As Sri Lanka marked the third month after Easter Sunday’s shock tragedy which took the lives of over 250 innocents, endeavours have begun for support for recovery and for a positive societal legacy of institutional repair and redemption of loss.
Twelve Fundamental Rights petitions filed on the horrific attacks were taken up before a full bench of judges led by Chief Justice Jayantha Jayasuriya in the Supreme Court last week.
The petitioners come from all walks of life and included many direct victims, in addition to a critically concerned professional body and a politically ambitious activist. There is a father who lost two children in the attacks, an entrepreneur whose business was severely hit economically, a lawyer who sustained serious injuries in the blasts, the Bar Association of Sri Lanka and even a Presidential hopeful.
The petitioners are pleading an order by the Court to prosecute those who are directly or indirectly responsible for the terrorist attacks. They are also claiming compensation for the victims of the terrorist attacks. While the 12 petitions had named a large number of respondents, the submissions made by several counsels at the hearing focused mainly on the Inspector General of Police Pujith Jayasundara and former Defence Ministry Secretary Hemasiri Fernando.
These two very senior public servants have already been arrested and released on bail in connection with the attacks and the duo’s seeming failure to execute their duties.
Attorney-at-Law Gamini Perera made the first submissions at the hearing on behalf of two petitioners. One petitioner the counsel was representing, Saman Nandana Sirimanne, had lost both his children, Medha Sathsarani Sirimanne (21) and Imesh Thiwanka Sirimanne (19). They died while at celebratory worship when the St. Anthony’s Shrine in the heart of Colombo became a target of the self-proclaimed ‘Islamist’ suicide bombers on April 21.
“Through the FR petitions, the petitioner’s main objective is to contribute to the improvement of government administration by pointing out the failures which led to the Easter Sunday attacks taking place,” Counsel Perera told court. He added that the petitioner was mainly seeking to challenge the persistent failures of both the IGP and the Secretary of Defence.
These two public officers have been named as the first and second respondents in this particular FR petition to investigate and take steps to ensure public security.
Making his submissions before the court, Counsel Perera noted that both the IGP and the Secretary of Defence had taken no ‘fruitful measures’ despite having previous knowledge of the possibility of an attack taking place on Easter Sunday.
Making a startling revelation, the Counsel also told courts how the IGP had taken steps to grant holiday leave to two DIG’s and recommended overseas leave to a Senior DIG between April 9 when the IGP was first informed of a possible attack and April 21, instead of taking the necessary precautionary security measures.
“While having knowledge of a possible attack, the IGP granted leave to DIG Colombo Lalith Pathinayake and DIG Colombo North Deshabandu Tennekoon, as evidenced by the affidavit filed by the Acting IGP on July 18,” Perera told court.
He pointed out that on the recommendation of IGP Jayasundara, Defence Secretary Hemasiri Fernando had approved overseas leave for Senior DIG and Commandant of the Police Special Task Force (STF) M.R Latheef. On April 21, Colombo was hit by five separate suicide bombing strikes.
Bringing a Police internal communique to the notice of the courts, Perera said that the document was proof that both Jayasundara and Fernando had prior knowledge of the attack. The communique to which counsel referred, dated April 11, warning of an imminent attack was signed by DIG Priyalal Dassanayake of the Police Special Security Division.
It was leaked online almost immediately after the attacks. The ominously blunt official missive begins: “This is in reference to the IGP’s note on April 9 regarding the letter directed to the IGP from the Ministry of Defence with the subject line information of an alleged planned attack”.
While it goes on to name the mastermind of the eventual attack and types of possible attacks, Perera argued that this document proves both respondents knew the attacks would happen.
“The IGP took no action from April 9 to April 21. He did not supervise, follow up, take or order any measures of security or even hold a meeting to look into the matter. Not a single fruitful action was taken,” he told the seven-judge bench, presided over by the Chief Justice himself.
Counsel Perera also told court how this communique was only directed to selected Heads of Police Divisions. The affidavit by the Acting IGP had included affidavits by six Heads of Territorial Police Divisions and the Heads of the President’s and Prime Minister’s Security Divisions confirming they had not received a warning despite IGP Pujith Jayasundara’s claims in the FR filed by him that he had informed all Senior DIG’s of the nine provinces of an impending attack.
As for the former Defence Secretary, Counsel Perera argued that his affidavit filed on June 27 was proof enough that he too had ample knowledge of a possible attack. “Despite claiming he directed the Chief of National Intelligence to take action, he did not monitor, ask for feedback or order for any security measures to be taken,” counsel noted.
He also told court how an affidavit by Head of State Intelligence DIG Nilantha Jayawardene shows he had informed the duo about an attack on the very day as well. “Even with short notice, they could have taken some steps to minimise the impact even if they could not have averted it,” Perera told courts.
Also making submissions, Senior counsel Chrishmal Warnasuriya appearing for a group of citizens said their FR petition filed was based on the fact that government had failed in its collective duty leading to a breach of public trust. “This includes the Executive and the Cabinet as per the 19th amendment to the constitution,” he said.
He also noted there has been a breach of law in reference to the Police Ordinance, as the public have a legitimate expectation that they would receive equal protection under the law without favour. “Therefore it is in the public interest to inquire if those responsible have done their job,” the Counsel told court. Like Perera, he too noted that the IGP and the Defence Secretary had knowledge of the possibility of attacks.
However, Warnasuriya, pointing to a previously decided case, also mentioned in the Water’s Edge case, said officials of the government cannot use the excuse that one did not know or was not made aware.
Referring to several instances since the April attack, when the heads of government had claimed they were not made aware of any possible attacks, or had not been part of Security Council meetings prior to the Easter Sunday attacks, the counsel told court: “It is their reciprocal duty to know if they have taken up the responsibility to govern.”
“One does not need specific information to protect the Republic,” he added in reference to a speech made by Minister Sarath Fonseka in Parliament following the attacks. According to his submission, the public which believes it maintains state officials through their tax monies expect officials to carry out their duties. “Therefore this is not the forum to claim they were not told or excluded,” he noted adding that even in the most laissez-faire state, security would be a top priority.
“It is also not enough to say the procedure was followed. It is not a defense awarded to state officials. They must uphold the public trust doctrine,” he argued. Several other counsel also made their submissions. Further submissions of the petitions are fixed to be taken up tomorrow, July 29.