A Powerful Legal Argument for Natural Justice by Defense Counsel Nayantha Wijesundara Before the High Court!
(A critical legal discourse raised by Counsel Nayantha Wijesundara questioning the fairness of dismissing an alibi motion based on procedural technicalities in the Code of Criminal Procedure, despite irrefutable independent evidence proving the physical absence of the eighth accused in the substandard drug case on the relevant dates).
The Trial-at-Bar at the Colombo Permanent High Court, concerning the misappropriation of state funds through the procurement of substandard human immunoglobulin and rituximab, has transcended a mere examination of evidence. It has now evolved into a decisive legal battleground pitting rigid statutory technicalities against the fundamental tenets of natural justice.
Before the bench comprising Presiding Judge Priyantha Liyanage, Judge Viraj Weerasuriya, and Judge Thilakarathne Bandara, Senior Counsel Nayantha Wijesundara—representing the eighth accused, former Minister Keheliya Rambukwella—presented a highly logical and compelling legal motion to establish his client’s ‘alibi’ (the defense that the accused was elsewhere when the alleged crime occurred).
The Spirit of the “Proviso” and the Defense’s Argument
Under Section 126A (1) of the Code of Criminal Procedure, an accused intending to rely on an ‘alibi’ must notify the Attorney General within 14 days of the indictment being served. The defense conceded that this procedural requirement was not met. However, Counsel Wijesundara drew the High Court’s attention to a critical component within that very section: the “Proviso”. He argued that the Court retains full discretionary authority to accept the motion in the interest of justice, provided sufficient reasons for the delay are adduced.
The most remarkable aspect of this defense was that to prove his client’s alibi, Counsel Wijesundara relied entirely on irrefutable ‘independent evidence’ introduced by the prosecution itself.
Counsel Nayantha Wijesundara: “My Lords, the meeting minutes dated 2022/09/05 and 2022/10/10, corresponding to documents 10v63 and 10v53, do not disclose any criminal offense. However, the prosecution’s stance is that the offense of conspiracy was committed there. This placed the defense in a state of bewilderment. If the offense of conspiracy had indeed occurred there, indictments should have been filed against all those who participated in that meeting.”
“My Lords, reasons for the alibi have already been presented. There are primarily two reasons. On September 2, 2022, the 8th accused departed for Bhutan to attend a World Health Organization conference. Immigration records and his passport are available to confirm this. They constitute independent evidence. I request Your Lordships to accept this evidence.”
“Furthermore, it was recently revealed through the prosecution’s own evidence that the 8th accused did not participate in the meeting held on 2022/10/10. When the witness from Dialog testified regarding telephone records, it was established that by 10:00 a.m.—the exact time the meeting allegedly took place—the eighth accused was in the Ja-Ela, Kandana area. This confirms his absence from that meeting. These are independent pieces of evidence presented by the prosecution itself.”
Can an Irrefutable Truth Be Bypassed?
The most profound legal critique emerging from these proceedings is whether the judicial bench can dismiss this motion based merely on an administrative delay in meeting a 14-day statutory deadline, especially when it has been directly proven—by the prosecution’s own evidence (Dialog records) and state documentation (passport)—that the accused was physically absent when the alleged crime took place.
Citing a precedent set by Supreme Court Justice Mahinda Samayawardhena, Counsel Wijesundara emphasized to the Court that the ‘Principles of Natural Justice’ and the ‘Right to a Fair Trial’ guaranteed under Article 12(1) of the Constitution cannot be overridden by mere technicalities.
Counsel Nayantha Wijesundara: “My Lords, you are well aware that utmost attention must be paid to the principles of natural justice. The eighth accused is equally entitled to a fair trial. Therefore, I request the Court to grant permission to present this defense under the ‘proviso’ of Section 126A (1) of the Code of Criminal Procedure.”
The Prosecution’s Objection: The Technical Framework of the Law
Faced with this robust argument, Deputy Solicitor General Lakmini Girihagama filed her objection by strictly adhering to the letter of the law. She pointed out that the accused had admitted to chairing the meeting and had signed the statement given to the Criminal Investigation Department (CID), and had failed to assert his rights despite having ample time before the trial commenced.
Deputy Solicitor General: “My Lords, one cannot sleep on their rights and suddenly wake up to claim them. The minute stating that the 8th accused chaired the relevant meeting is signed by the Health Secretary. If he had objected then, the prosecution could have investigated the defective document signed by such an officer. Regardless of the 8th accused’s stance, defenses cannot be fabricated on a whim.”
The Bench’s Ruling and the Lingering Question
Having considered the submissions, Presiding Judge Priyantha Liyanage ruled that to grant permission under the law’s ‘proviso’, sufficient reasons for the delay must be presented. The Court concluded that the 8th accused citing mere ignorance of the charge, combined with the fact that he had read, understood, and signed the CID statement, did not constitute adequate grounds. Consequently, the Court refused to grant permission for the request.
Nevertheless, through Counsel Nayantha Wijesundara’s cross-examinations and legal arguments, the defense succeeded in casting a substantial shadow of doubt within the High Court. A profound legal question remains: What should hold more weight before the law—a written document against an individual (a meeting minute or a statement), or his physical absence definitively confirmed by the prosecution’s own independent evidence (passport and telephone records)?
This scenario transcends the rigid clauses of a statute book; it demands a profound evaluation of what constitutes a fair trial and the ultimate pursuit of truth. Although the ‘alibi’ motion was dismissed during this hearing, the irrefutable reality established through the prosecution’s own evidence will undoubtedly remain a formidable asset for the defense in the upcoming proceedings.
The further hearing of the case and the examination of the investigating officers’ evidence were postponed to October 5.