“I must express my concern over magistrates issuing orders of remand mechanically, simply because the police want such orders made. I cannot do better than to quote the words of Justice Dheeraratne in connection with magistrates issuing warrants of arrests (in the case of Mahanama Thilakaratne V Bandula Wickramasinghe).
“Magistrates should not issue remand orders to satisfy the sardonic pleasure of an opinionated investigator or prosecutor. Remanding a person is a judicial act and as such a magistrate should bring his judicial mind to bear on the matter before depriving a person of his liberty,” those were the strong words of Colombo Chief Magistrate Lanka Jayaratne in her order last week when granting bail to former Defence Secretary and former IGP, arrested in relation to the Easter Sunday attacks.
The former Defence Secretary Hemasiri Fernando and former IGP Pujith Jayasundara were arrested and produced before the Colombo Magistrate in relation to offences under section 296 - the offence of committing murder, 298 - the offence of murder by negligence, 326 – causing grievous hurt, 327, 328 and 410 all three sections of the penal code which relate to causing grievous hurt endangering life.
In a lengthy order, Magistrate Jayaratne takes a holistic view of the matter before considering whether the suspects should be granted bail.
The order in the first instance considers whether there is sufficient grounds for the two suspects to be arrested in this matter, which was based on the interim report by a comittee appointed to look into the Easter Sunday attacks.
It highlights that when the CID reported facts to the magistrate on the matter initially on June 4 where the suspects were only brought under the charges of Sections 298, 174, 327, 328 and 329. There were no murder charges under section 296 at this initial point.
The two suspects were arrested on July 2 as per the advice received on the matter from the Attorney General’s Department after studying file extracts. It was informed to the CID that there was sufficient evidence to bring in the witnesses under section 296 of the penal code, the report presented to court stated.
When court inquired as to under what law the comittee was appointed, Senior Deputy Solicitor General (SDSG) Thusith Mudalige informed court that it was not appointed under any specific law but was a comittee appointed by the President for the sole reason of looking into the Easter Sunday attacks.
The order explained that the reason to inquire was mainly to consider whether the findings of the comittee can be considered by court as per the law.
Section 9 of the Commissions of Inquiry Act and Section 8 of the Special Presidential Commission of Inquiry Act states “Every inquiry under this law shall be deemed to be judicial proceedings within the meaning of that Act”.
Therefore, the findings of the comittee cannot be considered as part of the magisterial inquiry but will be considered as an initial complaint on which the investigations were based on and not taken cognizance of.
“This does not in any way mean that the appointment of the comittee is invalid or without basis,” the order stated.
Accordingly, the order at the very outset states that since the circumstance of the case is different to a usual killing by an attack, where the suspects can be taken into custody based on an eyewitness even without obtaining statements from the suspects, the suspects in this matter should be first given a chance to make statements and then conclude the investigation only if such an investigation shows adequate evidence on a committal of an offence where the suspect can be taken into custody.
It was imperative that fresh statements were obtained from the two suspects as the statements previously given by them could not be taken into consideration here since the comittee didn’t fall under the law that allowed the court to do so.
The CID in its B report dated July 2 states that the reasons as to why the statements were not obtained by the two suspects were due to their ill health and doctors’ advice that they were not in a position to give statements.
Citing a judgment by former Chief Justice Priyasath Dep, the order states that “The police have to ascertain the credibility of the complaint and the information received before rushing to arrest and produce the petitioners in court,”
The Magisterial order reiterates that the interim report by the comittee chaired by Supreme Court Justice Vijith Malalgoda recommends that criminal investigations be initiated in line with the criminal procedure set out in the country and does not find any particular person having committed any offences to be named as suspects.
“This shows that the comitteetoo agrees that there needs to be a proper inquiry before initiating action against any person,” the order states.
In considering whether murder charges brought under Section 294, the Magistrate states that the offender should have “Knowledge that an act so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, is knowledge, not merely of the likelihood of causing death, but of the high probability of causing death or injury likely to cause death.”
Making submissions on behalf of the State, SDSG Mudalige stated that the two suspects were informed of a threat at several instances and finally on the day of the attack through WhatsApp.
In response, Anuja Premaratne PC informed court that the Whatsapp messages were sent only a short while before the attacks and that too is not a formal mode of communicating information of such importance.
The order indicates that the head of State Intelligence Services (SIS) had informed the first and second suspects on April 21 only at about 8.46 a.m. “According to submissions that was after the first bomb went off and that it clearly was not the time to act by the first and second suspects.”
The court further indicates that “to take a realistic view and not judge like visitors from outer space. One must not be content to reach decisions by looking at the mere surface of things,” Justice Gunawardena in a decided case stated.
The court accordingly states the incident took place at a time where such threats were not expected as it was 10 years since the war ended. In such a background, the court is sensitive to the fact that in the minds of the two suspects the imminent threat of such an attack may not have been apparent.
Therefore, the magistrate states that when exercising a judicial mind into the matter it is clear that the facts presented before the court does not tally with the offences drawn against the suspects.
It is reiterated in the order that Under 296, since sufficient evidence is not there to bring murder charges against the two suspects, the Magistrate refuses to further remand them.
She further notes that since both suspects were public officials holding esteemed positions that she has no reasonable grounds to believe that they will evade investigations, leave the country or intimidate suspects. As such there is no need hold them further in remand custody.