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By S.S. Selvanayagam
The Court of Appeal yesterday granted leave to appeal the petition filed by the wife of slain MP Nadarajah Raviraj against the order of the Colombo High Court in his murder case.
The bench of justices Deepali Wijesundera and Achala Wengappuli fixed the matter for argument on 4 December.
Appellant Sasikala Raviraj seeks the Court of Appeal to set aside the High Court verdict of acquittal of the accused.
She filed her appeal on the questions of the law, lamenting that the High Court judge had directed that the trial be by a special jury including in respect of charges relating to the PTA and the judge’s charge to the jury.
She stated that her spouse Raviraj was an elected MP from the Jaffna District representing the Ilankai Thamil Arasu Kadchi when he was assassinated on 10 November 2006.
She states that as borne out by the proceedings, when the case was taken up prior to trial, the Counsel for the second to fourth accused made an application for the trial by a Sinhala-speaking jury.
She asserts that the indictment in the instant case included charges relating to offences specified in the Prevention of Terrorism Act and that Counsel for the aggrieved party objected to the said application.
She states that her Counsel objected to a jury trial on her instructions on the basis that the PTA was, in the circumstances, ‘lex specialis’ (law governing a specific subject matter) and by virtue of the PTA as well as the maxim ‘generalia specialis non derogant’ (the provisions of a general statute must yield to those of a special one. Also known as the rule of implied exception) which has been consistently applied by Sri Lankan courts.
She underlines that it is the procedure specified by the PTA which would override any other procedure stipulated by the regular criminal code. In this case, that requires a trial by a judge without a jury as specified in the PTA, he points out.
She bemoans that the High Court judge made an order on 27 October 2016 overruling the appellant’s objection and allowing a trial by a special jury.
On 23 December 2016, after addresses to the jury by the Attorney General, Counsel for the aggrieved party, Counsel for the accused and the Attorney General, the High Court judge charged the jury in terms of the Code of Criminal Procedure, she states.
In the course of this charge, he charged the jury to provide a verdict in respect of all charges in the indictment, including those relating to the PTA, she states.
After the jury’s deliberations, on 24 December 2016 the jury returned a verdict of not guilty in respect of all the accused for all charges in the indictment. Thereafter the Judge discharged the accused, she states.
She contends the evidence presented against all accused at the trial was sufficient to convict them of all offences.
She raises following questions of law inter alia:
a) Has the judge erred or misdirected himself and the jury in law by ordering a trial by jury where the indictment contains a charge of the commission of offences under PTA?
b) Has he erred or misdirected himself and the jury in law by failing to consider or fully appreciate that the charges under the PTA must be tried before a judge and cannot be tried before a jury?
c) Has he erred or misdirected himself and the jury in law by failing to consider or fully appreciate that where charges under the PTA are joined in an indictment with charges triable by a jury, the PTA is the special law for the purpose of the legal maxim ‘generalia specialis non derogant’?
She is seeking the Court of Appeal to set aside the order of the High Court judge and the verdict of the acquittal.
She is asking the Court to find the accused guilty of all charges and to order a retrial of the accused for all or several of the offences.
The appellant in her appeal cited Palani Sami Suresh, Chandana Kumara, Gamini Seneviratne, Pradeep Chaminda, Sivakanthan Vivekananthan and Fabian Roiston Tusen as Accused-Respondents as well as the Attorney General. M.A. Sumanthiran PC with Niran Anketell instructed by Moahan Balendra appeared for the Appellant.
Anuja Premaratne appeared for the acquitted Accused-Respondent navy officers Gamini Seneviratne and Pradeep Chaminda. Deputy Solicitor General Rohantha Abeysuriya appeared for the Attorney General.
