalith Kumar Weeraraj, filed an application to “recall summons” and named himself as the petitioner in the same case.
Mr. Gotabaya Rajapaksa was previously summoned as a witness at the Jaffna Magisterial Inquiry into the disappearances. He was scheduled to give evidence on September 27. Mr. Rajapaksa filed the petition to the Court of Appeal to “recall summons”.
Attorney-at-Law for the petitioners in the Habeas Corpus case, Mr. Nuwan Bopage, informed the court that the Court of Appeal (appellate procedure) rules are clear that an ex-parte interim order (on a petition filed without hearing the other side) can only be given for a period of two weeks.
Justice Wijesundara granted the interim order on September 24 extending till December 3.
Rule 2 (1) (b) of the appellate procedure rules for ex-parte interim orders read that they “shall be for a limited period not exceeding two weeks”.
At the end of the hearing, despite heavy objection by Mr. Bopage, Justice Wijesundara refused the said position and said the rules are “only applies to the District Court” after which she made an order giving time for Mr. Rajapaksa to file objections.
Justice Achala Wengappuli who was seated beside her remained silent during the entire proceeding. He had recused himself from hearing the case when it was supported by Mr. Romesh De Silva PC appearing for Mr. Rajapaksa.
Following the order made by Mrs. Wijesundara on September 24th, Mr. Weeraraj filed a motion before the President of the Court of Appeal asking that the order be vacated. They said that the order had been made “per incuriam” and that Mr. Rajapaksa had suppressed material facts to the Court when obtaining the order.
The motion was supported before the President of the Court of Appeal Justice Yasantha Kodagoda PC and Justice Arjuna Obeysekara on the 24th of October.