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 19^th 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 23^rd 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……………………..