By : A.A.M.NIZAM – ,MATARA

The judicial tradition is for Judges to announce in open Court the reasons for the verdict when declaring a Court verdict. At the same time, they should sign the written notes. It is compulsory for reasons to be given in Lower Courts. In the Bharatha Lakshman murder case the High Court has not followed this tradition. 

However, in the Supreme Court and Appeal Court when declaring a verdict thus, one can approve of the verdict of the other Judges on the panel. By this not happening, it is apparent that a fair hearing regarding the Bharatha Lakshman murder case has not been conducted. If so, this hearing has been conducted against the Constitution of Sri Lanka. Some of the content of the voicetapes in which Judge Padmini Ranawaka engaged in telephone conversion with Ranjan Ramanayake while the hearing was in progress, were as follows: 

Ranjan-Padmini telephone conversation on 14.07.2016 at 9.33 p.m. 

Ranjan: I am the only one at home. Only I am here. I am speaking to you with the utmost respect. The entire country is watching and waiting. I saw in the newspapers and called you. Even now it was on TV. The country is waiting hoping that justice will be done in that case verdict. Thank you very much. It is a pleasure to know that you are a member of the panel of Judges. 

Padmini: Okay….okay…. 

Ranjan: It is hoped that something good will happen. 

Padmini: Okay….okay…. 

Ranjan: I called to wish you the blessings of the Gods and strength.

 Another conversation that took place between Judge Padmini Ranawaka and Ranjan Ramanayake was as follows: 

Padmini: I need to enter the Appeal Court. At present there is a vacancy. But I am number nine in the list. However, two above me have been removed. They were not given. 

Manilal Waidyatillaka and Aruna Ranasinghe? Patali Champika and others had said that they were thieves. But it was given to another thief. Gamini Amarasinghe has enough and more case verdicts, hundreds. Ranil Wickremesinghe is far better.

 He had said, that it was clearly apparent from Duminda’s case. When they heard that our CJs had scolded me, this had been said, but I personally do not know about it. 

Ranjan: You all are not like Mohan Peiris and others. 

Padmini: I will trust you. That is why I called you this morning. 

Ranjan: So, what is the procedure I have to follow? 

Padmini: Although I am at nine, it was for the department that I worked. I filled this as much as possible. We went down. I should have been in the Appeal Court by now. If I too, had released Duminda, then actually the Town Hall Bomb blast and Duminda’s case, both were done by me. I will be going home on 30 November.  Ask them to consider the fact that I am retiring at least and give it to me. 

Ranjan: Is there room for this vacancy? 

Padmini: Yes. Aney, if possible get me the Appeal Court. 

Ranjan: We have to inform HE that there is a vacancy in the Appeal Court and to appoint Padmini Gunatillaka for that post. 

Padmini: Aney don’t mention that I said it. 

That Sisira Aabrew is against me. He doesn’t like it because it was my name that is being mentioned in Duminda’s case. He is very jealous. He scolds me for nothing. If possible, tell Ranil Wickremesinghe and get this done for me. I cannot trust HE.

Shani: After you spoke Sir, now it has come to a better side. 

Ranjan: Aney, deviyangepihitai.  I want this fellow now… it is a great regret that he was not remanded even for a minute. He had been shooting on the main road. 

Shani: If that man had been remanded at that time, we would not be here now. 

Ranjan: That is of course true. Has it now turned for the better? 

Shani: After the case Ibring the notes I submitted and show you.

Ranjan: Now my problem is this. Listen to me please.

 I am interrupting you and disturbing you and asking you. 

Shani: Yes, Sir. 

Ranjan: Now your target is to send Duminda. My target is also to send Duminda. (Shani – Yes). It is also the target of Bharatha’s wife and Hirunika’s to send him in. 

Shani: Yes. 

Ranjan: So, the target of everyone in our faction is sending Duminda in. So why are we clashing? Continued on Page 14

 This tape reveals how the Director of the CID Shani Abeysekera told Ranjan Ramanayake, the verdict, the day before the case verdict was to be declared, on 8 September 2016. 

Ranjan: Good evening, how are you? Will we get good news or bad news tomorrow? 

Shani: It will definitely be good news. Will you come to Court, Sir? 

Ranjan: Aney do not change that. Do not disappoint us. 

Shani: No, no, that will not change, definitely. However, the one in the middle will be writing for the release. 

Ranjan: Oh, God, who is the middle one? 

Shani: The Chairman. There is no problem with that. We have two. 

Ranjan: Padmini is okay, isn’t she? Will it go to Supreme Court? 

Shani: Anyhow it will go to Supreme Court, Sir. Sir, are you coming to Court? 

Ranjan: Is it correct for me to come? Will it show that we are together in this job? 

Shani: Since you come for every corruption incident, what does it matter if you come for this? 

Ranjan: Will the fact that I gave a call be discovered? 

Shani: That will not happen, you come. Why give the front to useless people and you go behind the scene? 

Ranjan: You are sure? Shani: Sure, sure, no two words about it. 

Ranjan: I do not need to say it again, do I? 

Shani: No, no. We shall see after the job is done. 

Ranjan: Let us say thank you. Can’t you change the middle one? 

Shani: There is no need. We have two. We have a majority. 

Ranjan: Okay, so tomorrow morning you won’t disappoint us will you? 

Shani: What could disappoint you was made up later. 

Ranjan: Okay, okay, deyiyangepihitai! 

Shani: Sir, you come. If you are not there on a day like that, what is the point? If information about these telephone conversations had become known during the era when the case was being heard at the High Court, it would not have continued as it need not be mentioned that the recorded telephone conversations were powerful enough to halt the hearing. If that had happened the hearing of the Bharatha Lakshman murder case would have been rejected without even a verdict. 

However, this criminal conspiracy came to light only after the case verdict was declared. The death sentence imposed on Duminda Silva is one that was created through a conspiracy and ceaseless secret conversations between the Criminal Investigation Department, the Court and a State Minister of the Government. Accordingly, an opportunity has been created for the President of Sri Lanka to make a justified decision to release a person who has been sentenced to death. A telephone conversation had taken place between Ranjan, Padmini and former President Maithripala Sirisena. The conversation that took place on 12.09.2017 at 2.56 pm is as follows: 

Ranjan: Madam 

Padmini: Yes. 

Ranjan:The Honourable President is here, just speak to him and explain your matter. 

Padmini: Aney 

Ranjan:(Quietly) Padmini M. Ranawaka 

President Maithri: Hello 

Padmini: Honourable President 

President Maithri: Ah Padmini Forgive me for speaking to you. 

President Maithri: No, no it is not a problem. 

Padmini: If you can please get me a post at the Appeal Court because I have given about one hundred thousand judgments. At the same time, I have worked with great integrity for the country and its people. So, I request you to consider this, only if there is a possibility. I have the strength to work for many more years. 

President Maithri: Okay. Okay. 

Padmini:I have never tried to influence anyone before. 

President Maithri: Oh. Oh. 

Padmini: However, despite the many threats I get, I do the proper thing. That is how I carried out my duties during these 27 years. Actually, I gave Duminda’s verdict too. Other Judges were scared to hear the case regarding Madame Chandrika’s bomb incident. 

President Maithri: Yes. Yes. 

Padmini: There were large bundles of books in one. Even then I agreed to hear the case. President Maithri: Okay. Okay.

Padmini: Even then I did so to ensure justice. I am not trying to influence you. I am making a request. If there is a possibility, please consider it. I wish that you are blessed with more and more strength. Thank you very much. 

President Maithri: Okay. Okay. Thank you very much. 

Ranjan: Madam, I will give you a call later. 

Padmini: Oh gosh, okay, okay. Clearly what has happened on this occasion, is that a fraudulent verdict was obtained through a conspiracy involving several factions. Here, the defendant who should have received legal protection and claims through the Constitution has not received them. The right of the Defendant for a fair hearing has been destroyed completely. It has been clearly proven that the first person to have been shot in the Bharatha Lakshman murder case, was Duminda Silva. 

He sustained critical injuries. Did the Defendant who was lying on the ground with critical injuries act with intention of killing? Could he do that? Reviewing of these facts have been set aside completely. Judge Padmini Ranawaka, explaining her decision, said that when charges were filed against Duminda Silva the fact that he had been the first victim of a gunshot was not of importance and that it was not relevant in any way at all. 

When the incident that resulted in charges being levelled against Duminda took place, if he had been lying on the ground with critical injuries can he become a Defendant in a Criminal murder case ? This was not taken into consideration by the judiciary. What has to be considered is that it has happened thus as a part of a conspiracy. 

Judge Chamath Morais agreeing to the verdict without putting forward reasons and remaining silent is also questionable. When considering these facts, according to Clause 34 of the Constitution, based on the powers the President has been granted, it is clear that there is no obstruction to granting a pardon to Duminda Silva. The fact that Judge Shiran Gunaratne from among the three Judge Bench had stated that Duminda Silva was not guilty, has to be considered as well. 

The fact that it has been confirmed on the premise that according to the verdict given in this case, there was talk of appointing Judge Padmini Ranawaka as an Appeal Court Judge, which was a topic of a telephone conversation between State Minister Ranjan Ramanayake and Judge Ranawaka had to be taken into consideration too. This is where the fraud takes place. It is through that, that the conspiracy is revealed. The President has corrected a historic wrong in the Bharatha Lakshman case by using the power of the supremacy of the people which he has received through the Constitution. It is only confirming the natural course of justice. 

Sri Lanka’s Constitution has granted the President these powers so as to enable a person to be granted a pardon if that person is imprisoned due to ablation of a legal function, to protect that person’s human rights.

Executions and Article 11 of the Constitution

By Prof. Lakshman Marasinghe

(Professor of Law from the University of Windsor)

Recently, a large volume of writing has taken place discussing the merits and demerits of executing the death penalty imposed upon prisoners languishing in the country’s jails for committing a variety of capital offences. When I read those comments, my mind immediately went back to the note of resignation submitted by Her Majesty’s executioner, Albert Pierrepoint, which he later had included as a preface to his Autobiography. In that note he wrote” I do not believe that anyone of the 400 executions I carried out has in any way acted as a deterrent against future acts of murder. Capital Punishment, in my view, achieved nothing except revenge”.

The last execution in Sri Lanka took place in 1976

There was no determination of the constitutional validity of the imposition of capital punishment, under Article 11

Above all the degree of international criticism to which Sri Lanka may be targeted will not be a suitable proposition to face

Therefore, it is important that a decision of the Supreme Court is first obtained

The basic question therefore is, is capital punishment, in keeping with Article 11 of the Constitution?

Aside from any number of ethical, religious or such other reasons for decrying the execution of Cpital penalties there is a Constitutional hurdle that one has to leap before legally, a noose is put around the neck of a human being, in Sri Lanka.   

Article 11 of the Sri Lanka’s 1978 Constitution reads: No person shall be subjected to torture or to cruel inhuman or degrading treatment of punishment”. Those very same words are found in Article 11 of the present South African Constitution. 

In The State vs Makwanyanne and Another,reported at (1995)3 South African Reports at page 391, the two accused were convicted of the offence of Murder, under the South African Penal Code, by a Court sitting in the Province of Witwatersrand. At their conviction they were both sentenced to death. The sentencing judge wrote on the report that the murders they had committed were so gruesome that they do not deserve to be commuted. They both appealed to the South African Court of Appeal, but the hearing was held back until a constitutional issue as to the constitutional validity of capital punishment was determined, by the South African Constitutional Court.  Learned counsel argued that Article 11, of the South African Constitution, which as pointed out earlier was identical with the same Article of our constitution, made capital punishment unconstitutional, it being cruel, inhuman, or degrading treatment or punishment.  

Last execution

As it is in the Sri Lanka Constitution, what constitutes cruel, in-human or degrading conduct” has not been defined and that it was up to each court upon a case by case basis to determine, if and when that matter came before them. Therefore, the first question that required to be determined, before any executions takes place, is whether under Article 11 of the Sri Lanka constitution, capital punishment is constitutional? The last execution in Sri Lanka took place in 1976 which was two years prior to the promulgation of the 1978 Constitution. There was no determination of the constitutional validity of the imposition of capital punishment, under Article 11.   
Returning to Makwanyane, the Constitutional Court of South Africa, after examining a very large number of authorities held that Article 11 of their constitution made capital punishment, unconstitutional.   

As for the present trend regarding the abolition of the death penalty, there is a large measure of material which learned counsel in several jurisdictions had utilized

The first question we have to seek answers from our Apex Court is whether under Article 11 of our own Constitution the imposition of capital punishment was valid under Article 11. Unless the answer to that question is first obtained any rush to put into effect a sentence of death may well change the nature and character of that act, from one of a judicial execution to one of an extra judicial act of murder. In such an event a large contingent of persons from the executioner, in the first degree, and other officers as participating in a criminal act may become liable under the Criminal Law and also under the Civil Law for the payment of compensation. Above all the degree of international criticism to which Sri Lanka may be targeted will not be a suitable proposition to face.   

Decision of the Supreme Court

As for the present trend regarding the abolition of the death penalty, there is a large measure of material which learned counsel in several jurisdictions had utilized, and are available for our courts and our learned counsel to consider.. In the Caribbean, the Bahamian and the Courts in other Islands have found against the retention of capital punishment. So have the courts in Africa: Uganda, Malawi and Kenya. In a seminal judgment delivered by the Privy Council in The Attorney General for Belize v Reyes [2002] 2 Appeal Cases 235, the Law Lords, after an extensive perusal of the available law found that sentences of death were unconstitutional where there is in any Constitution, as we have” a fundamental human right to life.   

Therefore, it is important that a decision of the Supreme Court is first obtained, before the State rushes to execute convicts under sentences of death, for whatever offences they may have committed. The basic question therefore is, is capital punishment, in keeping with Article 11 of the Constitution? That question could be answered only by our Apex Court to which resort could be had by anyone of the 19 persons earmarked for execution, or some other interested party, or by His Excellency himself under Article 129 of the Constitution. 

To be continued……………………..