Writ Petition against execution: AG raises Preliminary Objection

By S. S. Selvanayagam

When the Writ Petition challenging the reintroduction of the implementation of the death sentence came up before a fuller Bench of the five judges of the Court of Appeal yesterday, Attorney General raised Preliminary Objection on the maintainability of the Petition, as well as the jurisdiction of the Court of Appeal.

The Bench comprised Justices Yasantha Kodagoda (President/CA), Deepali Wijesundera, Janaka De Silva, Achala Wengappuli and Arjuna Obeysekere. Deputy Solicitor General Nerin Pulle, appearing for the AG, submitted in his Preliminary Objection that the President is not a party in the Petition and thus the necessary party is kept out.

He submitted the Petitioner is trying to impugn the order of the President, who has impunity, and the Constitution ousts the jurisdiction of the Court, but it should be instituted against the Attorney General. He stated that Article 35, read with Articles 34, 13(4), 16(2), and 80(3), as well as Section 236 of the Criminal Procedure Code, do not permit this proceeding. He pleaded the Court that this application should be dismissed in limine.

Counsel Niran Anketell, appearing for the Petitioner, responded that it is not against the President, but against the Superintendent of Prisons, Commissioner General of Prisons, and the executioner.

He submitted this case is based on Provisions of Criminal Procedure and the Prisons Ordinance.

He pointed out that Form-7, which is the warrant for committal of prisoner, to keep him under safe custody until the  sentence is carried out. He submitted there is no power or power conferred on any officer of the State to execute the prisoner and that the warrant for a convicted prisoner only authorises detention custody, and does not authorise the killing of a prisoner, until Parliament confers the duty and the power on any officer who shall execute the prisoner.  

He contended no execution can be carried out until the Parliament provides for the specific form of a warrant. Court adjourned the proceeding to be resumed today (Wednesday 3 July) for submissions on the Preliminary Objection.

Petitioner Malinda Seneviratne, a senior journalist, cited The Commissioner General of Prisons, Welikada Prisons Superintendent, Welikada Prison Executioner, and the Attorney General as respondents.