By S.S. Selvanayagam
The Court of Appeal (CA) yesterday issued notices on Ven. Galagodaaththe Gnanasara Thera, SSP Anuruddha Bandara Hakmana and HQI Senadhipathi K.D. de Silva of Mullaitivu returnable for November 8.
The bench comprising Justices Yasantha Kodagoda (President/CA) and Arjuna Obeysekara after being satisfied on the material placed and submission made ordered to issue notices.
MP Shanthi Sriskandarasa filed the contempt of court application seeking court that they be directed to plead and show cause as to why the court should not take steps to deal with him for the offences of contempt as provided for by Article 105(3) of the Constitution.
M.A. Sumanthiran PC with Kesavan Sayanthan instructed by Judith Dharshika Ariyanayagam appeared for the petitioner. The petitioner is a National List MP of Illankai Thamil Arasu Kachchi (ITAK) and resident in the Mullaitivu District.
She stated that the first respondent was Ven. Galagodaaththe Gnanasara Thera; who was sentenced for a six-year incarceration for contempt of court in case bearing No. CA (CC) Application 4/2016. The petitioner is now aware that he was purportedly pardoned by the President on or about May 23, 2019; who has additionally been found guilty by the Learned Magistrate (Homagama) in case bearing No.11309 by judgment dated May 24, 2018. He has appealed to the High Court of Homagama bearing case No. Appeal 28/2018. The said appeal was expeditiously concluded and his sentence suspended. Thereafter, an appeal to the Supreme Court (SC) was filed – case bearing No. SC/SPL/LA 89/19 – which is now pending; who was instrumental in causing undue influence to be brought to bear on court proceeding in case No.B7417/2010which is currently being heard at the Homagama Magistrate’s Court relating to the enforced disappearance of Prageeth Ekneligoda; who had been found guilty in the case bearing No. 6315/2000 by the judgment dated May 22, 2000 by the Learned Magistrate of the Colombo Traffic Court and that he is purportedly released pursuant to a presidential pardon on or about May 23, 2019.
She stated that on September 20, 2019, there was unrest within the premises on which the Neeraviyadi Pillayar Hindu Temple at Chemmalai in Mullaitivu was located.
A Buddhist temple known as Gurukanda Raja Maha Vihare was forcibly constructed between 2004 and 2009 when no civilian was permitted to go to that area – in the precincts of the aforementioned Hindu temple.
She stated that more recently, an attempt was made to restore the said Buddhist temple. This led to unrest between the people living in that area, all of whom are non-Buddhists, and the monks who had by then come into occupation.
The petitioner is reliably informed that upon the matter being reported to the learned magistrate of Mullaitivu, an order was made prohibiting the reconstruction of the said Buddhist temple. The petitioner is further reliably informed that the chief priest of the Buddhist temple concerned filed an application for revision in the provincial High Court of the Northern Province sitting in Vavuniya, which matter is still pending.
Recently, the chief priest of the Buddhist temple passed away in Colombo and arrangements were being made to transport his body to Mullaitivu to be cremated within the said premises in dispute. This was the reason for the aforementioned tensions arising in the area on or around September 20, 2019.
On September 21 this year, AR/745/19 was filed by the third respondent at the Mullaitivu Magistrate’s Court; it stated inter alia that: a police complaint had been filed by the administrative body of Neeraviyadi Pillayar Temple stating that the chief prelate of Gurukanda Raja Maha Viharaya (at the time) had passed away; In the event the body of the said chief priest was brought to the premises in dispute (being the premises on which both aforementioned temples were located), this would result in a breach of peace in the area.
In such circumstances, the learned magistrate inter alia made an order that the said complainants and present chief priest of the aforementioned Buddhist temple be present in court on September 23, 2019. Made interim order that the body of above-mentioned deceased chief priest is NOT cremated/buried in the premises in dispute (until an appropriate final order was granted on the matter).
When the matter was taken up on or about September 23, 2019, counsel for the Maritime Pattu Pradeshiya Sabha appearing in the Magistrate’s Court, stated inter alia that steps had been taken for the cremation of the said body without necessary permission in terms of the Cemeteries and Burial Grounds Ordinance being obtained, and that accordingly, by the letter dated September 22, 2019, addressed to the officer in charge of the Mullaitivu Police Station, it was requested that steps be taken to prevent such a cremation taking place without necessary permission being obtained.
Counsel appearing for the Buddhist temple informed court that they were willing to conduct the cremation ceremony at an alternate location, once obtaining the necessary permission to do so. Counsel for the administrative body of the above-mentioned Hindu temple were agreeable to this.
Accordingly, the court made order of consent that the said cremation not be conducted at the premises in dispute and instead be conducted at the above-mentioned alternate location, once necessary permission was obtained. The court further directed that counsel for both parties (the above-mentioned Hindu and Buddhist temples) together with the third respondent help identify the said alternate location for cremation.
The court further directed that the third respondent enforce the above-mentioned interim order of court, ensuring there are no hostilities between the ethnic groups in question.
Later that same day, the matter again came up before court by way of a motion. Counsel for the administrative body of the above-mentioned Hindu temple, together with counsel for Maritime Pattu Pradeshiya Sabha made submissions stating inter alia that despite the order made by court earlier that day their clients were informed and aware of steps being taken for the cremation to take place at the premises in dispute.
Accordingly, the court made order, in accordance with the undertaking given by the above-mentioned Buddhist temple and the order made by court, directing the second and third respondents to take steps to ensure that the said cremation is not conducted at the premises in dispute, and that the court order is enforced and a breach of peace prevented. Later that same day (on or around September 23, 2019), a group of monks, led by the first respondent, took the body of the deceased from the above-mentioned Buddhist temple to the said premises in dispute. A fracas ensued during which the priest of the above-mentioned Hindu temple was severely injured.
Following this, led by the first respondent, the body of the deceased was cremated on the premises in dispute, in direct violation of the court order.
The police were present during this entire incident, led by the second and third respondents. They did nothing to prevent the first respondent from violating the said court order and only prevented members of the Hindu community who were present during the incident from entering the premises in dispute. The petitioner stated that the first, second and third respondents were thus guilty of the offence of contempt of court punishable under Article 105(3) of the Constitution.
Police did nothing to prevent the first respondent from violating the court order and only prevented members of the Hindu community from entering the premises in dispute