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No eyewitnesses, but suspects in remand for three years – defence counsel

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Attacks on Buddha statues case before Kegalle Trial at Bar

The accused in the case pertaining to attacks on some Buddha statues at Mawanella are completing three years in state custody, though there is not a single eyewitness who had seen any of the accused in this case attacking any of the Buddha statues. They are in remand custody without the availability of any judicial recourse to bail under the draconian provisions of the PTA, in violation of the principles laid down in the 2006 Supreme Court case of Sumanadasa and 205 others vs Attorney General.

President’s Counsel, M M Zuhair, made these submissions Thursday (23) before the three-member Kegalle Trial at Bar, before whom 16 accused stand indicted for causing damage to Buddha statues in Mawanella and other places. 45 suspects arrested in connection with the alleged attacks in Didulwatta, Mawanella on 26th December 2018, are in remand custody, 16 of whom have been indicted before the Trial-at-Bar hearing the case.

The Kegalle High Court Trial-at-Bar comprising H C Judges Jagath Kahandagamage (Chairman), Jayaki de Alwis and Indrika Kalingawansa heard submissions that the accused who are in State custody for nearly three years be enlarged on bail and to ensure a fair trial.

We have filed a record in this case, a list of 44 cases of attacks on objects of religious worship in the country, giving the names, places and dates of such attacks. Twenty of these attacks were in 2018, before the reprehensible Didulwatte attack. Of these 20 attacks 18 were against several Mosques, 1 against a Buddha Statue and 1 against a Hindu Kovil, all in 2018 prior to the Mawanella, Didulwatta attack in December 2018.

Zuhair PC asked how the Attorney General selected, out of a large number of similar incidents in the country involving accused mostly belonging to the majority community, only the case allegedly involving minority Muslims to be indicted under the Prevention of Terrorism (Temporary Provisions) Act in the High Court and that too at a Trial-at-Bar.

The list shows, he said, nearly 58 persons were arrested, all from the majority community for the attacks on the 18 Mosques and the Malmaduwa Buddha statue in Kegalle, all of which preceded the Didulwatte incident, but all 58 suspects were soon enlarged on bail, unlike in this case.

Similarly, the list filed with the written submissions for bail in this case shows 24 attacks in 2019 and 2020 on objects and places of religious worship. 118 suspects were arrested and all of them bailed. Two of these cases were referred by Courts to Mediation Boards and settled.

None of these attacks were investigated under the PTA or prosecuted under the PTA. It is disturbing, he said, that the Attorney General has not consented to bail under the PTA for these persons in custody for three years. This is a clear case of discrimination, unequal treatment before the law and unequal protection of the law contrary to Article 12(1) and 12(2) of the Constitution. How can there be then a ‘fair trial’, a fundamental right required to be ensured by this Court by Article 13 of the Constitution? This Court is obliged not to permit the violation of the fundamental rights of the accused. This Court is mandated by Article 4 of the Constitution to “respect, secure and advance” compliance with the fundamental rights of the citizens, Zuhair PC said.

The accused in this case are also in remand without a valid judicial order contrary to the judgment of the Supreme Court in Weerawansa vs Attorney General, the President’s Counsel submitted further.

Senior State Counsel Wasantha Perera submitted that this is a case in which the accused had been conspiring over a period of time at different places in the country and that the attack had been carried out in furtherance of that conspiracy and that he objects to the accused being granted bail as the trial dates have now been scheduled. The High Court Trial-at-Bar reserved order on the application for bail.

Sasika Perera for the 3rd, 4th and 14th Accused raised a preliminary objection to the Indictment that certain counts in the Indictment were not in conformity with the Code of Criminal Procedure Act as there were more than three incidents covering a period of more than one year and that the Indictment in the present form cannot be maintained in law. Court reserved order on the objection for 23/02/2022.

SSC Wasantha Perera with SC Harindra Jayasinghe, SC Udara Karunatilake and SC Sajin Bandara appeared for the prosecution.

M M Zuhair PC with M C M Muneer, M I M Naleem and Rizwan Uvais appeared for the 1st, 2nd, 5th, 12th, 13th and 16th Accused. Sashika Perera with M Mubeen appeared for the 3rd, 4th and 14th Accused. Sampath Hewapathirana with Avdan Singh appeared for the 15th accused. Gazzali Hussain with Thushari Warapitiya appeared for the 9th Accused.  Rushdhie Habeeb with M Imtiaz appeared for the 6th, 7th, 8th, 10th and 11th accused as Counsel assigned by the State.



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