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Writ petition against death penalty - AG raises preliminary objections

Questions maintainability and jurisdiction of Court of Appeal

2 July 2019 06:15 pm - 0     - {{hitsCtrl.values.hits}}

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The Attorney General raised preliminary objections on the maintainability on the writ petition and the jurisdiction of the Court of Appeal, when the writ petition challenging the implementation of the death sentence was taken up by a five-judge Bench.

The Bench comprising Justices Yasantha Kodagoda (Presiident/CA), Deepali Wijesundera, Janak De Silva, Achala Wengappuli and Arjuna Obeysekere adjourned proceedings till tomorrow for the resumption of submissions on the preliminary objections.

Petitioner, senior journalist Malinda Seneviratne cited the Commissioner General of Prisons, Superintendent of the Welikada Prisons, Welikada Prisons Executioner and the Attorney General as respondents.

Counsel Niran Anketel with Hafeel Farisz instructed by Vidanapathirana Associates appeared for the petitioner while Deputy Solicitor General Nerin Pulle appeared for the Commissioner General of Prisons and the Attorney General.

The 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 the implementation of the death sentence in the recent past including that of advertising for the recruitment of an executioner, the procurement and preparation of the necessary ropes, etc.

The petitioner states that on or about June 26 the President at a conference with heads of media institutions revealed that: He has signed papers for the execution of the death sentence; four persons will be executed; executions will be conducted soon and that the date for the executions had 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 that he believes the death penalty offends the Constitution and is a barbaric practice.

The petitioner 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 or more of the respondents as set out herein, their servants, agents and those holding under them would be -- Prohibited by law and the Constitution; A violation of the rights of citizens and that of the public inclusive of the Petitioner and the Petitioner himself; Ultra vires; Arbitrary, irrational, capricious, vexatious and unreasonable; Action that offends and is in breach of the principles of reasonableness, fairness, proportionality, legitimate expectation, natural justice and motivated by improper objectives.

The petitioner states that thus and otherwise, the imminent decisions and actions of one or more of the respondents to execute prisoners sentenced to death and 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 and is pleading for a writ of prohibition restraining the respondents from executing a sentence of death on any person.

The petitioner 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. (S.S. Selvanayagam)

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