25 September, 2020

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Manamperi Murder Case, Incident At Ratupaswela And The Law

By Lal Wijenayake –

Lal Wijenayake

When thousands of people from several villages around Weliweriya were demonstrating and if the law enforcement authorities considered this to be an unlawful assembly which is a threat to the maintenance of Law and Order, then under our law the Police is vested with powers to disperse such an assembly under Section 95 of the Criminal Procedure Code.

Under Section 95(3), the military can be used only when such an assembly cannot otherwise be dispersed and if it is necessary for the public security that it should be dispersed.  In such a situation a Magistrate or a Government Agent of the District or any police officer not below the rank of Superintendent of Police may cause it to be dispersed by requiring any commissioned or non commissioned officer in command of any personal of the Sri Lanka Army, Navy or Air Force, to disperse such an assembly using such military force as necessary to disperse the assembly.  The Section specifically states “In so doing he shall use as little force and do as little injury to person and property”.

The powers under section 96 of the Criminal procedure code for a commissioned military officer to disperse an unlawful assemble is not relevant to this incident as police officers were present and handling the situation at the time.

There are universally accepted procedures that has to be followed by the police in dispersing an unlawful assembly.  The assembly is 1st informed that they have to disperse and that action will have to be taken to disperse them if they failed to heed the order.  Thereafter if necessary water cannons are used, and then tear gas shells and thereafter, if necessary rubber bullets are used.  If all these steps fails, and if the life or property of the police is in danger live ammunition can be used and it is accepted procedure that they should try to disperse the crowd by firing into the air and that they can shoot only in self defense and even in such extreme situations should shoot below the knees.

It is accepted in all civilized societies that only minimum or the necessary force should be used.  We have never heard of dispersing a crowd by chasing them for miles to places of worship to shoot them and in such an event the action amounts to murder.

The Supreme Court in the well known Manamperi murder case, Wijesuriya Vs. the State 77NLR 25, regarding a soldier subject to Military Law, it was held that a military officer “continues to remain the custodian of the Civil Law and it will be his duty to shoulder the responsibility of police duties, in the discharge of which he is as much subject to the civil law as an ordinary policeman

Therefore, there is no room in our law to pursue an attack those running when dispersing a crowd and to shoot at them and in such an event the offenders has to be tried for committing the offence of murder.

In this incident Police has not acted to disperse the crowd and what emerges is that the Army Officers pushed the police aside and has taken upon themselves the task of dispersing the crowd.  The question then arises as to under what Law the Army acted.

It is now revealed that on the 3rd of July 2013, President has issued a proclamation in the gazette extraordinary No. 1817/31, under section 12 of the Public Security Ordinance No. 25 of 1947 as amended, calling out all the members of the Armed Forces specified in the 1st schedule for the maintenance of public order in the areas specified in the 2nd schedule.

The Armed Forces named in the 1st schedule are ‘The Sri Lanka Army’, ‘The Sri Lanka Navy’, and ‘The Sri Lanka Air Force’.  The 2nd schedule gives all the 25 districts as the specified area.

The question arises regarding the legality of this proclamation issued under Section 12 of the Ordinance.

Under Section 2 of the Public Security Ordinance, the President may by proclamation published in the gazette declare a state of emergency and then the provisions of part II of the Ordinance come into operation.  In which case under Section 5 of the Ordinance, the President may proclaim emergency regulations in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance of supplies and services essential to the life of the community.

The emergency that was declared by proclamations monthly for several years was not extended after the end of the war and hence ceased to operate.

The President is entitled to make a proclamation under Section 12 even though an emergency is not declared.

To call out the armed forces under Section 12 of the Ordinance several conditions has to be satisfied.

I.            Circumstances endangering the public security in any area has arisen or are eminent.

II.            President is of the opinion that the police are inadequate to deal with such situation in that area

III.            Call upon the armed forces for the maintenance of public order in that area.

A plain reading of the section shows that this proclamation can be made for a specific area to deal with a specific situation by use of the specified armed forces, when the President is of the opinion that the Police is inadequate to deal with the situation.

The question arises whether the President can make such a broad proclamation under Section 12 without mentioning a specific area in which specific situation has to be dealt with and he is of the opinion that the police cannot deal with the situation.

Therefore the legality of the proclamation arises though it is plainly clear that this proclamation was not made to deal with the Ratupaswela incident as this proclamation was issued a month before the incident.

The question arises whether this proclamation as it is proclaimed is another step in militarization that we see in our country.

The government has a duty to place before the people the answers to these questions.

*Lal Wijenayake – Chairman – Standing Committee of the Bar Association on Rule of Law and Independence of Judiciary

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Latest comments

  • 0
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    “Law is an ass” as far as Rajapakses are concerned: Nobody should think they would be bothered about any legal niceties. MARA cannot be taken to court!

    They have the ultimate power – the power of the armed forces.
    They truly believe in Mao Tse Tung’s principle: Political power comes out of the barrel of the gun. Didn’t we watch it displayed in Weliweriya? Don’t mess around with this man, he is armed to the teeth and dangerous. Now he is after Mangala, his former buddy.

    Move on people, move on: think of creative ways to deal with the demons.

    • 0
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      …creative ways to deal with demons. Yes, one is to switch off a heart
      pace-maker by using a unmanned-drone, of one worn by a Public Servant!

  • 0
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    Mr Wijenayake has set out clearly the law and procedures. This is all well and good if we enjoy law and order and justice in the land. For sometime now, our governments have practiced selective application of the law and justice. As for good order,the suffering people of our land have long forgotten what it looks like. In any case there is a backlog to, perhaps, May 1958, for the law to act and bring to justice myriad perpetrators; some of whom are still alive.

  • 0
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    Today is 15 August 2013.
    Incident occured on the 1st of the month.

    Is that so difficult to check this on the paragraghs by the relevant authorities ?
    Why the bar association and all other boides related to maintenance of country´s law and oder issues STAY DEAD SILENT until now ?

    You raise it
    ” The question then arises as to under what Law the Army acted ” – we the little simons raise the same question thousand times …

    You say
    “The President is entitled to make a proclamation under Section 12 even though an emergency is not declared “

    had he made such a proclamation before the particular incident ????????????????

    Why is that no law related bodies have STRONG BACKBONE to react against this brutal act again ?

    DNA test of the BRITISH TOURIST MURDER takes over 18 months for the state – UK authorities ridiculed this out, but all these are not BECUASE of you guys in LAW MANINTENANCE bodies ARE NOT strong enough ?

    • 0
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      If the law enforcement authorities have a strong backbone as it is seen in Germany, France and in UK, PRESIDENT or other idiots cant abuse their powers in this manner. This is clear to any low IQ bearers of the population.

      The nation is not helpless, as it is appeared to be

      Napping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UPNapping Law enforcements authorities should WAKE UP

  • 0
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    The army which killed thousands at the end of the war knows that noone will be held accountable by any inquiry,or by any ‘commission’ or by the army itself – there is an ongoing inquiry by the army on its own behaviour – this negates all norms of proper inquiry.
    In the Occupied Areas in the northeast,the army has killed many civilians on various pretexts.The judiciary is silent and passive.
    This has led to a climate of impunity.
    Chasing civilians who dispersed, and assaulting & shooting them is against the law’s provisions quoted above.
    There appears to be no Military Police to discipline the rank & file.
    Of course there is militarization of the country.
    The militarization if the northeast is simply being extended to areas in the south.

  • 0
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    Chinese doctrine is being followed by the regime as they are advised by the Chinese. The regime is doing exactly what Chinese did in Tiananmen square and there after with regards to the inquiries that were held. Sri Lanka has become a colony of China.

  • 0
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    Australia has many public demonstrations when public opinion is developed on an issue of concern to it. The police deal with the elements of disruption or violence etc as appropriate.

    The armed forces are never deployed against citizens as their primary role is killing in the interests of “defending” the nation, often in foreign “theatres” of war.

    The police department being under the jurisdiction of the ministry of justice and the military departments being under the ministry of defence are indications of this distinction.

  • 0
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    No where in Sri Lanka’s history that we read the rulers Murdering their own citizen who helped them to come into power.

    There are their own race and poor people who voted for them, who were asking for drinking water, but were subjected to Genocidal Military assault with murder and many getting hurt.

    According to Karma these inhuman massacre will fall upon them who ordered this massacre and those who carried them out.

    With relating to UNP protest rally, I think Ranil should have done a much better job to present himself as opposition party leader and as a challenge to Rajapakse dictator.

    Ranil’s confidence, Personality and charisma to give confidence to the party supporters and to the general Public was insufficient. He has to win the general public and the only way is through effective speech and confidence building.

    He had not even come prepared to give an effective speech to the Public and to Media and failed to represent himself as an opposition Leader.

    What is the reason RW talking about raising the minimum wage of working class Sri Lankans during the rally speech, while this protest was all about Rajapakse Dictatorial and Authoritrial Regime misusing their powers to Genocide poor people who voted for the regime when they were asking for drinking water.

    If Ranil cannot prepare himself and draft his own effective speech, he should at least hire an outside professional organization to do the draft for his speech.He failed and did not capitalised the Protest to be more effective.

    I think Sajith and the rest of the young UNP parliament members gave a much better effective speach and did a wonderful job.

    People look for confident looking, Brave,foreward, effective speech, and a Strong Leadership to face Rajapakses. Not at a mere holy Pambaya.

    I think our young UNPers, MP’s and the supporters did a wonderful job in the protest Rally and all my hats off to them. They stood up to the Rajapakses and should organise more rallies across Sri Lanka to get their message across.

    Also there should have been more Posters, banners and cut outs during the protest. The PA system should have been upgraded.

    Also the media did a wonderful job, and if the UNP team could send their own Video clips to Youtube will be a good idea.

    Ranil should think seriously on an effective UNP Marketing game plan to face and challenge the born crook, Saradiel and Internationally notorious Robinhood Rajapakses. Also remember the opposition has to work double the amount to win elections.

    Good luck to UNP……our party of Generations.

  • 0
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    Seriously, the country is becoming a little North Korea, not a wonder of Asia. The government thinks that it can eliminate the LTTE for its wrongdoings, but nobody can remove Rajapaksa government for its wrongdoings, even the world. Honestly, the Rajapaksa brothers are not smart enough to deal with the Chinese. Sri Lanka is becoming a little North Korea. Recent shooting of unarmed civilians, and Army Commander Daya Ratnayake’s talks with the Chinese Ambassador Wu Jianghao are clear signs. I don’t know why the opposition parties did not question Army Commander’s meeting with the Chinese Ambassador. It was very unusual event. The opposition parties are bloody hopeless, the TNA is too busy collecting dollars in overseas, the UNP is in a different planet because it is not questioning unusual events, the JVP things it has answer for everything, but nothing in action. It is unbelievable, the government makes lot of mistakes, but it seems doing well due to ineffective opposition parties.

    • 0
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      Antany,

      I like your observation as regards the role of TNA. My friend since when did the TNA become a national opposition highlighting the plight of the Majority. I am sure TNA will be proud to have been elevated to such a high profile role. But be honest your motive in dragging TNA into the argument is to have a dig at them about collecting dollars overseas.

  • 0
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    Think before you vote (leap) now it’s tooo late.

  • 0
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    Lal,

    What you have commented on is what the Law is but that is an alien language to MR and his Thugs.
    I am not sure which side of the political spectrum you are in so it is difficult to understand what your message is.
    But I am sure you understand that the rule of Law is secondary to the Current Rulers and they interpret the law to suit their actions and omissions as it was amply demonstrated when Dr.Shirani was impeached.

    There is nothing you or your colleagues can do to challenge the might of the Thugs other than to air your views which will fall on deaf ears.

  • 0
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    Mr Wijenayake

    Don’t try to teach our great leader MR the law. MR knows the law. he may be O’level weda pahai ganag pail but he is a lawyer and knows the law.

  • 0
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    Dear Mr wijenayake

    You have explained sect 95 very well, however it has been evidenced in court the SP Gampha requested the army to be present, that you have conveniently forgotten. Further the Gampaha magistrate refused to give a order to close the factory. That proves beyond reasonable doubt that the assembly was unlawful.

    The crowd was told repeatedly to disperse after been told that on the defense secretaries suggestion the factory has voluntarily. Even the priest ended his fast.

    can you also explain section 97 to the public. Especially 2(a).

    Further also explain sect 139 of the penal code.

    At this point the crowd started pelting stones and attacked the police and army officers. The first to be injured was the OIC welweriya.The army fired into the air. The crowd still continued to attack.

    Now can you explain sect 89 to 99 of the penal code. When a loss of life is perceived a person has a right of private defense.

    Explain especially section 99 and the illustration given therein. Loss of innocent lives though regrettable is accepted by law.

    The loss of 3 innocent lives is regrettable but the responsibility of which lies with the MOB.

    When the loss of lives is perceived it not required to use the so called universally accepted practice of water cannon, rubber bullets etc.

    It was however wrong to follow in to the church and drag people out and beat them. But soldiers are human too. And they were mad that they were stoned for doing their job.

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