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President Gotabaya Rajapaksa
Duminda Silva
Bharatha Lakshman Premachandra
Hirunika Premachandra
In what has been described as a historic ruling, the Sri Lankan Supreme Court on 31 May 2022, issued an Interim Order suspending the operation of the Presidential pardon granted by President Gotabaya Rajapaksa to Arumadura Lawrence Romelo Duminda Silva known as Duminda Silva. The former parliamentarian and ex-provincial councillor had been convicted on a charge of murder and sentenced to death. After being pardoned in June 2021, Duminda Silva was appointed in July as Chairman of the National Housing Development Authority by President Rajapaksa. Earlier during the time of President Mahinda Rajapaksa, Duminda Silva served as Monitoring MP of the Defence Ministry while Gotabaya was the Defence Ministry Secretary.
Duminda Silva was involved in a shooting incident on 8 October 2011, during Local Authority Elections, where former MP Bharatha Lakshman Premachandra known as “Lucky Aiya” and three of his bodyguards were killed. The High Court of Sri Lanka convicted Duminda Silva and four of his associates for murder and imposed the death sentence on them on 16 September 2016. Subsequently the sentence was appealed but a five-Judge bench of the Supreme Court upheld the murder conviction of Silva in a unanimous 51-page verdict issued on 16 October 2018. Despite the High Court conviction of 2016 being upheld by the Supreme Court in 2018, Duminda Silva was a free man in June 2021.
Duminda Silva was the fortunate recipient of a munificent Presidential pardon on Poson Poya day. President Nandasena Gotabaya Rajapaksa invoking article 34(1) of the Constitution, granted a Presidential pardon to 93 convicted prisoners on Poson Poya day of 24 June 2021. These pardons and releases (except for one) did not create any controversy. Murder convict Duminda Silva’s pardon and release from death row however caused much controversy.
Bar Association of Sri Lanka (BASL)
The Bar Association of Sri Lanka (BASL) wrote a letter to President Rajapaksa that sought clarification on specified issues and released the missive to the media. Among issues raised by the BASL were:
(a) The basis on which Duminda Silva was selected for the purpose of granting a pardon under Article 34 (1) of the Constitution;
(b) The circumstances which were taken into consideration in the granting of such pardon;
(c) The reasons as to why the case of Duminda Silva stands out from others who are currently sentenced;
(d) Whether a report was called for by His Excellency the President from the Trial Judges as required by the Proviso to Article 34 (1) prior to granting of the pardon to Duminda Silva and if so the contents of the report;
(e) Whether the advice of the Attorney General was called for prior to granting of the pardon to Duminda Silva and if so the contents of such advice;
(f) Whether the recommendation of the Minister of Justice was obtained prior to granting of the pardon to Duminda Silva and if so whether the Minister of Justice made such a recommendation;
“The Bar Association of Sri Lanka maintains that if any one or more considerations stated above, were not satisfied in the current case, the pardon granted to Duminda Silva would be unreasonable and arbitrary and will result in erosion to the rule of law and result in a loss of public confidence in respect of the administration of justice,” stated the BASL letter to President Rajapaksa.
Three Fundamental Rights petitions
Following the Presidential pardon of Duminda Silva, the victim Bharatha Lakshman Premachandra’s widow Sumana Premachandra, daughter and Former Parliamentarian Hirunika Premachandra, along with former Commissioner of Human Rights Commission of Sri Lanka (HRCSL) Ghazali Hussain PC, filed Fundamental Rights petitions seeking a declaration that the Presidential pardon of Duminda Silva was invalid in law. The petitioners sought a declaration from court, that their Fundamental Rights guaranteed under Articles 10, 11, 12 and 12(1) of the Constitution have been violated.
After preliminary hearings, a three-judge bench of the Supreme Court comprising Justice Preethi Padman Surasena, Justice Yasantha Kodagoda and Justice Achala Wengappuli issued the Interim Order suspending the operation of the Presidential pardon. The Supreme Court granted leave to proceed with the three Fundamental Rights petitions in terms of Article 12(1) of the Constitution and fixed the petitions to be taken up for argument on 1 September 2022. The interim order suspending the Presidential pardon will remain effective until the final determination of the three FR petitions.
Pursuant to the interim order, the Supreme Court ordered the CID to place Duminda Silva under the custody of the Commissioner-General of Prisons with immediate effect. The Attorney General was directed to assist the CID to implement this interim order while reporting to court the progress of the implementation of the interim order. The Supreme Court also issued an interim order impounding Duminda Silva’s passport.
Attorney-at-law Eraj De Silva with Daminda Wijerathne and Sundramoorthy Janagan under the instructions of Attorney-at-law Dimuthu Kuruppuarachchi appeared for Sumana Premachandra. M.A. Sumanthiran PC appeared for Hirunika Premachandra while Jeffry Alagaratnam appeared for PC Ghazali Hussain.
Additional Solicitor General Nerin Pulle appeared for the Attorney General. President’s Counsel Gamini Marapana with Navin Marapana PC appeared for Duminda Silva. K. Kanag Iswaran PC instructed by Senior Counsel G.G. Arulpragasam appeared for the Bar Association of Sri Lanka, a respondent party to the petitions.
The SC interim order has been hailed widely as a landmark ruling. Although an interim order, the Supreme Court has through this ruling, called into question, the Constitutional prerogative of the Executive President in granting a pardon. The AG’s position that the court has no dominion over the grant of a pardon, does not seem to have resulted in the customary exercise of judicial restraint. In that sense, the SC ruling is truly a historic landmark. However it is only an interim order for now and what transpires in the future – as further hearings continue – remains to be seen.
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Courageous daughter Hirunika Premachandra
The interim order resulting in the suspension of the Presidential pardon and re-imprisonment of Duminda Silva has once again turned the media spotlight on the chief victim Bharatha Lakshman’s courageous daughter Hirunika Premachandra. The former MP has earned the sympathy and admiration of many people by her doughty campaign for justice and against injustice. Although the “Gota Go Home” protest has spread far and wide in recent times, it must be remembered that it was Hirunika along with brave women comrades who started it all. They took the fight into the lion’s den by pioneering the protest demonstration at the President’s private residence in Mirihana.
When President Gotabaya Rajapaksa pardoned her father’s convicted killer on Poson Poya day last year, Hirunika Premachandra wrote an emotional letter in Sinhala to the executive president. The “Colombo Telegraph” website published an English translation. The insightful letter encapsules the essence of what happened before and after the killing of her father. More importantly, it is somewhat prophetic when viewed against the backdrop of the current anti-Rajapaksa agitation. I shall conclude this article by re-producing that letter in full:
Written on Poson Full Moon Poya Day, 24 June 2021
H.E. Gotabaya Rajapaksa
President of the Democratic Socialist Republic of Sri Lanka Presidential Secretariat
Colombo.
Your Excellency,
Re: Granting Presidential Pardon to R. Duminda Silva, who was convicted for the murder of Bharatha Lakshman Premachandra by seven Judges.
I am the daughter of Bharatha Lakshman Premachandra, Trade Union Adviser to your brother, former President Mahinda Rajapaksa, and former Member of Parliament.
On October 8, 2011, my beloved father was shot and killed in broad daylight, his body riddled with over 20 bullets. Two High Court judges convicted former MP R. Duminda Silva of his murder, and their ruling was upheld by five judges of the Supreme Court, including the Chief Justice. Today, you granted him a presidential pardon.
On that fateful day, my mother and I received an anonymous telephone call informing us that my father had been shot. We did not panic initially, because we were used to such phone calls. In the past they had always been followed up with confirmation that my father was safe from harm.
In 1999, it was my father who organised the final election rally for President Chandrika Bandaranaike Kumaratunga in Borella. After the LTTE bomb attack on that rally, my father reached out to our family on the telephone to confirm that he was unharmed in the blast. Every morning, my brother and I would worship our father before leaving for school. I vividly remember that when we walked up to him to pay our respects the morning after the bomb blast at the rally, his tunic was still smeared with blood.
In a war-torn country, these incidents were common during his political career that spanned 30 years. But that day in October 2011, the phone never stopped ringing. My mother and I decided to leave for the National Hospital in Colombo. When we got there, we were told to make our way to the mortuary.
Ten years have passed, and the memory of my father’s tragic death still crushes me, filling me with dread and making me feel like the whole world is collapsing around me.
I was 23 years old when my father was assassinated. My mother and I, who had never stepped into a courtroom or a police station during his lifetime, trekked from courtroom to courtroom for five long years, to seek justice for my father.
The 20s in any young girl’s life, is a time for happiness and playfulness. I spent those years locking horns with a group of powerful, brutal murderers. When he died, hardly anybody knew Bharatha Lakshman Premachandra had a daughter. After his death, the whole country knew my name overnight. I made terrible enemies. All because I decided to pursue justice in court against my father’s killers.
When the Rajapaksa regime was in power, Duminda Silva did not spend a second in jail. This was the man the highest court has said led my father’s assassins and murdered people in broad daylight. It was the CID Director Shani Abeysekera and his officers who conducted meticulous investigations into my father’s murder, collecting every shred of evidence in an orderly and unimpeachable way. Today, Shani Abeysekera suffers for his courage to execute his duties as a police officer independently.
From the moment my father was killed, politicians across party lines flocked to pay their final respects to him. But you never showed up.
Mahinda Rajapaksa, Chamal Rajapaksa, Basil Rajapaksa, Shiranthi Rajapaksa, Namal Rajapaksa, Yoshitha Rajapaksa and Rohitha Rajapaksa all your family members attended my father’s funeral. But still you never appeared. You remained at Duminda Silva’s bedside at the Sri Jayewardenepura Hospital. Your priority was to order a helicopter to fly Duminda Silva to Singapore.
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Bharatha Lakshman Premachandra
Bharatha Lakshman Premachandra entered politics in 1977, under the guidance of the late T.B. Illangaratne. Subsequently, he engaged in political activities with Vijaya Kumaratunga, as a founding member of Sri Lanka Mahajana Pakshaya. Entering parliament as a member representing the Sri Lanka Mahajana Pakshaya in 1994, he became a member of the Sri Lanka Freedom Party, under President Chandrika Bandaranaike Kumaratunga in 1996. This was at a time when barely a handful of people could be assembled to hoist a blue flag. At times, he fought single-handedly for the SLFP in the Colombo District.
From the day they met, my father developed a close friendship with your brother Mahinda Rajapaksa. For this reason, my father would refer to him only as “Mahinda aiyya”. Every step of the way, through joy and sorrow, my father stood with Mahinda Rajapaksa.
It was my father who battled against President Chandrika Kumaratunge’s decision to give the post of Leader of the Opposition to another person. It was Bharatha Lakshman Premachandra who fought for Mahinda Rajapaksa to be appointed prime minister when the leadership had decided otherwise. Any current politician in the SLPP who once held membership in the SLFP, knows this story.
You can ask anyone of them, irrespective if they are parliamentarians or not. You can learn this history from the Prime Minister himself. He was completely dedicated to his friend Mahinda who he considered a brother. Where he believed he was standing on principle, my father would not budge. He raised his voice continuously for labourers and marginalised people at the grassroots level. He did not amass wealth as a politician. Instead, he acted as a friend and brother to everyone in the government and opposition.
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One misstep on a public stage
But he made one misstep on a public stage a few days before he was killed.
“The Organiser of Kolonnawa, is taking the Defence Secretary who is the President’s brother, to every house to which he is selling heroin. This is my worry. I must state at this point that we will not only ensure the victory of Prasanna. We will also fight to sever the Rajapaksa generation we built with much difficulty, from these heroin dealers.”
I believe that these few words may have led to his murder. These are the very last words my father uttered in public.
Mr. President, ask yourself how prophetic these words of a murdered man have proved today.
A decade later, my father’s brutal death still haunts me. From time to time, I have had to seek treatment to deal with the pain and trauma. As a mother of three, I try hard to be optimistic and move forward. But to this day, the loss of my father cuts through that joy and fills me with unbearable pain. Perhaps this is how all families suffer the sudden, tragic death of a loved one. The families of Prageeth Eknaligoda, Lasantha Wickrematunge and Wasim Thajudeen – they must all be living through this trauma every day of their lives. No matter how full our lives are, what blessings we receive, there is a void in our hearts that will never be filled.
These victims and their families have never been given justice. They have a right to see these killers brought to court and face up to their crimes.
You campaigned and won the presidential election under the ‘One Country, One Law’. Today, those words have been reduced to nothing more than sloganeering to win an election.
Now, if every prisoner on death row demands a presidential pardon, you are in no position to refuse. If convicted prisoners are to be arbitrarily released by presidential pardon, what are prisons for? Why do we have laws? Why do we have judges?
By your cowardly decisions, today, this country is lawless. This is a nation of slaves, in the grip of a master leading them to certain death. You are not the real ruler of this country today. You must accept that. You are just a puppet manipulated by other forces.
Believing in the vision of you as a leader like Mahathir Mohamed, Lee Kuan Yew or Vladimir Putin, 6.9 million Sri Lankan citizens placed their faith in you and propelled you to the presidency. They gave you a two thirds majority in Parliament. They made it possible for you to enact the 20th Amendment to the Constitution.
What more tools could you possibly need to make difficult decisions that will benefit all Sri Lankans? Instead, you have chosen to become a puppet. It is impossible to imagine now that your rule will ever usher in a better country. Your actions in this past year have amply demonstrated that.
Mr. President,
My father is now a footnote in history. But he has left behind so much for his grandchildren to take pride in and remember. What legacy do you hope to leave behind? What will you leave behind for your newborn granddaughter to speak of proudly when you are gone?
Mr President,
In accordance with the Buddhist precepts that I live by, I have already forgiven former MP Duminda Silva. But Buddhism also teaches that rulers must be just and uphold the laws of the land. Your actions have undermined the rule of law and made a mockery of justice.
Two out of three High Court judges ruled that Duminda Silva had murdered my father and sentenced the killers to death. The defendants appealed to the Supreme Court. Five judges of the Supreme Court including the then Chief Justice, upheld the verdict of the High Court. Five judges of the Supreme Court determined that Duminda Silva had been the ringleader of the illegal assembly that killed my father. If the decisions of High Court and Supreme Court judges are cast into the garbage and the final decisions are made by you, of what use are laws in this country?
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People won’t allow Rajapaksa rule again
6.9 million people put their faith in you and chose you to be leader of this country. You must now be prepared to answer them. Your present conduct makes sure that the people will never allow a Rajapaksa to rule the country again.
Now that you have dismissed the verdict of seven judges to release Duminda Silva, I would not be surprised if you were to nominate him as a Chief Minister and bring him back into politics. This country is transformed now into a nation of slaves, being marshalled towards their own destruction by their masters. But the people will not tolerate injustice forever.
Your rule is breeding injustice, Mr President, and the day is not far off when the people will break these shackles and rise up. When it comes, people like you who have no backbone and no respect for justice and the rule of law will be bereft of a political future.
Thank you,
Yours Faithfully,
Hirunika Premachandra
(The writer can be reached at [email protected].)
By your cowardly decisions, today, this country is lawless. This is a nation of slaves, in the grip of a master leading them to certain death. You are not the real ruler of this country today. You must accept that. You are just a puppet manipulated by other forces