• Sirisena finds himself in a political abyss
• Nilantha’s career hangs in the balance
• LG election sabotage falls apart.
Former President Maithripala Sirisena is being held primarily liable for shirking his responsibility to take preemptive action to negate the catastrophe that unfolded on Easter Sunday of 2019.
The Supreme Court determined in a fundamental rights case before it that his inaction was largely responsible for the Easter Sunday carnage that shook the world.
The Court passed strictures on the President and the top bureaucracy of his administration for the lapses and failures that cost the country valuable human lives. It also pushed the country back economically for years, causing irreparable damage to its image worldwide.
There is a general belief that it all stemmed from the aborted constitutional coup in 2018. This coup was designed by Sirisena’s cohorts to oust the Ranil Wickremesinghe administration. Following this coup, he installed his archrival during the 2015 presidential election, Mahinda Rajapaksa, as Prime Minister. When he felt Mahinda Rajapaksa could not muster an adequate number of members for a government and faced a no-confidence motion in parliament, President Sirisena resorted to dissolving parliament, which was also deflated by the Supreme Court headed by then Chief Justice Nalin Perera.
The 2018 local government election was a turning point in Sri Lankan politics since the Yahapalanaya regime was saddled with internal bickering between the President and the Prime Minister.
The President’s aim was to send the Yahapalanaya regime home while currying favour with Rajapaksa, who was riding high at the time, giving false hopes to the masses.
In early 2019, the role played by a man named Thomas from Kerala, India, must be recalled. He walked from pillar to post, saying that he had a big secret to reveal. He claimed he was harassed by officials of the Indian RAW. Nobody had time for him. He appeared on TV channels with somebody’s assistance at the same time. In addition, the story of an attempt to assassinate the incumbent president and former defence secretary came to light. All these served as distractions and a deterrent to seeing the bigger picture. Thomas, however, faded away after he was branded as suffering from mental illness.
There was a grand conspiracy behind the Easter attack, as former Attorney General Dappula de Livera said before his retirement.
The perception of the intelligentsia is that all this was a grand design cooked up to pave the way for Gotabaya Rajapaksa, the Sri Lanka Podujana Party candidate, to grab power. In that sense, President Sirisena was used as a pawn to execute their plan.
The Supreme Court did not take any exception in announcing their findings, proving that nobody could escape the wheels of justice.
After much effort sifting through all theevidence, the seven-judge bench of the Supreme Court pronounced a long and detailed judgement stating that Maithripala Sirisena who was President at the time, then Defence Secretary Hemasiri Fernando, then IGP Pujitha Jayasundara, Director State Intelligence Serviceat the time Nilantha Jayawardena and then Chief of National Intelligence Sisira Mendis are responsible for violating the fundamental rights of the petitioners.
The bench comprised Chief Justice Jayantha Jayasuriya and Justices B.P. Aluwihare, PC, L.T.B. Dehideniya, Murdu N.B. Fernando, PC, S. Thurairaja, PC, A.H.M.D. Nawza and J.A.L. Shiran Gooneratne.
The allegation of executive inaction springs from security warnings, intelligence messages, concept papers, and correspondence that took place among some principal protagonists of the executive branch, i.e., Nilantha Jayawardena, Sisira Mendis, Pujith Jayasundera, and Hemasiri Fernando. The petitioners make the allegation of executive inertia against then President Maithripala Sirisena for not taking steps to avert the bizarre mayhem and destruction. They contend that it was within his powers to have ensured the personal liberty and security of the people and prevent the precarious slide into anarchy.
Just three days after receiving the all-important initial information on April 4, 2019, the first person to whom the Director SIS transmitted the news was to the CNI. He informed him of the alleged plan of attack. This was on the 7th of April 2019, and the letter carrying the logo “Top Secret” contains the following as its contents:
‘As per input, Sri Lanka-based Zahran Hasim of the National Towheed Jamaat and his associates are planning to carry out a suicide terror attack in Sri Lanka shortly. They are planning to target some important churches. It is further learned that they have conducted reconnaissance on the Indian high commission, which is one of the targets of the planned attack.
The input indicates that terrorists may adopt any of the following modes of attack: A) Suicide attack B) Weapon attack C) knife attack D) truck attack.
It is also learned that the following are likely team members of the planned suicide terror attack: Zahran Hashmi, Jal Al Quithal, Rilwan, Sajid Moulavi, Shahid, Milhan and Others
The input may kindly be enquired into on priority and feedback given to us.”
Thus, there was specificity, exactitude, and clarity as to the likely attackers, modes of attack, and targets. Upon receipt of the above, Sisira Mendis the CNI, communicated it to the IGP Pujith Jayasundera on the 9th of April 2019 by way of a letter.
That letter also discloses the identities of the attackers, as revealed in Nilantha Jayawardena’s document.
As is evident from the affidavit of the CNI, he is expected to have an “intelligence coordination meeting” every Monday prior to the main “weekly intelligence coordination conference” (ICM) on Tuesday. Accordingly, the CNI scheduled the ICM for April 9, 2019. Nilantha Jayawardena states in his affidavit that at this ICM held on the 9th of April 2019, he was not questioned regarding the information that he had provided to the CNI by way of his letter dated the 7th of April 2019, nor was he instructed toprovide further reports.
But the agenda of the meeting on April 9 had an item titled “Current Security/IntelligenceUpdate,” at which the Director of SIS had to brief the participants. The fact remains that Nilantha Jayawardena provides no evidence that at this particular ICM he alerted the participants to the looming likelihood of attacks on churches, except for a bare assertion to the following effect:
‘When I entered the meeting, the CNI showed me the information sheet that I had annexed to my letter dated April 7, 2019, addressed to him. I requested that he take immediate action as it is important. On being questioned by Mr Hemasiri Fernando regarding the action I was to take pertaining to the information sheet attached to my letter dated April 7, 2019, sent to the CNI, I informed Mr Hemasiri Fernando that I would be submitting a special report to the IGP and CID on the same evening, which I did’
The agendas of the weekly Intelligence Coordinating Meetings (ICM) furnished to theCourt reveal that National Security was a priority on the agendas and whilst, just one month prior to the attack in March 2019, the activities of Mohamed Cassim Mohamed Zahran had taken centre stage at ICMs, it is surprising to not hear anything about a briefing by Nilantha Jayawardena at the meeting held on the 9th of April 2019 on an all-important and vital intelligence that he had received on the 4th of April 2019. Sisira Mendis CNI, in his affidavit dated 8th November 2019, is quite specific that the Director SIS presented a briefing on several matters other than the vitalintelligence referred to in his letter dated April 7th, 2019.
This is not expressly contradicted by Nilantha Jayawardena himself in his affidavit. By recourse to Section 114 (e) of the Evidence Ordinance, the learned Senior Additional Solicitor General sought to buttress his argument that the common course of business may have been followed on April 9, 2019. He invited this Court to draw the presumption in favour of Nilantha Jayawardena. He said that he had raised the vital issue of the likely attack in the presence of all the participants at the meeting. However, the facts do not lend themselves to such a presumption being drawn. Though Nilantha Jayawardena’s briefing figures prominently as one of the significant items on the agenda for the meeting on April 9, 2019, there is no record provided to this Court that he addressed the specific security threat at the briefing.
In this regard, paragraph 36 of the affidavit of Sisira Mendis, CNI, is as follows:
“I state that I discussed the contents of the letter sent by Director SIS with the former Defence Secretary on the 8th of April, who directed that SIS present the matter at the weekly intelligence meeting on the 9th of April. “I state that as a matter of practice, the Director of SIS is required to address the intelligence meeting first. However, the Director of SIS did not address the meeting on this issue, although the meeting presented an ideal forum to alert the participants, which included the commanders of the tri-forces.
What is asserted in the affidavit of Nilantha Jayawardena proves, to some extent, the veracity of what the CNI says actually happened on April 9, 2019. Except for a briefing by the Director SIS on the general situation in the country, it is clear that there had been no formal discussion or briefing by Nilantha Jayawardena on the intelligence that he had received on April 4, 2019.
Here is a Director of the State Intelligence Service who had given an extensive briefing on the 13th of March 2019 on Zahran and his associates. By the 9th of April 2019, he had already written to the CNI about the delicate information from India. He had also personally briefed the Inspector General of Police via phone on the aforesaid intelligence information on April 7, 2019.
When he arrived at the ICM on April 9, 2019, there were ominous warnings of an impending disaster, but he chose not to discuss the matter in his briefing, except for an informal discussion among himself, Sisira Mendis (CNI), and Secretary of Defense Hemasiri Fernando. This only shows that Nilantha Jayawardena gave little weight to the intelligence provided by hisforeign counterpart. In view of the enormity of the intelligence gatherings, meetings, reports, and events that preceded the intelligence received on April 4, 2019, it is idle to contend that the information received was not actionable. It was of national interest that the Director of SIS should have brought this matter up at the ICM. In fact, he should have alerted and informed the Secretary to the President, but he failed to do so.
The full judgment is available elsewhere on the Counterpoint website.
On Friday the Archbishop addressed a press conference and commended and praised the Supreme Court for dispensing justice in a forthright manner. He said it was an example to present and future leaders that they could not escape the wheels of justice.
What is interesting about this whole episode is the enduring stance taken by the Archbishop and his quest to figure out who the actual culprits are. This is by all means an arduous task since it is more complicated than any of the investigations undertaken by the Sri Lankan intelligence outfit. Probably his aim is to bring them before the law of the country, and he thinks that this judgment provides an opening for such an investigation.
The Archbishop also took swipes at the UNP. He said although one leader had promised to hand over the matter to Scotland Yard, nothing has happened. Yet again, he took swipes at the Jayewardene administration, saying that the judges were stoned by several miscreants who supported the government. However, he conveniently forgot to mention how former Chief Justice Shirani Bandaranaike was ousted by the Mahinda Rajapaksa administration since they disliked her. He also forgot to mention how on many occasions the Rajapaksa administration ignored Supreme Court directives. There had been miscarriages in the administration of the justice system during the premiership of Sirima Bandaranaike, too.
It is evident that any government becomes more or less hesitant about the administration of justice when the judiciary makes upright decisions for the benefit of the people.
In the Easter Sunday FR case, the Supreme Court demonstrated its integrity, showing the masses that it stands by justice in its dispensation.
Besides the Opposition has for long been wise to the government’s ploy to scupper the local government election, a do- or- die litmus test of its performance at a future parliamentary election. Local government elections have to be held every four years. The last one was held in 2018 and since then, an election has been put on the backburner as the government grapples with the stark reality of an ignominious routing at the hustings.
What triggered the alarm bells of the government’s plan to postpone the election, the final date for which according to the constitution is by March this year, was its move to appoint a National Delimitation Committee to demarcate wards for a local government poll and President Ranil Wickremesinghe’s talk of halving the number of local government representatives from 8000 to 4000. Since then, the government has gone into a spin to put off the election, claiming lame reasons like affordability and the election clashing with the advanced level exam or the inability of the police to provide security.
After the Election Commissioner announced the dates for nominations between the 18th and 21stof January, Wickremesinghe and some of his cohorts in government went into overdrive this week as they raced against the clock. The latest in the government’s series of last-ditch attempts was to put pressure on the commissioners of the Election Commission (EC) to resign as this would precipitate a conundrum about the quorum. The Education Secretary of the Frontline Socialist Party, Pubudu Jagoda, flagged this issue at a press conference to bring it to the attention of the public. Before the passage of the 20th Amendment to the constitution which was engineered by deposed President Gotabaya Rajapaksa, the EC comprised three commissioners and the requirement for a quorum by all three members. Since the passing of the 20th A, the number of commissioners was increased to five although there was no change to the number needed for a quorum. If three election commissioners resign, not only will it affect the requirement for a quorum but also the composition of the EC. One of several independent commissions in the country, the EC has to be constituted with the concurrence of the Constitutional Council which itself is yet to be constituted. The ensuing delays with the process will ensure a delay to the local government election with no uncertainty.
Wickremesinghe himself has led attempts to torpedo the election with a coterie of government ministers. Together, they have crossed the boundaries of their mandates to interfere with the functions of the EC which has been quick to nip in the bud the government’s manoeuvering.
Earlier this week Wickremesinghe held a meeting with four of the EC’s commissioners after he summoned them to his office. It is a conflict of interest between his functions as President and the leader of a political party, the United National Party, which is contesting the local government election.
A directive, purported or otherwise, by the Cabinet of Ministers to District Secretaries not to accept deposit money from potential candidates at the election caused an uproar after the Secretary to the Ministry of Public Administration and Home Affairs Neil Bandara Hapuhinna, sent a letter to all district secretaries to action the Cabinet directive. The EC was quick to step in to stall the situation from going into freefall. It issued a letter effectively denying the modus in Hapuhinna’s letter which was also withdrawn by him, and emphasising that the District Secretaries who also function as Returning Offices at a time of an election, must accept the deposit.
The move evoked a denunciation by the Bar Association of Sri Lanka (BASL) of what it called ‘attempts by the government to interfere in the peoples’ exercise of their franchise at the election. In a statement it issued, the BASL warned that ‘refraining from accepting deposits from candidates for the local authorities’election could result in the nomination process to the local authorities being brought to a standstill’.
Citing the case of Waruna Karunathilaka and another vs Dayananda Dissanayake where the Supreme court held that the exercise of the franchise by the people is a fundamental right which must be protected, the BASL pointed out that fundamental rights and the franchise are two important aspects of the sovereignty of the people of Sri Lanka which is inalienable.
The BASL said that any unlawful attempt to interfere with the exercise of the franchise and preventing the people from exercising their sovereign right to choose their representatives at whatever level of government, while being a blatant attack on the rule of law and democracy in Sri Lanka, will also have far reaching consequences. ‘Previous attempts by different administrators over the years to interfere with the peoples’ franchise have resulted in disastrous consequences on the country and its people. The President and government must refrain from taking any steps which could be construed as interference with the independent functions of the EC and the exercise of the franchise of the people’.
In another unravelling of Wickremesinghe’s twisted conjecture, the EC rubbished his canard about disunity among its commissioners on the holding of the election with an announcement that all commissioners are acting in unison.
The main Opposition Samagi Jana Balawegaya petitioned the Supreme Court for an order toquash the Cabinet decision to instruct District Secretaries not to accept deposits from candidates until further notice. Parallelly, there have been calls for Hapuhinna to be prosecuted under the criminal law.
Meanwhile the Attorney General will not appear for the Election Commission and its chairman in the writ petition filed in the Supreme Court earlier this month to prevent the local government election from being held. Retired Colonel W.M.R Wijesundera filed the writ earlier this month seeking an order from the Court to quash the decision of the EC to hold the election in March. Election Commissioner Nimal Punchihewa informed the Supreme Court that the EC will go ahead with the conduct of the poll, for which the necessary legal steps had been taken. The date for the election will be announced after nominations close.
