Image: Convicted murderer was close associate of Gotabhaya Rajapaksa.
The Supreme Court’s affirming of the conviction of former parliamentarian Duminda Silva and three of his supporters for causing the death of politician Bharatha Lakshman Premachandra and others on 8th October 2011 reflect innovative judicial reasoning that has been ignored in typically sensationalist media coverage of the case.
Well-articulated judicial reasoning
No doubt, murders of and by politicians are a pedestrian occurrence in this region, occasioning no more than a cynically raised eyebrow at best. But this case was different to a run of the mill political homicide, first for the manner in which the legal process faltered during the Rajapkasa Presidency, despite the fact that this had been a killing of a stalwart of the old Sri Lanka Freedom Party. The second distinguishing factor concerns media dynamics around the case, aggravatingly peaking to unprecedented partisan levels after the final outcome, which I will come to later.
Perusal of the Divisional Bench’s ruling delivered under the hand of outgoing Chief Justice Priyasath Dep this week indicates well-articulated and eminently comprehensible grounds on which it is affirmed that the accused (excepting the first accused) had been members of an unlawful assembly, as proven beyond reasonable doubt on the day in question. Offences were committed in furtherance of the common object of such assembly, including that of murder, shooting and causing injuries to persons, criminal intimidation of voters during the local government elections, rioting and intimidation of the police.
But what is innovative is the judicial link that has been drawn between the provisions of the criminal law prohibiting unlawful assembly and the overall importance of the right to vote. This was reflected in the judicial rejection of a key defence argument that former parliamentarian Duminda Silva (the eleventh accused) had withdrawn and ceased to be a member of the unlawful assembly before the final act of shooting took place and therefore could not be held liable for the offence of murder.
Linking the right to vote with penal concepts
A particular mainstay of the defence was that Silva had suffered injuries to his head, was unaware of what transpired afterward and that the act of shooting was unforeseen as it was brought about by the sudden altercation that took place between the parties. This altercation, according to the defence was a supervening incident which fundamentally altered the course of events which took place thereafter.
However, in dismissing the feasibility of a ‘supervening event’ in no uncertain terms, the Court looked at the events of that day against the background of several statutes that regulate the behaviour of candidates and supporters during election times for the peaceful and orderly conduct of the same. Writing for the Court, the outgoing Chief Justice pointed out that, ‘in a democratic society ensuring that the voter is free to exercise the franchise freely is of paramount importance.’ In this context, it was added that the electoral laws are geared towards maintaining public tranquility, ‘the very essence of the concept of vicarious liability under unlawful assembly.’
Elaborating on this point, he observed that the eleventh accused who happened to be a member of a Parliament was expected not only to be alive and to adhere to the norms of conducting peaceful elections but also to ‘lead by example and reflect the importance of abiding by the law.’ But on the contrary, the conduct of accused was completely the opposite.
As remarked, ‘…the presence of political stalwarts accompanied by their associates armed with fire arms, to my view, is sufficient to kindle a fear psychosis in the minds of the average voter. Such a scenario would certainly have an intimidating effect on the minds of a voter.’ The Court concluded that the behavior of the accused leading up to the incident of the fatal shootings, were ‘assistive and operative on the actions of the unlawful assembly.’ The accused had ‘lent himself to a criminal enterprise, knowing that the weapons that were carried will be used with an intent sufficient for murder.’ The mere fact that he suffered the first injury in the course of that transaction was not held to be a sufficient countervailing factor.
Palpably mischievous media reports
And now we proceed from the judicious to the patently absurd. Even taking into account, the steep deterioration of standards by academics, professionals, journalists among judges and lawyers in this country, media reports on the appeal outcome were palpably mischievous. ‘Lacks clarity’ screamed one headline, ‘even if read hundreds of times, the basis for upholding the conviction cannot be understood’ proclaimed another headline, quite oblivious to the fact that the full judgment had been made available for scrutiny only later.
So a reasonable question arises in this context. Were some journalists actively taunting the Supreme Court to take action against them? As we know, contempt has been upheld on occasions far less provocative than these. And as the General Secretary of the Bodu Bala Sena now languishing in prison and bereft of his customary swagger, found out to his dismay in recent months, it is unwise to poke the bear with malice and intent aforethought.
Moreover, apart from repercussions that may be visited on media reporting, there is a more pertinent issue at stake. Simply put, such conduct amounting to irresponsible reporting at the best or ‘motivated’ journalism at the worst deeply undermines difficult attempts at law reform responsibly seeking a balance between the right to know of the public and the due administration of justice.
In fact, this type of problematic conduct is quoted by many in the legal fraternity as a classic instance as to why judges must be able to exercise contempt of court powers to full intensity over the media. Encouraging this hardening of attitudes on the part of those who view the media with profound (and I might well say, justifiable in some cases), suspicion is certainly a pity. But this is an inevitable consequence of the asinine conduct of some, rebounding on many.
A frighteningly fitting reminder of the past
In sum, the murders committed on that day (viz; 8th October 2011) and the mayhem at the hands of intoxicated thugs acting under political patronage, as set out in excruciating detail in the Court’s decision forcibly remind us of the thuggery and violence prevalent at the time. This is a frighteningly fitting example of the complete absence of the Rule of Law under the Rajapaksas, no more and no less. Today, economic and governance failures of the ‘unity Government’ fashion a receptive environment enabling the potential return of those very desperados.
Even so and with all the many ‘yahapalanaya’ ignominies that we have to contend with, it must be said that the institution of the Sri Lankan judiciary has been returned to a level where a decision of this nature can be delivered by the Court, notwithstanding the tug and pull of intense political pressure.
That gain, albeit incremental and insufficient, must be acknowledged in all fairness.