DIG Nalaka to file FR petition

By Santhush Fernando

A fundamental rights application would be filed in the Supreme Court whilst a revisionary application would be filed this week in the Provincial High Court (PHC) on behalf of former DIG Nalaka de Silva, based on serious procedural breaches of the Prevention of Terrorism Act (PTA) no. 48 of 1979, his Attorney-at-Law Ajith Pathirana told The Sunday Morning.

“I made a submission to court recently that the procedure laid out in the PTA, especially under Sections 6, 7, and 9, had not been followed by the Police. As such, we will file a revisionary application in the PHC this week and also an FR application with the Supreme Court immediately,” Pathirana said.

He said, as the Bail Act no. 30 of 1997 was expressly disallowed in PTA cases and the primary objection/defence of jurisdiction of court cannot be taken up, the civil liberty of a suspect was at serious risk and the presumption of innocence was de-jure ineffective.

“As such, the Magistrate’s Court was reluctant to grant bail, saying it had no jurisdiction,” he added.
When B 10744/18 case was taken up before the Colombo Fort Magistrate’s Court last Monday (21 January), the beleaguered ex-DIG Nalaka de Silva, who was arrested by the Police Criminal Investigations Department (CID) in connection with an alleged assassination plot targeting the President and the former Defence Secretary Gotabaya Rajapaksa, was further remanded until 30 January. The former Director of the Terrorism Investigation Division (TID) was arrested on 25 October, 2018 and was refused bail.

“Section 6(1) stipulates that any police officer not below the rank of superintendent or any other police officer not below the rank of sub-inspector authorised in writing by him in that behalf may, without a warrant may arrest any person, whilst Section 7 clearly states that on an application made in writing in that behalf by a police officer not below the rank of superintendent, the magistrate may make an order that such a person be remanded until the conclusion of the trial of such a person. Both Sections 6 and 7, along with 9, which pertains to Detention Orders have been clearly not followed,” he averred.

He was arrested after a controversial police informant – Namal Kumara – who claimed to be the Director (Operations) of a spurious outfit – the Anti-Corruption Movement – alleged that he had voice recordings of de Silva inciting him to engage in terror activities.

In the aftermath of de Silva’s arrest last October, Pathirana told The Sunday Morning that major breaches in Kumara’s recorded evidence and the credibility of the witness rendered such evidence inadmissible.

“I have taken two strong defences against the admissibility of voice recordings provided by Namal Kumara under Evidence (Special Provisions) Act (No. 14 of 1995) which relates to admissibility of audio or visual recordings, and five mandatory conditions have to be fulfilled. However, Namal’s recordings have breached two important conditions which render such evidence inadmissible.”

Kumara, who according to former Law and Order Minister Ranjith Madduma Bandara was a confidence trickster faking the whole presidential assassination plot, announced in mid-November that he would begin his political career under the Rajapaksa-led Sri Lanka Podujana Peramuna (SLPP).