Two months after the brutal Easter Sunday bombings, former Defence Secretary Hemasiri Fernando and Inspector General of Police Pujith Jayasundara were arrested by the Criminal Investigation Department on charges of murder and criminal negligence for their failure to prevent the attacks that claimed 258 lives as high-ranking security officials.
Fernando, who resigned days after the attacks and Jayasundara who was sent on compulsory leave by President Maithripala Sirisena, after flatly refusing to resign, were both arrested in hospital by CID officials.
Their application for bail will be taken up before a Magistrate on Tuesday, July 9.
On July 1, the Attorney General issued strict instructions to Acting IGP Chandana Wickremaratne, demanding the arrest of the two officials, and claiming that their failure to act on intelligence warnings had resulted in “grave crimes against humanity.”
The directive to the Acting IGP was made public by the coordinating officer to the Attorney General, State Counsel Nishara Jayaratne.
“This incident is one of the gravest crimes in Sri Lanka’s criminal history,” the letter from the AG stated, adding that negligence by both former officials who held important posts in the security establishment when the April 21 suicide bombings took place, had led to ‘grave crimes against humanity’ under International Humanitarian Law (IHL).
The AG’s letter on July 1 also demanded an explanation from the Acting IGP as to why his officers had failed to act on a similar letter issued by the AG on June 27, claiming that Fernando and Jayasundara were in violation of a string of offences under the Penal Code, including Section 296, the offence of murder which is punishable by death. Fernando and Jayasundara are also being held for violation of Section 298 of the Penal Code – causing death by negligence and several other provisions.
According to the AG’s letter to the IGP, the findings against Fernando and Jayasundara were based on the final report of the committee set up by the President to investigate official lapses that led to the Easter bombings. The Inquiry Board was chaired by sitting Supreme Court Justice, Vijitha Malalgoda and comprised former IGP N.K. Illangakoon and former Secretary to the Ministry of Law and Order, Padmasiri Jayamanne.
But on July 3, when the case was taken up before the Colombo Chief Magistrate, questions were raised about the laws under which the committee had been appointed.
Deputy Solicitor General Thusith Mudalige informed Chief Magistrate Lanka Jayaratne that the investigations into the two officials had commenced based on the Presidential committee appointed to inquire into the Easter Sunday attacks. At the very outset, Colombo Chief Magistrate Jayaratne asked the DSG under which law the committee had been appointed.
She explained that the question was being posed to counsel of both parties, because the laws and criteria to be applied in the case would have to be based on whether the findings were made under the Special Commissions Act or any other legislation.
Under Article 110 (1) of the Constitution, a sitting Supreme Court Justice is only permitted to discharge any other duties or functions as required by the President of the Republic under written law. However, the committee appointed to study the security lapses before the April 21 bombings was not set up under a specific law, unlike in the case of a Presidential Commission, where an Act of Parliament sets out the powers and functions of the inquiry body.
DSG Mudalige informed court that charges against the two suspects; Hemasiri Fernando and Pujith Jayasundara were drawn under Sections 296, 298, 327, 328, 329 and 410.
Section 296 being the most serious of the offences, states “Whoever commits murder shall be punished with death”. Appearing for both suspects, Anuja Premaratne, PC, informed the court that there was no evidence to show that the requirements of Section 296 can be satisfied.
The Colombo Chief Magistrate called on the DSG to explain how the act of murder by the suspects was included. DSG Mudalige replied providing a broad interpretation and explaining that the two suspects had committed murder by omission. However, the Magistrate contended that to her mind, the actus reus (the physical action of the crime) of the criminal offence was not present in the cases.
The two suspects were not present in court, as Fernando admitted himself to the cardiac unit of the General Hospital, while Jayasundara was admitted to the police hospital for treatment on the same day. Both continue to receive treatment while under police custody.
“The second suspect was provided information about the imminent threat by intelligence units on April 18, 19, and 20 and even on the morning of April 21, but he failed to take any action or act upon such information,” DSG Thusith Mudalige told the Magistrate.
In reply to this claim, counsel for the two suspects informed court that the only information that they received was pertaining to the explosion that took place in Kattankudy.
DSG Mudalige also informed the court that IGP Jayasundara had been informed about the National Thowheed Jamath which was responsible for the attack.
However, it was the contention of the counsel for the suspect that he was expressly informed not to investigate into Zaharan Hashim and his associates as it may jeopardise the investigations carried out by the State Intelligence Service (SIS), and that as per these communications, all investigations were suspended.
Counsel for the suspects relaying the sequence of the events that took place preceding the incident, stated that the first information pertaining to the imminent threat was received on April 4.
The state prosecutor informed the court that the first suspect had the responsibility to inform the tri-forces about the warnings received.
But Counsel for the former Defence Secretary disagreed.
“Two pieces of legislation apply in this scenario. One is the Public Security Ordinance and the other is the Prevention of Terrorism Act. Under these statues, if there is any action that has to be taken in an incident such as this, it is only the Defence Minister who is empowered to do so, neither the first nor the second suspect have such powers. Even a detention order has to be signed by the defence minister,” PC Premarathne said.
With their arrests last week, the former Defence Secretary and the ousted IGP have been named first and second suspects in the Easter Sunday terror attacks since none of the terror suspects in CID and TID custody have been produced before a magistrate so far.