By : A.A.M.NIZAM – ,MATARA
Freedom to Duminda
Silva : Presidential Commission dismisses a seven-judge ruling
The Presidential
Commission to Investigate incidents of Political Revenge has recommended to
President Gotabaya Rajapaksa that former parliamentarian Duminda Silva, who was
sentenced to death in connection with the assassination of former
parliamentarian Bharatha Lakshman Premachandra, should have been acquitted and
released.
The Commission
decided that Duminda Silva should have been acquitted of all charges in the
indictment filed against him in the Colombo High Court, the report said. The
three-member Presidential Commission, chaired by retired Supreme Court Judge
Upali Abeyratne, was appointed by the President on January 9, 2020. Retired
Court of Appeal Judge Daya Chandrasiri Jayatilake and retired IGP Chandra
Fernando the other members of this commission.
The Commission and its purpose
This Presidential
Commission to Investigate incidents of Political Revenge had been assigned to
look into the politically revenged personnel and the background to those
incidents, due to the investigations carried out by the Commission to
Investigate Allegations of Bribery or Corruption, the Financial Crimes Division
of the Police, the Criminal Investigation Department and the Special
Investigation Unit of the Police, from 08th January 2015 to 16th November 2019.
The final report
was handed over to the President by the Chairman of the Commission Upali
Abeyratne at the Presidential Secretariat.The report also includes
recommendations regarding a complaint lodged with the Commission by Duminda
Silva’s father, Arumadura Vincent Primalal Silva. The commission report further
states that it is appropriate to grant some relief to the complainant due to
the damage caused to Duminda Silva due to his imprisonment, a victim of
political revenge.The Commission further recommended that police officers be
prosecuted under the Police Disciplinary Rules for lying, perjury and for
defamation of the police service.
The report
mentions that after examining the evidence presented in this case, the
Commission concluded unanimously that it has been convinced through strong
evidence that the respondents MP Ranjan Ramanayake, Padmini Ranawaka and Shani
Abeysekara have fabricated evidence to convict the plaintiff, Arumadura
Lawrence Romelo Duminda Silva of wrongdoing, to imprison him and sentence him
to death.
Who is Bharatha Lakshman?
Bharatha
Lakshman Premachandra, who entered politics with his father’s political
affiliation, began his political career as a Member of the Kolonnawa Municipal
Council. That was in 1979. In 1983 he became the Leader of the Opposition in
the Kolonnawa Municipal Council. He later joined the Sri Lanka People’s Party
and was the Kolonnawa organizer of the party.Mr. Premachandra, who contested
the first Provincial Council election in Sri Lanka in 1988, was elected to the
Provincial Council from the United Socialist Alliance representing the People’s
Party. He was again elected as a Member of the Provincial Council in the 1993
Provincial Council Elections.
Subsequently,
Bharatha Lakshman Premachandra, who contested the 1994 General Elections, was
elected to Parliament with 63,421 preferential votes. Mr. Premachandra, who won
the general elections in 2000 and 2001, was elected to Parliament for the
second and third time and his parliamentary career ended in 2004. He was later
appointed by the President as President Mahinda Rajapaksa’s Trade Union
Adviser.
Duminda Silva’s rising
Arumadura Lawrence
Romelo Duminda Silva has been in power in Mr. Bharatha’s jurisdiction since
2010. He started his political career with the UNP, as a member of the
Provincial Council. He was elected to the Provincial Council in 2004 and 2009
with the highest number of preferential votes from Colombo.
He later became a
member of the UPFA. He was nominated under UPFA in the 2010 General Elections
and contested the General Elections from the Colombo District and was elected
to Parliament as the second candidate on the Colombo District Preferential
List. He received 146,333 preferential votes.
Local Council Election
At the time of
this incident, in 2011, Mr. Premachandra was the President’s Trade Union
Adviser, while Mr. Silva was a Member of Parliament and the UPFA organizer for
the Kolonnawa electorate. According to media reports at the time, he was also
appointed as the Monitoring Member of the Ministry of Defense.
Kotikawatta-Mulleriyawa
Local Council is located in the Kolonnawa Electorate. Its chairman was Prasanna
Solangarachchi. Mr. Solangarachchi again contested for the Kotikawatta-Mulleriyawa
Local Council representing the UPFA in the local government elections held on
October 8, 2011.
Mr. Premachandra
worked for Mr. Solangarachchi’s victory and participated in his election
campaign rallies.
Sumudu Rukshan
also contested for the Local Council representing the United People’s Freedom
Alliance and had a fierce battle with Mr. Solangarachchi. Mr. Silva supported
Sumudu Rukshan. There was a heated battle between the two to get the highest
number of preferential votes on the list to become chairman of the Council.
It was a battle
that went beyond these two that tested the power of Mr. Silva and Mr.
Premachandra.
Election law violations since 06.30 am
As revealed in
Court, Kolonnawa UPFA organizer Mr. Silva left home at 6.30 am to go to the
polls in Tamil Nadu Watta on October 8, 2011, when the local government
elections were held. When Duminda Silva arrived there, his ministerial security
superintendent Priyantha Dissanayake had gone there with a group of other
officers.
Mr. Silva, who was
sitting on a chair near the road at the time, was asking voters who they were
going to vote for. He has told those who come to vote for the UNP not to do so.
Mr. Silva and his group had come to the house of a man named Ramesh for lunch
at around 11.30 am and had been drinking there.
Chaminda Ravi
Jayanath had also arrived in Tamilnadu Watta at around 12 noon and some of them
had left at 2.45 pm as a group. They had left to go to the house of a candidate
named Sumudu Rukshan.
On his way to Mr.
Rukshan’s house, Mr. Silva had instructed to stop at Kanda Viharaya. Mr.
Silva’s defender was in front and the Security Forces (MSD) vehicle was behind
it and the pajero carrying his personal bodyguards at the tail.
Anura Thushara de
Mel handed over a T-56 firearm to Chaminda Ravi Jayanath on the orders of Mr.
Silva after stopping near the Kanda Vihara. It is an illegal firearm. After the
exchange of firearms, the group left and stopped near Rajasinghe College on
their way to Ambatale. There, Mr. Silva had assaulted a young man who was
supporting Mr. Solangarachchi.
The group left
again and stopped next to Rahula College. Mr. Solangarachchi’s wife had also
come to the polling station and Mr. Silva had scolded her. He had asked who she
had voted for and she had said that she had voted for her husband Mr.
Solangarachchi. When Mr. Silva approached her, a woman named ‘Pinky Akka’ had
taken her to a shop called ‘Anura Kade.’
Mr. Silva’s
accomplices were seen displaying T-56 assault rifles near the polling station.
The group had stayed there for a while and then proceeded towards Himbutana
Junction.
Duminda blocks the road and attacks Bharatha
As Mr. Silva and
his group were advancing, Mr. Premachandra’s vehicle had come from the opposite
direction near Himbutana Junction. At the same time, his vehicle stopped
blocking his vehicle. An argument broke out between Mr. Silva and his opponent.
Beyond the exchange of words, Mr. Silva has hit Mr. Premachandra.
Following the
assault, Rajapurage Gamini, Mr. Premachandra’s bodyguard, fired at Mr. Silva
with his firearm to save his employer.
At the same time,
Priyantha Janaka Bandara Galaboda alias Galaboda Priyantha, a personal
bodyguard of Mr. Silva, had shot Mr. Gamini severely injuring him. Mr. Silva’s
group then shot Mr. Premachandra and several others at the scene with an
illegal T-56 assault rifle.
Mr. Premachandra,
Damitha Dharshana Jayatilake, Mohamed Ashim and Manivel Kumaraswamy were killed
in the shooting. The illegal firearm used in the shooting was later found by the
CID on a revelation by Chaminda. The department later told the court that it
was a firearm used by the LTTE.
Mr. Silva was also
shot in the incident and was taken to Mount Elizabeth Hospital in Singapore for
treatment.
Shani Abeysekara
This was an event
that caused a great deal of controversy in the political arena. Therefore, the
investigation was handed over to the CID. The then director of the department
ordered its Special Investigation Unit to investigate the incident. However,
the then Director appointed ASP Shani Abeysekara to overlook the Special
Investigations Unit as the Assistant Superintendent of Police in charge of that
investigation unit was not present on the relevant day.
The Special
Investigation Unit of the CID conducted the investigation under the supervision
of Mr. Abeysekera and the OIC in charge of the investigation was Inspector
Meryl Ranjan Lamahewa. Several suspects were arrested during the investigation.
However, Mr. Silva who played the lead role in the case was not arrested. The
reason was that he was receiving treatment in Singapore outside Sri Lanka at
that time.
The aggrieved
party constantly blamed the CID for not taking action to arrest Mr. Silva and
not obtaining a warrant against him during the investigation.
Allegations on partiality
Hirunika
Premachandra, daughter of Mr. Premachandra, alleged that the CID did not arrest
Mr.Silva because they were acting in a partisan manner. MP Ranjan Ramanayake
also made similar statements against the CID in those days. Later, Mr.
Ramanayake had stated that he had made such a statement because Inspector Meryl
Ranjan Lamahewa had stated that Mr. Abeysekera was conducting the investigation
in a partisan manner to Mr. Silva.
Inspector Merrill
met with the deceased family members and stated that Mr. Abeysekera was
investigating Mr. Silva in a biased manner.
Meanwhile, there
was a need to obtain a statement from Mr. Silva and at that time his lawyer
informed that he was in a position where he could not obtain a statement.
Inspector Meryl Ranjan Lamahewa went to Singapore on behalf of the CID to
obtain a statement from Duminda Silva.
His statement
stated that Mr. Silva had no recollection of the incident. At the same time,
Mr. Premachandra’s party again accused the CID of conducting biased
investigations.
Former IGP N.K.
Illangakoon summoned Mr. Abeysekera for questioning over his failure to arrest
Mr. Silva and the failure to obtain a warrant against him. At the time, Mr.
Abeysekera had said that a warrant was not required for the arrest as he had
committed a crime under the Criminal Procedure Code. Mr. Abeysekera has
informed the IGP that Mr. Silva could be arrested without a warrant.
Why was Duminda Silva not arrested?
When questioned by
the aggrieved parties in court as to why he was not arrested in Singapore, Mr.
Abeysekera had said that he could not be arrested as he was unconscious. He
also said that according to the Constitution, a suspect should be arrested
after being charged and that a person who is not properly conscious cannot be
charged and therefore, he cannot be arrested until he regains consciousness.
However, Mr.
Silva, who had recovered, was arrested by the CID after his return to Sri
Lanka. He remained in Nawaloka Hospital during his remand. He was released on
bail while in Nawaloka Hospital, and returned home the next day.
During the hearing
of this case in the Magistrate’s Court, Inspector Meryl Ranjan Lamahewa, who
was supposed to represent the CID before the court, was severely reprimanded by
the court for not appearing in the case. He was later removed from the relevant
investigation on the ground that he had acted in a manner prejudicial to the
case.
Suspects charged
After the CID
investigation, High Court Judge Shiran Gunaratne referred the investigation
file to the Attorney General. The Attorney General who supervised the file,
filed indictments against 13 accused including Duminda Silva in the High Court.
The defendants were charged with 17 counts, including being a member of an
illegal mob and murder.
The Supreme Court
appointed a three-judge High Court to hear the case, considering a request by
the Attorney General to appoint a three-judge panel as this is a special court
case. Its presiding judge was High Court Judge Shiran Gunaratne. The other two
judges were Padmini M. Ranawaka and M.C.B.S. Morais.
High Court Judge Padmini M. Ranawaka
During the High
Court hearing, 118 witnesses were called to testify in the case. After a
lengthy trial, the High Court decision was announced.
Judge Gunaratne,
the presiding judge of the bench, passed one judgment and Padmini M. Ranawaka
announced another verdict. Mr. Gunaratne ordered that all suspects including
Duminda Silva in this case be acquitted and released. Ms. Ranawaka ordered that
eight of the 13 suspects be acquitted of all charges and that Mr. Silva and
five others were sentenced to death, including life imprisonment.
The other judge of
the tribunal, M.B.S. Morais, agreed with Ms. Ranawaka. Accordingly, Mr. Silva
and others were sentenced according to the opinion of the majority of the three
judges.
Moving Supreme Court against the High Court decision
Mr. Silva and
several other defendants appealed to the Supreme Court against the sentencing.
The appeal was heard before a five-judge panel. The five-judge bench comprised
Chief Justice Priyasath Depp, Buwaneka Aluvihare, Priyantha Jayawardena, H.N.J.
Perera and Vijith Kumara Malalgoda.
Defendants
continued to argue that the judgment of the High Court Judge and Judge Morais
in this case was erroneous. Mr. Silva and other defendants also stated that Mr.
Abeysekara had not conducted the investigation properly. After a lengthy
deliberation, the bench ruled in favor of High Court Judges Ms. Ranawaka and
Mr. Morais.
The Court ruled
that according to the Sections 81A, 82C (1) of the Local Government Elections
Act No. 53 of 1946, it is not permissible to intimidate voters on a local
government election day and it is illegal for a group to go to the polls with
firearms and such group is an illicit gathering.
Liability for the crime
The Supreme Court
ruled that Article 146 of the Penal Code makes it clear that all members of an
illegal gathering are responsible for an offense committed by any member of
that illegal population.
Mr. Silva has been
held responsible for the crime by the Supreme Court and it is mentioned in the
court decision that,
The 11th accused
(Mr. Silva) led the illegal assembly until the moment he (Mr. Silva) was shot
in the head. This suggests that there may be only a millisecond difference in
time between the first shot and the counterattack.
If there was a
significant difference between the time and space between the parties and the
crime, or if the shooting was carried out by a fundamentally different person,
it could be argued that the 11th accused (Mr. Silva) had left the illegal
assembly and separated from those acts.
But as I have
discussed earlier, the death toll from firearms is a predictable consequence of
their criminal agenda. It is true that the 11th accused (Mr. Silva) was a
member of the mob at the beginning of the incident which lasted only 60 seconds
or so.
At the same time,
there is no evidence that the 11th accused (Mr. Silva) acted with the intention
of separating from the meeting at any time before that. The 11th accused (Mr.
Silva) was injured almost as soon as the deceased was fatally wounded.
He (Mr. Silva)
has always been involved in and supporting illegal assembly activities.
Therefore, criminal charges can be filed on the basis of unlawful assembly.
Therefore, it aligns with the law to convict and punish him.”
Wimal Weerawansha’s argument
Wimal Weerawansa
accused Judge Ranawaka claiming she had acted impartially in Mr. Silva’s case.
But she was the only one judge to hear the case. Judge Morais has also ordered
Mr. Silva to be convicted in the High Court. In addition, when Mr. Silva and
his party went to the Supreme Court against the High Court decision, all five
judges upheld the verdict and sentence against him.
That is, eight
judges of the High Court and the Supreme Court have heard Silva’s case, and all
but one of the High Court judges have convicted and sentenced him. When even
Judge Ranawaka, who is accused of being biased, is excluded, six judges
convicted Mr. Silva and ordered his sentencing.
Are orders from 3 courts mistaken?
The Commission to
inquire Political Revenge appointed by President Gotabaya Rajapaksa has
unanimously recommended the acquittal and release of Duminda Silva, dismissing
a seven-judge ruling out of 8 judges. It was revealed that there is evidence to
file indictments against Duminda in the Magistrate’s Court. Duminda was
convicted and sentenced in the High Court. The sentence was upheld again in the
Supreme Court.
Correction of a verdict
given by a regime influencing & politicizing the Judiciary
Courtesy Hiru News
Former Colombo
District Parliamentarian Duminda Silva, who was imprisoned for the murder of
former Parliamentarian Bharatha Lakshman Premachandra was released on a
Presidential pardon.
Former Member of
Parliament Duminda Silva played a significant role in uplifting the living
standards of low-income earners in the Colombo District.
An exchange of
gunfire between United People’s Freedom Alliance (UPFA) former parliamentarians
Duminda Silva and Bharatha Lakshman Premachandra took place at Walpola Junction
in Kolonnawa on the day of the 2011 local government elections.
Former Member of
Parliament Bharatha Lakshman Premachandra and three of his bodyguards were
killed during this shootout. Former MP Duminda Silva who was shot in the head
on October 8, 2011, at around 3.30 pm, sustained major injuries and was taken
to the Sri Jayewardenepura General Hospital for treatment.
Following the
initial treatment, he was admitted to a hospital in Singapore for further
medical treatment.
Duminda Silva who
was treated at the Mount Elizabeth Hospital in Singapore for a long time
returned to Sri Lanka after recovering and resumed his usual social service to
the public.
The Attorney
General filed Seventeen (17) charges in the Colombo High Court including
criminal charges against 13 individuals including former MP Duminda Silva over
the incident that occurred on 08 October 2011 naming them as defendants.
The trial in this
regard commenced on 22 May 2015.
Forty-two
eyewitnesses (42) were called to court and cross-examined during the lengthy
trial which lasted for more than a year.
In addition, 126
various reports, including Judicial medical reports, were submitted for this
trial.
It also included
the reports of the Government Analysts’ who conducted investigations into the
incident.
After nearly 14
months, the case, which was heard before a three-judge bench concluded on 14
July 2016. The verdict on the case was announced on 08 September 2016.
The verdict was
announced as a divided decision referred to as a majority decision of the
three-judge bench which was headed by High Court Judge Shiran Gunaratne.
The Presiding
Judge acquitted all the accused of all charges, while Judges Padmini N.
Ranawaka and M.C.B.S Moraes announced their verdict convicting former
parliamentarian Duminda Silva and four others and sentencing them to death.
Former MP Duminda
Silva filed an appeal in the Supreme Court against the decision given by the
Colombo High Court.The appeal was heard by a five-judge bench headed by the
Chief Justice of the time, Justice Priyasath Dep.
Following the
hearing, the Supreme Court five-judge Bench delivered a unanimous decision
affirming the verdict of the High Court as correct. Accordingly, former MP
Duminda Silva and the others were imprisoned.
However, a wider
discussion developed in society as to how former MP Duminda Silva who was the
first injured in the gunfire and had fallen down, could be the killer of former
MP Bharatha Lakshman.
Meanwhile, the
discussion of the verdict of former MP Duminda Silva takes the centre stage
again following the leaked audio tapes of secretly recorded phone calls made by
Ranjan Ramanayake who was a parliamentarian at the time.
Among the
audiotapes were conversations between former MP Ranjan Ramanayake and Superintendent
of Police Shani Abeysekara who conducted investigations. These conversations
revealed to the public how the verdict in the trial of former MP Duminda Silva
was influenced by MP Ranjan Ramanayake by giving calls to SP Shani Abeysekara.
The tapes also
revealed the manner in which former MP Ranjan Ramanayake influences and exerts
pressure by calling Judge Padmini N. Ranawaka who was a member of the
Trial-at-Bar that heard the case against former MP Duminda Silva.
Thus, there was a
wider debate in the society and in the political arena that the former Member
of Parliament had been unjustly treated and imprisoned.With these controversial
audio tapes being broadcasted on mainstream media channels as well as on social
media, a strong voice emerged from civil society activists and even political
activists calling for the release of former MP Duminda Silva.
Even in
Parliament, there was a call for the release of the former Member of Parliament
who was unjustly imprisoned. The main argument of all those who raised their
voices against the injustice done to Duminda Silva was that this was the result
of a sinister scheme orchestrated by SP Shani Abeysekara of the Criminal
Investigation Department who was investigating the murder of Bharatha Lakshman
Premachandra.
Sufficient new
information and evidence emerged through the leaked audiotapes which were
secretly recorded by former MP Ranjan Ramanayake to prove that it was a
deliberate and well-planned setup to trap former MP Duminda Silva.
President Gotabaya
Rajapaksa decided to refer the verdict of the case to the Special Presidential
Commission appointed to probe alleged incidents of political victimization in
the wake of strong voices from social activists alleging that the former
parliamentarian had been subjected to serious injustice.
It was revealed
before the Presidential Commission of Inquiry, which considered the verdict and
the compiled evidence, that SP Shani Abeysekara had deliberately acted to
convict former MP Duminda Silva. It was also revealed at the Presidential
Commission that former MP Ranjan Ramanayake has also exerted pressure on the
Judges to influence the verdict of the case against former MP Duminda Silva.
Following a
lengthy inquiry, the Presidential Commission of Inquiry concluded that former
MP Duminda Silva had been treated unfairly. Accordingly, former Parliamentarian
Duminda Silva was released under a special presidential pardon in accordance
with the powers vested in President Gotabaya Rajapaksa by the Constitution.
This is how former
Parliamentarian Duminda Silva who was imprisoned in the Welikada Prison for
over five years over an offence that he did not commit was released
