By : A.A.M.NIZAM – ,MATARA
One of the sectors that came under severe politicization under
Sirisena/Ranil government was the Law and Order sector. An illegal unit called FCID, branded by the
opposition politicians as Ranil’s Gestapo, carried out a witch hunt for
opposition politicians, their spouses, children, relatives, supporters and even
against some Buddhist monks. The Bribery
Commission existed only by name and no action was taken on complaints against
government Ministers, MPs and government supporters. Karu
Jayasuriya acted as a despot in the parliament having got bloated by the
ignominious 19th amendment.
Deputy Minister Ranjan Ramanayake became a superman completely
controlling the judiciary intimidating judges, deciding on promotions to
judges, concocting false evidence against innocent people together with certain
CID officials and instructing and forcing the judges to deliver the verdict of
court cases as they directed. The Duminda Silva case a clear example of how
they manipulated the verdict of this case.
The Poson Day Pardon given by
the President to the former MP Duminda Silva who was serving a death sentence
continues to’ draw many applause and criticism.
The Opposition Politicians endeavor to project this clemency as the
first instance of such compassion shown to a convicted prisoner. In Sri Lanka,
the last execution of a prisoner convicted with capital punishment had been
carried out on 23rd June, 1976 and thereafter the death sentences
have been commuted to life imprisonment.
Former MP Dulminda
Silva’s pardon by the President was not the first instance of a presidential
pardon. .Tthe first such pardon to raise concern was the one offered to Sunil
Perera, better known as ‘Gonawela Sunil’ who was serving a sentence for rape.
Perera, who had close links with the United National Party (UNP) was granted a
pardon by then President J. R. Jayewardene. Not only he was given a
presidential pardon but subsequently he was appointed as an all-island JP, The move was widely criticized by opposition
groups at the time. Perera was later assassinated by unknown gunmen.
President
Premadasa pardoned Manohari Daniels, who was convicted of aiding and abetting
the LTTE to carry out a bomb attack opposite Zahira College, Maradana in 1987
that killed forty innocent persons. Daniels was pardoned at a time when the
Premadasa government was having ‘peace talks’ with the LTTE, as a gesture of
goodwill in what was a bid to ensure the talks succeeded
President Mahinda
Rajapaksa has had his share of granting presidential pardons, which included
clemency granted to Mr. S. B. Dissanayake, who had been jailed for contempt of
the Supreme Court to two years rigorous imprisonment by a five-Judge bench of
the Supreme Court, pardoning of Mary Juliet Monica Fernando, the wife of then
Public Estate Management and Development Minister Milroy Fernando in March
2009. Mrs. Fernando had been sentenced to death for a double murder in
Katuneriya in January 1992 and in 2012, granting a pardon to Sarath Fonseka who was
serving a three-year prison sentence on various charges.
President Sirisena pardoned Venerable Gnanasara Thera and
later made him as an official delegate in in his visit to Japan.
Pardoning Duminda
Silva was not the first such clemency given by President Gotabhaya Rajapaksa. In
March 2020, within months of coming to power, the President pardoned soldier
Sunil Ratnayake who had been sentenced to death for killing eight Tamil
civilians, including a five-year-old and two teenagers, in the village of
Mirusuvil in northern Jaffna region in 2000.
It was one of the
few convictions from the terrorist war era, and the UN said the pardon was
“an affront to victims”
Duminda Silva was
found guilty with four others of shooting dead Bharatha Lakshman Premachandra
and three of his supporters during local elections in Colombo in 2011. The two
men were both members of the then governing party. The verdict was later upheld
by the country’s Supreme Court in 2018.
US Ambassador to Sri Lanka Alaina B
Teplitz, who extensively interferes illegally in the internal affairs of this
country has said that Presidential pardon of Duminda Silva was undermining Sri
Lanka’s rule of law. She has tweetedThe Pardon of Duminda Silva, whose
conviction the Supreme Court upheld in 2018, undermines rule of law”. However, she has welcomed
the early release of prisoners held under the Prevention of Terrorism
Act.”We welcome the early release of PTA prisoners,” she has said. This message is a clear evidence of this
prejudiced woman’s attitudes to undermine Sri Lanka whenever and wherever
possible and her bias towards Tamil separatists. Based on her tweeted message
the UN and the BBC have also adopted the same position.
A letter with the
signatures of a majority of Members of Parliament had been submitted to President
Gotabaya Rajapaksa and 115 parliamentarians, including members representing the
Samagi Jana Balavegaya had signed it. Organizations supporting the Government
and the Maha Sangha, holding Media briefings and protests, demanded that
Duminda Silva be released.
Many people were
of the belief that as soon as the present Government came to power Duminda
would be released. Duminda Silva’s father Arumaadura Vincent Premalal de Silva,
in a complaint submitted to the Commission, appointed on 9 January 2020, by
President Gotabaya Rajapaksa to investigate political victimization, had
requested that a verdict be issued that sentencing Duminda to death was done
merely to extract political revenge.
Subsequent to
hearing the Complaint, Number 1969-2020, of Duminda’s father Premalal de Silva,
the Presidential Commission Investigating Political Victimization issued a
decision saying that Duminda Silva should be exonerated and released.
The complaint filed by Duminda’s father
is as follows: Complaint No.: 1969-2020 Plaintiff: Arumaadura Vincent Premalal
de Silva Address: No. 40, Perera Mawatha, Pelawatte, Battaramulla The following
individuals who subjected the victim to political revenge are named as
respondents by the Plaintiff.
1. Ranjan Ramanayake
2. Padmini Ranawaka
3. Shani Abeysekera
Verdict
Subsequent to analysing the evidence submitted
in this case, the Commission has decided unanimously that the abovementioned
persons have acted with knowledge to sentence Arumaadura Laurence Duminda Silva
to imprisonment and to death, creating false evidence to ensure that he was
found guilty of an offence of false murder.
2. Therefore, in
the Case No. H.C. 7781/15 filed at the Colombo High Court against Arumaadura
Laurence Duminda Silva the Commission unanimously decided that he should be
exonerated from all accusations mentioned in the charge sheet and
released.
3. However, when
Arumaadura Laurence Duminda Silva was found guilty of the offences stated in
the charge sheet in case No. H.C. 8331/16 filed at the Colombo High Court and
sentenced to prison and death, which was approved by the Supreme Court, by not
presenting for consideration to the High Court and the Supreme Court the new
evidence submitted to the Commission, a miscarriage of justice has taken place
and as a result a unanimous decision was taken by the Commission that the
verdict that was delivered that Defendant Duminda Silva was guilty, be referred
to the Supreme Court by the Attorney General for an extensive judicial
review.
Once the
recommendations of the three-member Commission, comprising Judges Upali
Abeyratne, Chandra Fernando and Bandu Jayatilleke were submitted to the
President, as he has the statutory responsibility of taking further
action.
Therefore, the
decision taken by the President to release Duminda Silva cannot be argued as
being against the natural course of justice. Now the decision given by the
Commission on Political Victimization has been set aside and everything has
taken place.
The verdict of
the High Court has been confirmed by the Supreme Court. Therefore, it can be
concluded that Duminda Silva should be sent to the gallows and his files closed
if a case hearing that was universally justified was held, the law would have
been in agreement. However, what did happen in this hearing? The deity of the law
has landed in the hands of dissolute, salacious persons. Everything was
revealed subsequent to the case hearing through voice-tapes of Ranjan, Shani
and Padmini coming to light.
It was not
only one or two tapes, but several came out one after the other. What was made
clear was the fact that in the history of the judiciary of this country there
had been no lineup around the Judge’s seat ever before. Such an incident which
kicked the law and justice at once had not taken place previously. The facts
that were revealed through the voice-tapes were disgusting and offensive. We
state that the verdict in Duminda’s case was a by-product of a fraud and
conspiracy, not considering it as a mere political matter.
It is
because in this case the law was out of bounds from the very beginning. Now,
everything has happened. Therefore, can the files that state that Duminda Silva
be sent to the gallows be closed? Is there room for such a thing within the law
and right of justification? None. Not at all. This is not the first instance
that such a thing has taken place in the world.
There are
examples in recent history where such incorrect verdicts were corrected. There
is a similar special verdict in the British Court. In the case, Lazarus estate
limited Vs Beasley (56QB702) Lord Denning had declared as follows: No Court in
this land will allow a person to keep an advantage which he has obtained by
fraud. No judgment of a Court, no order of a Minister, can be allowed to stand
if it has been obtained by fraud. Fraud unravels everything.
The Court is
careful not to find fraud unless it is distinctly pleaded and proved; but once
it is proved, it vitiates judgments, contracts and all transactions
whatsoever…” Lord Denning’s statement is very compatible with Clause 44 of Sri
Lanka’s Evidence Ordinance.
Accordingly, if
it is proved that a case verdict issued by a Court has been obtained
fraudulently that verdict is vacated. An instance is found from a British Court
when a Court verdict which was obtained fraudulently was revealed after 13
years and it was vacated.
The Bharatha
Lakshman murder case verdict has been confirmed based on a collective of
details beyond reasonable doubt that a death sentence was imposed upon a
non-guilty person through a ‘Kekille’ verdict. If that is so, what should be
done? Can a reasonable law-abiding society be silent saying, ‘Oh dear see what
happened!’ Should society remain silent, allowing a few persons to handle,
according to their discretion, the system of law to define as a person, who had
absolutely no intention or need of murdering anyone, a murderer? If so, there
is no need to delay by even another day the release of Duminda Silva who is
imprisoned and suffering.
Therefore, it is
correct to define granting total freedom to Duminda Silva as protecting the
choice of the legal system in this country and its honour. Releasing Duminda is
fulfilling justice for him as well as protecting trust and honour of the
Honourable Judiciary. There is no need for Sri Lanka to go down in history as a
nation without justice. The wrong that was done should be corrected.
Duminda Silva
should be freed. When lining up these facts, one by one, according to Clause 34
of the Constitution, awarding a pardon to Duminda Silva based on the authority
the President possesses, is correct. The judicial tradition in a responsible
Court verdict, where a death sentence is confirmed, is that each Judge notes
down his or her decision and writes detailed reasons for arriving at the said
verdict and signing it. However, this had not been done in the Bharatha
Lakshman murder case. The leader of the three-member Bench, Judge Shiran
Gunaratne, in his verdict, has stated that Duminda Silva is not guilty of the
murder of Bharatha Lakshman.
Judge Padmini
Ranawaka Gunatillaka has stated that Duminda Silva is guilty and stated her
reasons for arriving at this decision. She has mentioned that she is sentencing
Duminda Silva to death, according to Para 283 of the Criminal Procedure Code
and in compliance with the terms of the Criminal Procedure Act. The third Judge
on the panel of judges, Judge Chamath Morais, has followed Padmini Ranawaka’s
verdict and expressed his agreement but has not mentioned the reasons for
arriving at that decision.
To be
continued……………………..
