Month: January 2015

A hero on his native soil, so was thought: The Sepala Ekanayake Story

Sepala Ekanayake Headlines were made locally and internationally when Sepala Ekanayake a Sri Lankan national hijacked the Alitalia flight AZ 1790 Boeing 747 with 340 passengers on June 29, 1982. This case was sensationalised mainly because this was the first time a Sri Lankan national was engaged in a hijacking of a passenger airline and at that time it was not an offense under the Sri Lankan legal system to commit such an offence.

Facts

Ekanayake having being born in Matara, married an Italian national in 1977 with whom he had a son whilst residing in Modena, Italy. However, Ekanayake lost his Italian visa some time after his son’s birth and was denied a renewal of his visa by the Italian authorities and the authorities suggested that Ekanayake return to Sri Lanka and apply for visa with the Italian Embassy in Colombo which would probably take him six years to receive the visa.

Being infuriated with the situation he concocted a plan to hijack an Italian aircraft and put forth his demands straight to the Italian government.

On June 30, 1982 Ekanayake travelled to the New Delhi airport with some of his friends and awaited the arrival of the Alitalia flight AZ 1790 which was travelling from Rome to Tokyo. Ekanayake having boarded the flight waited until the plane reached a level of 35,000 feet and then issued his demands to the pilot in a letter, which were as follows:

  1. to have Ekanayake’s son brought to him;
  2. 2. to be given US$ 300,000/- for him to distribute among his collaborators;
  3. 3. for the plane to land at the Bangkok Airport, leave the doors closed, issue the demands to the Italian authorities and communicate only through radio; and
  4. 4.That all the passengers be allowed to disembark at the without security checks. And if his orders were not followed Ekanayake would blow up the plane with the “most sophisticated bombs manufactured in Italy”.

The chief pilot George Amarosa immediately dropped to 25,000 feet and headed to Bangkok. In a few hours Ekanayake’s wife and son along with the ransom were on the way to Bangkok. In 30 hours the transaction was completed and Ekanayake released the passengers of the plane. But Ekanayake was confronted with the new problem of not knowing where to go with his wife and son and his newly gained wealth in order to start a new life.

Matters of Jurisdiction

The plane belonged to Alitalia of the Italian government and the offence took place in Thailand. Therefore, the prime responsibility to deal with the hijack situation rested with the Thai authorities and should have been dealt by the Thai authorities thereafter. But the Sri Lanka Ambassador and the Sri Lanka foreign office played an active role in the negotiation process and the freeing of the hostages, merely because Sepala Ekanayake was a Sri Lankan.

Due to the miscommunications that took place between the authorities and based on the assurance provided by the Sri Lankan ambassador in Bangkok Manel Abeysekera, Ekanayake was given the opportunity to travel back to Sri Lanka without any fear, which Ekanayake reluctantly did. However, the Italian government demanded that Ekanayake be handed over to them.

A Hero’s Arrival in Sri Lanka

On the assurance given by the Sri Lankan ambassador, Sepala Ekanayake arrived in Sri Lanka with his wife and child to a virtual hero’s welcome in the early hours of 2nd July, 1982. Ekanayake and his family having been cleared by the Immigration desk, while the Customs having cleared their baggage and money including the US$ 300,000/- “ransom money”, they were driven straight into the Hotel Ceylon Inter- Continental where they had been checked in to Room No. 730.

Diplomatic Controversy

The Sri Lankan Government was in a dilemma since the public opinion in Sri Lanka opposed the handing over of Ekanayake to the Italian authorities since some in Sri Lanka even deemed Ekanayake a hero; whilst on the other hand the Sri Lanka government was being condemned for harboring an international criminal and for the violation of the International Air Traffic Agreement (IATA) which Sri Lanka was a signatory however due to the sovereignty of the Sri Lankan constitution, a local statute was required to be passed by the legislature to make the provisions in the IATA enforceable in Sri Lanka.

Daya Gamage having being a political specialist at the American Embassy during this time states that it is very likely that the US authorities would have adopted a hard line and threatened to declare Sri Lanka a country in the category of Libya if Ekanayake was not prosecuted for the offences committed. At that time Libya was already declared an ‘international pariah’ with a tag of ‘exporter of state terrorism’ due to the Libyan government’s leniency towards a number of hijackings by Libyan nationals.

Issues at Law

Sepala Ekanayake was allowed to come into Sri Lanka by the Sri Lankan authorities as a free man after having hijacked a passenger plane, whilst holding the crew and passengers hostage and having extorted a ransom of US$ 300,000/-.

With pressures building from many directions, the officials needed a way to arrest Ekanayake but except for newspaper reports the police had no grounds to make an arrest since, no aggrieved party had made a complaint to the police regarding the hijack; and that Ekanayake had not committed a cognizable offence in Sri Lanka and also most importantly no anti hijacking laws were formulated in Sri Lanka at that time.

Crisis Averted

Therefore as an initial step to take action against Ekanayake, “some” complaint was required from an aggrieved party that will prima facie show that an offence has been committed, in order for the police to bear responsibility and order his arrest.

On 3rd July,1982 Franco Micieli de Biase the Italian Ambassador handed over a complaint requesting the Sri Lanka Police Authorities to take necessary action against  Sepala Ekanayake for the hijacking of an Italian passenger airline and for the return of US$300,000 to the Italian Government.

After the police accepted the aforesaid letter from the Ambassador, Chief Inspector George Nicholas recorded his statement and thereby the Sri Lanka Government authorities were able to take action under the law in respect of this complaint.

It must be noted that Ekanayake had to be arrested in a lawful manner and the police had to do so with all possible precautions. Had the police been pressurized to rush to arrest without the complaint of the Italian Ambassador the defense could have argued that the arrest was illegal.

Eventually the arrest of Ekanayake took place on the 3rd July at 5.00 p.m. in Galle barely 36 hours after he stepped on Sri Lanka soil. The wheels of the law were set in motion whilst defusing the international tension that was building up.

With the handing over of Ekanayake to the Criminal Investigations Department (CID) at 8.45 p.m. on 3rd July, 1982 the task of the Colombo Police ended. Later on the CID carried out a successful investigation and Ekanayake was indicted and convicted under the anti- hijacking laws which were passed under Offences Against Aircraft Act No. 24 of 1982 (“the Act”), which was only assented by the speaker of the Parliament of Sri Lanka on July 26, 1982.

The Act gave effect to certain conventions[1] which Sri Lanka had become a party, and to also to deal with matters connected therewith which was enacted with retroactive effect.

Subject to the newly passed statute, Ekanayake was charged[2] on June 29, 1982 having unlawfully forcing or threatening the pilot of the said aircraft that if his demands were not met he would explode the said aircraft with all on board with the use of explosives; and thereby Ekanayake having taken control of the aircraft which was in flight between New Delhi and Bangkok.

Furthermore, Ekanayake was also charged under section 394 of the Penal Code for having dishonestly kept US$299,700 knowing same to be stolen property between July 1 and July 3, 1982 in Colombo which was within the same jurisdiction as the offense set out as the aforesaid charge.

Judicial Power Enforced

The case against Ekanayake commenced on May 30, 1983 in the Colombo High Court with case No.1203/83, before the Honorable High Court Judge J.J.F.A. Dias, Upawansa Yapa (then deputy Solicitor General) and V.J.W. Wijayatilaka (State Counsel) appeared for the state, whilst Attorneys-at-Law Ranbanda Seneviratna with Dammika Yapa, Mahinda Rajapaksa and Mahinda Jayawardana, appeared on behalf of Ekanayake and Attorneys-at-Law C. Titawela, S. L. Stanislans and Haradsa watched the interest of Alitalia.

At the end of the trial, the High Court found Ekanayake guilty on the charges of hijacking and retention of stolen property and sentenced Ekanayake to simple imprisonment of life on the first charge and three years rigorous imprisonment on the second charge.

Ekanayake appealed against his conviction to the Court of Appeal with case No.132/84, who was represented by Dr. Colvin R. De Silva. The appeal court bench consisted of Justice Abeywardana, (President) Justice Jayalath and Justice Ramanathan, who interfered with the sentence imposed by the trial judge and held that sentence of simple imprisonment could not run concurrently with a sentence of rigorous imprisonment and altered the sentence on the first court to one of five years rigorous imprisonment to run concurrently with the sentence on the second count, which was reduced to two years.

Ekanayake appealed to the Supreme Court who was again represented by Dr. Colvin R. De Silva and the appeal was heard before Justice R.S. Wanasundara, Justice L.H. de Alwis and Justice O.S.M. Seneviratna.

During the appeal made before the Supreme Court with case No.68/86, the defense challenged the jurisdiction of the Sri Lankan High Court to try the case under section 17 of the Act for crimes committed by a Sri Lankan on an Italian plane in Bangkok, also a plea of misjoinder and whether a charge of retention can be leveled against the extortionist himself were also raised.

The Supreme Court, after hearing the appeal, delivered judgment on January 18, 1988[3], dismissing the appeal, affirming the conviction and sentences on Ekanayake.

Justice de Alwis who delivered the judgment of the Supreme Court with other two judges agreed with the relevant section dealing with the offence of hijacking according to the judgment comparing section 17 of the Act along with section 19 of the Act based on the following:

1) section 19(3)(d) of the Act vests jurisdiction in respect of the acts of the Defendant referred to in section 17(1)(a) to (e) in relation to a foreign aircraft. The words ‘in relation to’ include acts committed on board the aircraft also. The words in relation to, as used in section 19(2)(d) mean ”in respect of” although in other parts s o the words used are “on board or in relation to”. This interpretation must be given in order to give the words a rational sense which is consonant with the Hague Convention[4].

2) section 9(1) (f) of the Judicature Act No. 2 of 1978 confers jurisdiction on the High Court to try Sri Lankans for offences committed outside Sri Lanka or on board or in relation, to any ship or aircraft of whatever category. Moreover section 39 of the Judicature Act bars objection to jurisdiction by an accused person who has already pleaded and taken part in the trial.

3) Where theft (or extortion) has been committed in a foreign country it is possible to charge the thief or (the extortionist) himself in the Sri Lankan courts with dishonest retention of the property so stolen or extorted.

4) The acts for which the accused was charged under the Act and retention of stolen property were connected so as to form the same transaction based on the main test of “continuity of action”.

Conclusion

Ekanayake’s case is a case that certainly goes down in Sri Lankan history because of the potential international mayhem caused, all because of one man’s wish to be reconciled with his family.

This case had the possibility of threatening the diplomatic relations between Sri Lanka and the international community and most importantly creating a legal crisis, however all were fortunately averted due to the quick assertive acts of the executive, the legislature giving validity to international conventions through domestic statutes also the Judiciary taking up the responsibility of giving way to the will of legislature by enforcing statutes that have retrospective effect. However, it must be noted that the proceedings of the case have most certainly created debate amongst jurists regarding the manner in which the 1982 act was enacted and how a man who thought was innocent on his native soil was made a criminal.

[1] Convention on offences and certain other acts committed on board aircrafts, signed at Tokyo on September 14, 1963, Convention for the suppression of unlawful seizure of aircraft, signed at the Hague on December 16, 1970, and Convention for the suppression of unlawful acts against the safety of civil aviation, signed at Montreal on September 23, 1971

[2] under 1982 Act, s 17(1) read with s 19(1) and 19 (3)(d)

[3] Ekanayake v. Attorney-General(1988 SLR1 46)

[4] Art 1, 2 and 4

Sources of reference:

Case Report, Ekanayake v. Attorney-General [1988 SLR1 46]

Newspaper publications on The Island, The Nation, etc.

Publications by the Retd. Senior Deputy Inspector General of Police  regarding the event.

 

**This article was published in the Fifth Volume of the Junior Bar Law Journal in 2014 

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Doing Business with China: Free Trade Agreement and beyond

A forum titled ‘Doing Business with China: Free Trade Agreement (FTA) and Beyond’ was held recently at On Golden Pond, Taj Samudra Hotel, Colombo. It was organised by Verité Research Limited in partnership with the Exporters’ Association of Sri Lanka.

Coinciding with the title of the forum, the discussions by the guest speakers were based on creating an understanding about the opportunities that are available for the private corporate sector in Sri Lanka when doing business with China and the opportunities that may further arise in the event the proposed FTA between Sri Lanka and China is executed.

A number of participants were present at the forum mainly consisting of those engaged in export trade and those who are interested or already doing business with China. The opening remarks were provided by Mangala P.B. Yapa, Secretary General and the Chief Executive Officer of the Ceylon Chamber of Commerce who emphasised on the fact that Sri Lanka is a gateway or a corridor which enables nations to carry out international trade and considering such it is no surprise that China would want to create trade relations with Sri Lanka and it is up to us to utilise this opportunity.

An expert presentation was provided by Subhashini Abeysinghe who is the head of economic research at Verité Research Limited. The presentation consisted of a detailed analytical discussion with the currently available data in relation to the Chinese economy and its positioning in the international market.

Further, a comparison was done between the Chinese and Indian economies, and Abeysinghe drew the audience’s attention to the promising opportunities that prevail by doing business with China in export and in the import trade. Based on the statistical findings and with tea and apparel being the front-runners in the export trade in Sri Lanka, it was disclosed that the Chinese market has high potential which needs to be considered by the tea and apparel sector in Sri Lanka and with the FTA coming into place it will be highly beneficial for the trading between the two nations.

Guest speakers at this forum consisted of Niraj De Mel, Former Secretary General, Tea Exporters’ Association, who provided the potential benefits that prevail for the tea export industry when trading with China and how it is certainly promising compared to the current FTA with India and Pakistan.

Anushka Wijesinghe, Research Economist of Institute of Policy Studies and Deshal De Mel, Senior Economist/Strategic Business Development of Hayleys PLC spoke about their perspective on the export sector and what to expect when trading with China and the practical requirements that need to be addressed prior to creating trading links with China. Yohan Lawrence, the Chairman, Sri Lankan Apparel Exporters’ Association drew attention to the issues pertaining to trading with China by the apparel sector in Sri Lanka and hopes that the FTA will address the prevailing issues and open the export of apparel from Sri Lanka to China which is restricted at the moment. Later on a panel discussion was conducted which was chaired by Dr. Nishan De Mel, the Executive Director of Verité Research Limited with panelists consisting of Anushka Wijesinghe, Deshal De Mel, Yohan Lawrence, Niraj De Mel, Subhashini Abeysinghe and P.D. Fernando, the Former Director General of the Department of Commerce.

During the panel discussion matters were addressed especially with the difficulties faced by the traders in Sri Lanka when doing business in India and Pakistan and it was not surprising that Sri Lankan traders were sceptical about the FTA with China. However P.D. Fernando having the insight as a former government official informed the reasons for the lack of success with the FTAs signed with India and Pakistan and the main reason being the lack of understanding regarding FTAs by such nations and Sri Lanka at the time of signing the agreements since this was each nations first FTA but going forward and by having a better understanding Sri Lanka should be able to enter into an effectual FTA with China but it is up to the government policy makers, negotiators and the private sector to ensure that such FTA addresses our nations requirements. The gold sponsors of the forum were CIMB and NDB Bank, whilst the insurance partner was SLECIC. The media sponsors were, Daily FT, Daily Mirror, Sunday Times, Lankadeepa, Echelon and News 1st.

Published in DailyFT, Sri Lanka on December 18, 2014 (http://www.ft.lk/2014/12/18/doing-business-with-china-free-trade-agreement-and-beyond/). Words by Radhi de Silva.