Justice, accountability and consistency

The decision of the Special High Court to sentence former Defence Ministry Secretary Hemasiri Fernando and former Inspector General of Police Pujith Jayasundara to death over the Easter Sunday terrorist attacks, is one of the most consequential judicial decisions in recent history. Yet, beyond the profound questions of accountability that the verdict raises, it also exposes a troubling lack of consistency within the judicial process itself.

This was not a unanimous verdict. Two judges found the accused guilty of criminal negligence, dereliction of duty and aiding and abetting deaths through their failure to act on intelligence warnings before the Easter Sunday attacks, while the third judge held that both men should be absolved of all criminal responsibility. Such a divergence is not a mere difference in legal reasoning or interpretation of a minor point of law. It is a fundamental disagreement over whether a criminal offence had been committed at all. When judges examining the same body of evidence reach diametrically opposite conclusions, it inevitably raises broader questions about the certainty and predictability of justice.

The judicial journey of this case has been equally chequered.

 During the tenure of President Maithripala Sirisena, the Attorney General’s Department decided to pursue criminal charges against only these two 

officials, whilst others, including the director of State Intelligence Service (SIS), were not prosecuted. Then in February 2022, a Trial-at-Bar acquitted Fernando and Jayasundara, without even calling upon them to present their defence, holding that the prosecution had failed to establish a prima facie case. After the Attorney General appealed, the Supreme Court ruled that the acquittal was contrary to law, directing that the trial continue. The same case has therefore travelled from an outright acquittal, to the imposition of the ultimate punishment. Such dramatic swings within the judicial system cannot simply be ignored, for they have implications that extend beyond this particular case to public confidence in the administration of justice.

There is no doubt that those responsible for the catastrophic failures preceding the Easter Sunday attacks must be held accountable. The loss of over 260 innocent lives demands nothing less. Public office carries with it immense responsibility, and negligence by those entrusted with national security cannot be dismissed lightly. The question, however, is whether the conduct established against these two officials justifies the death penalty. That is a legitimate issue for public debate in any democratic society.

Unfortunately, Sri Lanka’s uncertain legal framework governing contempt of court discourages such discussion. The absence of clear statutory boundaries often leaves citizens, lawyers and commentators hesitant to openly analyse the merits and demerits of judicial decisions for fear of attracting allegations of contempt. The public has a right to engage in informed and reasoned discussion of judgments that carry enormous constitutional and social significance.

The case also raises uncomfortable questions about selective prosecution. Fernando and Jayasundara were undoubtedly senior officials occupying positions of immense responsibility. Yet, they 

 were not the only individuals entrusted with safeguarding national security. Former Senior DIG Nilantha Jayawardena, who headed SIS and was directly responsible for processing and disseminating intelligence warnings, has not faced criminal prosecution. Similarly, former President Sirisena, whose actions following the failed constitutional coup of October 2018 created deep divisions and dysfunction within the country’s security establishment, has likewise not been subjected to criminal proceedings over the events leading to the attacks. Accountability that appears selective inevitably invites criticism that justice is being unevenly applied.

The Easter Sunday tragedy deserves justice that is beyond reproach. That objective is best served not merely by severe punishment, but by a judicial process that inspires confidence through consistency, transparency and equal accountability for all those whose failures contributed to one of the darkest days in our recent history.