Murder of Bharatha Lakshman Premachandra and three others : Payoff allegations, gross distortions shroud Duminda Silva’s appeal hearing | Sunday Observer

Murder of Bharatha Lakshman Premachandra and three others : Payoff allegations, gross distortions shroud Duminda Silva’s appeal hearing

12 August, 2018

When his party leader at the time, President Chandrika Kumaratunga was reluctant to name Mahinda Rajapaksa as the SLFP candidate for the 2005 presidential poll, Bharatha Lakshman Premachandra, the party trade union leader was his staunchest advocate.In fact, it was in Premachandra’s house in 2005 that some 50 SLFP members met to decide that Mahinda Rajapaksa must be put forward as the party’s presidential nominee, in spite of the reservations of President Kumaratunga. Initially, Rajapaksa himself was not happy with the prospect, but the team led by Premachandra insisted that the then Prime Minister must come forward as the SLFP candidate at the poll, to face off against UNP Leader Ranil Wickremesinghe. That was a time when the SLFP was a lonely time for former President Rajapaksa, with the Bandaranaike family still in full control of party affairs. In every battle Mahinda Rajapaksa waged for political survival and advancement within the SLFP, for the position of opposition leader, Premachandra backed him all the way.

But once he secured presidential office, Bharatha Lakshman Premachandra’s influence in the Rajapaksa inner circle waned. One by one, he was stripped of titles in the party. Former President Rajapaksa removed the SLFP trade union leader from the post of Borella organiser and handed it over to Thilanga Sumathipala, a more recently acquired loyalist. Then he cut Premachandra to the heart, when he handed over the trade unionist’s home turf, Kolonnawa to controversial politico Duminda Silva who had crossed over to join the Rajapaksa Government.

When he was killed on October 8, 2011, six years into Mahinda Rajapaksa’s presidential reign, Premachandra only held the title of presidential advisor on trade union affairs in the Rajapaksa Government. Duminda Silva meanwhile, notoriously linked to the drug underworld by then, had become the pet of former Defence Secretary Gotabaya Rajapaksa. At the time of Premachandra’s death, Silva was serving as the monitoring MP of the Defence Ministry, and was assigned between 12-15 T-56 wielding Special Forces bodyguards. He also had a separate posse of ‘unofficial’ security.

Duminda Silva, to whom Premachandra staunchly refused to cede his home-turf in Kolonnawa, was convicted of his murder and the murder of three others, five years after the gun-battle erupted on the streets of Colombo on election day. Prosecutors told court Premachandra was shot 24 times, mostly in his back as he was fleeing back to his vehicle when shots were fired. Silva also suffered head injuries during the attack, from Premachandra’s MSD security. During the High Court trial, investigators proved in court that the murder of Premachandra was premeditated by revealing evidence of Silva’s actions in the run up to the gun-battle in Mulleriyawa.

Hearings have concluded on his appeal at the Supreme Court, with the Court directing that written submissions be filed by August 10.

During the appeal, Silva’s lawyers argued consistently that Silva had been wrongfully convicted, and have pointed to a compromised trial at the High Court trial-at-bar. The main argument by Duminda Silva’s lawyers during the appeal was that Silva had been shot first and was unconscious by the time the other killings had taken place, and therefore could not be held responsible for the murders. Disputing this, the Attorney General reiterated that by the time he was shot by Premachandra’s security, Silva had already set the stage for the attack on Premachandra. Since the attack was pre-planned, Silva was vicariously responsible for the murder of Premachandra and others, and the fact that he was shot first and incapacitated at the time of the murders, was not a defence, the prosecution pointed out.

State prosecutors also flagged unethical and contemptuous media reporting on Duminda Silva’s appeal case, and told the Supreme Court during the appeal hearings that certain journalists were being paid to write only statements made in court by lawyers for the defendant, and representing them as facts proven in court. Statements like “Silva’s lawyers “proved” in court” have been bandied about while the case is being reported. The coordinated campaign has led investigators to an unfolding scandal about the purchase of certain scribes by parties connected to the convicted politician. The same media reports also devote no reporting to the facts that led to the convictions in High Court presented to the five judge bench of the Supreme Court by the Attorney General’s Department, the prosecution noted.

Given reporting in the media about Silva’s appeal in the Supreme Court, led by a media house owned by the defendant’s brother, the prosecution led by Senior Solicitor General Thusith Mudalige has notified court about an orchestrated media campaign to distort proceedings during appeal hearings.

The Attorney General informed court that the ‘Hiru’ channel in particular was repeatedly using submissions by Defence Counsel during the appeals proceedings, to claim that Duminda Silva’s lawyers had “proved” certain facts before court. The repeated broadcast of this distorted record of what transpires during the appeal trial, has the potential to alter the mindsets of the public and judges.

Through the dissemination of false facts about the murder case the Hiru media network had attempted to strongly influence the course of justice, the prosecution submitted. “The attempt by this network to do whatever is necessary to get its owner’s sibling released from conviction in this case must be strongly condemned by all law-abiding citizens of the country,” the Attorney General’s Department submitted.

DSG Mudalige also informed court that reports of a journalist of an ultra-nationalist Sinhala language newspaper had been distributing cash payoffs to the tune of Rs 150,000 to print media journalists to prevent reporting on submissions and facts put forward during the appeal proceedings by the prosecution, were not untrue.

There was no legal or ethical basis in Roman-Dutch law prevailing in the country on which facts stated by the Defence Counsel on behalf of their clients could be reported as ‘facts proven in court’, the Deputy Solicitor General also submitted. DSG Mudalige also made note of the biased manner in which the network in question had conducted its reportage when Duminda Silva and four others were sentenced to death for the murder of Premachandra on September 8, 2016.

“This situation is a powerful challenge to the entire process of justice and the authorities should even at this late stage, impose regulations on the media on how such facts are reported – this would be a national service,” the Deputy Solicitor General noted during the appeals hearing.

While neither Premachandra nor Silva was contesting the local Government polls held on October 8, 2011, they were locked in a classic turf battle, with Silva promoting his backers to win seats in the Kotikawatte-Mulleriyawa Pradesiya Sabha, while Premachandra was staunchly backing Prasanna Solongaarachchi’s candidature in the election. Solongarachchi, also a controversial political figure, was incumbent Chairman of the Council.

As presidential advisor, Premachandra was assigned two bodyguards from the Presidential Secretariat. The rest travelling with him that fateful day were political loyalists. Among Silva’s security detail on October 8, 2011, were five Ministerial Security Division (MSD) officers, three officers from the Mirihana Police, the notorious criminal Dematagoda Chaminda and several police officers from the Himbutana Police. Lawyers for the prosecution noted that Silva’s security contingent resembled a ‘small police station’.

On the morning of election day, investigations revealed that Silva had been spending time at the home of the brother of a notorious drug lord in an area known as Tamil Nadu Watte in Grandpass, Colombo.

The Kolonnawa electoral turf wars reached a crescendo on polling day. Investigators found that the event was sparked by an altercation between Silva and Solongaarachchi’s wife, who was subject to intimidation by the controversial politician as she left her polling booth at Parakrama Vidyalaya in Himbutana. When Prasanna Solongaarachchi got wind of the attack on his wife, he alerted Premachandra who rushed to the area to confront Silva.

Premachandra got off his vehicle and confronted Silva about the assault on Madhu Solongaarachchi. Getting out his vehicle, with a T-56 and pistol wielding team accompanying him, Silva walked up to Premachandra and hit him so hard that the older politician fell backwards. When he saw the VIP he was assigned to protect fall at the hand of an assailant, Premachandra’s bodyguard Sergeant Gamini shot at Silva. A gun battle ensued killing Premachandra and three of his loyalists. Sergeant Gamini was also injured in the shooting.

Investigators believe the attack on Solongarachchi’s wife was aimed at forcing a confrontation with Premachandra. In the Appeals hearing, the Deputy Solicitor General representing the prosecution took pains to break down the argument by the defence that Silva had received the first gunshot wound after being shot by Premachandra’s bodyguard Sergeant Gamini, and could not therefore have been responsible for the murders thereafter, by reiterating evidence that led to the conclusion that Premachandra’s murder was premeditated and initiated by Silva.

In their submissions during appeal, the prosecution also noted that officials investigating the murder of Premachandra and three others were not allowed to conduct the probe impartially and came under grave influence due to Silva’s political connections at the time.

DSG Mudalige responding to arguments by the Defence that statements from witnesses had been delayed and the probe had been biased against their client, said the investigation had in fact been skewed in favour of the accused, rather than the prosecution. Even though Silva was serving as Monitoring MP of the Defence Ministry, he was violating all election laws on the day of the murder, completely disregarding the sanctity of the secret ballot.

In the initial trial, evidence was presented that Silva accompanied by a hefty security contingent had been actively threatening voters at polling booths, not to cast their votes for the UNP. The prosecution further reiterated during the appeal hearings in Supreme Court that surgery was performed on Duminda Silva on the same day of the shooting and the former Defence Secretary Gotabaya Rajapaksa had been present at the hospital until 2AM the next day.

The prosecution also reminded the Court that days after Silva was admitted at the Jayewardenepura hospital, the director of the hospital and all the staff were summarily transferred and a new administration put in place. The prosecution also recalled that unknown to anyone, one day at dawn, Silva had been transferred by helicopter from the hospital to the Bandaranaike International Airport, to be flown to Singapore for medical treatment.

DSG Mudalige also pointed out that during the non-summary inquiry into the murder case, lawyers for the accused had pointed out several loopholes in the investigation, which had made it evident that Duminda Silva’s lawyers had knowledge of all important fact pertinent to the investigation.

It is important to note that during appeal, judges do not conduct a fresh trial. Rather appellate judges concern themselves with whether there is a question of law and procedural flaws in the conduct of the original trial at High Court.

A special five judge bench of the Supreme Court led by Chief Justice Priyasath Dep is hearing Silva’s appeal, because the original trial was conducted by a trial-at-bar or three High Court judges.

Because of Silva’s proximity to the former Defence Secretary, even after the shooting he continued to receive VIP treatment after the assassination of one of the President’s most loyal supporters.

Silva’s injuries itself were shrouded in controversy, because Jayewardenepura Hospital was virtually in a state of lockdown after Silva was admitted there following the Kolonnawa shooting. But Sunday Observer learns that top sleuths investigating the incident eventually corroborated from medical sources within the hospital that Silva had in fact suffered head injuries.

The fact remains that given the extent of Silva’s political influence at the time, justice had eluded the Premachandra family for five years. If not for the fall of the Rajapaksa regime in January 2015, the former monitoring MP of Sri Lanka’s Ministry of Defence and his acolytes, may just have got away with murder. 

*A previous version of this article erroneously indicated that Duminda Silva had already appealed his conviction at the Court of Appeal. High Court Trial at Bar verdicts can only be overturned by a five-judge bench of the Supreme Court. We regret the error.