On maintainability of Petition
By S.S. Selvanayagam
When the Writ petition challenging the implementation of the death sentence came up before a fuller Bench of the five judges of the Appeal Court yesterday (2), Attorney General raised preliminary objection on the maintainability of the petition as well as the jurisdiction of the Court of Appeal.
The Bench comprised Justices Yasantha Kodagoda (Presiident/CA), Deepali Wijesundera, Janak De Silva, Achala Wengappuli and Arjuna Obeysekere.
Deputy Solicitor General Nerin Pulle appearing for the AG submitted in his preliminary objection that the President is not a party in the petition and the necessary party is kept out.
He submitted the petitioner is trying to impugn the order of the President who has impunity and the Constitution ousts the jurisdiction of the court but it should be instituted against the Attorney General.
He stated Article 35 read with Articles 34, 13(4), 16(2) and 80(3) as well as the Section 236 of the Criminal Procedure Code do not permit this proceeding.
He pleaded Court that this application should be dismissed in limine.
Counsel Niran Anketell appearing for the petitioner responded that it is not against the President but against the Superintendent of Prison, Commissioner General of Prison and the Executioner.
He submitted this case is based on Provisions of Criminal Procedure and the Prisons Ordinance.
He pointed out that the Form-7 which is the warrant for committal of prisoner to keep him under safe custody until the sentence is carried out.
He submitted there is no power or power conferred on any officer of the State to execute the prisoner and that the warrant so convicted prisoner only authorizes detention custody and it does not authorize the killing of a prisoner until Parliament confers the duty and the power on any officer who shall execute prisoner.
He contended no execution can be carried out until the Parliament provides for the specific form of a warrant.
Court adjourned the proceeding to be resumed today Wednesday (03) for the submissions on the preliminary objection.
Petitioner Malinda Seneviratne, a senior journalist, cited The Commissioner General of Prisons, Welikada Prisons Superintendent, Welikada Prison Executioner and the Attorney General as respondents.
Counsel Niran Anketel with Hafeel Farisz instructed by Vidanapathirana Associates appeared for the petitioner. Deputy Solicitor General Nerin Pulle appeared for the Commissioner General of Prisons and the Attorney General.
Petitioner in his public interest litigation states that it is in the interest of the public that the rule of law be adhered to in all matters including the carrying out of sentences imposed by courts of law.
He states that various steps have been taken towards reintroducing the implementation of the death sentence in the recent past including advertising for the recruitment of an Executioner, the procurement and/or preparation of rope and various other steps.
He states that on or about 26th June 2019 the President at a conference with heads of media institutions revealed that:
a. He has signed papers for the execution of the death sentence;
b. Four persons will be executed;
c. Executions will be conducted soon;
d. The date for the executions has been already decided.
He states that he does not, in this application and in these proceedings, seek to impugn the said actions of the President.
But he states that he believes the death penalty offends the Constitution and is a barbaric practice.
He states that an Executioner is not entitled in law to execute a person sentenced to death and that the Superintendent of Prisons is not entitled in law to cause any other person to execute a person sentenced to death.
He states that the execution of persons sentenced to death by one and/or more of the Respondents as set out herein, their servants, agents and those holding under them would be (a) Prohibited by law and the Constitution; (b) A violation of the rights of citizens and that of the public inclusive of the Petitioner and the Petitioner himself; (c ) Ultra vires; (d) Arbitrary, irrational, capricious, vexatious and unreasonable; (e) Action that offends and is in breach of the principles of reasonableness, fairness, proportionality, legitimate expectation, natural justice and motivated by improper objectives.
He states thus and otherwise, the imminent decisions and/or actions of one or more of the Respondents to execute prisoners sentenced to death and/or to execute prisoners sentenced to death through any servant, agent and person would be unlawful, void ab initio and of no force or effect in law.
He is seeking an Interim Order preventing the Respondents from executing a sentence of death on any person until the final hearing and determination of this application.
He is pleading for a writ of prohibition restraining the Respondents from executing a sentence of death on any person.
He is also seeking court to grant and issue a mandate in the nature of a writ of certiorari quashing the decision to execute a sentence of death on any person;
- Pleaded Court his application should be dismissed in limine
- Court adjourned the proceeding to be resumed today