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It is doubtful that anyone, including academics and politicians, emotionally calling upon President Anura Kumara Dissanayake to issue a presidential pardon for the twelve accused sentenced to death for the brutal killing of a parliamentarian and his security officer in the thick of the ‘aragalaya’ (peoples’ protest) in 2022, had actually taken the time, trouble and the energy to read the majority verdict of the Trial-at-Bar (TAB) of the Gampaha High Court.

One wrong cannot justify another

No such considered scrutiny appears to have taken place. The ill-advised appeals for presidential pardons were issued almost immediately in the heated aftermath of the verdict being handed down on February 11th 2026 whereas the bulky judgment was released for public consumption only several days later. Its contents comprise the majority decision sentencing twelve accused to death and four accused to six months imprisonment suspended for five years.

Twenty three accused, out of a total of forty one ‘aragalaya’ protestors, were acquitted by the majority while the minority dismissed all charges against the accused. The judgment of the TAB presents a truly spine-chilling account of the events leading up to the slaying of the Polonnaruwa District parliamentarian who had been returning to his electorate after attending a meeting by the Prime Minister Mahinda Rajapaksa.

This was even as peaceful ‘aragalaya’ protestors were attacked at Galle Face Green by his ‘Pohottuwa’ party faithful leading to a spiraling of protests, counter-attacks by protestors on Rajapaksa linked politicians and the burning of their houses. But as we have been taught from childhood, one wrong does not make another wrong, right. Once divorced of political fervor and intemperate passion, the issues are definitive.

Important to read the verdicts

Angry protesters forced the innocuous Polonnaruwa parliamentarian (by all accounts, not part of Pohottuwa party ruffians) to stop his vehicle at Nittambuwa, drag him and other occupants out with the intent to kill, despite his desperate explanation that he was returning from a personal function. His identification as a member of parliament was carried out by documentation found in the vehicle. As tensions mounted, he came under attack by protestors who carried poles and stones.

His personal security officer opened fire, resulting in the killing of two protestors whereupon the targets were hunted down when they ran for their lives, taking refuge in a nearbye shop and finally ruthlessly battered to death by the mobs. Their vehicle was then set on fire. These are not actions that can be brushed aside under the appealing cover of, ‘everyone should bear responsibility for the ‘aragalaya’ movement’ or to expound that singling out a few in that regard, is unfair.

The distinction is crystal clear. This is why those taking a position on these matters should read the majority and minority verdicts. Even if the peaceful anti-Rajapaksa demonstrations at Galle Face Green turned to something ugly due to Rajapaksa goons attacking ‘aragalaya’ youth, that was no open licence to take the Rule of Law into their own hands and mete out summary justice on the streets.

The legal question in issue

That includes killing a parliamentarian for the only sin of being affiliated to the (then) ruling party. There again, his security officer was doing only what he was mandated to do. To argue that these individuals deserved to die so horribly reminds us of the justifications put forward by the Janatha Vimukthi Peramuna (JVP) during the second Southern insurrection. This was when public servants were killed purely for the ‘sin’ of serving in a United National Party (UNP) Government.

Where the Athukorala murder case is concerned, the legal question here was predominantly about identification of the accused as those responsible for carrying out the acts of murder, unlawful assembly, destroying public property interalia. The minority of one judge (the head of the TAB) held that the charges had not been proved beyond reasonable doubt by the prosecution. A common intention to commit a criminal act cannot be established simply by a person being ‘present.’

This is of course, hoary law. When charging on common intention, the prosecution is called upon to establish that there was an unlawful assembly with a common object and that the accused intentionally joined that common assembly. This, the minority verdict opined, was found not to exist on the facts of the case. Simply running after their targets or being present at the time, does not speak to common intention.

The majority decision

The majority verdict convicting the twelve accused, focuses on the fact that certain unlawful acts were admitted by the twelve accused and that mobile devices and ATM cards used by the victims and their relatives continued to be in their possession and were being used by them. The prosecution rested its case on identification of several accused by others who were witnessing the murder, the assault and theft of property belonging to the victims.

CCTV cameras had also recorded the incident as well as the bodies being dragged by the protestors from the top floor of the shop to the ground floor. Thus, the minority verdict found that the convicted accused had been recorded as taking poles and stones, chasing after the victims into the shop, remaining there for some time and some dragging the bodies downstairs with others participating in the property damage.

Several accused chose to remain silent on their defence while others defended themselves by saying that they had been caught up in the commotion. The majority verdict also contains grisly photographs of the dead bodies as well as the property damage. There was no doubt of an unlawful assembly in Nittambuwa at the time with the crowd including the accused dragging the victim out of his vehicle and thereafter chasing after him and his security officer in a group of more than five persons after the protestors were shot.

A more substantive
point in issue

This constituted the elements of the crime in question. In sum, the convicted accused was identified as acting with a common objective thereto. But apart from the legalities of the matter in issue, an interesting question arises on the propriety of calling for presidential pardons to be issued, freeing the accused in this case. For decades, the issuance of pardons by the Executive President had been the subject of fierce controversy as an interference with the judicial function.

Quite apart from the procedural niceties of the constitutional process, which holders of the Office of Executive President have merrily disregarded, the substantive question is far graver in its thrust. Writing two years ago (‘The Power of Pardon is not a Private Act of Grace’; the Sunday Times, January 21, 2024, I noted that the Supreme Court has used Article 33 (h) of the Constitution to hold that the exercise of presidential pardon goes beyond formalities.

That was in the context of a ruling that the pardon granted in 2021 by former President Gotabaya Rajapaksa to his political ally, Duminda Silva violated Article 12 (1) of the Constitution and was, inter alia, arbitrary and irrational and a wrongful exercise of constitutional discretion. The former President had claimed that he had acted bona fide and in the ‘interest of the country,’ not for ‘personal or political affiliation.’

A good question to ponder

(But) ‘when the former President decided to grant the pardon which is impugned in the instant case, what is the interest of the country he had taken into consideration?’ the Bench asked pointing to Article 33 (h) which obliges the President to do ‘acts and things’ that would not be inconsistent with the Constitution or written law. There was no satisfactory answer.

Those who advocate the use of presidential pardon in the Athukorala murder case may perhaps take that judicial question into account.