By Hassina Leelarathna

How will Prime Minister Ranil Wickremasinghe defend the creation of the Financial Crimes Investigation Division (FCID), dubbed a Gestapo,” responsible for the sweeping arrests of a number of politicians of the Rajapaksa regime for alleged financial crimes?

We will find out next Tuesday, July 7,” said Attorney-at-Law Dharshan Weerasekera who last week filed a writ application on behalf of petitioner Athula Parathapa Kumarapperuma seeking the closure of the controversial police unit on the grounds that it contravenes the Constitution, the Criminal Procedure Code, the Penal Code, and the Police Ordinance.

Mr. Weerasekera said  Prime Minister Wickremasinghe is among six respondents named in  Kumarapperuma’s application, the third such case seeking the quashing of Gazette No. 1901/20 – 2015 under which the FCID was created.

The Prime Minister is made a respondent because he is specifically mentioned as the person under whose patronage a Sub Committee, the entity that submits complaints to the FCID, is to function.  We will know July 7 their arguments in defense of the FCID,” said Weerasekera adding that his application will be taken up along with two other cases that challenge the legality of the FCID.

The other respondents named are Inspector General of Police (IGP) N. K. Illangakoon, Minister of Public Order John Amaratunge, Secretary to the President P.B. Abeykoon, Secretary to the Cabinet Sumith Abeysinghe, and the Attorney General.

Mr. Weerasekera, explaining the basis for the application in an email to this writer, said that since the IGP invokes Article 55 of the Police Ordinance in order to establish the FCID  the question is whether Article 55 gives  the IGP power to invent offenses for which citizens can be investigated and punished, and also to circumvent the Criminal Procedure Code when pursuing such investigations.

Further, as stated in the writ application, a close look at Article 55 shows that it is only intended to give the IGP certain powers to facilitate the administration of the police force, such as transfers, place of residence of officers, as well as to prevent neglect and abuse within the force, he explained.

There is absolutely no power or authority given to invent offenses or investigative procedures that are to apply to members of the public.

The IGP has clearly exceeded his powers under Article 55 of the Police ordinance, that is,  he has acted ultra vires of his powers, and his act can be quashed by way of a writ of certiorari,”  Attorney Weerasekera said.

The “crimes” to be investigated by the FCID are:

• Grievous financial crimes, Corruption and massive unauthorized projects
• Crimes against public funds and property
• Grievous crimes against national security, public finance, health and environment
• Unlawful enrichment and misuse of official powers
• Money laundering funding of terrorists and illegal transactions

Petitioner Kumarapperuma states that the phrases  grievous financial crimes” and massive unauthorized projects” are intrinsically ambiguous, because the terms grievous” and massive” are not defined, and this allows the FCID and the Cabinet Sub Committee, the receiving body for such complaints, untrammeled discretion to decide which acts are to be investigated.”

The writ application also strikes at the FCID’s alarming violation of established legal procedures (Section 109(1) – (5) of the Criminal Procedure Code) by empowering ruling politicians, viz., the Prime Minister and his Cabinet Sub Committee, to receive complaints and transmit them directly to investigating officers.  This bypasses the law that requires that complaints be first being lodged at a police station and that, prior to making an arrest, a police investigation be conducted to determine if a crime has been committed.

…the creation, by Gazette 1901/20 – 2015, of a police unit with powers to investigate, including arrest, citizens by circumventing the basic protections (in regard to investigation and arrest) allowed citizens under the Constitution, the Criminal Procedure Code and the Penal Code, is a blatant abuse of power, and should be quashed by a Writ of Certiorari,” the Petitioner states.

By creating the FCID, the  First Respondent has created a division within the Police Department with the power to inconvenience and disrupt the lives of citizens, including arresting them, for acts which are not accepted as wrongful acts under the law, thereby circumventing the protection accorded citizens by relevant provisions of the Constitution, the Criminal Procedure Code, and the Penal Code.”

Mr. Weerasekera said petitioner Mr. Kumarapperuma is an ordinary citizen and is not someone being actively investigated or summoned by the FCID.

“He feels that the FCID sets a very dangerous precedent and wants to challenge it.  Since the FCID can be used to arrest any citizen, it is a threat to all citizens, and any such citizen can go before court and ask for a writ to stop the mechanism,” he added.

On July 7, the Appeals Court will also take up the writ application filed in May by Ven. Elle Gunawanse and Prof. Carlo Fonseka seeking the revocation of the  Gazette Order  1901/20 – 2015.

In addition to the writ applications filed in the Appeals Court, the FCID’s legality has been challenged via fundamental rights applications filed in the Supreme Court by several leading politicians of the Rajapaksa government, notably former Defense Secretary Gothabaya Rajapaksa and former ministers Basil Rajapaksa and Johnston Fernando.