Attorney General Dappula De Livera and the Criminal Investigation Department were schooled by the Colombo Chief Magistrate yetserday during the delivery of the order that granted bail for ex-Defense Secretary Hemasiri Fernando and suspended IGP Pujith Jayasundara, who were charged with murder by the AG, for failing to put in place a security plan to prevent Easter Sunday bombings.
In a very strongly worded order Judge Lanka Jayaratne reminded the AG that the Court does not exist to deliver judgements as demanded by investigators and listed out the legal gaffe committed in charging the duo with murder. He also faulted the CID, for arresting the two without obtaining prior statements.
As per the B report on the case, the charges had been filed against Pujith and Hemasiri for failing to have in place a security plan or program to prevent the April 21, 2019 bombings.
“If the basis for the criminal investigation was the lack of a security plan being in place, it should be probed as to whether the initial warnings reach the two suspects…This is not a murder charge like that of a stabbing thats led to murder , where a suspect could be arrested without obtaining a statement based on eyewitness testimonies. In this cases such as this, the suspects’ statements should have been obtained first and probed before taking them into custody. It is a simple fact that anyone could have understood,” the Judge had noted.
Meanwhile, as per an inquiry, the AG had clarified to the Colombo magistrate court on July 03, 2019 that the charges framed against Pujith and Hemasiri were based on the Presidential Commission report. The AG’s Department had also admitted the Commission was not appointed by the President as per any Act and its sole purpose was to probe the bombings.
The Judge pointed out the report contents of the Presidential Commission that probed Easter attacks cannot be directly cited in a judicial proceeding, given only the Commissions of Inquiry Act Section Nine and Section Eight of the Special Presidential Commission of Inquiry, that is able to grant the ‘judicial proceedings’ status to findings of a Commission.
Therefore, Judge Jayaratne noted the contents of the report were to be used as preliminary information with which to build a criminal investigation and the same had been advocated by the Presidential Commission Chairman, Supreme Court Judge Vijith Malalgoda in the recommendations.
Judge Jayaratna also pointed out in his order that charging Pujith and Hemasiri under Sections 296 – referring to murder – and 298 – referring to causing death by negligence- of the Penal Code, has created uncertainity as they are two contradicting charges.
“This has been made clear by the punishments delivered for each of the charges,” the Judge had pointed out. The punishment for murder is death penalty while the punishment for death by negligence is a five year prison sentence that permits bail.
Furthermore, the Judge had stated that against the backdrop in which suspect no: 1 – Hemasiri Fernando has statd other officials of the security apparatus did not discuss the imminent threat of bombings at meetings attended by top officials of the Defense Ministry, the sole responsibility of the attacks cannot be heaved on the two suspects alone.
According to circulars on Defense Minister’s duties, the obligations including being in charge of domestic security and safety of intelligence services as well as the Police Department.
“The responsibility of these matters are with the Minister and the obligations of the Minister cannot be fulfilled through the Secretary,” the Judge had further noted.