The Legal Prosecution, Judicial Conviction and Presidential “Absolution” of Duminda Silva.

By

D.B.S.Jeyaraj

Arumadura Lawrence Romelo Duminda Silva known as Duminda Silva was the fortunate recipient of a munificent Presidential pardon on Poson Poya day. The convict on death row was released as a result of the Poson Poya pardon.

The Legal Prosecution, Judicial Conviction and Presidential “Absolution” of Duminda Silva – by D.B.S.JEYARAJ

Duminda Silva, a former Parliamentarian and ex-Provincial Councillor, was involved in a shooting incident in October 2011 during Local Authority Elections, where former MP Bharatha Lakshman Premachandra 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 in September 2016. Subsequently the sentence was appealed but a five-Judge bench of the Supreme Court upheld the murder conviction of Silva in October 2018. Despite the High Court conviction of 2016 being upheld by the Supreme Court in 2018, Duminda Silva was a free man in 2021 on Poson Poya.

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. Of these 16 were Tamil political prisoners charged and convicted under the draconian Prevention of Terrorism Act (PTA). Of the 77 other prisoners, 76 were people who had been serving sentences for relatively minor offences. These pardons and releases (except for one) did not create any controversy. In fact the release of Tamil prisoners even earned the President some bouquets.

Murder convict Duminda Silva’s pardon and release however caused much controversy. There were many brickbats from various quarters ranging from former Justice Minister Thalatha Athukorale to US Ambassador Alaina. B. Teplitz. The Bar Association of Sri Lanka (BASL) in a detailed statement condemned the Presidential pardon for convict and former MP Duminda Silva and stated it was “unreasonable and arbitrary”.

It is against this backdrop therefore that this column focuses on the murder of Bharatha Lakshman Premachandra and the conviction of Duminda Silva. The sequence of events leading to Premachandra’s killing and the judicial proceedings in its aftermath have been written in detail by me in earlier articles. I shall rely on some of these writings as I revisit the past this week.

The Shooting

The shooting of Bharatha Lakshman Premachandra and conviction of Duminda Silva was a controversial episode in contemporary Sri Lankan history. Bharatha Lakshman Premachandra known as “Lucky Aiya” and three of his bodyguards were killed on 8 October 2011 in a shoot-out near the Walpola junction close to Mulleriyawa town, about six miles away from Colombo city. Another bodyguard was seriously injured.

Elections to several Local Authorities were being held on that day. Among these was the Kotikawatte-Mulleriyawa Pradeshiya Sabha. Bharatha Lakshman Premachandra had been engaged in hectic canvassing on that day when the incident occurred.

Arumadura Lawrence Romelo Duminda Silva

The clash was not between two rival political parties. It was between two groups of fellow United People’s Freedom Alliance (UPFA) activists. One group was led by former Colombo MP Bharatha Lakshman Premachandra. The other was led by the then Colombo District MP Duminda Silva. The Kotikawatte-Mulleriyawa Pradeshiya Sabha election was a “proxy battle” for preference votes within the UPFA between Premachandra and Silva. Bharatha backed his disciple and incumbent Chairman Prasanna Solangaarachchi. Duminda Silva worked against him and propped up another.

At the time of his death Premachandra was serving as an Adviser on Trade Unions to President Mahinda Rajapaksa. The former Colombo District MP had lost the elections of 2004 and 2010. He had been replaced as Kolonnawa Electoral Organiser by Duminda Silva who had crossed over from the UNP and been elected MP. Premachandra resented this and there was a political turf war between him and Duminda Silva. The Local Authority Poll became a prestige battle.

The campaign was nasty and marred by violence. Bharatha Lakshman with three decades of political experience turned it into a moral crusade against drugs and drug dealers. Popular antipathy towards the “kudukaraya” menace in Kolonnawa struck a responsive chord in the hearts and minds of the voters.

When results were announced it was a great political triumph for Bharatha. His “candidate” had got a record number of 42,322 preferences. His rival’s nominee had only got 5,811 preferences. The voters had overwhelmingly endorsed Bharatha Lakshman’s war against the drug mafia. In the process Premachandra had demonstrated that he was still a political force in the area. Sadly Bharatha Lakshman was not alive to savour his victory. Fate’s moving finger had written his epitaph already.

According to media reports, on Local Election day Bharatha was campaigning in one area and Solangaarachchi in another. Duminda Silva and his group campaigning in another area were reportedly in high spirits after imbibing liquor in an area called “Tamilnaduwatte”. At one stage Duminda and his accomplices went up to a polling booth in close proximity to Solangaarachchi’s residence. Duminda asked Solangaarachchi’s wife Madhu whom she voted for. There was a verbal altercation. When Madhu’s mother-in-law/Solangaarachchi’s mother remonstrated, Duminda Silva abused her also using obscene words. Some allege that both women were roughed up. Duminda also continued to intimidate and threaten Solangaarachchi’s supporters at the spot.

Duminda Silva

Bharatha Lakshman was informed of what was happening. Since he was close to the spot, Bharatha rushed to the area with his comrades. Duminda heard that Bharatha was coming and left the place. Both convoys met on the road near Walpola junction. Bharatha and Duminda both got down from their vehicles and moved towards each other.

Bharatha asked Duminda why he was trying to bully and frighten women in a cowardly manner. Duminda suddenly hit Bharatha and also kicked him. Taken by surprise Bharatha fell down. At this point Duminda ordered his men to open fire. Realising the seriousness of the situation, Bharatha’s armed “official” bodyguard also opened fire. Bharatha’s comrades who served as his unofficial bodyguards were unarmed. Bharatha and three of his comrades were shot dead. Bharatha was fired upon while he was lying on the ground. His official bodyguard too was injured.

Cover-up Exercise

Instead of the perpetrators being arrested, the country was regaled with what appeared to be a massive cover-up exercise. It was reported that Duminda Silva was seriously injured in the shootout. He was admitted to hospital. The then President Mahinda Rajapaksa and his Defence Secretary Gotabaya Rajapaksa visited Duminda in hospital. Special protection was provided. Outsiders were not allowed to go near Duminda. Finally he was escorted amidst great security and was flown to Singapore. It was said that he had sustained many injuries and needed extra medical treatment. Later when Duminda returned to Sri Lanka, he told authorities that he was suffering from partial memory loss and could not remember what had transpired on the day in question.

Duminda Silva was released as a result of a Presidential pardon on 24 June – pic via Daily FT

There was an inordinate delay in effective legal proceedings being instituted. There was a long period of perceived procrastination attributed euphemistically to the law’s delays. Most people however suspected that the close relationship between Duminda Silva and powerful persons in the Mahinda Rajapaksa regime was the stumbling block. The matter dragged on for years and it was widely believed that the aphorism “Justice delayed is justice denied” was being proven true in this instance also.

In an understandable yet naïve bid to secure justice while working within the ruling Rajapaksa establishment, Premachandra’s widow and daughter associated closely with President Mahinda Rajapaksa. Sumana Premachandra like her late husband was appointed as an Advisor to President Rajapaksa.

Daughter Hirunika Premachandra identified herself with the ruling Rajapaksa regime. In 2014 she contested on the UPFA ticket at elections for the Western Provincial Council. She won from Colombo District, topping the preference votes list. In spite of all these efforts the quest of justice for Bharatha seemed as elusive as ever.

Opportunity for Justice

Hirunika’s opportunity came when Maithripala Sirisena broke ranks with the Government in November 2014. She seized the moment by hitching her wagon to the star from Polonnaruwa. In 2015 Hirunika contested Parliamentary Elections from Colombo District on the United National Party (UNP) ticket and won. Duminda Silva however was denied nomination for polls by President Maithripala Sirisena.

The advent of a new dispensation under President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe in 2015 saw a fresh breeze blowing in musty judicial corridors. The Attorney-General filed an indictment in courts on March 2015 for the killings of Bharatha Lakshman Premachandra, Dharshana Jayathilake, Mohamed Azmi and Manivel Kumaraswamy and also for inflicting gunshot injuries on Rajapurage Gamini.

The indictment consisted of 17 charges against 13 suspects including Duminda Silva.

Chief Justice Kanagasabapathy Sripavan appointed in May 2015 a three-member bench for Trial-at-Bar proceedings. The bench comprised three High Court Judges, namely Shiran Guneratne, Pathmini Ranawaka and M.C.B.S. Moraes. The Chairman was Shiran Guneratne.

Trial-at-Bar proceedings began on 22 May 2015. The case was heard on a regular basis from 12 September 2015. The names of the 13 accused were Chandana Jagath Kumara, Lanka Rasanjana, Malaka Sameera, Widanagamage Amila, Suranga Premalal, Saman Kumara, Saman Abeywickrema, Rohana Marasinghe, Duminda Silva, Anura Thushara de Mel, Chaminda Ravi Jayanath alias Dematagoda Chaminda, Dissanayake Mudiyanselage Sarath Bandara and Janaka Bandara Galagoda. The last named was tried in absentia as he was absconding. The accused were charged under Sections 296, 140, 146, 147, 486 and 300 of the Penal Code and some clauses of the Firearms Act.

President Gotabaya Rajapaksa and Duminda Silva

Among the 17 charges were committing and conspiring to commit murder of four individuals, attempted murder, possessing illegal firearms, inflicting gunshot injuries, unlawful assembly and criminal intimidation on or around 8 October 2011. A team of lawyers from the Attorney General’s Department led by Deputy Solicitor General Thusith Mudalige represented the prosecution; 42 witnesses testified in Courts and 126 documents including Government Analysts reports and JMO reports were produced.

The Verdict

Trial-at-Bar proceedings concluded on 14 July 2016.The verdict in the high profile trial was delivered on 8 September 2016. It was a divided verdict with two of three Judges finding five of the accused guilty and acquitting eight others.

One judge however found all 13 accused not guilty. High Court Judge Shiran Guneratne who presided over the Trial-at-Bar exonerated all 13 accused in the murder trial, citing lack of integrity of the witnesses produced by the prosecution and the inability to prove charges beyond reasonable doubt. He said that the benefit of doubt should go to the accused. Fellow High Court Judges Pathmini Ranawaka and M.C.B.S. Moraes differed from Guneratne. This resulted in a two to one majority verdict.

High Court Judge Pathmini N. Ranawaka pronounced the two to one majority verdict in the packed Courthouse with Judge Moraes concurring. Judge Pathmini Ranawaka delivering the majority verdict stated that the prosecution had proved during the trial that the provocative conduct of 11th accused Duminda Silva led to the whole incident.

With President Mahinada Rajapaksa

The Judge further observed that the evidence submitted has proved that Duminda Silva had provided leadership to the unruly behaviour of the mob and therefore he should be held responsible for the whole incident. She further said that the JMO reports had revealed that Duminda Silva was under the influence of liquor at the time of the incident, but deceased Bharatha Premachandra was not so. The verdict also rejected the argument put forward by the defence during trial that Silva had been shot at first by the Premachandra faction.

Courts then acquitted and discharged eight of the accused. They were – Chandana Jagath Kumara, Lanka Rasanjana, Malaka Sameera, Widanagamage Amila, Suranga Premalal, Saman Kumara, Saman Abeywickrema and Rohana Marasinghe. Death sentence was pronounced for five persons. They were – Duminda Silva, Anura Thushara de Mel, Chaminda Ravi Jayanath alias Dematagoda Chaminda, Dissanayake Mudiyanselage Sarath Bandara and Janaka Bandara Galagoda. The 10th accused Janaka Bandara Galagoda was tried in absentia and convicted. In addition to the verdict of execution, the five convicted persons were also fined Rs. 40,000 each.

Supreme Court Ruling

The Trial-at-Bar High Court ruling was appealed at the Supreme Court. A five-Judge bench of the Supreme Court presided over by the then Chief Justice Priyasath Dep upheld the conviction unanimously. Chief Justice Dep issued a 51-page ruling on 11 October 2018. A summarised news report published on 13 October in the ‘Economy Next’ website is excerpted below:

Sri Lanka’s Supreme Court, which upheld the death penalty of MP Duminda Silva, has also highlighted his criminal activities including the use of an automatic weapon stolen from the Elephant Pass Army Camp. The outgoing Chief Justice Priyasath Dep in his 51-page order noted a string of crimes, including election law violations, committed by Silva and his cohorts culminating in the killing of Bharatha Lakshman Premachandra and three others. The five-Judge bench in its unanimous decision found that the killings came after Silva and his gang beat up rival supporters and voters at the October 2011 local council elections and had even intimidated women.

With Namal Rajapaksa MP

“Starting from the time the polling commenced and till the time it was drawing to an end, the 11th Accused (Duminda Silva) spent his day, marauding between polling stations with weapons, defying officials discharging their duties, and assaulting and victimising people associated with Solangaarachchi (a rival candidate).The only time they were not seen intimidating people were when the group was having lunch,” the Chief Justice said in his final order before retirement.

Justice Nalin Perera who was appointed Chief Justice on Friday, agreed with Dep’s decision. Others on the bench were justices Buwaneka Aluwihare, Priyantha Jayawardena and Vijith K. Malalgoda.

The Court held that Bharatha Lakshman and three others were shot dead at the behest of Duminda Silva and the weapon used had been stolen from the Elephant Pass Military Camp when it was overrun by the Liberation Tigers of Tamil Eelam (LTTE) in 2000. It was not mentioned how Silva, a Monitoring MP of the Defence Ministry at the time, came to possess this weapon.

The Supreme Court rejected Silva’s position that he had been shot in the head by Premachandra’s officially-assigned bodyguard and was not responsible for subsequent events, including the killings of Premachandra and the other three people. However, the Court rejected this position on the basis that Silva had been leading the unlawful assembly and triggered the violence by first assaulting Premachandra, whose Personal Security Officer, using the right to private defence, then opened fire and injured Silva.

“Up to the very minute he was shot in his head, the 11th Accused (Duminda Silva) was leading the unlawful assembly. This means that there could only have been a millisecond difference in time between the first shot and the retaliation.

“Causing death using firearms was very much a foreseeable consequence of their criminal enterprise. It is also true that the 11th Accused (Duminda Silva) was a member of that assembly when the transaction—which lasted for a fleeting 60 or more seconds—commenced.

“At the same time, there is no evidence to suggest that, at any time prior to that, the 11th Accused (Duminda Silva) showed a tendency to disassociate himself with the object of the assembly,” the judgement said.

However, the Court acquitted Duminda Silva’s official bodyguard, constable Vithanalage Anura Thushara de Mel who had not used a weapon and had also been against getting into a gun battle. The Supreme Court held that the prosecution had failed to establish that de Mel shared the common objective of the unlawful assembly and that he should therefore be acquitted.

Bharatha Lakshman Premachandra

Duminda Silva’s gang had used only one T56 weapon, the one stolen from the Elephant Pass Camp, and 27 spent cartridges found at the crime scene had been fired from it. The Court found that Duminda Silva had systematically moved from one polling centre to the other intimidating voters and had assaulted voters they suspected of voting for the opposition. Women were intimidated and there was a string of violence against people in the area.

This then was what happened in the prosecution and conviction of Duminda Silva for the murder of Bharatha Lakshman Premachandra. Now Duminda has been released due to the clemency of President Rajapaksa. No explanation has been given. There was no reference to the Presidential pardon in the President’s 70-minute televised address to the nation on 25 June.

Bar Association Questions

Under these circumstances, the Bar Association of Sri Lanka BASL has written to the President and requested that the President to the BASL and to the general public:

(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,” it pointed out.

DBS Jeyaraj can be reached at dbsjeyaraj@yahoo.com

This Article appears in the “Political Pulse”Column of the “Daily FT” dated June 30th 2021.It can be accessed here:

https://www.ft.lk/columns/The-prosecution-conviction-and-emancipation-of-Duminda-Silva/4-719789