{"id":115811,"date":"2021-07-05T15:42:02","date_gmt":"2021-07-05T22:42:02","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=115811"},"modified":"2021-07-05T15:42:02","modified_gmt":"2021-07-05T22:42:02","slug":"wrong-verdict-rectified-parrt-ii","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/07\/05\/wrong-verdict-rectified-parrt-ii\/","title":{"rendered":"Wrong verdict rectified – Parrt II"},"content":{"rendered":"

By : A.A.M.NIZAM – ,MATARA<\/strong><\/em><\/span><\/h2>\n\n\n

The judicial\ntradition is for Judges to announce in open Court the reasons for the verdict\nwhen declaring a Court verdict. At the same time, they should sign the written\nnotes. It is compulsory for reasons to be given in Lower Courts. In the\nBharatha Lakshman murder case the High Court has not followed this\ntradition. <\/p>\n\n\n\n

However, in the\nSupreme Court and Appeal Court when declaring a verdict thus, one can approve\nof the verdict of the other Judges on the panel. By this not happening, it is\napparent that a fair hearing regarding the Bharatha Lakshman murder case has\nnot been conducted. If so, this hearing has been conducted against the\nConstitution of Sri Lanka. Some of the content of the voicetapes in which Judge\nPadmini Ranawaka engaged in telephone conversion with Ranjan Ramanayake while\nthe hearing was in progress, were as follows: <\/p>\n\n\n\n

Ranjan-Padmini\ntelephone conversation on 14.07.2016 at 9.33 p.m. <\/p>\n\n\n\n

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

Padmini: Okay\u2026.okay\u2026. <\/p>\n\n\n\n

Ranjan: It is hoped that something\ngood will happen. <\/p>\n\n\n\n

Padmini: Okay\u2026.okay\u2026. <\/p>\n\n\n\n

Ranjan: I called to wish you the\nblessings of the Gods and strength.<\/p>\n\n\n\n

 Another conversation that took\nplace between Judge Padmini Ranawaka and Ranjan Ramanayake was as\nfollows: <\/p>\n\n\n\n

Padmini: I need to enter the Appeal\nCourt. At present there is a vacancy. But I am number nine in the list.\nHowever, two above me have been removed. They were not given. <\/p>\n\n\n\n

Manilal Waidyatillaka and Aruna\nRanasinghe? Patali Champika and others had said that they were thieves. But it\nwas given to another thief. Gamini Amarasinghe has enough and more case\nverdicts, hundreds. Ranil Wickremesinghe is far better.<\/p>\n\n\n\n

 He had said, that it was\nclearly apparent from Duminda\u2019s case. When they heard that our CJs had scolded\nme, this had been said, but I personally do not know about it. <\/p>\n\n\n\n

Ranjan: You all are not like Mohan\nPeiris and others. <\/p>\n\n\n\n

Padmini: I will trust you. That is\nwhy I called you this morning. <\/p>\n\n\n\n

Ranjan: So, what is the procedure I\nhave to follow? <\/p>\n\n\n\n

Padmini: Although I am at nine, it\nwas for the department that I worked. I filled this as much as possible. We\nwent down. I should have been in the Appeal Court by now. If I too, had\nreleased Duminda, then actually the Town Hall Bomb blast and Duminda\u2019s case,\nboth were done by me. I will be going home on 30 November.  Ask them to\nconsider the fact that I am retiring at least and give it to me. <\/p>\n\n\n\n

Ranjan: Is there room for this\nvacancy? <\/p>\n\n\n\n

Padmini: Yes. Aney, if possible get\nme the Appeal Court. <\/p>\n\n\n\n

Ranjan: We have to inform HE that\nthere is a vacancy in the Appeal Court and to appoint Padmini Gunatillaka for\nthat post. <\/p>\n\n\n\n

Padmini: Aney don\u2019t mention that I\nsaid it. <\/p>\n\n\n\n

That Sisira Aabrew is against me. He\ndoesn\u2019t like it because it was my name that is being mentioned in Duminda\u2019s\ncase. He is very jealous. He scolds me for nothing. If possible, tell Ranil\nWickremesinghe and get this done for me. I cannot trust HE. <\/p>\n\n\n\n

Shani: After you spoke Sir, now it\nhas come to a better side. <\/p>\n\n\n\n

Ranjan: Aney, deviyangepihitai. \nI want this fellow now\u2026 it is a great regret that he was not remanded even for\na minute. He had been shooting on the main road. <\/p>\n\n\n\n

Shani: If that man had been remanded\nat that time, we would not be here now. <\/p>\n\n\n\n

Ranjan: That is of course true. Has\nit now turned for the better? <\/p>\n\n\n\n

Shani: After the case Ibring the\nnotes I submitted and show you. <\/p>\n\n\n\n

Ranjan: Now my problem is this.\nListen to me please.<\/p>\n\n\n\n

 I am interrupting you and\ndisturbing you and asking you. <\/p>\n\n\n\n

Shani: Yes, Sir. <\/p>\n\n\n\n

Ranjan: Now your target is to send Duminda.\nMy target is also to send Duminda. (Shani \u2013 Yes). It is also the target of\nBharatha\u2019s wife and Hirunika\u2019s to send him in. <\/p>\n\n\n\n

Shani: Yes. <\/p>\n\n\n\n

Ranjan: So, the target of everyone\nin our faction is sending Duminda in. So why are we clashing? Continued on Page\n14<\/p>\n\n\n\n

 This tape reveals how the\nDirector of the CID Shani Abeysekera told Ranjan Ramanayake, the verdict, the\nday before the case verdict was to be declared, on 8 September 2016. <\/p>\n\n\n\n

Ranjan: Good evening, how are you?\nWill we get good news or bad news tomorrow? <\/p>\n\n\n\n

Shani: It will definitely be good\nnews. Will you come to Court, Sir? <\/p>\n\n\n\n

Ranjan: Aney do not change that. Do\nnot disappoint us. <\/p>\n\n\n\n

Shani: No, no, that will not change,\ndefinitely. However, the one in the middle will be writing for the\nrelease. <\/p>\n\n\n\n

Ranjan: Oh, God, who is the middle\none? <\/p>\n\n\n\n

Shani: The Chairman. There is no\nproblem with that. We have two. <\/p>\n\n\n\n

Ranjan: Padmini is okay, isn\u2019t she?\nWill it go to Supreme Court? <\/p>\n\n\n\n

Shani: Anyhow it will go to Supreme\nCourt, Sir. Sir, are you coming to Court? <\/p>\n\n\n\n

Ranjan: Is it correct for me to\ncome? Will it show that we are together in this job? <\/p>\n\n\n\n

Shani: Since you come for every\ncorruption incident, what does it matter if you come for this? <\/p>\n\n\n\n

Ranjan: Will the fact that I gave a\ncall be discovered? <\/p>\n\n\n\n

Shani: That will not happen, you\ncome. Why give the front to useless people and you go behind the scene? <\/p>\n\n\n\n

Ranjan: You are sure? Shani: Sure,\nsure, no two words about it. <\/p>\n\n\n\n

Ranjan: I do not need to say it\nagain, do I? <\/p>\n\n\n\n

Shani: No, no. We shall see after\nthe job is done. <\/p>\n\n\n\n

Ranjan: Let us say thank you. Can\u2019t\nyou change the middle one? <\/p>\n\n\n\n

Shani: There is no need. We have\ntwo. We have a majority. <\/p>\n\n\n\n

Ranjan: Okay, so tomorrow morning\nyou won\u2019t disappoint us will you? <\/p>\n\n\n\n

Shani: What could disappoint you was\nmade up later. <\/p>\n\n\n\n

Ranjan: Okay, okay,\ndeyiyangepihitai! <\/p>\n\n\n\n

Shani: Sir, you come. If you are not\nthere on a day like that, what is the point? If information about these\ntelephone conversations had become known during the era when the case was being\nheard at the High Court, it would not have continued as it need not be\nmentioned that the recorded telephone conversations were powerful enough to\nhalt the hearing. If that had happened the hearing of the Bharatha Lakshman\nmurder case would have been rejected without even a verdict. <\/p>\n\n\n\n

However, this criminal conspiracy\ncame to light only after the case verdict was declared. The death sentence\nimposed on Duminda Silva is one that was created through a conspiracy and\nceaseless secret conversations between the Criminal Investigation Department,\nthe Court and a State Minister of the Government. Accordingly, an opportunity\nhas been created for the President of Sri Lanka to make a justified decision to\nrelease a person who has been sentenced to death. A telephone conversation had\ntaken place between Ranjan, Padmini and former President Maithripala Sirisena.\nThe conversation that took place on 12.09.2017 at 2.56 pm is as follows: <\/p>\n\n\n\n

Ranjan: Madam <\/p>\n\n\n\n

Padmini: Yes. <\/p>\n\n\n\n

Ranjan:The Honourable President is\nhere, just speak to him and explain your matter. <\/p>\n\n\n\n

Padmini: Aney <\/p>\n\n\n\n

Ranjan:(Quietly) Padmini M.\nRanawaka <\/p>\n\n\n\n

President Maithri: Hello <\/p>\n\n\n\n

Padmini: Honourable President <\/p>\n\n\n\n

President Maithri: Ah Padmini\nForgive me for speaking to you. <\/p>\n\n\n\n

President Maithri: No, no it is not\na problem. <\/p>\n\n\n\n

Padmini: If you\ncan please get me a post at the Appeal Court because I have given about one\nhundred thousand judgments. At the same time, I have worked with great\nintegrity for the country and its people. So, I request you to consider this,\nonly if there is a possibility. I have the strength to work for many more\nyears. <\/p>\n\n\n\n

President Maithri: Okay. Okay. <\/p>\n\n\n\n

Padmini:I have never tried to\ninfluence anyone before. <\/p>\n\n\n\n

President Maithri: Oh. Oh. <\/p>\n\n\n\n

Padmini: However,\ndespite the many threats I get, I do the proper thing. That is how I carried\nout my duties during these 27 years. Actually, I gave Duminda\u2019s verdict too.\nOther Judges were scared to hear the case regarding Madame Chandrika\u2019s bomb\nincident. <\/p>\n\n\n\n

President Maithri: Yes. Yes. <\/p>\n\n\n\n

Padmini: There were large bundles of\nbooks in one. Even then I agreed to hear the case. President Maithri: Okay.\nOkay. <\/p>\n\n\n\n

Padmini: Even then I did so to\nensure justice. I am not trying to influence you. I am making a request. If\nthere is a possibility, please consider it. I wish that you are blessed with\nmore and more strength. Thank you very much. <\/p>\n\n\n\n

President Maithri: Okay. Okay. Thank\nyou very much. <\/p>\n\n\n\n

Ranjan: Madam, I will give you a\ncall later. <\/p>\n\n\n\n

Padmini: Oh gosh,\nokay, okay. Clearly what has happened on this occasion, is that a fraudulent\nverdict was obtained through a conspiracy involving several factions. Here, the\ndefendant who should have received legal protection and claims through the\nConstitution has not received them. The right of the Defendant for a fair\nhearing has been destroyed completely. It has been clearly proven that the\nfirst person to have been shot in the Bharatha Lakshman murder case, was\nDuminda Silva. <\/p>\n\n\n\n

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

When the incident\nthat resulted in charges being levelled against Duminda took place, if he had\nbeen lying on the ground with critical injuries can he become a Defendant in a\nCriminal murder case ? This was not taken into consideration by the judiciary.\nWhat has to be considered is that it has happened thus as a part of a\nconspiracy. <\/p>\n\n\n\n

Judge Chamath\nMorais agreeing to the verdict without putting forward reasons and remaining\nsilent is also questionable. When considering these facts, according to Clause\n34 of the Constitution, based on the powers the President has been granted, it\nis clear that there is no obstruction to granting a pardon to Duminda Silva.\nThe fact that Judge Shiran Gunaratne from among the three Judge Bench had\nstated that Duminda Silva was not guilty, has to be considered as well. <\/p>\n\n\n\n

The fact that it\nhas been confirmed on the premise that according to the verdict given in this\ncase, there was talk of appointing Judge Padmini Ranawaka as an Appeal Court\nJudge, which was a topic of a telephone conversation between State Minister\nRanjan Ramanayake and Judge Ranawaka had to be taken into consideration too.\nThis is where the fraud takes place. It is through that, that the conspiracy is\nrevealed. The President has corrected a historic wrong in the Bharatha Lakshman\ncase by using the power of the supremacy of the people which he has received\nthrough the Constitution. It is only confirming the natural course of\njustice. <\/p>\n\n\n\n

Sri Lanka\u2019s\nConstitution has granted the President these powers so as to enable a person to\nbe granted a pardon if that person is imprisoned due to ablation of a legal\nfunction, to protect that person\u2019s human rights.<\/p>\n\n\n\n


\n<\/a>Executions\nand Article 11 of the Constitution<\/strong><\/p>\n\n\n\n

By Prof. Lakshman Marasinghe<\/strong><\/p>\n\n\n\n

(Professor of Law from\nthe University of Windsor)<\/p>\n\n\n\n

Recently, a large\nvolume of writing has taken place discussing the merits and demerits of\nexecuting the death penalty imposed upon prisoners languishing in the country\u2019s\njails for committing a variety of capital offences. When I read those comments,\nmy mind immediately went back to the note of resignation submitted by Her\nMajesty\u2019s executioner, Albert Pierrepoint, which he later had included as a\npreface to his Autobiography. In that note he wrote\u201d I do not believe that\nanyone of the 400 executions I carried out has in any way acted as a deterrent\nagainst future acts of murder. Capital Punishment, in my view, achieved nothing\nexcept revenge\u201d.<\/p>\n\n\n\n

The last execution\nin Sri Lanka took place in 1976<\/p>\n\n\n\n

There was no\ndetermination of the constitutional validity of the imposition of capital\npunishment, under Article 11<\/p>\n\n\n\n

Above all the\ndegree of international criticism to which Sri Lanka may be targeted\nwill not be a suitable proposition to face<\/p>\n\n\n\n

Therefore, it is\nimportant that a decision of the Supreme Court is first obtained<\/p>\n\n\n\n

The basic question\ntherefore is, is capital punishment, in keeping with Article 11 of the\nConstitution?<\/p>\n\n\n\n

Aside from any\nnumber of ethical, religious or such other reasons for decrying the execution\nof Cpital penalties there is a Constitutional hurdle that one has to leap\nbefore legally, a noose is put around the neck of a human being, in Sri\nLanka.   <\/p>\n\n\n\n

Article 11 of the\nSri Lanka\u2019s 1978 Constitution reads: No person shall be subjected to torture\nor to cruel inhuman or degrading treatment of punishment\u201d. Those very same\nwords are found in Article 11 of the present South African Constitution. <\/p>\n\n\n\n

In The State vs\nMakwanyanne and Another,reported at (1995)3 South African Reports at page 391,\nthe two accused were convicted of the offence of Murder, under the South\nAfrican Penal Code, by a Court sitting in the Province of Witwatersrand. At\ntheir conviction they were both sentenced to death. The sentencing judge wrote\non the report that the murders they had committed were so gruesome that they do\nnot deserve to be commuted. They both appealed to the South African Court of\nAppeal, but the hearing was held back until a constitutional issue as to the\nconstitutional validity of capital punishment was determined, by the South\nAfrican Constitutional Court.  Learned counsel argued that Article 11, of\nthe South African Constitution, which as pointed out earlier was identical with\nthe same Article of our constitution, made capital punishment unconstitutional,\nit being cruel, inhuman, or degrading treatment or punishment.  <\/p>\n\n\n\n

Last execution<\/p>\n\n\n\n

As it is in the\nSri Lanka Constitution, what constitutes cruel, in-human or degrading conduct\u201d\nhas not been defined and that it was up to each court upon a case by case basis\nto determine, if and when that matter came before them. Therefore, the first\nquestion that required to be determined, before any executions takes place, is\nwhether under Article 11 of the Sri Lanka constitution, capital punishment is\nconstitutional? The last execution in Sri Lanka took place in 1976 which was\ntwo years prior to the promulgation of the 1978 Constitution. There was no\ndetermination of the constitutional validity of the imposition of capital\npunishment, under Article 11.   
\nReturning to Makwanyane, the Constitutional Court of South Africa, after\nexamining a very large number of authorities held that Article 11 of their\nconstitution made capital punishment, unconstitutional.   <\/p>\n\n\n\n

As for the present\ntrend regarding the abolition of the death penalty, there is a large measure of\nmaterial which learned counsel in several jurisdictions had utilized<\/p>\n\n\n\n

The first question\nwe have to seek answers from our Apex Court is whether under Article 11 of our\nown Constitution the imposition of capital punishment was valid under Article\n11. Unless the answer to that question is first obtained any rush to put into\neffect a sentence of death may well change the nature and character of that\nact, from one of a judicial execution to one of an extra judicial act of\nmurder. In such an event a large contingent of persons from the executioner, in\nthe first degree, and other officers as participating in a criminal act may\nbecome liable under the Criminal Law and also under the Civil Law for the\npayment of compensation. Above all the degree of international criticism to\nwhich Sri Lanka may be targeted will not be a suitable proposition to\nface.   <\/p>\n\n\n\n

Decision of the\nSupreme Court<\/p>\n\n\n\n

As for the present\ntrend regarding the abolition of the death penalty, there is a large measure of\nmaterial which learned counsel in several jurisdictions had utilized, and are\navailable for our courts and our learned counsel to consider.. In the\nCaribbean, the Bahamian and the Courts in other Islands have found against the\nretention of capital punishment. So have the courts in Africa: Uganda, Malawi\nand Kenya. In a seminal judgment delivered by the Privy Council in The Attorney\nGeneral for Belize v Reyes [2002] 2 Appeal Cases 235, the Law Lords, after an\nextensive perusal of the available law found that sentences of death were\nunconstitutional where there is in any Constitution, as we have\u201d a fundamental\nhuman right to life.   <\/p>\n\n\n\n

Therefore, it is\nimportant that a decision of the Supreme Court is first obtained, before the\nState rushes to execute convicts under sentences of death, for whatever\noffences they may have committed. The basic question therefore is, is capital\npunishment, in keeping with Article 11 of the Constitution? That question could\nbe answered only by our Apex Court to which resort could be had by anyone of\nthe 19 persons earmarked for execution, or some other interested party, or by\nHis Excellency himself under Article 129 of the Constitution. <\/p>\n\n\n\n

To be\ncontinued\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[28],"tags":[],"class_list":["post-115811","post","type-post","status-publish","format-standard","hentry","category-aamnizam"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/115811","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=115811"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/115811\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=115811"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=115811"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=115811"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}