Sri Lanka: Duminda Silva Is Above The Law

AHRC-STM-165-2011
November 3, 2011

A Statement by the Asian Human Rights Commission

Duminda Silva is above the law. This is not due to any constitutional status that he has, as for example, the President of Sri Lanka who is by virtue of article 35 of the Constitution, above the law. In the case of Duminda Silva he is above the law only because the president or his brother, the Secretary of Defence, Gotabhaya Rajapakse has placed him above the law.

Duminda Silva is an alleged rapist and molester of women. He is also the alleged murderer of four persons. Besides this he is the owner of a vast network of criminal elements engaged in the trading of illicit drugs which is locally known as the 'kudu business'. These criminal elements have been engaged in a large amount of criminal activity in the country. Now, there is also the allegation of linkage between the Colombo stock market and the trade of illicit drugs. That the Colombo stock market has been used for money laundering and that Duminda Silva is a leading figure in money laundering in Sri Lanka is also publically discussed these days. He is also alleged to have made a fraudulent insurance claim for Rs. 17 million on a car which was not even insured at the time of the alleged accident.

Duminda Silva, who was treated for a brain injury as a result of gunshot wounds sustained during his attack on Baratha Lakshman Premachandra and his entourage was yesterday (November 2, 1011) removed from the Sri Jayewardenepura Hospital and was taken to Singapore for treatment. About three weeks have passed since the shooting incident which killed Baratha Lakshman Premachandra and three others. During this period he was not named as a suspect at the inquiry taking place before the magistrate despite being named as being present by witnesses. Under normal circumstances anyone who is suspected of having been part of the commission of a murder would have been placed under arrest, irrespective of his condition. As for taking treatment abroad, this would have been possible only with the permission of the magistrate and on the conditions that a magistrate would impose under these circumstances. However, the normal law that operates against all others in Sri Lanka does not apply to Duminda Silva as he has been placed above the law.

The situation is one of no surprise. Today what becomes a matter for a court to deal with is decided, not according to the law, nor by the criminal justice authorities who are in charge of these matters. The political authorities have the first word in deciding whether someone should be arrested, prosecuted or otherwise dealt with according to the law. If the political authorities decide that some things have to be kept outside the law such things would be kept outside the law.

This situation is a logical consequence of the 1978 Constitution which has placed the executive president and outside the jurisdiction of the courts. Nearly 33 years of practices under this constitution has brought about a new legal order, in fact, a new illegal order. The law has no ultimate significance in Sri Lanka anymore. The president or others acting on his authority can decide whether something is a crime or not and as to whether any legal consequences should follow. Besides this, the president also can pardon any criminal at any time if he so wishes.

The criminal investigating authorities and the courts can do nothing when the executive, by their unofficial orders, make anything or anyone outside the law.

The failure on the part of the civil society, the media and the intellectuals has prevented the development of a serious opposition to the utter illegality with which the country is run. The Duminda Silva incident is a glaring incident which makes visible the actual situation of Sri Lanka. However, the police authorities, the courts and the ordinary people of the country themselves know of thousands and thousands of occasions in which the law is being flouted.

The first executive president, J.R. Jayewardene famously said that he can do anything except for turning a man into a woman. Experience has now proved that the executive in Sri Lanka does have the power to make a criminal into an innocent person and an innocent person into a criminal.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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