Appeal Court rejects Johnston’s petition

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The Court of Appeal yesterday (21) dismissed the Writ Application filed by MP Johnston Fernando seeking an order preventing him from being arrested in connection with the 9 May attack on anti-Government protesters at Galle Face by SLPP supporters.

The Writ Application was taken before Court of Appeal Judges Sobhitha Rajakaruna and Dhammika Ganepola.

On the directives of the Attorney General, Fernando was previously named as a suspect in the case, following which Additional Solicitor General Ayesha Jinasena informed Colombo Fort Magistrate Thilina Gamage on 1 June that Fernando has been named as a suspect.

Fernando later filed the said Writ Application, following which the Court of Appeal ordered Fernando to surrender before the Colombo Fort Magistrate’s Court and was enlarged on bail.

Sobitha Rajakaruna J in his judgement yesterday ( 21) observed,“On 9 June, this Court has directed the Petitioner to surrender before the Magistrate of the Fort Magistrate’s Court before 8.00 pm on the same day. The record of the said case bears the fact that the Petitioner has surrendered complying to the said order of this Court. 

On perusal of the case record of the Magistrate’s Court case, it appears that the Magistrate, upon the Petitioner been surrendered, has released the Petitioner on bail in view of the interim order of this Court issued on the same day.

Whenever any person suspected or accused of, being concerned in committing or having committed a non-bailable or bailable offence appears, is brought before, or surrenders, to the Court having jurisdiction, the Court may release such person in terms of the provisions of Section 7 of the Bail Act No. 30 of 1997 (as amended). Therefore, when such persons mentioned above are brought before the relevant Court or when such persons surrender to the Court such Court may make necessary orders in terms of the said Section 7. The act of surrendering to Court envisaged in the said section is obviously tantamount to a ‘voluntary surrender’. However, the Petitioner surrendering to Court cannot be considered as a voluntary surrender and the Petitioner has surrendered in compliance to an order of this Court. 

Therefore, I am of the view that the discretion of the Magistrate to exercise his powers to grant bail or refuse bail or make any such order in terms of the Section 7 of the Bail Act has been curtailed as the Petitioner has not surrendered on his own accord or the Petitioner has not been brought before the learned Magistrate as a consequence of the interim orders issued by this Court”.

Thereby the COA ordered the Magistrate to make fresh orders in terms of law in regard to Fernando.

BY Faadhila Thassim