The Commissioner General of Prisons TMJW Tennakoon gave an undertaking to the Court of Appeal today (June 28, 2019) not to execute any prisoner on Death Row until July 5, 2019. Tennakoon, a respondent named in a petition filed by journalist Malinda Seneviratne, gave this assurance following questions from a bench comprising of the President of the Court of Appeal Yasantha Kodagoda and Arjuna Obeyesekera, informing court inter alia that he had not received any notice of execution from the President. The case will come up for support on July 2, 2019.
Seneviratne, who has written extensively against capital punishment over the last 25 years, submitted the Writ Application amid speculation that Sri Lanka will see the first judicial execution since 1976 before the end of the month, following President Maithripala Sirisena‘s declaration that he has signed execution papers of four prisoners on Death Row.
The Writ Application cited the Commissioner General of Prisons, the Superintendent of the Welikada Prison, the Executioner and the Attorney General. Attorneys as respondents. Niran Anketell and Hafeel Farisz appeared for the petitioner instructed by Vidanapathirana Associates while Senior Solicitor General Nerin Pulle represented the Attorney General.
Meanwhile, it is reported that two persons including Sudesh Nandimal De Silva, the convener of the Prisoners’ Protection Movement, have filed a fundamental rights petition in the Supreme Court demanding that the implementation of the death penalty be restrained. The Attorney General representing the President, Justice Minister Thalatha Athukorala, Secretary to the Ministry of Justice, Superintendents of Welikada Mahara and Kandy Prisons, Chairperson of the Human Rights Commission of Sri Lanka Dr. Deepika Udagama have been named as respondents in the petition.
The full text of the original affidavit submitted by Seneviratne is given below:
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an Application in terms of Article 140 of the Constitution for mandates in the nature of writs of Certiorari and Prohibition
601/2 Havelock Road,
- The Commissioner General of Prisons
No.150, Baseline Road,Colombo 09
- The Superintendent,
Dr Danister de Silva Mawatha,
Dr Danister de Silva Mawatha,
I, Malinda Seneviratne of 601/2 Havelock Road, Colombo 06 being a Buddhist do hereby sincerely solemnly and truly declare and affirm as follows:
- I am the Petitioner and the affirmant abovenamed and affirm to the following on the basis of my person knowledge and documents and material available to me.
- I am a senior journalist and the former Editor of the Nation Newspaper.
- I am a citizen of the Republic and a taxpayer to the State.
- I am an opponent of the death penalty and have written and spoken against the death penalty on multiple occasions, and reserve the right to tender proof thereof if the same is necessary.
- I make this application in the public interest.
- I state that it is in the interest of the public that the rule of law be adhered to in all matters including the carrying out of sentences imposed by courts of law.
- The 1st Respondent is the Commissioner General of Prisons. The 2nd Respondent is the Superintendent of the Welikada Prison.
- I verily believe that the post of Executioner who would function at the Welikada Prison has been filled. A copy of an advertisement advertising the vacancy of the post of Executioner published in or around February 2019 is annexed hereto marked “P1” and is pleaded as part and parcel hereof. The Petitioner is not in possession of an original and seeks leave of Court to tender an original and/or duly certified copy if necessary.
- I state that various steps have been taken towards reintroducing the implementation of the death sentence in the recent past including advertising for the recruitment of an Executioner, the procurement and/or preparation of rope and various other steps. Petitioner annexes hereto marked “P2” compendiously copies of several news items and documents available to him, for which the originals are not in his possession. The Petitioner therefore seeks orders of court and/or seeks leave of court to direct those in possession to file the relevant originals or certified copies.
- I state that on or about 26th June 2019 his Excellency the President at a conference with heads of media institutions revealed that:
- He has signed papers for the execution of the death sentence;
- Four persons will be executed;
- Executions will be conducted soon;
- The date for the executions has been already decided.
A Youtube clip containing the above statements is available at the url https://www.youtube.com/watch?v=OYw_PSFA_2Q on the Ada Derana Channel appearing under the caption: “සිරකරුවන් හතරකට මරණ දඬුවම දෙන්න ජනපති අත්සන් තබයි”
I reserve the right to file a Compact Disk containing the said clip and/or a transcript of the relevant comments if necessary and/or ordered by Your Lordships’ Court.
I file hereto a true copy of a press release issued by the Presidential Media Division marked “P3” and plead the same as part and parcel hereof.
In view of the grave urgency in this matter the Petitioner submitted an RTI application annexed marked “P4” and pleads the same as part and parcel hereof.
- I state that I do not, in this application and in these proceedings, seek to impugn the said actions of the President.
- I verily believe that the death penalty offends the Constitution and is a barbaric practice.
- I state that I verily apprehend that the death sentence will be executed on four prisoners imminently, and within a few days.
- I am unaware of the date set for the execution and apprehend that the sentence may even be carried out over the weekend commencing 28th June 2019.
- I state that the execution of the death sentence of hanging by the neck to death is to be carried out by a person other than the 2nd Respondent.
- I state that I apprehend that the execution of the death sentence would be carried out by the Executioner 3rd Respondent, in the event the said post has been filled.
- I state that an Executioner is not entitled in law to execute a person sentenced to death.
- I state that the 2nd Respondent is not entitled in law to cause any other person to execute a person sentenced to death.
- Further, I state that the execution of persons sentenced to death by one and/or more of the Respondents as set out herein, their servants, agents and those holding under them would be:
- Prohibited by law and the Constitution;
- A violation of the rights of citizens and that of the public inclusive of the Petitioner and the Petitioner himself;
- Ultra vires;
- Arbitrary, irrational, capricious, vexatious and unreasonable;
- Action that offends and is in breach of the principles of reasonableness, fairness, proportionality, legitimate expectation, natural justice and motivated by improper objectives.
- I state that grave and irreparable loss and damage would be caused to the public, the Petitioner and persons who are about to be executed and this application rendered nugatory unless Your Lordships’ Court be pleased to grant the interim relief sought.
- Thus and otherwise, the imminent decisions and/or actions of one or more of the Respondents to execute prisoners sentenced to death and/or to execute prisoners sentenced to death through any servant, agent and person holding under the 1st and/or 2nd Respondent as described would be unlawful, void ab initio and of no force or effect in law.
- I have not previously invoked the jurisdiction of Your Lordships’ Court in respect of this matter.
- I have filed this application on this date in view of the extreme urgency of seeking interim relief and respectfully reserves the right to tender documents/records and/or add further parties if deemed necessary with the permission of Your Lordships’ Court.
- WHEREFORE I move that Your Lordships’ Court be pleased to grant the reliefs prayed for in the Petitioner of even date.
Read over and explained to the
Affirmant abovenamed who
Appearing to understand the
Contents herein affirmed and
Signed in my presence on this
27th day of June 2019
JUSTICE OF THE PEACE/COMMISSIONER FOR OATHS