24 September, 2020

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Candidate Nagamuwa Files FR Against Mahinda Rajapaksa For Abusing Powers To Call Out Army At Election Time

A fundamental rights application has been filed by Dudeesha Duminda Nagamuwa, the candidate nominated by the Frontline Socialist Party (FSP) for the January 8, 2015 presidential election, asking the Supreme Court to give relief for the violation of the fundamental rights of citizens of Sri Lanka by former President Mahinda Rajapaksa (Percy Mahendra Rajapaksa) by abusing his powers and unnecessarily deploying the army in all 25 districts at election time. The case SC FR 14/2015 has been filed through his registered attorney-at-law, Lalith Gunarathne and should be taken up in court within the next couple of weeks, Colombo Telegraph is able to reveal today.

Mahinda Rajapaksa, Daya RatnayakeThe petition complains to the court that an order dated January 2, 2015 issued by the 1st Respondent (Mahinda Rajapaksa) under Section 12(1) of the Public Security Ordinance was an abuse of the powers under that law, which violated the fundamental rights of the petitioner and all other citizens of the country.

The petitioner says that with the election held on January 8, 2015, he is reliably informed that Sri Lanka Army personnel were deployed between January 3-8, 2015 and during the early hours of January 9, 2015. He draws the attention of court to the fact that numerous media reports and reports from independent election monitors confirm the deployment of Sri Lanka Army personnel on the aforesaid dates. He has forwarded to the court for its information, copies of media reports including an interview with the Former Commander of the Sri Lanka Army, General Sarath Fonseka and copies of periodic reports by the Centre for Monitoring Election Violence (CMEV), alleging the deployment of Sri Lanka Army personnel.

Nagamuwa informs the court that he is reliably informed that the Elections Commissioner, Mahinda Deshapriya (who is made a respondent in the case) appointed under Article 103(1) of the Constitution, is vested with the authority under Article 104D of the Constitution to make recommendations to the President regarding the deployment of the armed forces of the Republic for the prevention or control of any actions or incidents which may be prejudicial to the holding or conducting of a free and fair election. The petition goes on to state that he is reliably informed that the Elections Commissioner has made no such recommendation to Mahinda Rajapaksa. He further states that Rajapaksa has arbitrarily made the decision, and that there was no genuine basis for doing so. The Commanders of all three forces and Inspector General of Police are all made respondents to the case.

Section 12(1) of the Public Security Ordinance provides that:

Where circumstances endangering the public security in any area have arisen or are imminent and the President is of the opinion that the police are inadequate to deal with such situation in that area, he may, by Order published in the Gazette, call out all or any of the members of all or any of the armed forces for the maintenance of public order in that area.

The petitioner states to court that the 1st Respondent (President at the time) was authorised to issue an Order under Section 12(1) of the Public Security Ordinance (PSO) only upon meeting the following criteria stipulated in the PSO:

(a) Circumstances endangering the public security have arisen in an area or are imminent; and

(b)The President is of the opinion that the police are inadequate to deal with such a situation in that area.

Nagamuwa draws the court’s attention to the fact that the Order dated 2nd January 2015 purports to deploy inter alia the Sri Lanka Army in all twenty-five (25) districts of Sri Lanka, although it is most evident the criteria listed above were not met on January 2, 2015 or thereafter.

He reiterates that the Elections Commissioner at no point whatsoever recommended to Rajapaksa (1st Respondent) the deployment of the armed forces for the maintenance of public order and adds that it is most evident that:

First, no circumstances endangering the public security arose in any particular area, and certainly not simultaneously in all twenty-five (25) districts of Sri Lanka.

Second, even in the event that such circumstances had arisen in all twenty-five (25) districts of Sri Lanka, the 1st Respondent could not have reasonably held the opinion that the police were inadequate to deal with any such circumstance.

The petitioner also draws the court’s attention to the fact that prior to the Order of January 2, 2015, Rajapaksa was in the habit of issuing similar Orders under Section 12(1) of the PSO on a monthly basis. In such circumstances, a concerned Bar Association of Sri Lanka issued a statement dated July 7, 2014 describing the said Orders as ‘illegal, unjustified and ultra vires’.

The petitioner complains to the Supreme Court that the exercise of powers vested under Section 12(1) of the PSO in circumstances other than those specifically referred to in the said section is ultra vires and amounts to the arbitrary exercise and/or abuse and/or misuse of the powers vested in the President under the PSO. He urges the court to consider that the 1st Respondent Rajapaksa, by exercising the aforesaid powers under Section 12(1) of the PSO in circumstances that clearly failed to meet the criteria stipulated in the said section, acted in a manner ultra vires the PSO and arbitrarily exercised and/or abused and/or misused the powers vested in him under the PSO.

The petitioner urges the court to consider that powers under Section 12(1) of the PSO are intended to be exercised strictly, genuinely and properly on the basis of the statutorily stipulated criteria, and that its arbitrary exercise by the 1st Respondent impugned by the case, constitutes misuse and/or abuse of powers.

Nagamuwa urges the court to consider that such misuse and/or abuse of the aforesaid powers under Section 12(1) of the PSO particularly at the time of an election, the outcome of which the 1st Respondent (as a candidate) was directly and very personally concerned in, creates very serious apprehensions of abuse of military power to affect and/or suppress and/or alter the outcome of the election.

The petition also states that the creation of such apprehension by such misuse and/or abuse of powers by the 1st Respondent, is inimical to the conduct (and perception by citizens) of a truly free and fair election, the assurance of which is essential to secure, protect and advance meaningful enjoyment of the rights of franchise and all appurtenant rights, as provided and contemplated by Article 4(e) read with Article 4(d) and Article 12(1) of the Constitution.

Nagamuwa asks the court to declare that in the given circumstances, the culpable action and/or inaction of the 1st Respondent Rajapaksa, in arbitrarily exercising and/or abusing and/or misusing powers vested in him under Section 12(1) of the Public Security Ordinance has resulted in the denial of the rights of all citizens of Sri Lanka to equality before the law, and has violated and jeopardised the fundamental rights guaranteed to all citizens of Sri Lanka under Article 12(1) of the Constitution. He also urges that Rajapaksa be required to pay compensation in a suitable sum determined by the court.

Read the petition here

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Latest comments

  • 14
    4

    Can some legal expert clarify this point for me.
    They say the President MARA is above the law and cannot be prosecuted.

    How on earth can MARA be held accountable for all his atrocities and plundering of the state.

    Can the constitution be amended retrospective and hold this CRIMINAL responsible. Vital issues are at stake here and I am sure that is the place where the bug stops. He MARA is the MASTER of all the thieves. Like Sunil Handunetti said in one of the TV shows that “JANADHIPATHI THUMA THAMAI LOKUMA HORA”.Couldn’t have said it any better.

    • 7
      3

      For such a long time on, Rajahaapke had been abusing the office in this manner while no arguments pointed out by oppostion was respected by him anyways. So it was not the failure of Opposition since this man MR had full time been a dictator by making even very poowerful senior politicians went powerless though sat in the UPFA then. Dew, Wasidewa et al utters today little bit more than as if they woked up by a long slumber. HOw many among the Uni dons stayed as if they were electrishocked, bbeing unable to react by self…. it is all people had fears if they would rise up .. they had to sacrifice the lives as was the case the one who fought for drnking water were attacked by using army forces. Latter was not investigated in a fair manner – though people waited and waited.

    • 1
      1

      If one would publicly say that the elephants are red – people would start believing that they are red. This is what Rajapakshe admnistration did it with rural folks. They always believed only what state news papers, TV, Radio senders spread. But only those were accessed to other sources were always aware what is going in th eocuntry.
      If those 5.7 mio people are knowledgable, how would they see it today the way Basil Rajapakshe left the country immediately after MR was defeated by the election. Jounalists should bring the views of those Pro MR voters – then peoples thoughts could gradually change.
      Else, as Wasidewa has added it to air, Mahinda Rajapkshe will join again to contest in the next election. He would not think about the futre of the nation but about his family as had been the case all these years.

    • 0
      0

      A President has immunity only until he/she holds office.
      Since MR is now out of office, he can be charged.

      • 0
        0

        I think his immunity extends to his life time. I would like some clarification from a legal expert. Thanks

        • 0
          0

          General Augustus Pinochet, former Ruler of Chile was arrested and tried (but was later released on medical grounds)in London under the Universal Jurisdiction for crimes against humanity.I don’t think former rulers enjoy any immunity against prosecution for criminal offences or for crimes against humanity as was committed by MR in S.L. The next best thing could be to appoint a Presidential commission to try him and if the Commission finds him GUILTY (I am sure if Mohan.P is appointed as the chairperson he will definitely find him guilty if an Ambassador post is offered!) using his executive power the current President could send him to jail and also strip his civic rights for the rest of his life.After all it happened to Srimavo.B. at the initiative of J.R. If the former Chief Justice could be found guiltyand impeached in a day why not same treatment to MR? Vasu can appear on his behalf.

  • 15
    2

    Pay back time for MR, He NEVER did think a day would dawn for him to taste sweet revenge… Though he was only an executive president, he ABUSED the power to such an extent and actually lived like a king taking a shit while watching TV in an air conditioned bathroom…Only way he could shit peacefully is in cold climes, hence he had air conditions installed. He should face the same fate as Gaddafi stuck inside a hume pipe at 12 noon in scorching heat…pleading for his life.. He should be dragged along with Gota, Basil, Namal, Yoshitha, Sajin Vaas, Wimal SB,Keheliya and Johnston like how the American soldiers were meted out justice in Somalia..

    • 6
      3

      Your danduwama is too harsh but definitely they should be punished for all their crimes (not like for Gaddafi though). Action to deal with this situation should be taken fast otherwise these rogues are planning to come back fighting fit to somehow dupe the citizens and win at the general election. This should never happen.

      • 6
        2

        TY… I know its a lil too harsh BUT, had Mara and the goons come to power lot of bloodshed would have taken place..so this is just for a few who murdered, plundered and raped the nation of most resources and stacked in off shore accounts..depriving the people of SL who had to toil so so hard to put a plate of food in front of the family while they ate 21st Bday cake worth 12000.00 US $ in NY ( Keheliya) raced cars even after the Mahanayaka’s of Kandy objected to it… and ultra luxury lives that they lead… ugh.. I want to pull every finger and toe nails of every one of em..

    • 2
      2

      IF the state cannot do it.. leave them in the hands of the PUBLIC in a ground with hands tied.. they ALL will be torn to pieces so that in generations to come NO SUCH DICTATOR AND CRONIES WOULD raise heads… remember the riots of 83, where the public went inside the Welikada prison and killed kuttimani and the lot… likewise this GANG should be eradicated from the face of this planet… PERIOD

      Yes Gandhijee said.. “an eye for an eye would make the world go half blind..” BUT both eyes of these morons need to be taken out with NO anesthesia..

  • 12
    2

    Gota expects to give back a stolen baby elephant and get away,Yoshitha and bros give up a car,a broken 2 seater plane and expect to get away,Namal takes pix inside a kade and expects to get away,Shiranthi gives up few Carlton vans and expects to get away,MR visits Maligawa and expects to get away….they played us in power and out of power are playing us for real fools.

    Why can’t the now free media show us pix of Gota swiss dogs? (looked after by Navy at Stanmore)All text must be backed by pix.Where are the Lamborghinis? Where are MARA rogues caught? More important than Attanayake in jail would be few MARA in jail and to see Vaas in Jail.
    Serve actual jail time.

  • 3
    3

    Put Mara in prison and get the fellow to know that what he did to the General.

    Let him languish there for some time. This is retribution.

  • 6
    2

    Yes Citizens, they will certainly get what they deserve for sure, this is just the start of the tip of the ice berg melting permanently…

    Gota and Co cannot leave the Country as the USA or some other will definitely arrest him on war-crimes… They can’t walk the roads of the Country they were born in cos they have no security now…

    We certainly want OUR money stolen from Lanka by these crooks first, before the jail terms or we won’t get our money back…

    I think our Real Independence Day is the 8th of Jan… Cheers people…

  • 2
    2

    Doesn’t Mahinda Rajapaksa have immunity from prosecution whatever mistakes during his reign?

  • 3
    2

    MR Gota and all his siblings should be punished for the crimes committed when he was in power.

  • 0
    1

    after the 2010 election General Fonseka was imprisoned illegally. Cj was impeached illegally and one of the rajavassas henchmen thief thugh mohan peries was appointed as fake CJ. Whole legal system of the counry was destroyed. Rathpuswellawa innocent people was shot and killed for asking clen drinking warter by the forces. Forces are under stupid thug ex president rajavassa and his stupid thugh gota. Noi investigation was done. No one was found guilty. Well editors got killed no gujilty party, prisoners got killed no guilty party no iinvestigation all politics. Whole rajavassa family was burden to the country economically legally, freedom of the sri lankans were destryoed. And there are stupid sri lankans are still supporting this clan. education rajavassas politicised and education of sri lanka once which was one of the world best was destroyed. Like that police three froces judiciary health care you name it everything was politicized. And still there are jack asses who support this clan. thats why sri lanka is unfortunate beucase of these stupid morons.

  • 1
    1

    While this petitioner is trying to the wrongs committed by MARA our newly elected My3 is committing the same errors by giving police powers to the armed forces.

    When will the woes of the ordinary Sri Lankan citizens end.

  • 0
    0

    If Shiranthi is young MaRa would have sold her for a good price and power to opposition to get power. These [Edited out] sinhalese do whatever for their jealousy and racism. Thats what the root cause of ethinic conflict. Now this [Edited out] is trying to stand againg with help of sinhala extreme [Edited out] in upcoming general election. If this [Edited out] wins no doubt Muslims and Tamils have to jump to the Indian ocean. I am really ashamed of living a country like sorry lanka.

  • 1
    0

    My Lankan brothers and sisters please for justice sake think about weliweriya children got gun shots for asking clean water, think of katunayake workers asking to safeguard their savings got killed by the armed forces, think about the editor Lasantha wickramasinghe who was making the country men know about what is happening in the country got killed by the hired killer of the maras, think about the rugger team captain got killed and burned at park road for arguing with his team mate yashitta, think about the great soldier of mother Sri lanka Sarath Fonseka’s who was ready to secretive his life to eradicate terrorism in our land was send to prison and prior to that dragged through the streets of Colombo city like a dog, think of the injustice meted to our Chief Justice madam s.bandaranyake, ARE THEY ALL NON PARIOTS OR BITRAYERS OF OUR LAND. OR ARE THEY PRABAHARAN’s ASSOCIATES. WHY THEY WERE AND MANY OTHERS KILLED. THESE ARE THE VERY FEW MENTIONED HERE. MR IS NO WAY BETTER THAN PRABAHARAN, IDIAMIN, HITLER OR POTPOL et al. FURTHER think of the six luxury racing cars each valued at 40 million Sri Lankan rupees transported few days before the election to unknown destination, think about the mr posters and cutouts displayed through the country roads and elsewhere during a democratic elections of the country , think of Goats security company exploited Sri lanka government around 900 million rupees every month, think of the 40% commission or bribe received from the land deals with foreign hotel companies amounting to several billions, think of the main reason for printing 5000 rupees notes and efforts taken by the maras to print 10,000 rupees notes which were finally turn down by the CB. Sorry my list is too long. There are 2000 or more complaints about MARA GANGSTERS WITH THE HUMAN RIGHT COMMISSIOM PENDING INQUIRIES. Disseminate these informations among our 57 Million innocent voters the so called our highly literated citizens of the south and south Eastern Asian region. Please join me to pray for our nation and this 57 million ???????

  • 1
    0

    Judging from the large number of criminal/corruption cases filed in Supreme and local courts, against the culprits of the former regime, it looks like the Govt. may have to import judges from abroad to clear the cases in a reasonable time as people want to know the truth before the next parliamentary elections as to who and who were found guilty and they should be put behind bars and the rest should be released so that they could contest the coming election .

    None of the names of the people who emptied the Treasury have come up
    yet and wonder it will ever come up. There is a saying birds of the same feather flocks together and we will be all back to square one sooner or later.

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