Judge raps authorities over Hemasiri’s and Pujith’s arrest

Chief Magistrate of Colombo Lanka Jayaratne yesterday (9) granted bail to former Defence Secretary Hemasiri Fernando and Inspector General of Police (IGP) who is on compulsory leave, Pujith Jayasundera.

Fernando and Jayasundera were arrested and remanded last week over the Easter Sunday attacks under Sections 296, 298, 328 and 329 of the Penal Code. Section 296 deals with “Punishment for murder,” Section 298 with “Causing death by negligence,” Section 328 with “Causing hurt by an act which endangers life or the personal safety of others” and Section 329 with “Causing grievous hurt by act which endangers life or the personal safety of others.”

However, Magistrate Jayaratne when granting bail to the two individuals has informed court of the legal issues that backed the order to grant bail. The Magistrate has stated that the murder charges leveled against Fernando and Jayasundera under Section 296 were baseless.

Legal issues

The Magistrate has also referred to a court order delivered by former Chief Justice Shirani Bandaranayake where the then Chief Justice had stated that persons cannot be jailed “for the sake of requests made by the police or to serve the whims of another party,” the BBC Sinhala Service has reported.

The Magistrate has then noted that the two state officials had been arrested without even recording a statement from them. She has also pointed out that the two individuals were arrested according to a report submitted by a committee appointed by the President and that such a report was not legally admissible.

The Magistrate has also considered the failure to act based on information received on the terrorist attack does not amount to an omission which is so imminently dangerous that it must in all probability cause death under Section 294(4) of the Penal Code, does not constitute the intention of the murder charge. The Chief Magistrate has then referred to the inclusion of Section 298 (criminal negligence) against the suspects on their alleged omission and has said such inclusion was also questionable to maintain in this criminal inquiry as there was no cogent evidence to prove such negligence on their part.

The Court has further considered the remoteness of the incident and the suspects’ alleged omission to determine the ‘causal relationship’ with the incident. The Magistrate has said the court could not see the facts in court as having any close proximity to the alleged omission of the suspects as public servants and the Easter terrorist attack.

The Colombo Chief Magistrate remanded Fernando and Jayasundera till Tuesday (9) on July 3rd after their arrest. The bail request made on the 3rd was taken up yesterday (9).

AG’s allegations

On July 3rd when Fernando and Jayasundera were first produced before court after their arrest, Deputy Solicitor General Thusith Mudalige has told court that the suspects had absconded from their duties.

He has further noted that the suspects’ failure to act upon written and verbal intelligence reports on a potential suicide attack led to the loss of hundreds of lives. He has said the suspects who were in charge of the security of a country which has experienced a 30-year-long civil war, should be aware of the severity of suicide attacks.

The Deputy Solicitor General has further informed the court that as stated in article 294 of the Penal Code the suspects have committed a criminal offence for their failure to take action in preventing the loss of lives despite being aware of the potential threat and the availability of clear information.

Mudalige has further noted that if the suspects had carried out their duties, National Thawheed Jamath Leader Mohammed Zahran Hashim, who was responsible for the suicide attack, should have been arrested.

The Deputy Solicitor General has pointed out that if this could not have been done, measures should have been taken to evacuate the general public from locations which were potential targets.

He has explained that religious leaders, heads of the three armed forces, tourist hotels and the general public could have simply been informed through the media, Police media spokesperson and other modes of communication and that Fernando and Jayasundera had followed no such protocol.