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Speaker orders Jayasekera to be brought to the House to take his oaths as MP; AG points to constitutional bar

First the facts of the case: On January 5, 2015, a group of United National Party supporters were decorating a political stage in Kahawatte, Ratnapura, where the then Joint Opposition candidate Maithripala Sirisena was scheduled to address a political rally three days before the January 8 presidential election.

Following the arrival of a rival group to the scene, a shooting incident had occurred resulting in the death of UNP supporter Shantha Dodangoda, a 57-year-old Kahawatte resident. On the same day, the Pelmedulla magistrate ordered the arrest of the then Ratnapura SLFP MP, Premalal Jayasekera, over the incident. He was arrested by the police on January 10 in Beruwela where he had been in hiding.

After a lengthy trial that spanned approximately five and a half years, Ratnapura High Court Judge Yohan Jayasuriya delivered his judgement on July 31. He found Premalal Jayasekera guilty of first degree murder and sentenced him to the gallows.

But while Jayasekera, also known as Chocka Mallie, sweats it out in his convict’s cell on death row waiting for his date with the hangman’s noose or the president’s customary commutation of the death sentence to life imprisonment, his team of lawyers have not remained idle. They have filed an appeal against his conviction and sentence in the Criminal Court of Appeal, granting him a new lease of hope that he maybe be acquitted on all counts by the higher court.

In March this year, whilst behind remand bars, the SLPP nominated him to the Ratnapura district where he was already the sitting MP having topped the preferential list in the district with the largest personal haul of 154,960 votes in the 2015 elections.. In this year’s election too, he came a fair second with a personal vote bag of 104,237 votes.

But no matter the magnitude of his triumph or the blaring of victory’s trumpets, his conviction for murder has, in one fell stroke, caused an iron curtain to fall on his parliamentary career; and his rising star, now eclipsed in its ascent, lies fallen, unburnished; condemned — like an uncut, unpolished, unfound blue sapphire scattering unseen its bluish lustre in the darkest cavern of some Ratnapura gem pit — to languish instead, bemoaning the quirks of fate in a murky death row cell.

THE SPEAKER: Orders Prison Chief

The kill joy of his electoral victory that has snuffed his parliamentary flame with one strong legal blast of wind is Article 89 of the Constitution which lists the disqualifications that, according to Article 91, debars a person from sitting or voting in Parliament. One of the disqualifications specified in the list is if a person is ‘under a death sentence.’

Thus the only hope Premalal Jayasekera can harbour at this moment of taking his seat in Parliament is that his appeal against his conviction to the appellate court will be successful and grant him release. If so, he will walk a free man and will be able to occupy unquestioned, the parliamentary seat he won handsomely at the August 5 general election.

If his appeal is turned down, he will have a further chance to appeal, with the leave of court, to the Supreme Court. The matter will be settled in all finality there, save one. Even if the Supreme Court refuses to overturn the conviction of murder, he still has one remaining star of hope left to shine on him.

Article 89, the very article that nails his coffined hopes, also provides for its resurrection with the all mighty grant of a presidential pardon. Article 89(d) states at it tailend: ‘Provided that if any person disqualified under this paragraph is granted a free pardon such disqualification shall cease from the date on which the pardon is granted.’

But the issue that has raised a storm is as to why, when he has availed himself of the right to appeal to the Court of Appeal and, thereby, has kept the Ratnapura High Court’s guilty verdict, in legal limbo, he cannot take his seat in the House, until the conclusion of the appeal delivers a finding of not guilty.

In fact many of his supporters expected him to attend the ceremonial opening of Parliament on the 20th last month and were aghast to find prison officials had failed to bring him to the House. He was again expected to come to Parliament last Friday the 28th, but again the prison officials had failed to bring him.

But on that day, his absence from the House did not go unnoticed or without protest. Raising a point of order, SLPP Colombo District MP Premanath Dolawatte told the Speaker that the people of Ratnapura were deprived of representation in Parliament when their MP Jayasekera was denied the opportunity to attend parliamentary sessions.

Attorney-at-Law Dolawatte said: “Jayasekera polled over 140,000 preferential votes at the last general election. Following his sentence, he appealed to the Court of Appeal against the sentence. He is not allowed to come to this House. There is no court order preventing him from coming to Parliament. There is the possibility of him becoming not guilty at the end of the Appeal Court case?’’

‘You have powers to bring him here and we hope you will take actions necessary for the purpose,” MP Dolawatte said in his appeal to the Speaker.

PREMALAL JAYASEKERA: MP elect on death row

Speaker Mahinda Yapa Abeywardena, in reply, said that his office had not been informed of the appeal of Jayasekera. “Not permitting him to come to Parliament is wrong. Therefore I order the prison administration to bring him to parliament.”

But later that day, it transpired the Attorney General had already written to the Justice Ministry when it had sought its opinion on the issue.  The man on death row, Premalal Jayasekera, had requested the Commissioner General of Prisons to allow him to go to Parliament to take oaths as an MP. The Commissioner General had turned to the Justice Ministry for advice, and the Ministry had referred the matter to the AG’s Department.

The Attorney General’s opinion had been unequivocal. Citing the nation’s highest authority, the Constitution, his position had been that Articles 89 and 91 clearly disqualify MP elect, murder convict, Jayasekera, from taking his seat in Parliament. The AG’s reply to the Justice Ministry, it is reported, has been passed on to the Prison Commissioner.

The Prison Commissioner must find himself in a quandary this Sunday morn, given that the Hon. Speaker of Parliament had ordered him to produce Jayasekera in Parliament this Tuesday the 8th to take his oath as a member of the House while the Attorney General’s legal opinion is that the Mother of all Lanka’s laws expressly forbids Jayasekera from taking his parliamentary seat.

With the Attorney General’s legal advice manacling Jayasekera further and more tightly to his prison bars, the effort to legally bring him to Parliament may prove more legally challenging than anyone may have anticipated. The Commissioner General of Prisons or Jayasekera may well have to take recourse to courts to seek a way out of this dilemma, which may result in both court and parliament travelling on divergent highways, each claiming it is the road to Damascus.

Here’s one for jurists to ponder over. A cardinal principal in English law, bestowed on every accused is the ‘presumption of innocence, until proven guilty.’ It has been described by Viscount Sankey in the famous case of Woolmington v DPP as the golden thread seen throughout the web of English Criminal Law that it is the duty of the prosecution to prove the prisoner’s guilt.

It is this sacrosanct principle of being presumed innocent until the prosecution has discharged its burden of proving the accused’s guilty beyond reasonable doubt and a competent court has pronounced him guilty that enabled former LTTE leader Pillaiyan to take his oaths in Parliament as an MP last month.

He was brought to Parliament by prison officials from his remand cell on the charge of killing Jaffna District TNA MP and lawyer Nadarajah Raviraj in a shooting in incident down Elvitigala Mawatha in November 2016.  The charge of murder was no bar to his entry. He was still blessed with the halo of innocence only a court verdict of guilt could dislodge and damn him from the Parliamentary gates.

Same with LTTE’s Eastern leader Karuna Amman. Self-confessed mass murderer Karuna who recently gloated publicly how he had massacred ‘some 2000 to 3000 Sri Lankan army personnel in one night at Elephant Pass’, and is held responsible for the murder of 600 Sinhala policemen in Batticaloa who were lined up and shot dead after surrendering to him on government orders in 1990, could nevertheless freely enter Parliament as an SLFP MP through the nationalist list and even serve as a minister in Mahinda Rajapaksa’s second term of government from 2010 to 2014, simply because no competent court had ever held him guilty of the abominable murders he has since claimed to have committed.

Thus it is established that until convicted, a person charged even with murder can freely sit in Parliament without the taboos in Article 89 of the Constitution applying to him. Upon conviction after being found guilty, the presumption of innocence dies a natural immediate death.

But what happens when the convicted man appeals against his conviction? Does he shed the course cloth of the guilty, does the halo of innocence which mysteriously disappeared upon his conviction, return from the ether to hover and glitter over him again and to bestow upon his countenance the ‘presumption of innocence’? Does the act of appealing against the conviction make the convicted man undergo a metamorphosis that transforms him from guilty to innocent, from a prison worm to a winged butterfly? Even though it is only until the appeal is heard and determined.

Those who advocate the right of Jayasekera to sit in Parliament despite being found guilty of murder and presently undergoing a death sentence, subscribe to the school of thought holding  the view that the mere lodging of an  appeal against a conviction immediately freezes the guilty verdict and resurrects the presumption of innocence until the final determination of the appeal; and that during this time he should be adorned with all the trappings of the innocent, including his right to sit in parliament.

Those on the Attorney General’s side of the border hold a different view.  They agree that every accused is vested with the ennobling  ‘presumption of innocence’ but hold that this golden thread running throughout the English Criminal Law, runs out if the accused is found guilty. Throughout the trial, the onus of proving guilt had been on the prosecution. Upon conviction, with the presumption rebutted, the accused is nailed to his manifest guilt. If the convicted man appeals, the burden of proof shifts onto him to prove that, though found guilty, he is innocent. Until the Appeal Court concludes its proceedings overturning his conviction, he will remain guilty.

In this looming battle of Titans, which school of thought will prevail is anyone’s guess. Of course, this Gordian knot can be instantly cut with the sword of a presidential pardon as provided for in Article 89(d) of the Constitution.