• Landmark SC verdict orders Sirisena to personally pay Rs. 100 mn, fmr IGP Pujith Jayasundara and fmr SIS Chief Nilantha Jayawardena to pay Rs. 75 mn each, fmr Defence Secy Hemasiri Fernando to pay Rs. 50 mn, fmr National Intelligence Chief Sisira Mendis to pay Rs. 10 mn, and for Rs. 1 mn to be paid by the State 
• Victims fund to be established in Office for Reparations with progress report on payments in 6 months
• SC orders disciplinary action against Nilantha Jayawardena for ‘lapses/failures’

In a landmark verdict, the Supreme Court (SC), which held that former President and Defence Minister and incumbent Opposition MP Maithripala Sirisena, former Secretary to the Ministry of Defence Hemasiri Fernando, former Inspector General of Police (IGP) Pujith Jayasundara, former State Intelligence Service (SIS) Director and incumbent Senior Deputy Inspector General of Police (SDIG) – Administration Nilantha Jayawardena, and former Chief of National Intelligence and DIG Sisira Mendis have violated fundamental human rights by not preventing the Easter Sunday terror attacks of 2019, also ordered them to personally pay Rs. 310 million as compensation to the victims of the bombings, with Sirisena being ordered to pay the highest sum of compensation of Rs. 100 million.

A total of 12 Fundamental Rights (FR) petitions filed by several parties including the Bar Association of Sri Lanka (BASL), were taken up before a seven-judge SC bench which consisted of President’s Counsel (PC) and Chief Justice Jayantha Jayasuriya, and Justices Buwaneka Aluwihare PC, L.T.B. Dehideniya, Murdu Fernando PC, S. Thurairaja PC, A.H.M.D. Nawaz, and Shiran Gooneratne.

The SC, which ruled that Sirisena, Jayasundara, Jayawardena, Fernando, and Mendis have violated fundamental human rights by not preventing the Easter Sunday terror attacks of 2019, despite receiving sufficient intelligence information prior to the same, also ordered them to pay compensation to the victims of the said terror attacks. 

The FR that were violated by the “inactions and omissions” on the part of Jayawardena, Fernando, Mendis, Jayasundara, and Sirisena (“lax in affording the protection and guarantees enjoined under the Constitution and other laws, and has breached the duty to protect”) included the right to equality before the law and equal protection of the law and the freedom to manifest one’s religion or belief. 

Accordingly, Sirisena has been ordered to pay a sum of Rs. 100 million, Jayasundara and Jayawardena have been ordered to pay Rs. 75 million each, Fernando has been ordered to pay Rs. 50 million, and Mendis has been ordered to pay Rs. 10 million in compensation out of their personal funds. The State has also been ordered to pay Rs. 1 million in compensation to the victims.

The SC further ordered that a victims’ fund be established at the Office for Reparations, which should formulate a scheme to award the said sums ordered as compensation in a fair and equitable manner to the victims and their families. The aforesaid parties including Sirisena have been ordered to make their payment of compensation to the said fund, while the said Office has been ordered to submit a progress report on the relevant payments to the SC within six months. 

Furthermore, the SC has ordered the said Office to investigate the alleged underpayment and non-payment of compensation to the victims of the terror attacks and their families, as per a decision taken by the then Cabinet of Ministers.

The Office has also been directed to invite any generous benefactors and donors to contribute towards the victims’ fund, by way of notification through the media.

Meanwhile, the SC has also ordered that the State take appropriate disciplinary action against Jayawardena for his lapses and failures as the SIS Director at the time of the terror attacks. This order has been issued in a backdrop where he has been appointed as the SDIG – Administration following the retirement of SDIG Nandana Munasinghe, and IGP Chandana D. Wickramaratne has reportedly made a recommendation to the National Police Commission (NPC) to make Jayawardena's appointment permanent.

By putting the lives and liberty of common citizens at risk, the SC observed, while commenting on the State liability for the infringements of fundamental human rights, that the respondents have caused the possible collapse of public order and the rule of law, and added that it entailed the potential to destroy the faith of the citizens in its State and to erode its legitimacy. The judgement issued by the SC read that large scale destruction, disruption, and consequential violence can threaten a country’s social fabric, endanger national unity, and destroy prospects for economic growth and development. 

“If there is a failure of public order, it is because of the inadequacies of the branches of government and we need to address them holistically. A human being cries out for justice when they feel that the insensible act has crucified their personal liberty and family. That warrants the grant of compensation under the public law remedy against the State as well. It follows then that a claim in public law for compensation for the contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for the enforcement and protection of such rights.” 

In the circumstances, the SC held that the State is liable to compensate the victims for the incalculable harm and damage that have been caused to both people and property.

The judgement also read: “We must express our shock and dismay at the deplorable want of oversight and inaction that we have seen in the conduct of affairs pertaining to security, law and order and intelligence. There are glaring examples of a lack of strategic co-ordination, expertise and preparedness that need a critical examination as to the way forward. 

“The failures that eventuated in the terror attacks and the concomitant deaths and devastations have left behind an indelible blot on the security apparatus and this country which is blessed by a multi-cultural and multi-religious polity cannot be left to the vagaries of these follies and made to suffer, leading to violence, fear, apprehension and uncertainty. These events must remind us starkly of the necessity to effect legislative, structural and administrative changes.”

It further stated that it is evident that there is an urgent need to place the National Security Council (NSC) on a statutory footing and its composition specified with clarity so that there are no manoeuvres to manipulate hostile exclusions and selective inclusions. Stating that there is a necessity to revamp the security systems and intelligence structures, the SC added that the expanding threats of terrorism and emerging challenges could be nipped in the bud by doing so.

“The course of conduct we have scrutinised demonstrates a woeful lack of expertise in intelligence gathering and dissemination among important individuals entrusted with the task. For instance, the offices of the SIS Director and the Chief of National Intelligence must be occupied by individuals with the necessary skill and expertise. The conduct of the respondents who held the said offices, upon receiving sensitive intelligence information, shows a lack of awareness and understanding of strategic vision. We recommend that the duties and functions of the office of the Chief of National Intelligence must be stipulated with definite certainty and that the office should be occupied by a person having the necessary expertise, training and qualification,” the judgement further read.

A total of 12 FR petitions had been filed by Janath S. Vidanage; Attorney Nagananda Kodithuwakku; Saman Nandana Sirimanne; Jude Dinuke Laknath Perera, Christine Bianca Shivanthi Perera, Mathes Hewage Nimal Karunasiri, and Lincoln Ramkumar Ramiah; P.K.A.D. Sunil Perera; Priests Galgana Mestrige Don Henry Marian Ashok Stephen, Benedict Tennison and W.B. Paul Eventius Sherard Fernando Jayawardana; Hilmy Ahamed; the BASL; Seerangan Sumithra; Attorney Dr. Visakesa Chandrasekaram; Pussewela Kankanamge Kasun Amila Pussewela; and Attorney Moditha Tikiri Bandara Ekanayake, alleging that fundamental human rights have been violated by the negligence and failure of the respondents including Sirisena to prevent the terror attacks on 21 April 2019.

When contacted by The Morning, Sirisena's Personal Secretary, Sameera de Silva said that the former's attorneys may hold a media briefing today (12) to express their views regarding the verdict given by the SC.

Attempts to contact NPC Chairman Chandra Fernando and Police Media Spokesman, Senior Superintendent of Police and Attorney Nihal Thalduwa to query about the course of action which will be taken regarding the order issued by the SC to initiate disciplinary action against Jayawardena, proved futile. Previously, the NPC told The Morning that any pending disciplinary inquiry or action against a Police officer would result in the NPC deciding against such confirmation of any appointment or promotion concerning the officer in question. 

On 21 April 2019, Easter Sunday, three churches (the St. Sebastian’s Church in Katuwapitiya, the St. Anthony’s Church in Kochchikade, and the Zion Church in Batticaloa) and three luxury hotels in Colombo (the Cinnamon Grand Colombo, The Kingsbury Colombo, and the Shangri-La Colombo) were targeted in a series of co-ordinated suicide bombings. Later that day, another two bomb explosions took place at a house in Dematagoda and the Tropical Inn Lodge in Dehiwala. A total of 269 people excluding the bombers were killed in the bombings, including about 45 foreign nationals, while at least 500 were injured.

Following the attack, Sirisena, who was the President at that time, appointed a Presidential Commission of Inquiry (CoI) to investigate the terror attacks. Sirisena, Fernando, Jayasundara, Jayawardena, Mendis, and many other politicians, public servants, Catholic clergy, and victims of the terror attacks testified before the CoI. In its final report, which was prepared after recording evidence from 457 individuals, the CoI had recommended to the Attorney General to institute criminal proceedings against Sirisena, Fernando, Jayasundara, Jayawardena, and Mendis under the appropriate provisions of the Penal Code.