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 on December 08, media reports said.

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 Council 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.

However, senior lawyers point out that the commission has the power only to investigate complaints against public officials within a specified period of time.

Doubts about the judiciary

Javed Youssef, a former member of the Legislative Council and a senior lawyer, said that the activities of the Commission on Political Revenge appointed by the President could raise suspicions about the judiciary among the people and that it is a serious matter in the administration of justice.

The Senior Counsel pointed out that the media’s exaggerated reporting on the evidence inquired before the Commission the Commission’s recommendations in criminal cases is a matter of wide debate in the legal field, which could inevitably benefit the plaintiff or the defendant.

Responding to a query from MediaLK, the senior counsel commented on the Commission’s powers and the impact on the independence of the judiciary.

“Presidential commissions are not usually appointed by a court of law. However, their role is to inquire into a specific issue or several issues and submit a report to the President. The Commission has the power to include their recommendations in that report.

“If there is something wrong and it seems that these people are guilty or right, the Commission can recommend it to the President. After that, if the President looks at it and decides that further action is needed, those recommendations will be referred to the Attorney General. After that there is a possibility of further investigations by the criminal divisions on the instructions of the Attorney General.

“The power to establish these commissions is vested by two Acts. One of them is the Special Presidential Commission. It was introduced in 1978. There is another, called the Commission of Inquiry. It was passed in 1948. The commission we are talking about has been appointed as a commission of inquiry. Accordingly, the Commission may call for various evidence and documents regarding the injustices that have been reported in the public service. It has been empowered by the Act itself.”

A serious legal issue

“There is a serious legal issue here. The lawyer who appears on behalf of the accused in any criminal case says that the accused is not the culprit but the accused has been tangled into the case. It usually happens in the courts. If there is a reasonable suspicion in a criminal case, the accused is more likely to be acquitted. What’s happening now is this.

“What happened in this commission was that the people who were accused in such criminal cases went and said that they were involved in this for political reasons. That matter can be resolved in a normal court process in a way that is not unfair to anyone. They have the opportunity to prove their innocence in court. Especially when it comes to political revenge, every judge pays special attention to it.

“Even the Attorney General did not approve of the Commission intervening in such court cases. It was also reported by the media that the Attorney General had informed that to the Commission. The Commission had asked to suspend a case of abduction and disappearance of youths in the recent past, until the Commission’s investigations are over. The Attorney General had clearly stated that the Commission does not have the power to say so, that we act under common law.”

Where lies the solution?

“ It is clear that this procedure does not conform to the principles of criminal law. As a result, will there be further confidence among the people in the workings of the judiciary? Doubts can arise about that. Justice is not a one-sided matter. Justice must be done to the accused as well as the victims.

“In fact, the final solution to this problem lies with the Supreme Court or the Court of Appeal. The High Courts should make it clear whether the Commission has the power to do so or whether it is against the principles of criminal law. But those courts can only provide some guidance in this regard if someone goes to those courts. That should be done with haste.”

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.