By Philip Dissanayake
“We were waiting near the Ganegama Cooperative shop together with a few others to go to a funeral ceremony. A group of people who came in a cab belonging to Kirindiwela police checked the people who were at that place. After some time, we saw a person got out of the cab. I well recognized that person was David. David got out of the cab and was seen walking a little further. Then a police officer who was there bludgeoned David’s backbone and lower back with a club. David yelled appealing to save him. After that, the police officer rammed David’s head twice into the backdoor of the cab and pulled him into the cab, asking if he was trying to escape.”
On July 14th, the Supreme Court announced an important judgment. The Supreme Court rejected the petition (SC Appeal 52/2021) which was filed seeking to suspend the trial at the Pugoda Magistrate’s Court in connection with the murder of Mr. David Amarasinghe of Kirindiwela.
David Amarasinghe is a 46-year-old unmarried person who retired after serving 12 years in the Sinha Regiment of the Sri Lanka Army. He lives with his elderly mother and according to his family members, David did not marry because it would interfere with his mother’s caregiving duties.
On August 13, 2010, David went to the nearby shop to buy a loaf of bread for dinner. The B report (B/678/10) filed with the Pugoda Magistrate’s Court stated that David was arrested by the patrolling police officers of Kirindiwela police station because of a complaint received from the villagers that he was drunk and behaving indecently. The Kirindiwela Police informed the Pugoda Magistrate Court in the above B report that David was taken to the hospital due to injuries caused by jumping out from the speeding cab while being taken to the Kirindiwela Police Station after he was arrested. Police said that David died as a result of those injuries.
A post-mortem examination into David’s death confirmed that David was not intoxicated at the time. The autopsy report stated that there was no smell of alcohol coming from his stomach and a blood test also confirmed that he had not consumed alcohol. It also stated that David’s stomach was empty at that time. The report further stated that David’s death was due injuries in his head and brain caused by a blunt force.
With this post-mortem report, Judge Aravinda Perera, who was the then Pugoda Magistrate, started the non-summary trial (NS/577) suspecting David’s death to be murder. The police objected and told the court to seek the advice of the Attorney General in this regard. The Attorney General arranged to bring the case file from the Pugoda Magistrate’s Court immediately and advised the court not to proceed with this case and that the accused should be released. The state counselstate counsel pointed out that the magistrate had no authority to proceed with this case.
The Pugoda Magistrate urged the Attorney General to reconsider the advice and restarted the non-summary trial. The state counsel, who appeared on behalf of the Attorney General, said that the Attorney General had full authority to issue an order to a magistrate regarding a non-summary trial, and according to that order, the two defendants should be released.
Meanwhile, two rectifying petitions (13/2010-14/2010) were forwarded to the Gampaha High Court against the order of the Pugoda magistrate by the spouses of the concerned police officers. Rejecting that application, the High Court judge stated that the Pugoda magistrate had full jurisdiction to conduct a preliminary investigation in this case concerning a Judicature Act and a Criminal Procedure Code Act. As the Pugoda Magistrate is investigating this death, the verdict stated that the Magistrate’s conclusion that the investigations might be hindered if the suspects were granted bail.
After the High Court’s decision, the two accused police officers submitted a petition to the Court of Appeal to stop the trial. After that application was also rejected, the concerned accused submitted the above-mentioned petition to the Supreme Court.
It took 13 years to go through the High Court, the Court of Appeal, and the Supreme Court and get the order to start the non-summary trial at the Pugoda Magistrate’s Court. During this time, Mr. David Amarasinghe’s mother passed away in 2019 without getting any information about how her son died. Meanwhile, it was reported to us that one of the main witnesses in this case, Mr. Kulasingha, has also died.
The only eyewitness in this case, was Mr. Kulasingha. The testimony by Kulasinghe in the non-summary hearing states as follows.
“We were waiting near the Ganegama Cooperative shop together with a few others to go to a funeral ceremony. A group of people who came in a cab belonging to Kirindiwela police checked the people who were at that place. After some time, we saw a person got out of the cab. I well recognized that person was David. David got out of the cab and was seen walking a little further. Then a police officer who was there bludgeoned David’s backbone and lower back with a club. David yelled appealing to save him. After that, the police officer rammed David’s head twice into the backdoor of the cab and pulled him into the cab, asking if he was trying to escape.”
After this decision of the Supreme Court on July 14, the Pugoda Magistrate’s Court can resume the trial regarding David’s death. But, how long can it take to finish? If the Attorney General maintains the same standpoint as before, what will happen after this case file is forwarded to the Attorney General? In our judicial system, the Attorney General files indictments, so if he does not wish to do so, he may not file this case again in the High Court.
Even if all those challenges are overcome and the indictment is filed by the Attorney General, how much more time will the trial take? In 2021, as stated by the Minister of Justice and President’s Counsel Mr. Ali Sabri at the 47th annual meeting of the Bar Association, it usually takes 9 ½ years for a criminal case to be heard in the High Court and also it takes a year to start considering an appeal in a criminal matter. Further,t takes about 3-4 years to get a resolution on that appeal.
Mr. Simon Amarasinghe, the brother of the deceased who continuously raised his voice for his brother’s rights amid various challenges for 13 years is now 65 years old and. Will Simon, who is in poor health, be able to survive until the case is finished? Moreover, does he have money for this?
The case of David Amarasinghe is just one more case. If we look closely, we can find many such cases. Through this incident, we can clearly understand the serious problems in our judicial system, including the delay in the justice process in Sri Lanka.