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Chapter 2

Antecedents of July 1983 and the Foundations of Impunity

"...Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

- W.B. Yeats, from the Second Coming

2.1 Humiliation and Rebellion

2.2 The PSO

2.3 The Murder of Alfred Duraiappah

2.4 The Tamils and Official History

2.5 de Kretzer and Sansoni on the IATR Conference Incident

2.6 Events in Jaffna and the Violence of 1977

2.7 Behind the 1977 Violence

2.8 The Reality beneath the Sansoni Report

2.8.1 The UNP's New Culture of State Violence

2.8.2 The Heroes of Anuradhapura

2.8.3 The Radio Message that Ignited the Island

2.9 The Strains on Judicial Integrity

2.10  ‘Sinhala Only’ and its Effects on Ceylon’s Legal Tradition

2.11 The Culture of Impunity


2.1 Humiliation and Rebellion

In the last chapter we referred to the authoritarian impulse of Southern leaders and the ruling class in general. The party in power could handle the Southern opposition by using agents or party toughs. But the North-East was not amenable to such methods of control. As Southern leaders proceeded to exacerbate the ethnic problem from 1956, they became more nervous about the North-East slipping out of their control. In these circumstances, there was a strong temptation to suspend the Law and send in the hoodlums, in the futile hope that it would work. Such methods have been used by nearly all governments against trade union action in the South. The Sinhalese working class could of course hope for redress from a future government it would help to elect. But with a minority which was beginning to feel that the whole system was against them, these methods set off a reaction that was in its turn totalitarian and intolerant.

Take the incident early in S.W.R.D.  Bandaranaike's government of 1956 where thugs of the ruling party set upon Tamil leaders protesting on Galle Face Green near the Parliament, assaulted them and subjected some of them to grievous humiliation. In the process the assailants stripped Dr. E.M.V. Naganathan, one of the three founding leaders of the Federal Party, forcing him to run into Galle Face Hotel. The Police stayed away under instructions or were too demoralised to intervene. If this had been done to strikers or to the opposition in a rural Sinhalese area, the harm would have been minimal. But when done to the leaders of an electoral minority, it amounted to a collective insult. This in turn led to a closing of ranks among Tamil nationalists and, among the Tamils, violent sentiments and intolerance of dissent, with the ready evocation of the term 'Traitor'. A potent element in the collective experience of Tamils is a deep sense of humiliation proceeding from the culture of the State. Those who have felt its cutting edge opine that it has played a greater role in the course of Tamil politics than the demand for rights.

Even a man of such mild temperament as the Federal Party leader, Mr. S..J.V. Chelvanayakam, was moved to say privately, "A handful of cow dung thrown on Bandaranaike's back would do far more good than volumes of reasoned argument".  That was a good 20 years before Tamil militant violence came to be seen as a problem.

Tarzie Vittachi's book Emergency '58 traces the violence of 1956 and '58 to be the work of political gangs, often zealots charged by the rhetoric of the ruling party. In the Preface he refers to Gandhi:

"At the risk of losing the monumental support of the anti-Muslim Congress sympathizers, Mahatma Gandhi once said: ' No cabinet worthy of being representative of a large mass of mankind can afford to take any step merely because it is likely to win the hasty applause of an unthinking public. In the midst of insanity, should not our best representatives retain sanity and bravely prevent a wreck of the ship of state under their care?'

" Can anyone doubt that if this glorious principle of statesmanship had been applied to Ceylon, the blood bath of 1958, could have been avoided?"

The book contains at the end a verbatim record of a secret discussion held at the Police HQ in mid-June 1958, to do a post-mortem on the ineffectiveness of the Police during the violence, with the Army having to be called in almost everywhere to restore order. The discussion took place around a list of questions prepared by C.C. Dissanayaka, D.I.G. Range One.  Among the key questions posed were whether the ineffectiveness resulted from wobbly leadership and whether the Police were splitting up into racial, religious or other groups?

It was pointed out that the Police had the same equipment as the Army and greater manpower, but it was the Army which was called out after the declaration of emergency, that proved effective.

With regard to political interference S.G. de Zoysa, D.I.G. Range Two, put in some brave words:  "In regard to orders by the Prime Minister, he said that if they were in conflict with fundamental principles of the Police, the Service should stand together and resolutely oppose them, and there was nothing for the officers to fear. He agreed with the I.G. (S.W.O. de Silva) that officers should not attach too much importance to events such as the transfer of an officer, appointment of a Commission, etc." As to who was behind the violence S.A. Dissanayaka, D.I.G., C.I.D., declined to give an opinion, thus indicating who the main culprits were.

A generation later, in 1983, the Police Force had by then far gone past the point of questioning itself about its failure to avert a major national catastrophe and then to restore order, in the event of one. The Police had by then become servants of politicians whose lack of restraint knew no bounds - a hint of which prospect is contained in the discussion quoted above. The Army too proved equally ineffective in the violence of July 1983. [Top]

2.2 The PSO

When we talked about the Police of 1958 and earlier, we are not saying that it was at any point an ideal police force. Far from it - there were a number of instances of police brutality towards the lower orders of society, of which Vittachi gives one example. A classic example now fading from living memory is the attack on the strikers of 5th June 1947, on the eve of independence.

The primary issue was the Left protest against the Soulbury Constitution for Independent Ceylon, for its failure to guarantee workers' rights. Associated with it was the interdiction of T.B. Illangaratne, president, and 19 others of the Government Clerical Services Union for having held a meeting on Galle Face Green, in contravention of Public Service Regulations. 50,000 public servants prepared for trade union action.

At this point there was a development of considerable historical interest. The State Council headed by D.S. Senanayake, the prime minister-in-making, hurriedly passed the Public Security Ordinance, taking barely 90 minutes over it. We shall encounter the PSO again in the run up to the violence of July 1983. Perhaps the rulers in 1947 also thought it useful to have such an act on the statute book before independence, since, one is not surprised by such laws under colonial rule, while it would be awkward to present such legislation after independence. Interestingly, however, the most oppressive piece of legislation ever passed in Parliament - the one to make Tamil plantation workers non-citizens - could not have been passed under colonial rule!

Following the passage of the PSO, the strikers made their way to the venue of the public meeting in Ralahamigewatte, Kolonnawa, marching through Dematagoda. The procession was blocked by the Police. Dr. N.M. Perera, the LSSP leader, went forward to Police Superintendent Robins, to explain to him that the meeting was authorized. He fell on the ground after being struck on the head by a baton, and had to run away to save himself. The Police fired 19 rounds of bullets into the strikers, killing one and injuring 19 others, 5 of them seriously.

There were indeed many deficiencies in the Police of those times. But despite their prejudices and class affiliations, the Police as an institution had one saving grace. They were conscious of the Law as the standard and the ideal of enforcing it impartially. They were also sensitive to being seen falling short on professional standards. This in consequence had the merit of enabling the public to challenge them on the basis of the Law as the standard. But on the other hand the situation becomes quite hopeless when the Police acknowledge no standards, and for the most part become sycophants of the rulers.

Another event in the episode of the police action in 1947 foreshadowed the future. The body of the innocent clerk V. Kandasamy, who was killed by police firing, was dispatched to his family in Jaffna by the mail train. G.G. Ponnambalam, famed criminal lawyer and leader of the Tamil Congress, stood by the coffin when it was placed on the platform of Jaffna railway station. He told the crowd that had come for the occasion that Kandasamy was killed by the Sinhalese government. It was still British rule and it had not entered into the minds of the crowd that Kandasamy's death had anything to do with his being Tamil.

The event was reflected upon many years later by a witness to it. This was in October 1986 when crowds filed past the corpses of nine Sinhalese soldiers killed in an encounter in the Mannar District and the two captured alive. They were exhibited near Nallur Kandasamy Kovil. The body of LTTE leader Victor killed in the same incident was carried from place to place in Jaffna while Kittu, the LTTE's Jaffna leader, basked in Victor's glory. The wise old observer reflected, "From the time Kandasamy's body was brought to Jaffna, Tamil politics has been 'corpse politics' - politics for death and destruction and not for life!"

Not long afterwards, the same Tamil Congress leader G.G. Ponnambalam who said Kandasamy had been killed by the Sinhalese government joined the same UNP government of D.S. Senanayake's to become a cabinet minister. He also lent his support to the deplorable Acts which rendered the Tamil plantation workers (of recent Indian origin) without representation. This caused a split in his party, with the faction led by Chelvanayakam, Vanniasingam and Naganathan, continuing to oppose the Acts and forming in 1949 the Federal Party. Mr. I.R. Ariyaratnam, a Left party leader in Jaffna, later asked Ponnambalam why he had after initial opposition supported the Citizenship Bills upon being made cabinet minister? Ponnambalam replied, "India is a big country 50 times our size. Her prime minister, Nehru, does not care for these Tamils of recent Indian origin. Why should I bother about them?" It was again a mindset, educated and brilliant in a way, but tragically deficient in foresight and moral sense.

The events of those two years in the late 40s which were centred about the country's independence in 1948, contained many presentiments for what followed in the next half-century. While having the forms of democracy and legality, it was a political culture that was manipulative with few stabilising higher values.

At the beginning of this chapter, we adverted to the authoritarian instinct of rulers which led them to believe that physically humiliating their opponents would bring them round. It brings those who ought to be statesmen down to the level of village thugs. The public emotions engendered in the process, and the actions of party members and hangers-on, tended to drive things out of control. In turn, the victims developed the same mindset: - viz. "The only thing that would work with the other side is a good whacking". In the heat of the events, the elite, who ought to have understood the long term damage, were unable to command the conviction to condemn violence by their own side.

This tendency among the Tamils was evident through the 1970s and had attained a certain fixity after July 1983. There was a lack of conviction about condemning the barbarous massacre of Buddhist pilgrims in Anuradhapura, in 1985.

The same lack of conviction was evident in Prime Minister Bandaranaike in May 1958, and in President Jayewardene in July 1983. It was more damaging because they had state power. On both occasions, someone who could take decisions independently and act with firmness could have done a lot of good. This was done by the Governor General, Sir Oliver Goonetilleke, in 1958. In 1983 too it could have been done by the Army Commander, Chief-of-Staff or even the Commander-Operations, Colombo. It did not happen although it is unlikely that anyone would have risked trying to stop them.

Although the State bears principal responsibility for the tragedy of this country, the descent of the Tamil polity into self-destructive internal terror cannot be understood without the circumstances surrounding the political murder of Alfred Duraiappah on 27th July 1975.[Top]

2.3 The Murder of Alfred Duraiappah

Alfred Duraiappah who was Jaffna's independent MP from 1960-65 and several times mayor was a popular figure. Although this is denied by many Tamil nationalists, the fact is that in all elections for the Jaffna seat, the votes were equally split between him, the Tamil Congress and the Federal Party. His appeal had nothing to do with his representing any great ideal or principle in politics. He knew his constituents individually and tried to make everyone feel that he was part of their family. He greeted people on the road and inquired about their studies and personal matters. He catered to the needs of people for the normal business of life to go on. He dealt in jobs, transfers, market buildings, public lavatories and streetlights. It suited him to have government patronage for his style of politics, and so he aligned himself with the SLFP.

He had no interest in projecting himself outside the Jaffna electorate, but in that prestigious electorate, he posed a potent challenge to the nationalist TUF (Federal Party). He had a vote bank in the significant business, Muslim and Sinhalese communities and the urban poor. This popularity of Duraiappah’s irked the nationalists. This nationalism sought to impose on the very materialistic society in Jaffna, a hypocritical facade that the people were ready to sacrifice all ordinary needs and desires in life for some vague purist idea of Nation. Duraiappah exposed that hypocrisy.

From 1972, the TUF (FP) launched vicious attacks on Duraiappah calling him a traitor worthy of death. At the beginning, it may have been a stunt to win the Jaffna seat. But the more they articulated it, the more they began to believe it to be only right and natural that his end should come. An important event in the vilification of Duraiappah was the International Tamil Research Conference of January 1974.

The research forum series was launched by Fr. X. Thaninayagam, who was an eminent Tamil scholar. The first conference was held in 1966 in Kuala Lumpur and opened by Prime Minister Tunku Abdul Rahuman.  It had been supported generously by the Malaysian government. The 1974 conference was, initially, expected to be held in Colombo, but the organisers decided to shift it to Jaffna.

Once the conference was shifted to Jaffna, the TUF inevitably tried to make political capital out of it.  (Note:  The Federal Party (FP) joined a larger alliance, the Tamil United Front (TUF) which included the Tamil Congress and Ceylon Workers’ Congress on 14th May 1972. The TUF became the Tamil United Liberation Front (TULF) on 14th May 1976 after adopting the policy of separation from Sri Lanka. The CWC then dropped out saying that they cannot go along with separatism.) There were however good reasons for the shift of the conference to Jaffna and there is no reason to believe that the organisers connived with the TUF. But the Government was nervous and four delegates who came to Sri Lanka for the conference were sent back. But in Jaffna itself there was great public enthusiasm over the event. The scholarly conference was held in Veerasingham Hall from 3rd to 9th January. There was a popular demand to hear the foreign delegates and this public event was fixed for the evening of the 10th.

The police permit to have the meeting, which ended on the 9th, was extended to the 10th on a gentlemen’s understanding between ASP Chandrasekera and Dr. Mahadeva, the chief conference organiser. The latter undertook to ensure that Janarthanan, a politician from Tamil Nadu who was not a delegate, would not speak. Janarthanan was seen at the TUF (FP) office on 2nd Cross Street that evening, according to a witness, talking to Amirthalingam. But the question of the legality of his presence had been raised neither by the de Kretzer nor Sansoni commissions (see below) and ASP Chandrasekera, according to Sansoni, had encountered Janarthanan the previous day and warned him not to speak in public.

The organisers had earlier planned to hold the final meeting in the open-air theatre for which authorisation had been obtained from the Jaffna mayor, Mr. Duraiappah.  But because there had been a shower on the 9th, the organisers decided to shift the final meeting to the Veerasingham Hall. But on the 10th the crowds started squeezing into the Hall and many had to be content listening from outside. Seeing there was no rain, the organisers at the last minute decided to go back to the open air theatre. They tried to contact the mayor (Duraiappah) and the municipal commissioner to gain access to the theatre, but were unsuccessful.

The organisers quickly prepared an ‘ad hoc’ stage outside the Hall, but within the premises, facing the KKS Road and the Jaffna esplanade.  An estimated crowd of about 50,000 sat on the roads and on the esplanade, right up to the moat of Jaffna Fort. The Police were helpful in redirecting, the city traffic via Clock Tower Road towards Main Street, so that the crowds could listen without being disturbed. The meeting started late at 8.00 PM and the chairman, Dr. Vithyananthan, thanked the Police for their co-operation. The first speaker, Prof. Naina Mohamed from South India, held the audience spell-bound.

A little later, to everyone’s surprise a police party in riot gear started moving into the crowd westwards towards Veerasingham hall from the Clock Tower side, assaulting and roughly ordering the crowd to move aside. Pandemonium broke loose and seven civilians died of electrocution when a power line came down.

The crowd panicked and dispersed. There was not a shred of evidence that Alfred Duraiappah was in any way the cause of this tragedy. But the fact that he was with the Government made the city father a ready scapegoat. The SLFP office on the Main Street was that same night attacked by a mob led by a man identified as a TUF supporter.

Very quickly an effective propaganda campaign was unloosed accusing Duraiappah of responsibility for the tragedy and the deaths of the civilians. This was again a case of 'corpse politics'. It was later carried to new heights by Prabhakaran, the LTTE supremo. If anyone, it is the TUF and Amirthalingam who should bear a large share of responsibility for the tragedy as will become evident in the sequel. Janarthanan went back to India and claimed that he had seen hundreds of corpses of those killed by the Police. The Veerakesari, the largest Tamil Daily, then editorially condemned Janarthanan's irresponsible statements.

The government of the day could have cleared up the matter by appointing a commission to go into it. But the government of Mrs. Bandaranaike was so paranoid about it that it declined to do so. The matter was gone into by a three member unofficial commission headed by Justice O.L. de Kretzer. We will take this up in the next section.

The Sansoni Commission Report (p. 25, see below) quotes Mr. J.D.M. (Mitra) Ariyasinghe who was then SP, Jaffna, on a speech made by Mrs. Amirthalingam. She spoke to a gathering opposite Munniappar Kovil on the occasion of a hartal organised by the Tamil United Front on 9th February 1974 in protest against the police action above. She is said to have referred to ASP Chandresekera as the person responsible for the deaths on 10th January and to Mr. Duraiappah as being a traitor who was behind the incident on that day.

We will have more to say about Ariyasinghe in the next section, but what Mrs. Amirthalingam allegedly said is consistent with the politics of the TULF (i.e. TUF, FP) at that time. (E.g., on 24th May 1972 Kasi Anandan spoke at a meeting in protest against the new republican constitution. According to witnesses, Duraiappah was named by him as being among the traitors listed who should not die a natural death, but the nature of whose death should be determined by the younger generation. Chelvanayakam and Amirthalingam were then on the platform.) It may be noted that Duraiappah’s name did not crop up at the de Kretzer Commission hearings where the TUF had a role in producing witnesses, and Bishop Kulandran who was on the Commission was known for his leanings towards the Federal Party (TUF). Although Duraiappah as mayor may have preferred the organisers to have chosen the Jaffna Town Hall as the venue, there is no evidence to suggest that he was in any way hostile or uncooperative.

Such was the nature of the build-up of hate towards Alfred Duraiappah. Those with nationalist sympathies had little difficulty in swallowing this propaganda and failed to ask where this was leading to. Planted in the minds of youth who were on the threshold of militancy, it was an instigation to kill.

On 27th July 1975, Duraiappah was shot dead when he arrived by car at the Ponnalai Varadaraja Perumal Temple with two companions, as was his custom on Friday evenings. Prabhakaran was among the group of assassins who formed the incipient Tiger Movement. Testimony from one of Duraiappah's companions is of interest.

The assassins who were waiting went towards the three passenger doors of the 4-door car as it halted. The intention was to kill Duraiappah and both his companions. One of the latter, as he alighted through a rear door, saw a short youth pointing a pistol towards him and shivering. This companion, Yoganathan, pushed the youth aside, toppling him flat on the ground and ran into a nearby kiosk selling soft drinks. Another companion, Rajaratnam, was injured but managed to run away.

The assassins, who were evidently nervous, took off in Duraiappah's car with one Patkunam driving. No attempt was made to go for Yoganathan who was hiding in the kiosk. The woman who ran the kiosk called him out when the assassins were gone. He came out and found Duraiappah crying for water. Placing the dying man's head on his lap, he poured some aerated water into his mouth. Duraiappah then breathed his last. Years later, upon seeing Prabhakaran's picture, Yoganathan identified the youth, who had stood before him shivering, as Prabhakaran, and also became his admirer. Others have suggested that Kalapathy, another member of the group, had an appearance having some similarity to Prabhakaran's.

Yoganathan's identification, if correct, points to a Prabhakaran who, in July 1975, still retained a healthy inhibition against killing. But not long afterwards he was instrumental in the murder of Patkunam who drove the car. The direction of his movement was set.

As to the TULF (then TUF) directly instigating Duraiappah's murder, there is no evidence. We may say that the TULF pointed a pistol at Duraiappah and looked the other side, knowing that someone would pull the trigger. We do know that some TULF leaders had contact with these militant youth - which, from inside testimony, became semi-formal in 1976 after a meeting between Amirthalingam and the central committee of the LTTE. The indications are that Prabhakaran remained loyal to Amirthalingam into the early 1980s. This does not mean that the TULF played any role in the LTTE's decision making.

Mrs. Yogeswaran, the TULF Mayor of Jaffna, was assassinated by the LTTE in May 1998. A columnist in the Sanjeevi published in Jaffna, later wrote that Mrs. Yogeswaran had told him that Prabhakaran called on her husband in Jaffna soon after murdering Duraiappah and she had served him tea. Yogeswaran became the TULF's Jaffna MP in 1977 and was known to have been consorting with militant youth.

The columnist's claim must however be treated with some scepticism. This was not the kind of thing nervous assassins would do when there was a police net out for them. To escape to India, Prabhakaran would have made for the northern coast rather than to Jaffna town. On his own testimony to a schoolmate, this is what he had done. He climbed a banyan tree near a temple in Thondamanaru and hid there for three days until the naval alert was down. Moreover, Duraiappah's car in which they escaped had been driven northwards and was abandoned near Senthankulam on the north coast.

However the hate campaign against those who disagreed with nationalist claims and the very act of usurping the right to Duraiappah's life, set the direction of Tamil politics on the course of tragedy. Grief over Duraiappah's death brought forth an outpouring of tears. Today there are no tears left.[Top]

2.4 The Tamils and Official History

In the preceding section we found it necessary to place clearly some of the basic facts concerning the final day of the IATR (International Association for Tamil Research) conference in Jaffna. This is because among Tamils their partial knowledge of events has over time become overlaid by biases  and wrong information derived from others. The question whether Janarthanan was in Jaffna legally or illegally would elicit several contradictory answers. Writing about the incident by talking to contemporary witnesses soon becomes a nightmare. In contrast, there are the police records and magistrate’s inquest records, which were largely influenced by police versions, as will be seen below. Too often, these tend to become authentic history. The State that is anti-Tamil in its ideology and articulation continually uses its apparatus to record a history in service of its ideology.

Then there is also the Tamil nationalist version of history that is also very powerful in a destructive way, although the academic historian will readily have problems with its authenticity. The LTTE bears ample testimony to this power. To the Tamil nationalists, the police action at the IATR conference which resulted in 7 deaths became the ultimate expression of the malignancy of the State which led to the adoption in May 1976 of the goal of separation as the only viable option for the Tamil speaking People. It resulted in Sansoni writing the official history of the incident.

Fortunately, however, upon the government of Mrs. Bandaranaike rejecting the request for a commission of inquiry, some in Jaffna had the presence of mind to appoint an unofficial citizens’ commission comprising retired supreme court judges O.L. de Kretzer and V. Manickavasagar, along with Bishop Kulandran. Several copies of the report were printed and circulated, but are indeed rare documents today. Many valuable historical materials pertaining to the Tamils were destroyed with the burning of the Jaffna Public Library by the Police in 1981, the communal violence of July 1983, the civil war and during the forced exodus from Valikamam in 1995.

We were fortunate to receive a copy of the de Kretzer Commission Report from Mr. George Gnanamuttu, a former deputy commissioner of labour, who is now aged 90. Comparing its findings with Sansoni’s throws some light on judicial mores in Sri Lanka and how political power influences even sound persons, when it comes to making official history.

Mr. O.L. de Kretzer, a member of the Burgher community, was a notably independent judge. Mr. M. C. Sansoni, also a Burgher, rose to the highest judicial position of chief justice. Following the communal violence of August/September 1977, Jayewardene (then prime minister) appointed Sansoni to a one-man commission of inquiry on 9th November 1977 to go into the violence.

The Commission commenced sittings on 8 Feb.1978 and wound up on 10 Dec.1979, having heard witnesses in Jaffna, Anuradhapura, Colombo, Kandy and Trincomalee. The evidence on record is quite exhaustive. The final report was submitted to President Jayewardene on 22 July1980 and published as a sessional paper on 4 Nov.1980.

For a report on the wide-ranging and traumatic communal violence in which Tamils, particularly Hill Country or Plantation Tamils, were the main victims, its reception was curious. The following extract from a letter by "Observer" in The Sunday Observer of 8 May1994 is typical of the welcome it received from the Sinhalese intelligentsia:

" The one man Commission Report headed by Mr. M.C. Sansoni [sic], a former Chief Justice and member of the Burther community, highlighted the advocacy by the late Mr. A. Amirthalingam and the TULF, of armed violence as the means of to achieve the goal of Eelam, as the principal cause for the outbreak of ethnic rioting and civil disorder.

"The investigation and analysis of each incident of communal violence contained in the Report provide[s] a good insight into the manner in which communal tensions were deliberately raised by Tamil politicians hell bent on directing the embittered and disgruntled Tamil youth into committing planned violence against the State and the Sinhalese people  ....

 "The Sansoni Commission Report makes valuable reading for anyone interested in understanding the catalytic factors which led to ethnic unrest in the late seventies and the early eighties.

"Yet, inspite of its indisputable value as an important and impartial document tracing the contributory role of Tamil politicians in unleashing ethnic violence in Sri Lanka, the Report remains virtually inaccessible except to a few...

"The interpretation of events in contemporary Sri Lankan history especially on the incidents leading to the riots in July 1983, could be more effectively discharged if one were to have access to the objectively written Sansoni Commission Report....."

Note the reference to the Report as a historical record. This assessment is an irony when one looks into the terms of reference, which may be summarised as:

(1) To ascertain the circumstances and causes that led to, and particulars of, the incidents which took place in the island between the 13th day of August 1977 and the 15th day September 1977;

(2) whether any person or body of persons or organisation etc. were in any way the cause of the violence; and

(3) to recommend such measures as may be necessary for rehabilitation, public safety and prevention of a recurrence.

In the assessment of "Observer" above, the Sansoni Report explains not only the communal violence of 1977, but also that of July 1983. The main reason for the 1977 violence, it appears, was the provocation of the Tamil leaders wanting a separate state, and accordingly the same held good for the violence of July 1983. The reason for the second outbreak in 1983 is evidently that the first measure for prevention advocated in the Report - the revoking of the demand for separation – was not heeded!

Thus among that broad segment of the Sinhalese elite who did not want to take any responsibility for the communal violence, the Sansoni Report became a classic. Sections of it kept appearing in the Press and other writings with enthusiastic commendations as proof of Tamil villainy. But that was also to concede enormous powers to an unarmed political party – the TULF – and to admit that the huge state security apparatus was helpless against a few lawyers in politics.

A more open-minded reader would feel uncomfortable from the very first page of the report. It was the state security apparatus that was on trial for its ineffectiveness before and during the communal violence, and there were reasonable grounds for charges of culpability against sections of this apparatus. The first witness cited is Mr. W.T. Jayasinghe, former secretary for defence and foreign affairs from July 1972 to July 1977. One is then treated, despite the terms of reference, to a series of police reports and testimony from police witnesses concerning the incipient Tamil militant movement, and its connections (mostly indirect) with the TULF leadership.

The TULF’s role in history needs no deep analysis. As Tamils we could get angry about the TULF’s dangerous politics of high rhetoric without building any structures where the people could participate and determine their future. It led to tragedy for which the Southeren polity was primarily responsible.

On the other hand the TULF’s politics should come as no surprise in a parliamentary party of mostly career lawyers representing a minority denied any real power over its destiny, and experiencing repeated humiliation. In the game of vote catching, rhetoric became a substitute for their inability to offer any real relief, and the party became tangled up in its effects. Their inability to launch a non-violent struggle to which they were publicly committed, found them trying to ride the incipient militant movement in order to retain their influence. Taken in isolation it is easily explained and is in some ways trivial. It is more relevant, when it is raised by those who want to question the politics of their own community.

The more interesting story, from the point of the whole country, and the needs of national reconciliation and prevention of communal violence, is not to view Tamil politics in isolation, but rather how it developed in an engagement with the obduracy and purblindness of the Southern polity. Producing reams of evidence to show, as Sansoni has done to the general applause, that the TULF leaders are not genuine Gandhians, adds nothing to the story.

By contrast, those who have real power do not need rhetoric. They can just do things, however harmful to another community. Their means could moreover have the appearance of being administratively and legally correct. When they use rhetoric, it is a sign of weakness – as with the Jayewardene government during the run-up to the July 1983 violence and after.

After looking into police records of what was going on in the North, Sansoni reaches a strong conclusion at the end of Chapter 1 (p. 54), even before looking at the violence of August 1977 that was central to his mandate:

            “So far as the population of the whole island is concerned, the claim of a separate state is unpopular and will be resisted by the majority community… It must be remembered that violence or the advocacy of it begets violence, and it is one lesson which the disturbances of August and September 1977 should have taught us all”.

This covers the main message of the Report, which is also reflected in Chapter VI in his first recommendation: - viz. the communal violence was retaliation for a section of the Tamil leadership asking for a separate state and fostering a militant movement. It has two elementary flaws. First, although the bulk of the victims were Hill-country Tamils, their leadership under Mr. S. Thondaman had rejected separatism. Second, the communal violence in 1958 took place despite the fact that there was hardly a hint of violence on the part of the Tamils or their leadership. In examining events, Sansoni was careful, even where the facts demanded it, to avoid any implication that would point to serious culpability on the part of the State, so as to invalidate the conclusion quoted above.[Top]

2.5 de Kretzer and Sansoni on the IATR Conference Incident

We now come to the IATR Conference incident of 10th January 1974. Sansoni saw a need to go into this incident because Amirthalingam had testified before Sansoni "that the refusal of the government to appoint a Presidential Commission to inquire into the seven deaths and the conduct of the Police which led to those deaths, was a prime cause of the demand for a separate state."  Sansoni was given a copy of the (unofficial) de Kretzer Commission Report. Both de Kretzer and Manicavasagar had been senior colleagues of Sansoni's and one can have no doubt about the quality of the work that went into their Report. Although they had written to the Prime Minister, IGP and SP, Jaffna, calling for police witnesses, they were not obliged.

Sansoni said of the de Kretzer Report, “Having read their report, I feel that they have been deprived of the benefit of hearing an essential part of the incidents that took place. On the other hand, I have heard ASP Chandrasekera, who was a very necessary witness…" Sansoni relied on the report of the Magistrate (whom we understand was Mr. Palakidnar) whose findings and verdict he held were ‘unimpeachable’. Sansoni as we shall see inexplicably disregarded testimony painstakingly recorded by the de Kretzer Commission which clearly showed that there were conditions of fear which would have made it impossible for the Magistrate to hold an impartial inquiry. We go through de Kretzer’s and Sansoni’s versions step by step.[Top]

Permission to hold the meeting on 10th January

de Kretzer and Sansoni are both agreed that the organisers (represented by V.S. Thurairajah) applied to the Police for a fresh permit (the earlier one having expired on the 9th) for the use of loud speakers as intimated by ASP Chandrasekera with a list of speakers. Janarthanan was not on the list. The Police were concerned that the Tamil Nadu politician Janarthanan should not speak (on orders of DIG van Twest, according to Sansoni). But the two differ on an important point:

de Kretzer: No permit in writing was issued by the Police; the evidence is that it was a case of gentlemen not finding it necessary to give or demand in writing what was agreed on.”

de Kretzer further says that while steps were being taken to move the proceedings outside Veerasingham Hall, inside the premises, HQI Nanayakkara inquired from Dr. Vithyananthan about the move. The latter explained the circumstances (see Sect. 2.3), and the Inspector told him that ‘it would be all right’.

Sansoni:  Sansoni drew his conclusion from the letter applying for the permit signed by V.S. Thurairajah with an endorsement made by ASP Chandrasekera saying that he had issued a loud speaker permit subject to the three conditions mentioned. These were that the meeting would be held only inside Veerasingham Hall using the public address system therein, only those mentioned on the list will speak, and no political or controversial speeches will be made. Sansoni concludes that a permit was issued, whereas the testimony before de Kretzer implies that Chandrasekara’s endorsement was made subsequently, after the incident, to justify the police action.[Top]

Janarthanan and the meeting

de Kretzer and Sansoni are both agreed that before the commencement of the meeting outside the Hall, Janarthanan was hoisted onto the improvised platform by admirers to a loud applause. de Kretzer says that Amirthalingam garlanded Janarthanan, while Sansoni says they exchanged garlands. Some other differences between the two reports are similarly minor.

de Kretzer says: “Janarthanan’s stay on the platform was of the briefest duration, estimated at about two or three minutes, as Dr. Vithyananthan the chairman requested him to step down which he did. He was thereafter content to be behind the improvised platform signing autographs.”

Sansoni got his version from the Magistrate’s Report. According to this when Dr. Mahadeva asked Janarthanan to get down, the latter threatened him with trouble. He then says that in turn Dr. Vithyananthan and Mr. Thurairajah made the same  request to Janarthanan. When Amirthalingam was asked to intervene, he is said to have replied evasively. Dr. Mahadeva is then said to have left the meeting to telephone ASP Chandrasekera to avoid any misunderstanding. Being unsuccessful, he returned to find Janarthanan ‘sitting close to the platform’. This is consistent with Janarthanan having been on the platform for no more than three minutes, although it gives the impression of a longer period. However both versions are agreed that Janarthanan did come down.

Then comes a crucial difference between the two versions. de Kretzer says that after Janarthanan came down, ‘Head Quarters Inspector Nanayakkara handed him a document and obtained  a receipt from him; Nanayakkara then left the place and was not seen thereafter’.

Sansoni, who read de Kretzer’s Report, obscures the significance of this. He tells us in Para. 33A that Nanayakkara served a notice on Janarthanan on the 10th evening, requesting him to present himself to ASP, CID, in Colombo for questioning on the grounds of his being considered a ‘security risk’. Sansoni does not tell us when and where the notice was served.

Sansoni then tells us in Para. 38 that ASP Chandrasekera had been informed by HQI Nanayakkara, ‘that the crowd was blocking the road opposite the Hall and Janarthanan was on the platform.’ This makes it clear why Sansoni had to obscure the point given by de Kretzer. If Nanayakkara handed Janarthanan the notice after he had come down from the platform, what he allegedly reported to the ASP – that Janarthanan was on the platform – was false and irresponsible. Sansoni should have verified whether Nanayakkara did say that, since the Magistrate had reported that Janarthanan had come down.

Immediately afterwards, Sansoni says: “The ASP then decided to go to the venue of the meeting to ensure that order is maintained. As he failed to get near them owing to the crowd, he returned to the police station and came with a police party.”

This, we cannot accept. If strong action was thought necessary, the ASP would have cross-questioned Nanayakkara and ascertained that Janarthanan was not on the platform. Nanayakkara who was there would also have seen that the organisers, even as reported by Sansoni, had been firm with Janarthanan and made him get down. After that any apprehension that he would speak was unfounded. If ASP Chandrasekara felt a need to go to the platform, he could have gone the way Nanayakkara had come. Nanayakkara had not reported any unruly elements and there was no need to move in force.

So far, we have encountered enough doubts about the presentation of facts by the Police, and also Sansoni, to doubt their version at every point. This places the disputed endorsement of Thurairajah’s application by Chandrasekera in its correct perspective. We see the justification for the police action being built up – meeting in an unauthorised location, unauthorised public address system, crowds blocking the road, Janarthanan to speak on the platform and so on.[Top]

The Police intrusion

According to Sansoni the police party led by the ASP which approached the platform (from the Regal Theatre or the Clock Tower side, that is from the east) was greeted with bottles and stones thrown at them, resulting in injury to two policemen and damage to Chandrasekera’s jeep. Sansoni quotes the Magistrate as saying that the hostile attitude of the gathering towards the ASP’s party resulting in damage to the vehicle and injuries to policemen rendered the use of teargas to disperse the hostile elements a necessary step.

Sansoni then adds his own eloquent authority to the police version: “I do not consider the throwing of stones and bottles at Police officers by a crowd numbering thousands a peaceful demonstration.” Sansoni has painted a picture of 50,000 civilians throwing missiles at the Police. During the stampede resulting from the police action, 7 persons died of electrocution near the railings that separated the Veerasingham Hall premises from the road.

Sansoni could not have missed the careful reconstruction of this incident by the de Kretzer panel, which convincingly refutes the police version. We summarise the latter account:

The first speaker was Professor Dr. Naina Mohamed, a distinguished Tamil scholar from India. He spoke on the beauty of the Tamil language, its antiquity and the culture of the Tamil people. His choice of words in chaste Tamil, and the subject, held the audience in rapt attention, except for occasional applause. While he was speaking there was some disturbance on the Regal Theatre side, and the people there stood up and began to move. Noticing the commotion, the speaker told them to be calm.

As it happened, the Police had been advancing slowly through the crowd in jeep and truck wearing steel helmets, ordering the crowd through a hailer to give way. For reasons to do with the density of the crowd, the crowd keenly attending to Prof. Mohamed’s speech, and the known fact that what is said on hailers is bound to be distorted beyond recognition, the Police could proceed no further. Then the policemen who were armed with rifles, tear-gas bombs, batons and wicker shields started attacking those who stood in their way. The result was a stampede to escape the police attack, as policemen fanned out in all directions assaulting all and sundry. Some even jumped into the moat beside the Fort to escape the attack.

All this was carefully reconstructed by the de Kretzer panel from eyewitness accounts. This account is internally consistent. If it is true in its essentials, the Police account, which is badly lacking in consistency, must be taken as wholly untrue.

To begin with, the Police had been co-operating with the meeting by directing traffic and supervising parking arrangements, and had been moving freely about the area. Prof. Mohamed's address had been eagerly awaited, and any rowdy elements trying to create trouble during that address would have earned opprobrium from the public. There has not been a single testimony from the thousands of people present, whose attention was immediately drawn towards the commotion, of any hint of such troublemakers.

One also needs to assume that there was a group of rowdies, who had collected bottles and stones to throw at the approach of a police formation. No one had troubled individual unarmed policemen who were doing their job and were present all the time. The arrival of a large armed contingent of the Police was entirely unforeseen. Moreover, anyone throwing things at the Police who were armed would have kept a safe distance. Such an occurrence would not have gone unnoticed and uncondemned. The trouble clearly started after the vehicles started moving through the crowd. Then again, things thrown at the Police would have been as likely to hit the crowd. We may dismiss the Sansoni–Police version.[Top]

The Snapping of power lines and the electrocution of civilians

Sansoni holds with the Magistrate that the electric wires whose dislodgement resulted in seven persons dying of electrocution, happened under accidental circumstances. Sansoni accepted the testimony of J.D. Mitra Ariyasinghe, then SP, Jaffna, made both to himself and earlier to the Magistrate, that the police firing was not the cause of dislodgement. Ariyasinghe had said that although the police party had 4 rifles, not one of them had been fired nor any ammunition used.

Sansoni rejected the testimony of Mr. Amirthalingam who was on the scene, that police firing had been the cause of the wires coming down. He discredits Amirthalingam with Ariyasinghe’s testimony that at the Magistrate’s inquest, Amirthalingam had called Inspector Pathmanathan, a Tamil, who was leading the evidence, a ‘traitor’, and then apologised. This could well be because Amirthalingam was angry that the Police were using a Tamil officer to cover up, rather than that Amirthalingam was out to implicate the Police for political ends. Inspector Pathmanathan was killed by militants on the 6th May 1978 just after the Sansoni Commission finished sittings in Jaffna.

However, de Kretzer (i.e. the de Kretzer panel) is very clear on this point. Their report records the testimony of Mr. Rajaratnam, attorney-at-law, and Mr. Pathinathar, a public servant, who were at the railings and saw the overhead electric wire being brought down by gun-shots. Pathinathar had seen a policeman throwing a tear-gas bomb which did not explode, and then firing at the electric wire, resulting in a burning coil falling on him. We also learn that the foreign delegates had also confirmed that the Police had fired into the air. Sansoni avoided going into the issue beyond the official version.

Clearly, Sansoni was going along with suppressing the excesses of the police intervention, with a view to making it seem justifiable.[Top]

Reasons for police intervention

Sansoni simply holds that the Police were right in intervening, although Janarthanan never spoke on the platform, and cites the Magistrate that “it was this imminent possibility [of Janarthanan making a speech] that caused the Police intervention.” Sansoni argues that the Police had good reason to believe that the conditions for the issue of the permit were going to be violated, and had they waited for Janarthanan to begin, they could not have reached the platform in time to stop it.

de Kretzer quotes Mr. Kathiravelpillai, attorney-at-law and MP who soon after the disturbance had broken out, had telephoned the SP, Mitra Ariyasinghe, to stop it. The SP who was suffering from bronchitis had replied that the organisers had allowed Janarthanan to speak in breach of undertaking, and when the Police went to stop the meeting, they had to use force because the people had obstructed them.

de Kretzer deemed this decision reckless, as the stampede and its consequences should have been foreseen, and that taking action then against a breach of the conditions of the permit, served no useful purpose. The ‘tactful’ course de Kretzer points out was quieta non movere (leave well alone) and prosecute the organisers later for a breach of the undertaking. de Kretzer wonders why it did not occur to the Police to send an officer or two to verify who the speaker was, and if there was no alternative, direct the organisers to close the meeting.

But Sansoni then tells us from the Magistrate’s record that HQI Nanayakkara who came from the platform, allegedly told ASP Chandrasekera that ‘Janarthanan was on the platform and a crowd was blocking the road’. The first we know was false, and the second the Police already knew and had allowed. This statement attributed to Nanayakkara, as we have pointed out, appears to be a police invention to justify the harsh action taken, retrospectively. The organisers had been firm in sending Janarthanan down the platform and there was no ‘imminent possibility’ of Janarthanan making a speech.

A key omission by Sansoni

Although contained in the de Kretzer Report, Sansoni, who was eager to justify the Police, paid no attention to the Police going berserk after the incident assaulting civilians on the streets and the Central Bus Stand, over a wide area of the city. This, the people remember vividly to this day. The ground situation from the early 1970s was that police–civilian relations were poor, and it was exceptionally that an arbitrary assault, of say a passing cyclist, was challenged in court. The common wisdom was not to tangle with the Police. The fact that the people had been terrorised after the incident above, places the Magistrate’s inquest in serious doubt, particularly when a police inspector under SP Ariyasinghe was leading the evidence.

A particular circumstance that was to become increasingly relevant in the coming years may be noted here. The Jaffna Police had been sent instructions through DIG van Twest that Janarthanan was a security risk who should not be allowed to speak. Normally the Police were expected to do no more than take prudent steps within the Law and then rely on the courts to deal with any breach. But in the situation above some unaccountably bad policing decisions were made.

One factor that was pronounced after the 1972 Constitution was that the politicians in power were leaning heavily on the Police. This was bound to make local police officials over-zealous in following instructions from politicians. This may be a factor in the events that took place.

It is interesting that when Amirthalingam charged that ASP Chandrasekera was promoted shortly after the IATR incident for his role in it, Sansoni refuted it by quoting Ariyasinghe. However, to one who knows how the system works, Ariyasinghe’s testimony supports Amirthalingam’s contention. According to the former, Chandrasekera’s promotion had already been due in September 1973 when he was in the Prime Minister’s security division!

There is little doubt that the Police after acting in an obnoxious manner commended themselves to the politicians as having averted a major catastrophe that would have been caused by Janarthanan, and to this end twisted the record. This tragedy that was caused on an occasion of immense emotional and cultural significance to the Tamils, was deeply offensive to them. The coalition government of the SLFP, LSSP and CP refused to give them a hearing. The Sansoni Commission rubbed salt into the wound.

The comparison between the de Kretzer and Sansoni reports gives us a fair assessment of the quality of analysis in the latter. The problem with the Sansoni Report becomes even more serious when it deals with the origins of the August 1977 violence.

2.6 Events in Jaffna and the Violence of 1977

It was the main part of Sansoni’s brief to identify the causes of the August 1977 violence and those responsible. This he avoided. In a one page chapter (Chapter IV), he merely observes that he had made his comments in the course of relating incidents. However he provides much valuable information in the course of recording events in Jaffna, while steering away from the obvious conclusions with evident discomfort. We shall go through the facts presented by him (Chapter III, pp. 83-120 of this report) and examine his conclusions.

13th August 1977 (Saturday):

Four police constables, including PC Basnayake, went to the carnival at St. Patrick’s College on the previous night, the night of the 12th. They assaulted and threatened Mr. Kulanayagam who asked for the entrance fee. (We have been told that inside they misbehaved, helping themselves free at food stalls run by women.) Dr. J.P. Philips, one of the carnival organisers, complained to Mr. Gunasekera, HQI Jaffna, on the 13th morning. However, policemen again went to the carnival on the 13th night, and about midnight, there was a clash between the policemen and some visitors. According to Sansoni, two policemen were hospitalised with injuries.

Sansoni rejected the claims of HQI Gunasekera and PC Basnayake that the policemen had gone to the carnival on the 12th night to arrest two men wanted for robbery. He pointed out that no entry had been made in the information book.

14th August 1977:

Mr. Amirthalingam, MP, KKS, and Mr. Yogeswaran, MP, Jaffna, told the Commission that members of the public had complained to them that on this day the Police had been assaulting people on the streets in Jaffna. Sansoni rejected this on the grounds that no witnesses had been produced. Amirthalingam had said in Parliament (18 Aug.1977) that several lorries were stopped by the Police in the morning and the occupants, including the drivers, were assaulted.

On the evening of the same day PC Bandara was shot and injured in the thigh by unknown persons, in the Kopay area. According to Amirthalingam, a police patrol had challenged 3 men, all of whom left their bicycles and ran away after one of them fired at the Police.

15th August 1977:

Mr. Yogeswaran said that at 5.15 AM on this day, he received complaints of 3 cases of assault by policemen. Two of the victims appeared before the Commission. One was a CTB bus conductor S. Jesudasan, who said that he was assaulted by 5 policemen with batons at 4.25 AM near Muneswaram Temple junction and pushed into a pond, and he later saw the same men attacking a cyclist and a pedestrian. The other victim, Thurairajasingam, was a youth of 19 years who was assaulted about 4.00 AM near Regal Theatre by policemen in plain clothes with batons. Their statements were recorded in hospital by Inspector Senathirajah.

Both these took place a stone’s throw away from the Jaffna Police station, and north of it across the esplanade. The assailants were in white shirt and shorts with short hair-cuts. Sansoni deemed the testimony of the witnesses valueless as it was too dark for them to identify the persons or their weapons. He also cited the testimony of Mr. Noordeen, ASP Jaffna, to the effect that he had looked into the matter and found no evidence against anyone. Sansoni concluded: “I therefore find that no assault was committed by any Policemen on the 15th. ."

A retired public servant and newspaper reporter L.A. (Augustine) Saverimuttu testified before Sansoni that he had met A.S. Seneviratne, SP Jaffna, by appointment at 3.30 PM. He said that Seneviratne mentioned a policeman having been shot and injured at Kopay and added that the Tamils were going to pay dearly for the act. This was denied by A.S. Seneviratne. Sansoni did not accept Saverimuttu’s testimony. A contemporary journalist in Jaffna told us that Augustine Saverimuttu used to write for the Colombo-based Sun and was then very critical of the militants. He is clear that Saverimuttu 'did not fish this story out of his mind'.

Amirthalingam said in Parliament (18 Aug.77) that he tried to contact SP, Jaffna, in the evening over reports received by him about people being assaulted by the Police in distant places such as Chavakachcheri. There was no answer on the direct line and he was told on calling the Police Station that the extension was out of order. By ruling that there was no misbehaviour by the Police on the 14th and 15th, Sansoni claimed that what happened hitherto had no connection with what followed on the 16th.

16th July 1977:

According to the Police Information Book produced to Sansoni, in the early hours of the morning a group of about 100 persons went on an orgy of destruction in the Market and Main Bus Stand area, damaging shops and setting fire to the Old Market building. Sansoni rejected other evidence, based on which the Tamil leaders blamed the Police for these incidents, as ‘quite insufficient’. These incidents were taking place about a third of a mile from the Police Station and would have been visible from there.

We give an eyewitness account of the events in the Jaffna Bazaar on the 16th morning from a youth of Kottady who was then 14 years old:

“In the night of the 15th, word spread that there were fires in the town area and that the Police were setting fire to some shops. The young men rushed to the area. My elder brother went ordering me that in no circumstances should I leave home. I joined some of those of my age and watched from a drain close to the ‘Satturathu’ or CSK (i.e. Hospital Road – KKS Road) Junction, keeping a safe distance from my elder brother. I saw policemen and police vehicles in the bazaar area. Only a few of the men were armed and they could not easily see us.

"Some of the elders had brought used tyres, piled them up at CSK Junction and set them on fire, creating a barricade so that the Police could not come into our area. I saw some policemen coming there and pulling out the sign-post with the street names. Using the sign-post they lifted a burning tyre by its loop, carried it and threw it on some inflammable material in the Old Market, thus setting it on fire. We all threw stones at the policemen. Eventually they took off in their vehicles.

“The next morning while I was going to school I heard that members of the public had grabbed the guns from two policemen who had come to do sentry duty at a bank. I saw one of them being assaulted. I took the compass from my box of geometrical instruments and gave the policeman a prick on the thigh before proceeding. One gun was smashed. The other I heard was recovered by the Police when those who had it, left it outside and went into Subhas Café to drink tea.”

In essentials, this testimony obtained independently matches that given in the Sansoni Report. Our witness joined a militant group seven years after the incident.

Sansoni refused to identify with the Police the men whom a shop-keeper in the Old Market said were wearing khaki shorts and banians and set fire to a shop there.

However when four shop-keepers testified that the Police assaulted the people, lifted burning tyres from CSK Junction and threw them at the mat stalls causing fires, Sansoni interpreted this in terms counter to what was accepted by the people. He had cited the ‘view ' of ASP Noordeen, that “an unruly mob had taken possession of the town”.

It thus became Sansoni’s contention that a mob had taken over the town in the early hours of the morning, had set up burning barricades and were indulging in mischief. Thus, according to him, what the Police subsequently did was to restore order by acting with firmness. Some fires, according to him, resulted when the Police removed the burning tyres and cast then onto the roadsides to clear the roads, as they had to.

If restoring order was in the minds of the Police, they could have kept a low profile and worked through the TULF MPs to calm the situation. As it turned out, attempts by MPs Amirthalingam, Yogeswaran and Kathiravelpillai, and GA Jaffna Mr. Wijeyapala and Additional GA Mr. Joseph to contact the Police and restore sanity became largely futile, as Sansoni’s Report itself suggests.

ASP Noordeen went to town in his vehicle at about 8.00 AM and returned to the police station with the two constables who had their guns stolen. He then ordered six armed parties to be sent into town, one comprising five men under him. Several witnesses including Dr. Balasingham and Mr. M.R. Joseph, a businessman, described the resulting situation as a ‘reign of Police terror’. Mr. Joseph testified that he saw ASP Noordeen driving fast towards the Bus Stand, after which he shouted, “Shoot them like dogs. It is either they or we”.

While admitting possible excesses by some police officers in restoring order, Sansoni suggested that Mr. Joseph’s statement was an exaggeration.

About 10.15 AM, the Additional GA Mr. Joseph, went to the New Market which was on fire and received the impression that the Police were obstructing the people from extinguishing the fire. Sansoni suggested that the Police were rather trying to control the crowd. Mr. Joseph then met the local heads of the Army and Navy at the Airport and asked for assistance in putting out the fire without receiving a response. It was only after the Army Commander arrived that men and water bowsers were sent to the city.

Altogether five civilians died from police firing. Sansoni heard evidence from five among those injured. Sansoni then cited the testimony of Mr. Liyanage, SP, Anuradhapura, who had come to Jaffna that morning. Liyanage spoke of mobs looting government stores, looting and burning 2 or 3 Sinhalese bakeries and of a police truck and a police jeep being burnt. Sansoni then observed: “If the Police took action against them by firing at them after a warning to disperse, innocent victims who are at the scene cannot claim redress in such cases of justifiable homicide. Sight-seers must be prepared to suffer in such situations.” But under events in Anuradhapura, Sansoni gives a description of Liyanage's conduct (see below) that would totally discredit him as a witness, and yet he appears to rely on Liyanage here.

However, all the testimony Sansoni received from civilians was about policemen destroying property and firing in all directions without warning. Sansoni accepted some breaches of regulations.

On the damage or destruction caused to government property and Sinhalese owned premises, Mr. Amirthalingam referred to the Police shooting and killing people and to the incident in the bazaar about 10.30 AM. Amirthalingam was assaulted from behind by two policemen, one with a gun-butt. The crowd shouted and 4 policemen fired over their heads (- the firing was however denied by Noordeen).

More particulars are given in Amirthalingam's speech in Parliament (18 Aug.1977). The incident took place after Amirthalingam who had gone to the Police Station received news of two civilians being killed by the Police. When he went to the Bazaar, Noordeen and Gunasekera had to restrain policemen without numerals who were aiming their guns at Amirthalingam and the others with him. As though to explain the shooting of civilians, Noordeen said that bombs were thrown at the Police. Asked if he saw it and where, Noordeen said that he was told this by HQI Gunasekera. Amirthalingam then called Gunasekera and queried him. Gunasekera denied having said anything about bombs. Amirthalingam then told Noordeen, "This is the sort of lie on which you have shot two men.... People like you should be exposed..." It was then that the Police assaulted Amirthalingam and fired into the air without any order to do so. Up to that point, the mob had not been unruly.

Amirthalingam said that the arson and looting by mobs resulted from this provocation. Sansoni maintained that the mob action was independent of the fires in the market (which he said may have resulted from "action justifiably taken by the Police, or by mobs bent on looting and arson"), and had begun early in the morning. He thus exculpated the Police from the night's arson and blamed it all on the mob which went into action much later.

Although Mr. Jayasinghe, secretary of defence, Mr. Werapitiya, deputy minister of defence, the Army Commander Mr. Sepala Attygalle, the IGP Mr. Stanley Senanayake and DIG, Jaffna, Mr. Ana Seniviratne came to Jaffna on the 16th, police misbehaviour including looting of jewellery shops, continued into the evening of the 17th.[Top]

2.7 Behind the 1977 Violence

A clearer picture of what was behind the events would emerge if we look at the testimony given about the actions of the various actors, what Sansoni accepted and what he rejected.

13th August 1977:

HQI Gunasekera maintained that the policemen who invaded and misbehaved at the St. Patrick’s carnival had gone in search of two robbers. On the evidence, Sansoni accepted the contrary.

13th or 14th August:

PC Sattanathapillai testified that DIG Ana Seneviratne said at an Instruction Class that ‘all Tamil PCs have contributed to the TULF’. This allegation was rejected by Sansoni.

15th August:

The testimony of L.A. Saverimuttu that SP A.S. Seneviratne had told him that the Tamils will pay dearly for the gun-shot injury caused to PC Bandara, was rejected by Sansoni.

PC Sattanathapillai testified that on the 15th night a meeting of police officers including SP Seneviratne, inspectors, sergeants and constables was held at the SP’s house. He added that after the meeting a group of them made an entry about going to Pungudutivu, but went instead to the market and set fire to it, at 1.30 AM. This was rejected by Sansoni as ‘prejudicial hearsay evidence’.

16th August

Mr. Yogesweran MP was told about the burning of the market at 5.00 AM, but was unable to contact SP Jaffna by telephone. He then contacted Mr. Wijepala, GA Jaffna, and Mr. Amirthalingam. This was about 5 AM according to Amirthalingam's statement in Parliament.

Mr. Wijepala too tried SP Seneviratne and failing to get through, contacted the Police station and was informed that the station could not contact the SP.

Mr. Wijepala then telephoned ASP Noordeen, conveyed Yogeswaran’s information and asked him to go to the SP and keep things in check. Wijepala also stated that Noordeen had responded by reminding him that a policeman had been shot on the 14th night. Sansoni accepted Wijepala’s testimony as against Noordeen’s denial that Wijepala had called him and put this down to his not having carried out Wijepala’s instructions. All this evidently happened before 6.00 AM.

A.S. Seneviratne claimed that his direct telephone line was not working, but the extension from the Police Station and the one in his office were working. Sansoni observed that ‘there is some mystery about the failure of both Amirthalingam and Wijepala to contact SP Seneviratne through the Police Station.’ Amirthalingam had said in Parliament that the SP had been uncontactable in the evening the previous day (Monday, the 15th) on both the direct and the station lines. It was a working day and his direct line would normally have been kept in order as a top priority.

Having failed to reach the SP (about 7.00 AM according to the statement in Parliament), Amirthalingam telephoned Deputy Defence Minister Werapitya and Prime Minister Jayewardene. He then called the Jaffna Police Station and wanted to speak to the SP within 5 minutes. Amirthalingam said that the SP called him and appeared surprised when told about the situation. The SP is then said to have phoned the IGP and DIG.

The SP, Mr. Seneviratne, and the HQI, Mr. Gunasekera, denied to the Commission that policemen were moving about in uniform without their numerals. Sansoni accepted the testimony to the contrary – that policemen had indeed been moving about in uniform without numerals – made by Amirthalingam and supported by Doctors Amarasingam and Dassanayake. This suggests that the intentions of the policemen were not legitimate.

From what Sansoni has accepted, ASP Noordeen had been appraised of the situation by GA Wijepala by about 6.00 AM. Sansoni accepted that Noordeen did next to nothing, apart from reminding Wijepala that a policeman was injured on the 14th. Noordeen had apparently not even told the SP. An apparently surprised SP heard it from Amirthalingam not long afterwards. Neither of them took any measures to fight the fires in the city. Even after 10.00 AM the local Army and Navy were not forthcoming when contacted by the Additional GA. It seems incredible that Noordeen should go to the town at 8.00 AM to discover that an 'unruly mob' has taken it over, and only then decide to act.

17th August:

At 11.00 AM a radio message was sent from Jaffna to the IGP, purporting to be from SP, Jaffna: “Today 4 CTB buses set on fire. Naga Vihare, Jaffna, is being attacked. Crowd collected at Railway Station, Jaffna, to attack in-coming passengers. Situation serious.”

PC Kumarasamy said that this message was dictated to him by HQI Gunasekera, which he wrote down and passed on to Radio Operator Jacob, in the Radio Room. Inspector Gurusamy contradicted PC Kumarasamy’s claim that he was present when HQI Gunasekera dictated the message. Gurusamy further said that when the Radio Communication Centre made a query about this false message, he sent a message in the SP’s name at 11.15 AM, cancelling the false message.

HQI Gunasekera denied any connection with the false message and stated that he heard about it for the first time only on 5th September 1977 when ASP Noordeen was holding an inquiry into the sending of the false message. Sansoni observed that the message was sent with mischievous intent.

Sansoni rejected as not supported by a shred of evidence, the written submission by Mr. Lesslie Bartlett, attorney-at-law. Bartlett had stated: “There can be no doubt that the false message was transmitted with the complicity of the DIG, Mr. Ana Seneviratne, the SP, Mr. A.S. Seneviratne, and HQI Mr. Gunasekera, who were in their stations at the time it was transmitted.” Sansoni however said that he was unable to decide who was responsible for the false message.

The fact that Police Radio had been used to transmit such a malicious message was known that very noon to Police HQ, to Jacob the radio operator in Jaffna and to Inspector Gurusamy of the Jaffna Police. It should immediately have become a subject of inquiry and SP, Jaffna, would have been apprised of it.

Since PC Kumarasamy, a Tamil, admitted to having given the message to Jacob, the Police should have been able to determine whether it originated from Kumarasamy or from someone else. HQI Gunasekera’s claim that he heard about it only 19 days later has no credibility. Moreover, if indeed Inspector Gurusamy had sent a second message in the SP’s name 15 minutes after Jacob had transmitted the false message, it would be incredible if he had not immediately told the SP. Why did Sansoni not pursue this important matter?

On the same day (17th August), both Amirthalingam and the Additional GA separately brought it to the notice of the DIG Ana Seneviratne that some policemen had hijacked a CTB bus and were breaking into and stealing from jewellery shops. Both times the DIG pooh-poohed the idea and refused to accept it. Amirthalingam also said that the DIG had told him that the troubles had gone to Anuradhapura and Kurunagela – tomorrow it will spread to Colombo and other places; it will be worse than 1958. Sansoni suggested that the DIG may have been making a forecast on the basis of information received and may have been sharing his views with Amirthalingam.

Now, there is a broad measure of consistency in the Police attitudes and patterns of behaviour signified by the part of the testimony above, which Sansoni accepted, and that which he rejected. Moreover, on several crucial matters Sansoni has himself accepted that senior police officers made false representations or that their conduct was open to question. This would suggest that their words deserve even less credit than what Sansoni has given the testimony of the Tamil PCs Sattanathapillai and Kumarasamy. In fact, both PCs were in service when they testified before the Commission. Sattanathapillai said in his testimony that Terrence Perera, who succeeded Gunasekera as HQI Jaffna, had told him, "You have let down the Police Force".

The acts of commission and omission by the Police on the 16th morning, even as admitted by Sansoni, included the mysterious inaccessibility of A.S. Seneviratne, SP. Also inexplicable was his failure to keep himself informed of grave events just across the esplanade, and his ASP Noordeen’s failure to take any meaningful steps on the GA’s information. These point to some complicity. If we go beyond Sansoni in accepting, as we do know to be the case, that it was the Police who were behind the acts of arson and destruction in the Bazaar during the wee hours of the 16th morning, all the testimony above rejected by Sansoni falls into place. We then have a picture of the Police indulging in calculated acts of provocation to stir up disorder.

In the wake of this disorder came communal attacks on Tamils in several parts of the Island. The unexplained police radio message on the 17th, which would have been picked up by the Police throughout the Island, suggests that a section of the Police was active in spreading false rumours.

DIG Ana Seneviratne told Amirthalingam on the 17th about communal violence in Anuradhapura and Kurunagela etc., but it took the state media (e.g. The Daily News) until the 20th to publish refutations of false rumours – which included the supposed gory fate of Sinhalese students in Jaffna University. It was on 22nd August that Prime Minister Jayewardene’s message went out to Army and Police personnel to deal effectively with the communal violence.

Sansoni has made two points, which appear valid when taken in isolation of the context. In disbelieving the journalist L.A. Saverimuttu’s testimony on SP A.S. Seneviratne’s threatening words, Sansoni expressed grave doubts about an experienced police superintendent being so indiscreet. He made the further point that PC Bandara who was shot on 14th August, was the 4th to be shot during 1977. The other three had died. It is here that Sansoni fails to take into account the all-important change of political climate, and the resulting alteration of power relations between the people and officers of the State.[Top]

2.8 The Reality beneath the Sansoni Report

2.8.1 The UNP's New Culture of State Violence

The time was just after the General Elections of 21st July 1977, when Jayewardene’s UNP was returned with a five-sixths majority. The climate then created by unleashing violence on supporters of the defeated opposition is described in an article by Neil Dias titled 1977 Victims in The Island of 29th August 1994, just after elections where the UNP was defeated:

“While the post-election violence was preceded by a pledge given by the victor [i.e. Jayewardene] at the poll that he will give a period of leave after the election results to the law enforcement agencies, the plunder of August 1977 was heralded by the call of the same leader to the Sinhalese mob to the effect that they had lost their patience… [i.e. speech in Parliament below]

“[During July 1977 in the Kegalle District], houses of hapless victims living a few yards from police stations, court houses and bungalows of judicial officers were burnt and plundered with gay abandon. Those going to complain at police stations were turned away. Later, complaints were rejected by the courts as belated….”

Once the Police Force had reached a point where its direction from the highest to the lowest levels was to lend complicity to such perfidy, it was bound to create a break in the character and morale of the Force. The more unscrupulous among them would have lost no time in becoming political commissars.

We give below an extract from Prime Minister Jayewardene’s speech in Parliament on 18th August 1977, two days after the first incidents in Jaffna:

“...we are still one nation [and] this Government is elected to govern the whole Island... The vast majority of the people in this country have not got the restraint and the reserve that Members of Parliament, particularly those in the front ranks, have been used to. They become restive when they hear such remarks as that a separate state is to be formed; that Trincomalee is to be the capital of that state; that Napoleon had said that Trincomalee is the key to the Indian Ocean; and therefore Trincomalee is going to be the capital of the state...

“Whatever it is, when statements of that type are said and the newspapers carry them throughout the island, and when you say you are not violent but that violence may be used in time to come, what do you think the other people in Sri Lanka would do? How will they react? "If you want to fight let there be a fight; if it is peace, let there be peace!”

After a prolonged applause by members of his party, Jayewardene added:

“That is what they will say. It is not what I am saying. The people of Sri Lanka will say that.

“When this happened in Jaffna - I am not saying that you [members of the TULF] caused it. You are completely innocent of it. When Sinhalese boutiques are attacked, when government property is attacked - every railway train bringing people from there to the South spread the stories - all that caused the death of the most innocent Tamil people and Muslim people, which should never happen. I am very sorry that it should have happened....

“But I say, be careful of the words you use... Such words can inflame people of other nationalities. And what has happened can happen in a greater degree if such words are used by responsible leaders….”

If many in this country have commended Jayewardene’s speech as that of a statesman, it is because they have conditioned themselves to thinking that punitive tribal violence against a minority, collectively, is a legitimate response to a demand for a separate state – a ‘provocation’. In a highly polarised polity such as obtains in Sri Lanka, there are bound to be verbal excesses everywhere, in every community. A statesman is one who transcends these and appeals to the best in every community. This is not what Jayewardene was doing. The previous night there had been a massacre of Tamil railway staff at Anuradhapura station (see below) and here were the UNP parliamentarians applauding through Jayewardene's speech!

There was disorder in Jaffna that resulted from deliberate provocation by the Police who continued to be a part of it. But not one Sinhalese was killed. Jayewardene knew that. The main problem was attacks on the Tamils in many parts of the country leading in the final count to several hundred deaths. The first thing Jayewardene should have done is to appeal for calm, declare emergency and order stern action against those resorting to violence. He did nothing of that kind.

His mob had already tasted blood by attacking the defeated opposition, and in his speech, he was treading the thin line where the leader of the mob is indistinguishable from the mob’s attorney. His warnings were all to the Tamils, not to the Sinhalese mobs, and ironically, the only police action resulted in four Tamil civilians being killed in Jaffna and several more elsewhere. Most indicative in the Jayewardene's speech is the throwing down of the gauntlet, which drew the prolonged applause of his party members. The applause is mentioned in T.D.S.A. Dissanayake's War or Peace in Sri Lanka? Vol II, but not in the Hansard. It alters the colour and meaning of the proceedings  

The Sansoni Report records that violence began in Colombo early on the 20th morning, when at the Colombo Mail Exchange Tamil officers were attacked by subordinates and minor staff, while their superiors and the Police looked on. No action was taken against the assailants. One is not in the least surprised that such things happened in government institutions in Colombo itself after Jayewardene’s speech. However Jayewardene had claimed in his speech that he had asked all his party branches in Colombo East and West to go round and see that the Tamil people are protected!

The conclusion reached by Sansoni on the main cause of the violence is the same as that advanced in Jayewardene’s speech - namely, the demand for a separate state. If the speech is seen in relation to the events in Jaffna, one gets a clear picture of who was behind the 1977 violence. [Top]

2.8.2 The Heroes of Anuradhapura

Although the Sansoni Report has been used selectively for propaganda, it, on the contrary, gives us strong direct and indirect evidence of the State's blatant complicity in the communal violence. The events in Anuradhapura, and the conduct of G.W. Liyanage, SP, Anuradhapura, give us the strongest indication of direct involvement by the State. This was an officer directly responsible for the maintenance of peace in Anuradhapura. We rely on the Sansoni Report for the forthright account below of events in Anuradhapura, which is not a favourite section of those who acclaim the Report.

SP Liyanage had arrived in Jaffna at noon on the 16th, accompanying DIG Ana Seneviratne and, about 10.30 AM on the 17th, attended a conference in the Jaffna Kacheri. There, Superintendent of Health Services Dr. Dassanayake complained about the conduct of the Police. (He later left Jaffna after an anonymous caller told him that he would be 'shot like a dog'.)  Assistant Collector of Customs Mr. J. Senaratne who had come from Colombo by night train told SP Liyanage that he should be in Anuradhapura as Tamils had been attacked there. (The night trains had been attacked and the passengers robbed, but there had apparently been no deaths.) Liyanage had replied in Sinhalese, "Were they assaulted enough?"

Liyanage was in Jaffna when the false police radio message was sent alleging that large Tamil mobs were attacking or were getting set to attack the Sinhalese. He left Jaffna for Anuradhapura on the 17th evening. It was the same evening that DIG Ana Seneviratne told Amirthalingam that the troubles had spread to Anuradhapura and Kurunegala and that it was going to be worse than 1958. In fact on the evidence of the Report, the main killing of Tamils started at Anuradhapura only after Liyanage's arrival from Jaffna. In contrast, a number of Tamils commended the attitude of Liyanage's assistant, ASP Chandra Mendis.

On the 17th evening, two Tamil employees at Anuradhapura hospital took refuge in the house of Dr. Wijewardene, Medical Superintendent. One of them, Sivasambu, later died of injuries received. SP Liyanage came there at 10.30 PM and repeated the false radio message sent that morning with some macabre additions: "Havoc in Jaffna, Sinhalese have been murdered, Sinhalese women raped on the road, Buddhist priests have been attacked and doctors in Jaffna hospital not attending to Sinhalese patients."

SP Liyanage was at large in Anuradhapura on the 17th night, repeating this message with variations, such as Sinhalese women were being nailed to the wall in Jaffna. He was at the railway station about 11.45 PM soon after the single worst incident of murder, telling the surviving victims his stories about the gory fate of Sinhalese in Jaffna. Testimony against him is damningly plentiful, especially that of L.M. Poulier, District Mechanical Superintendent of Railways.

Mr. K. Gunasekera, District Superintendent of Railways had placed his Tamil colleagues in the rest rooms upstairs of the station and a police guard of four was placed at the staircase entrance below. Also, there were 5 armed soldiers under Lt. Percy Perera from the National Guard. Poulier came downstairs and spoke to T.D. Gunawardene, PC No. 5920, about looking after the Tamils upstairs. PC 5920 replied, "...They must be given the works for at least 10 minutes". Poulier then saw a mob rushing upstairs carrying weapons, who came downstairs 5 to 10 minutes later, with articles removed from the victims. Just at this time Lt. Percy Perera's party had conveniently vanished.

A little later SP Liyanage visited the scene with a Major Jayewardene and left after a short time. The gist of Liyanage's conversation as reported by Poulier had been: "I have just returned by air from Jaffna. Serves the bastards jolly well, right. It's been a bloody massacre here all right, yes, yes, about 4 or 5 casualties, I think. Hm, Yea, OK, Cheerio." Later in the night, Poulier phoned Gunasekera and told him, "There is blue murder here. My Chief Trains Controller is dying and so many others are injured."

Although Sansoni did not say so, what he has recorded strongly suggests connivance between the security services and the mob similar to the Welikade prison massacre of July 1983. Tamils who asked SP Liyanage for help were abused and directed to "Colonel Amirthalingam".

SP Liyanage had returned from Jaffna with so much zeal to carry out his brief that he had no use for discretion. He did not in the least feel shy about driving home the conclusion that he was a key mob leader as well as rumour-monger in Anuradhapura. Taken together with the events in Jaffna, he has left little to the imagination about what the Police hierarchy had discussed in Jaffna and the false radio message.[Top]

2.8.3 The Radio Message that Ignited the Island

One of the highlights of the Commission sittings in the Jaffna Public Library was Leslie Bartlett's cross-examination of Inspector Gurusamy regarding the false radio message. According to witnesses, Gurusamy had virtually to admit that the message was sent on orders from his superiors. The premises were packed, and at the end of the day, Bartlett, the hero of the occasion, was mobbed. Poor Gurusamy was shot dead by militants the following year on 1st July 1979.

Although Leslie Bartlett's cross-examination of Inspector Gurusamy was among the crucial highlights of the commission sittings, it has now, after 23 years, proved extremely difficult to find out what really happened. The lawyers concerned, are today dead, or cannot remember, or would not speak. Copies of the proceedings available with Tamils were mostly burnt during the July 1983 violence. The ICES library has a copy that is incomplete. The copy in the National Archives, we found, is embargoed until the year 2010. Fortunately, at that time, this cross-examination appeared in the journal The Sansoni Commission Evidence that was published by S.C. Chandrahasan. The editor, we reliably learn, was S. Sivanayagam, who went on to edit the Saturday Review. We are grateful to Mr. Kurumpasiddy R. Kanagaratnam of the International Tamils' Archives, Kandy, for providing us copies of the relevant sections. How easily can the history of a people get buried in 23 years!

What follows is the picture that emerges from the cross-examination. It is coherent in all respects and agrees with the known facts:

On the morning of 17th August 1977, Inspector Gurusamy and PC Kumarasamy were on duty in the Operations Room. HQI Godfrey Gunasekera walked in just before 11.00 AM and ordered Kumarasamy to take down a message, which was:  "...4 CTB buses set on fire. Naga Vihare, Jaffna, is being attacked. Crowd collected at Railway station, Jaffna, to attack incoming passengers. Situation serious." Kumarasamy was asked by Gunasekera to transmit it to the IGP. Gurusamy asked Kumarasamy to hurry up. Kumarasamy took the message to the Radio Room and Radio Operator Jacob transmitted it at 11.00 AM.

The Radio Communication Centre in Colombo radioed back immediately asking for clarification. Gurusamy was summoned to the Radio Room. He dictated a message. The time when it was recorded is given as 11.05 AM. The message was: "Further to my message of just now, please cancel this message. Further message will follow." Both these messages were purported to be from SP, Jaffna.

At 11.20 AM, SP, Jaffna received a radio message from the IGP apparently in response to the first message. The message stated, "Navy would guard Naga Deepa [Buddhist] Temple. Please make arrangements to place guards to guard Naga Vihare." There was no further message form the IGP.

Gurusamy got into trouble by making statements before the Commission that were in conflict with his actions and the evidence. He said at different times that Gunasekera did not dictate the false message to Kumarasamy, that he was not present when Kumarasamy supposedly took down the message, and that he did not know the origin of the message. However, less than five minutes after transmission he had been with Kumarasamy in the Operations Room when the query was made from Colombo. Gurusamy said that he checked the record, found the first message, which was in PC Kumarasamy's handwriting, to be false and cancelled it.

This was a very unsatisfactory response, if the intention was to correct a false message with such potentially grave consequences. The only reason for Gurusamy's failure to tell Colombo plainly that the message was false, was simply that he knew well that it came from his superiors. Bartlett pointed out that by cancelling the earlier message and asking Colombo to await a further message, he could easily have given the Police, who were listening in from all over the country, the impression that the situation was worse than first reported. The truth of this is reflected in the rumour mongering done by SP Liyanage after his return form Jaffna to Anuradhapura that same evening (17th).

There was no further radio message from Jaffna. Nor did the IGP, Stanley Senanayake, broadcast a message over the radio to correct the dangerous misapprehension. He would almost certainly have had telephone contact with Jaffna. We may note that the last message over the air was from the IGP. His orders to guard the two main Buddhist shrines in Jaffna contained a note of alarm. The radio silence that followed was ominous.

Gurusamy, evidently on instructions from above, had instructed Radio Operator Jacob to delay sending the cancellation of the false message by 10 minutes (from 11.05 to 11.15). Once the contradictions and lapses involving Inspector Gurusamy's position, including his failure to follow up with a further message as he had stated, were brought out in the cross examination, Gurusamy broke down. He assented to the suggestions that he knew that a false message had been sent and that "It was a deliberate lie that was sent over the radio."

Mr. Bartlett then told Gurusamy: " I put it to you that if in five minutes you knew that this message, the first message sent at 11 'O clock, was false, you were part and parcel responsible for the communication sent to the IGP over the wireless network!"

Inspector Gurusamy responded: "If that was so I would not have cancelled the message"

In sum, Gurusamy was down to admitting that there was a conspiracy by his superiors, but he was not part of it. There is no way in which SP A.S. Seneviratne and his superiors can get out of the charge that they were responsible for transmitting this 'deliberate lie' all over the island as Bartlett alleged in his written submission.

Procedure necessitated that SP A.S. Seneviratne was ultimately responsible for the messages sent in his name. The record books of messages that were sent and received, and were produced before the Commission, had been daily examined by the SP, ASP and the HQI. HQI Gunasekera's contention before the Commission that he had heard about the false message for the first time at an inquiry 19 days after its despatch, is a lie. Sansoni, who dismissed Bartlett's submission, did not take issue with Gunasekera's lie.

Any senior officer in the hierarchy, when it came to such a grave abuse of the system, ought to have taken prompt action against a junior who failed to keep him informed or misinformed him. This itself places very severe strictures on S P A.S. Seneviratne and DIG Ana Seneviratne, particularly in view of what SP Liyanage, their companion in Jaffna during the day, did in Anuradhapura that same evening.

The IGP, Stanley Senanayake, too does not escape the charge of complicity. Knowing that a false radio message with the potential to stir up communal violence had been sent out, he took no action to correct the misapprehension. The kindest thing that one could say on his behalf is that he was given to understand what his political bosses wanted, and he decided to keep quiet. Even as the Police were themselves spreading rumours, at the latest from the 17th, the state media posted denials only on 20th August.

Sansoni could easily have answered the question in his mandate about who was responsible for the communal violence of 1977. It was organised by the Police at the behest of their new political bosses - the UNP. Sansoni chose to skip over the issue of the false radio message after putting it aside saying that he is unable to determine who was responsible. The false radio message also places DIG Ana Seneviratne's forecast about the spread of violence in a conversation with Amirthalingam, in the evening of 17th August, in a new light. Sansoni was here more-than-right in suggesting that the DIG made the forecast on the basis of information available to him!

Of interest here is also the manner in which the Sinhalese police hierarchy prevailed upon low ranking Tamil officers to do the dirty work and threw them to the wolves in more than one sense. HQI Gunasekera, the only Sinhalese officer whose name transpired directly in connection with the false message, could extricate himself by saying that PC Kumarasamy had lied to get his own back for 7 disciplinary charges against him! Inspector Gurusamy too cut a pathetic figure after 37 years in the Force. The previous day (16th August 1977) he had tried to stop some Sinhalese policemen attacking Tamil civilians. The response he received was, "Thattaya, kata wahapang" ("Shut up you bald fellow")!

Although the Government tried to obtain propaganda mileage out of the killing of Tamil policemen, it cared nothing for them. It would have been difficult for the militants to target them, had they been allowed to do normal police work, without constantly being forced to compromise their integrity. On a later occasion when a Tamil policeman was killed, Prime Minister Premadasa said in Parliament that there would have been a riot if the man had been Sinhalese!

Even as the Sansoni commission was sitting, Jayewardene made Ana Seneviratne the Police Chief (IGP). Also under Jayewardene, A.S. Seneviratne became DIG (Metropolitan) and SSP Ronnie Gunasinghe who earned notoriety for political killings was his immediate subordinate (see Sect. 18.1 and 19.5).

Ana Seneviratne did not appear before the Sansoni Commission even though he was summoned. A senior civil servant suggested to him that he should appear before the Commission and clear his name. The IGP replied that President Jayewardene had told him not to appear. The Commission asked for and obtained the Police Information Books in Jaffna. But the Information Books in Kandy were refused, citing reasons of 'national security'. The Sansoni Report suggests that in Kandy even such a senior Tamil officer as SP Shanmugam was helpless and arrested mob elements were released. The violence in Kandy is attributed to the gangs directly under Minister E.L. Senanayake.

In Wattegama where the local MP was the former DIG and deputy defence minister, Mr. Werapitiya, all 54 Tamil shops were looted and burnt. A key active figure in Wattegama on the 19th of August was Cyril Fernando. He was reported quoting from Jayewardene's speech of the previous day -"If you want peace, it will be peace, if you want war..." An activist from the Movement for Inter-Racial Justice and Equality passed on the names of his father's killers to Werapitiya through some friends. He was later told of Werapitiya's refusal to take action against 'the boys' whom he said had worked hard for him during the elections!

Very little was left to the imagination after Ana Seneviratne was made IGP while his own actions were under investigation. One of the achievements of the Police during his tenure as IGP was the burning of the Jaffna Public Library. The burning of the very premises where the Commission commenced its sittings was a fitting epitaph to the whole Commission exercise. No action was taken against the many miscreants, including the notoriously indiscreet SP, Anuradhapura, who were identified by the Commission. This was no doubt a guarantee made in advance of the violence.   

It is under such conditions of impunity, as will be seen later in the book, that security officials tend to forget everything in their education and training and become arrogantly indiscreet. They become strangers to all the higher traditions of mankind, save the law of the tribe. The stage was set for the more savage communal attacks of July 1983.[Top]

2.9 The Strains on Judicial Integrity

Former Chief Justice M.C. Sansoni was clearly a man acting under pressure. The Commission itself became a forum for organised perjury against Tamil leaders, while the Report avoids any mention of the activities of the Sinhalese leaders.

 A number of witnesses trooped in and claimed that Mrs. Amirthalingam had said at several meetings that she would make slippers out of the skins of Sinhalese and she cannot rest until she swims in the blood of the Sinhalese. One such witness was the Ven. Nandarama Thero, the chief priest of the Naga Vihare, Jaffna, who claimed that the statement was made at an election meeting close to his temple on 4th July 1977. The police report of that meeting was called, and it showed that Mrs. Amirthalingam did not speak at the meeting. Pointing out that not in a single meeting has this charge against Mrs. Amirthalingam been backed up by a police report, Sansoni dismissed these charges as a ‘dangerous and evil conspiracy’.

Yet, time and again excerpts from these allegations have been reproduced in the Press, without mentioning that Sansoni convincingly refuted and dismissed them. The impression that is sought to be conveyed is that the Tamils are fond of leaders who make gory, threatening speeches.

These claims about speakers wanting to swim in Sinhalese blood and make shoes out of Sinhalese skins have been repeated by T.D.S.A. Dissanayaka in his War or Peace in Sri Lanka (p. 20). He says that these speeches were made by ‘callow youth’ from TULF platforms, but rumour attributed them to Mrs. Amirthalingam, and such reports triggered off the violence. He does not mention his source, but not a single police report has been cited in the Sansoni Report to show that such statements were at all made by anyone.

This is one of those instances where Sansoni showed the competent judge in him. He resisted attempts to frame and character-assassinate individuals and was sympathetic to individual victims. Another instance concerned Dr. J.T. Xavier, then surgeon at Trincomalee Hospital. His case illustrates the general vulnerability of Tamils in this system.

Dr. Xavier who was at Gampaha Hospital was interdicted on an allegation of bribery shortly after Mrs. Bandaranaike's government assumed power in 1970. No charges were served for 1 1/2 years. Then N.L. Jansz, retired judge-advocate of the Army went  into the matter and acquitted him. Even so, W.P.G. Ariyadasa, who was minister of health, sent him a letter saying that he was guilty. He was reinstated after 2 1/2 years. During his interdiction he read widely and later published a book on the common origins of Tamil and Sinhalese. This plea for national unity was interpreted as racism by several Sinhalese ideologues.

On 21st August 1977, three members of the family of Pushpa Jayanthi, a Sinhalese resident of Trincomalee, were shot dead by Tamil hoodlums. At Trincomalee hospital Dr. Xavier had Pushpa Jayanthi X-rayed and found that she had a compound fracture in the right upper arm where a pellet was lodged. There were no other pellets found that could cause injury to internal organs. While she was under treatment, the Police without informing Dr. Xavier transferred her to Kandy hospital. There she was treated by the surgeon Dr. Douglas Wickremasinghe.

Later, some interested group prevailed on her to say that she was deliberately neglected by Dr. Xavier, and also got several other witnesses to say so. Dr. Xavier's earlier incident at Gampaha was also brought up and he was charged by lawyers of the interested party with being an active Tamil racist and even a Tiger agent. Dr. Wickremasinghe too first stated before the Commission that he had removed two pellets from Pushpa Jayanthy distinct from the one embedded in the fracture, which Dr. Xavier was emphatic, were not there.

Later under cross-examination by Siva Rajaratnam, Dr. Wickremasinghe admitted that the hospital records he subsequently examined showed no evidence of the presence of other pellets. He also admitted that, this being a judicial case, Pushpa Jayanthy could not have come into possession of the pellets which she said were removed from her body. Sansoni dismissed the charges and exonerated Dr. Xavier. The case also illustrates the role played by cross-examination.

Those who defend Sansoni point out that the Commission and Sansoni himself were handicapped in many ways. The powerful team of Tamil lawyers led by Sam Kadirgamar QC and P. Navaratnarajah QC who appeared at the beginning of the sittings in Jaffna then dropped off, leaving the Tamil side weak on cross-examination. The State decided to intervene when it thought that things might get out of hand. Deputy Solicitor General G.P.S. de Silva who appeared for the State at the beginning, later dropped out citing personal reasons. He was considered a person who would have been uncomfortable about lowering his ethical standing. His place was taken by State Counsel A.D.T.M.P. Tennekoon.

Sansoni who earlier did not want to prolong commission sittings into 1979, unaccountably changed his mind. It was then that a host of Sinhalese groups and police officers came into the witness box to testify against Tamils and Tamil leaders. Many of them were persons whose record does not stand up to scrutiny. Their testimony could be found in the last 3000 or so pages of the record running into about 15,000 pages. Sansoni in effect reopened issues like the IATR conference of 1974 which he earlier said did not lie within his mandate.

There were also occasions on which the Commission received threats. We also learn that GA Vavuniya who had seen a good deal of mob activity sought a private audience with Sansoni. He pleaded on grounds of his safety to be exempted from testifying. Sansoni acceded to his request. A particular defence of Sansoni maintains that he was after all a judge who had to go by the evidence placed and supported before him. One of those close to him put it in this vein, "As a judge Sansoni may be guilty before the court of the people, but not before the court of the Law". Another instance illustrates the strain he was under.

At the close of the first chapter, Sansoni had already suggested that the cry for Eelam was the main cause of the August 1977 violence. He adverted to this again at the very beginning of Chapter VI on ‘Measures Necessary to Ensure the Safety of the Public and to Prevent the Recurrence of Such Incidents’. As though feeling uncomfortable that the case had not been argued adequately, he opened the chapter with the following:

"I have already expressed my views on the cry for Eelam raised by the TULF. The Ven. Madihe Pannasiha, Fr. Caspersz and many other persons have stated that it was the main cause of the disturbances. Therefore, the first measure I would recommend, to prevent a recurrence of the disturbances, is that this claim be abandoned."

This extract was given wide publicity and has ever since been cited with much satisfaction (e.g. V.P. Vittachi’s Sri Lanka, what went wrong, p. 63).

What is almost unknown is the fact that on 8th November 1980, Fr. Paul Caspersz said in a letter to Sansoni: “…I am disturbed at being made to appear that I ever took up the position that the cry for Eelam raised by the TULF was the main cause of the disturbances. This is not, and has never been, my view.” Fr. Caspersz also attached to the letter the relevant extract from the official verbatim record of his evidence before the Commission.

The correction was neither implemented nor publicly acknowledged and Sansoni’s claim above went into history with the name of Fr. Caspersz as a supporting authority.

Sansoni did acknowledge that in many instances the Police had failed to discharge its functions of protecting the victims and preventing incidents. Sansoni Report also called upon the Government to discuss with the TULF the areas of conflict it identified viz., education, employment and colonisation. This was lost as against the propaganda value of the Report.

Among the other positive recommendations of the Report was payment of compensation to the victims. Where matters stand to this day, is described in an article by S. Thambyrajah in the Weekend Express of 8th August 1998:

"From 1977 onwards, I along with several other victims, jointly and severally, have made several appeals to the government for payment of compensation for loss and damage to private properties in accordance with the commendation of the Sansoni Commission, without success. Separately, I have been writing letters to the press regularly which the media has so kindly published. (Sun 12.9.77, 18.2.82, 5.3.82, 4.6.82; Observer 26.1.81; Sunday Times 18.3.90 with a full investigation report; Island 19.8.94, 1.6.95; Sunday Observer 11.2.96; The Weekend Express 27.2.96, 8.8.97; Daily News 15.2.96, 4.8.97).

"In spite of all these governmental authorities have conveniently forgotten this subject of compensation to the 1977 victims."

Enough was conceded in the Sansoni Report for the TULF to call for a debate in Parliament and place its case on record. But they instead became paranoid over the strictures passed on them and ignored the entire report. The question of compensation too, was not pursued by them. Compensation for the victims was after all an important purpose of the Commission, and it was on a request by the TULF that the Commission was appointed. By washing its hands off the matter merely because of strictures passed on them, the TULF let down the victims badly. By ignoring the report, the TULF allowed the UNP government to bury the truth about the 1977 violence and plan for something more severe. This was unpardonable in a party elected to guide the destiny of the Tamil people.

Former Chief Justice Miliani Claude Sansoni was a man fighting a battle within himself. During the latter stages of the Commission hearings he remarked to a confidante gravely, "I have never before headed a political commission."

In judging Sansoni's report we must go beyond the individual and take into consideration the milieu in which he was working. In a context where the politics of the nation is wayward, and the executive both too powerful and thoroughly unscrupulous, to expect a good commission report on a matter involving high stakes, is to expect too much from individuals.

The strains on the judiciary have been evident for a long time – we have already mentioned in Chapter 1 the Supreme Court judgement on the Citizenship Bill.[Top]

2.10  ‘Sinhala Only’ and its Effects on Ceylon’s Legal Tradition

C. Kodeswaran was a Tamil officer in Ceylon’s clerical service, whose salary increment of Rs 10/= per month was suspended in April 1962. This was because he did not appear for a Sinhalese test which he was required to pass in accordance with a treasury circular of December 1961. The latter was issued in connection with implementing the Sinhala Only Act.

Kodeswaran filed action before the Colombo District Court contending that his rights under Section 29 of the (Soulbury) Constitution were being violated. Section 29 provided that Parliament could not enact any legislation which makes persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable, and similarly for privileges and advantages.

For example, one consequence of Sinhala Only was that a Sinhalese officer was exempted from learning Tamil to work in the largely Tamil-speaking North-East, while a Tamil officer generally functioning in his own language in the North-East was forced to learn Sinhalese. The case under Section 29 was quite clear.

In order to avoid an awkward hearing on the validity of the Sinhala Only Act, the Attorney General raised a preliminary objection, viz., that a public servant was not entitled to sue the Crown (i.e. the State) for arrears of salary.

O.L. de Kretzer who was then district judge, over-ruled the preliminary objection. de Kretzer also ruled in favour of Kodeswaran on the incompatibility of the Sinhala Only Act and Section 29, deeming the Act bad in law. The arguments will become evident in what follows.

Shortly after the judgement was delivered in 1964, the Attorney General appealed against it at the Supreme Court. The case was argued before a bench comprising Chief Justice H.N.G. Fernando and Justice G.P.A. Silva. The team for the Crown (Defendent - Appellant) was led by Walter Jayawardena QC, Acting Attorney General, who was assisted by H. Deheragoda and H.L. de Silva. The team for Kodeswaran (Plaintiff-Respondent) was led by C. Ranganathan QC.

The verdict was delivered in 1967 by H.N.G. Fernando CJ, setting aside the verdict and decree of the District Court (70 NLR 121). The arguments used are instructive and involved two stages.

Four years after capturing the maritime provinces of Ceylon from the Dutch, the British Crown declared by Royal Proclamation in 1799, that the system of justice in Ceylon will revert back to that which prevailed under the government of the United Provinces (i.e. the Netherlands). This provision was extended to the whole island in 1835. This meant that the Roman-Dutch Law was to be the basis for the common law in Ceylon. (By an almost contemporaneous proclamation, the Roman-Dutch Law was also made applicable to South Africa - then the Cape Colony.) The proclamation with regard to Ceylon made references to 'ministerial officers' and 'institutions' (of civil administration).

Under the Dutch administration, the relationship between the government and government servants possessed the legal characteristics of a contract of service, thus enabling the latter to sue the former for arrears of salary.

As the first stage of the judgement, it was concluded by Fernando CJ that the Proclamation of 1799 under the Governor, Lord North, did not intend to cover relations between the Crown and persons employed by the Crown. It was thus determined that these relations are covered by English common law, rather than Roman-Dutch Law.

It was held in this connection by Fernando CJ that the Privy Council judgement of 1884 in the case of Simon Appu v. Queen's Advocate for breach of contract, had set aside the precedents which favoured the Roman-Dutch Law. This was not quite the position. A short time before Simon Appu's case there was heard before the Supreme Court the case of Jayawardena v. Queen's Advocate. Both these concerned breach of contract rather than arrears of salary.

Up to the time of Jayawardena's case, the right to sue the Crown had the character of a "taken for granted law". But here the Queen's Advocate argued that suing the Crown was an "attempt to impugn the royal prerogative". In giving his ruling on this case, Chief Justice Cayley said, "To hold at this date, for the first time, that a practice, which has so long been sanctioned by the Courts and acquiesced in by the Government, is bad in law,...would [lead to] widespread confusion and many cases to injustice."

The question then arose whether the practice of suing the Crown in Ceylon arose from a Roman-Dutch source  (as had been held in two precedents from Ramanathan's Reports 1863-1868) or from Petitions of Right in English law. A successful petition of right would still in theory leave the Crown with the discretion whether or not to make restitution. (But there is a point in time where practice becomes law, and discretion void, as had evidently happened in England.)

In answering this question with regard to Simon Appu's case, the Judicial Committee of the Privy Council, on the basis of the knowledge at their disposal, were unable to decide with certainty that the practice of suing the Crown in Ceylon was founded on Roman-Dutch antecedents. But finding that the legislature (in Ceylon) has recognised and made provision for such suits at least twenty-eight years ago, the Privy Council held that "they are now incorporated into the law of the land". The correctness of the right to sue the Crown in Ceylon had thus been admitted.

The Supreme Court in its judgement in Kodeswaran's case played down the last conclusion of the Privy Council above (in 1884), and used mainly its inability to find conclusive antecedents in Roman-Dutch Law.  Fernando CJ thus concluded that Kodeswaran's right to sue the crown must be determined under English common law.

Having come to this point, the Supreme Court went into the second stage of considering an Indian case, since English common law, unlike in Ceylon, was the basis for the common law in India. The case in question was that of High Commissioner for India v. Lall that was heard before the Privy Council in 1948. Lall had been a civil servant who appealed against wrongful dismissal and sued for arrears of salary. The Privy Council in Lall's case relied also on the judgement in Mulvenna v. The Admiralty heard before the Scottish Court of Session in 1926. The Privy Council declared Mr. Lall's dismissal void  (and thus reinstated him), but also that he had no right of action for arrears of pay. The same was held by Fernando CJ to apply to Kodeswaran.

The Supreme Court thus set aside the District Court's judgement on this preliminary issue. H.N.G. Fernando CJ stated in his judgement that he had not called upon the Acting Attorney General to submit his arguments on the Sinhala Only Act, since the action had been decided on a point of a general law.

Kodeswaran appealed to the Privy Council in 1968 (72 NLR 337) and the case was heard before Lord Hodson, Viscount Dilhorne, Lord Pearson and Lord Diplock. Among those representing Kodeswaran were Sir Dingle Foot QC, Ranganathan QC and S.C. Crossette-Thambiah. Among those representing the Attorney General were E.F.N. Gratiaen QC and H.L. de Silva.

The judgement of the Privy Council was delivered by Lord Diplock on 11th December 1969, on the eve of the 1970 general elections, setting aside the Supreme Court judgement on the preliminary issue.

We summarise below the main thrust of the judgement:

1) It was the intention of the Proclamation of 1799 that the Roman-Dutch Law shall apply to public servants recruited on local terms. The reasons are three-fold:

(i) The Proclamation marked the re-introduction of the system of administration by local officials

     that had prevailed under the Dutch, the abolition of which, after the capture of Colombo and

     Trincomalee by the British East India Company had led to rebellion in 1797.

(ii) The British occupation was then (in 1799) deemed temporary. This was so until Holland ceded Ceylon to Britain under the Treaty of Amiens in 1802.

(iii) The legal character of a contract, which the Roman-Dutch Law ascribed to the relationship

       between the Crown and public servants in Ceylon, and recognised long in practice, had no

       incompatibility with the rights and dignities of the sovereign.

2.) The current of authority in English public law since early in the 19th century is that the arrears

     of salary of a civil servant of the Crown constituted a debt recoverable by Petition of Right. Lall's case on which the Supreme Court relied is not a good example because most of the argument in that case centered around the question of dismissal. Moreover, none of the pertinent earlier authorities on the question of recoverability of arrears was drawn to the attention of the Privy Council in Lall's case. Mulvenna's case of 1926 on which the judgement in Lall's case relied for the question of arrears, has not since been treated as correctly laying down the Law, and Lord Blackburn's judgement in that case did not have the concurrence of the other two judges.

        3.) While 1) and 2) above are interesting in themselves, the crucial question is what does the common law in Ceylon have to say on the subject? The right to sue the Crown upon a contract had long been "sanctioned by the Courts and acquiesced in by the Government". When its propriety was questioned in Jaywardena's case, it was Chief Justice Cayley's contention that it was too late in the day for him to declare the practice bad in law. He added that if the precedents and decisions upon which this Court acts are wrong, it must be left to the Court of Appeal to set them right.

However, when the Privy Council considered the question shortly afterwards in Simon Appu's case in 1884, they declared the practice incorporated into the law of the land.

It is this that is relevant to Kodeswaran's case and not the uncertainty about the derivation of the practice from the Roman-Dutch Law, which the Supreme Court relied upon as a point of departure. Indeed, had the attention of the Privy Council in 1884 been drawn to the passage from the work of the eminent early 17th century Dutch jurist Hugo Grotius, which contains the words that follow, their Lordships may well have ascribed the practice in Ceylon of suing upon a contract, to the Roman-Dutch Law:

"...we say that a true and proper obligation arises from a promise and contract of a king, which he  has entered into with his subjects, and that this obligation confers a right upon his subjects....."

                      -De Jure Belli ac Pacis, Book Three.

However, it may be difficult to trace the evolution of the practice of suing the Crown in Ceylon to the Roman-Dutch Law for a number of reasons. Combined with the paucity of records it had acquired the character of a "taken-for-granted" law. But the Roman-Dutch Law, which was the starting point of the common law in Ceylon, has been used over the years to find solutions to legal problems in Ceylon, resulting in the evolution of an indigenous common law. Thus if precedents for a proposition of law can be found in the decisions of the Ceylon courts themselves that are not inconsistent with the British constitutional concept of sovereign authority of the Crown, there is no need to look for precedents in English common law or to Dutch jurists of the 18th century.

The Privy Council declined to comment on the other issues (e.g. the Sinhala Only Act) since neither they nor the Supreme Court had heard any arguments on these matters, and thought it inappropriate to comment without the considered opinion of the Supreme Court of Ceylon.

It is worth noting the gravity of the Privy Council decision in favour of Kodeswaran. It had rejected the Supreme Court's contention on every key point. Ironically, it took the Privy Council in London to tell our judges, "Look, you have your own indigenous common law. The solution to your problem lies there and is quite unambiguous, having the authority of more than a hundred years!"

Thus by means of a tortuous argument the hearing on the validity of the Sinhala Only Act was circumvented. This was achieved, by the Supreme Court granting to Queen Elizabeth II, a feudal right that had become void in England for more than a century. The ruling, apart from being contrary to natural justice, rendered the Law nebulous rather than transparent.

With the case having been remitted by the Privy Council to the Supreme Court for a hearing on the validity of the Sinhala Only Act and the treasury circular, it should have got listed. We understand that it was not pursued by either side. One reason for it is that the treasury circular stopping the salary increments of those who did not pass the tests in Sinhalese had been amended in the mid-60s and all Tamil public servants received their arrears of salary. That was the time the Federal Party's support was being canvassed by both the SLFP and the UNP.

An important point is that the District Court's ruling the Sinhala Only Act void, had not been challenged by the State whether at the Supreme Court or at the Privy Council. In this sense the Act remained void in law, although the State decided to ignore de Kretzer's ruling at the District Court, giving a moral victory to those who were against the Act. It was left to the State to prove in a higher court that the Act was valid or to put its house in order. It chose to live with anarchy. Such an attitude worked towards debasing all aspects of the legal process. [Top]

2.11 The Culture of Impunity

The Privy Council judgement in Kodeswaran's case no doubt offended that influential section of the Sri Lankan (Ceylonese) intelligentsia who firmly believed that their independence and national sovereignty consisted in their freedom to enact laws that are bad, inconsistent and repressive. This was reflected in the early acts of the United Front (SLFP, LSSP and CP) government elected in 1970. Appeals to the Privy Council were stopped by the Minister for Justice, Mr. Felix Dias Bandaranaike (FDB). It was under his instructions that the treasury circular of December 1961 to stop the increments of those who did not pass Sinhalese had been drafted.

A new Republican Constitution was enacted on 22nd May 1972 that had removed Section 29 and where Parliament was supreme, so that  the courts could no longer reverse bad laws. One could see in these developments an obdurate, rather than a rational, response to the judgement in Kodeswaran's case.

The Republic of Sri Lanka at its very foundation in 1972 was marred by obscurantism, irrationality and intolerance. Instead of solving the manageable problems of the Tamil-speaking minority which existed under the Dominion (Soulbury) Constitution, the 1972 Republican Constitution exacerbated them by removing all tangible checks on the majority group in parliament.

The transition from the already questionable quality of reasoning in Chief Justice H.N.G. Fernando's judgement in Kodeswaran's case to retired Chief Justice M.C. Sansoni's reasoning in his Commission Report is a comment on institutional decay in the nation from 1967 to 1980. If the objectivity of Fernando was limited by the Sinhala Only Act, that of Sansoni was limited by the causes of violence advanced in Prime Minister Jayewardene's deplorable speech in Parliament on 18th August 1977.

Looking back, the Sinhala Only Act was another step in undermining the legal tradition, which began with the unconscionable Citizenship Bills. It was one bad law which set the tone for others which followed. What is incompatible with the independence of the judiciary must inevitably degrade the judiciary and lead to bad constitution making. It leads to strengthening the arbitrary powers of the executive at the expense of the people. Once the 1972 Constitution rendered conflict with the Tamils an inherent prospect, the United Front (UF) government became paranoid about everything the Tamils did, like holding the IATR conference in Jaffna, and lost its balance. It gave licence for police action with impunity, resulting in the disastrous event on 10th January 1974. Yet the UF government lacked the crudeness to organise or sanction communal violence. That kept some check on the situation.

With Jayewardene and his associates in the UNP being elected in 1977 to take possession of the powers and precedents owing to the 1972 Constitution, communal violence came to be used as a deliberate strategy in dealing with the Tamils. The events of July and August 1977 marked a giant stride towards total impunity. No action was taken even against the individuals identified by Sansoni - e.g. SP G.W. Liyanage, T.D. Gunawardene PC 5920 and Cyril Fernando of Wattegama.

There were indeed grave problems in the country. Both the Sinhalese and Tamils had to think about what was happening within their own community and where their leaders were carrying them. The Sansoni Report placed the blame largely on the Tamils and did not allow the Sinhalese to think.

Even as the militancy was gaining ground among the Tamils, those who believed in democracy among them remained active. The unofficial citizens' commission of 1974 presided over by Justice de Kretzer was a prime example of this. It challenged the government of the day and demonstrated powerfully to the Tamil people that there were those outside the community who stood for justice. It was a unique precedent that has since not been repeated in this country. As a guardian of judicial integrity, Justice de Kretzer goes down in the nation's history as a bright star against a darkening horizon.

Civil society in the South is to blame for failing to scrutinise the Sansoni Report in spite of its glaring deficiencies, and allowing it to be quoted frequently and selectively as a piece of impartial history. This silence contributed in no small way towards the worsening situation. By contrast no effort has been spared in discrediting reports of commissions appointed by President Kumaratunge which touched on matters which the ruling establishment found inconvenient.

A particular event is symbolic of the manner in which the UNP government under Jayewardene was closing the democratic options open to the Tamil people. The late Mr. K. Kanthasamy had given up his legal practice and attended every one of the Sansoni Commission hearings. His high expectations were disappointed when the report was published. He gave his notes to Mani Underwood, a fellow lawyer who had attended most of the sessions, and arranged for him to write a detailed response. Underwood had also appeared for Kodeswaran under Ranganathan QC in the Supreme Court hearing. The work was nearing completion when government sanctioned thugs entered his home in Borella during the July 1983 violence and committed his work to the flames.

Those who followed the Sansoni Commission hearings to the very end have no doubt that Kanthasamy and Underwood were the real heroes of the day. They stayed to the very end, Kanthasamy briefing Underwood, even as the team of Tamil lawyers thinned down to almost vanishing point. They remember an almost lone Underwood sticking to his post, thumping his fist on the table and going on with his cross-examinations, against well-organised opponents bent on turning the focus of the Commission. One observer compared Underwood with Livy's legendary hero Horatius Cocles, traditionally of the late 6th century BC. Horatius, first with two companions, and then alone, defended the Sublician bridge across the Tiber into Rome, against the Etruscan army. Kanthasamy, a bachelor who gave everything to the Tamil cause, disappeared after being taken in 1988 by the militant group EROS, for whom the gun had come to mean the sole adjudicator of power.

There is another aspect of the Sansoni Report that would strike the reader. It carried Sinhala Only to its logical extreme. On every point where a Tamil civilian overcame his natural fear and gave public testimony that pointed to culpability at the higher reaches of the State, his testimony was dismissed in favour of the official version. Some crucial testimony was accepted when it was backed by Sinhalese, such as GA, Jaffna, and SHS, Jaffna, but nothing more was made of it. Tamil leaders were treated like schoolboy truants. The Tamils had been reduced to ciphers. The violence of July 1983 also served as a warning to many Colombo-based Tamils who had been active during the Sansoni Commission.

A particular question would have naturally confronted this country with the coming of the 1980s, viz., had the key institutions of this country - the Judiciary and Police - become too debased to prevent the division of this country?  The impunity the Police enjoyed during the communal violence of August 1977 had a disastrous influence on the professionalism of police officers. In time many of them rose to top positions. Another notable attempt to pass off shoddy judicial work as authentic history pertained to the Welikade prison massacres of July 1983. As though it were not enough that the Tamils and Sinhalese should quarrel over ancient history, we were now in a situation of being unable to agree on modern history. The ground was fertile for the growth of a destructive force from among the Tamils, to assert its ascendancy by matching the State in meanness and obduracy. [Top]


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