Chapter
8
"...Strange
forebodings of ill, unseen and that cannot be compassed.
As, at the tramp
of a horse's hoof on the turf of prairies,
Far in advance
are closed the leaves of the shrinking mimosa,
So, at the
hoof-beats of fate, with sad foreboding of evil,
Shrinks &
closes the heart, ere the stroke of doom has attained it."
- Henry Wadsworth Longfellow, from Evangeline
8.1 The Marx Centenary Detainees
8.2 Government Blitz against Gandhiyam in
the ‘Independent’ Media
8.3 Rajasundaram: Legitimate Detention or
Prelude to Murder, Even Judicial Murder?
8.4 The Priests, Dons and Doctor Case
8.5 Dr. Tharmalingam and Kovai Mahesan
8.6 A Proposed Amendment to the PTA
8.7 The Killing
of Escaping Detainees!
Over the five years leading
up to July 1983, as indicated in the last chapter, the Judiciary had been
browbeaten and a clear message had gone down to judges who valued career
advancement. After the Referendum, it meant waiting a further six years for a
possible change of government. We now go into a few cases of how Tamil
detainees under the PTA were faring at the hands of this combination of the
Judiciary and the Attorney General’s department. This has a significant bearing
on the gory fate that overtook 53 of the detainees.
About 12 young persons
including Mr. Varatharajaperumal, a member of the academic staff of the
University of Jaffna, were produced before the Colombo Fort Magistrate S.I.
Imam on 21st June 1983. They had been detained in the neighbourhood
of Batticaloa on 1st April. On that occasion Varatharajaperumal who
was not attached to any group then, had conducted classes on Marxist theory on
the outskirts of Batticaloa for young members of the EPRLF as part of the Marx
centenary observances. The exercise books on which the youth took notes were
sent by the Police for translation as possible evidence of terrorist activity.
Also produced in Court was a
calendar for 1983 bearing the slogan
‘Victory to the Struggle for Eelam.’ State Counsel Sarath Jayasinghe told
the Court that some were caught while selling the book ‘Lanka Rani’, adding that the book and calendar had been sent for
translation. More time was asked to prepare charges. The counsel representing
the detainees demanded their release as no charges were forthcoming after 81
days. But order was reserved by the Magistrate for a further 7 days.
There is absolutely no doubt that the AG’s department knew that there could be no valid charges. ‘Lanka Rani’, a book published by Arular in 1978 had enjoyed a wide circulation. The story is based on Tamil refugees from the 1977 violence sailing to Jaffna from Colombo aboard the Lanka Rani and explores the theme of how the Tamils were led to the demand for separation. Even under the Sixth Amendment to the Constitution which was not yet in existence, it is hard to see how promoting the book could have been an offence.
Evidently, it seemed the
State had become so alien to the Tamil speaking people (25% of the populace),
that it had no trusted officials in the AG’s department or the Police to assess
what was being written in Tamil. To the State Counsel, mentioning the title of
a Tamil book seemed the equivalent of proffering a criminal charge. One is
reminded of how the university authorities at Peradeniya jumped to the
conclusion that Balasooriyan was a Tiger (Sect. 4.7).
On 29th June,
again the CID told the Court that they were unable to conclude investigations
since the Department of Official Languages had not sent a translation of the
printed matter. Magistrate S.I. Imam again refused bail for the detainees and
put off hearings to 13th July. On 13th July the Magistrate put off
hearings to 27th July for the same reason. This turned out to be the
day of the 2nd Welikade prison massacre.
The game here was clear: use
the PTA to detain indefinitely; whether there were valid charges or no did not
matter.
We mentioned in Chapter 6
that Ghandiam had already been targetted through the Press at the height of the
McCarthyite frenzy. Then the Sunday
Island of 28th November 1982 had as its lead item, “Red Barna, Gandhiyam Movement to be
Probed”, by Peter Balasuriya. It said:
“Informed sources said that President J.R.
Jayewardene will personally look into the activities of Red Barna, now involved
in community work in the Batticaloa District. The investigation follows a
request from Minister K.W. Devanayagam. The Minister, it is understood,
referred to the work of Red Barna in the Batticaloa District and Ghandiam in
the Jaffna District and wanted them investigated…Regarding Ghandiam, the
Minister of Social Services has been asked to make inquiries and submit a
report to the Government…”
This was pure innuendo, but nothing specific.
On the same day the Weekend carried a report titled “Probe on two foreign social groups here”
by Ranil Weerasinghe and Jennifer Henricus, full of wild allegations very much
in keeping with the spirit of the times. Some extracts from it follow:
“The Weekend reliably understands that the
probe was ordered by President J.R. Jayewardene after K.W. Devanayagam raised
the matter at a high level meeting. The organisation which is
Scandinavian-based is being probed by the Ministry of Plan Implementation under
President Jayewardene and the other operating in the North by the Ministry of
Social Services.
"One of the groups involved primarily in
rehabilitation work had very close links with the terrorist movement it has
been found. This organisation which is believed to be funded in part by church
organisations and from overseas is also believed to have benefited a great deal
from funds channelled to it by terrorists themselves.
"Several of its farms were under
surveillance and searched on several occasions by the Army after it had been
revealed that they provided hideouts, supplies and assistance to terrorists
being hunted down by the security forces.
"Members of this group were also found to
have brought down groups of foreign organisations to the North for what were
virtually ‘indoctrination’ classes on the alleged suppression of minority
groups in Sri Lanka.
"The Scandinavian organisation in the East
carries out subtle sabotage against government development projects.
"The organisation directly backed by
militant separatist groups is alleged to be recruiting youth only from Jaffna
for its projects.”
Rather than a news report,
the tone and contents of this item have the character of a poison pen letter.
The trial by media of Gandhiyam leaders had begun in November ’82, and in
retrospect, after the prison massacre, even a sentence of death had been passed
with Press complicity. This campaign was undoubtedly articulated by Jayewardene
himself on the advice of someone close to him. K.W. Devanayagam had little
reason to be excited about Gandhiyam’s work in the North, and in 1975, when the
UNP was in the opposition, had even co-operated with groups close to the
Gandhiyam in settling displaced Hill-Country Tamils around Batticaloa.
Jayewardene had Devanayagam’s undated resignation letter in his pocket, from 28th
October 1982, leaving Devanayagam with an unenviable choice if he were to
contradict the boss. It may also be noted that Devanayagam subsequently
accompanied Gamini Dissanayake in the meeting with government agents just
before the July ’83 violence where threatening noises were made against
refugees looked after by Gandhiyam in the Trincomalee District.
We may also note how the
private and ‘independent’ media were more effectively playing the role of the
UNP government’s hatchet men than the Government controlled media themselves.
This was particularly true of the Sun Group.
At the end of Chapter 3, we
made reference to the press report of 28th May which announced a
non-jury trial shortly for Gandhiyam leaders Arulanantham David and
Somasundaram Rajasundaram. The CID had then accused Rajasundaram of trying to
make peace between Uma Maheswaran of the PLOTE and Prabhakaran of the LTTE, and
having requested the French authorities to provide training to Tamil
youth. These charges were not backed by
tangible evidence and after a further 56 days of sleeping over them, the case
was brought to Court on 22nd July. Evidently, neither the judge nor
the senior state counsel believed that there was a case.
Senior State Counsel C.R. de
Silva told the Court that charges had [at last!] been framed against the
accused and requested the Court to serve them on the accused. David and
Rajasundaram were charged with ‘having
failed to disclose the whereabouts of terrorist leader Uma Maheswaran and
Thambapillai Santhathiyar, and interfering with the arrest of terrorist
suspects under the PTA.’
The two accused were
respected leaders among the Tamil community and it was three and a half months
since their arrest. It was well-known that Dr. Rajasundaram had suffered
injuries as a result of torture and moreover the case had created much
international interest and concern. In the meantime, there being no viable
charges, the two had been basely maligned in Parliament under parliamentary
privilege by leading ministers. A self-respecting judge should have made a
point by fixing the trial at the earliest opportunity and having the case
dismissed.
But this was not how Judge
Tissa Bandaranayake of the Colombo High Court chose to proceed. He said that he
was not in a position to fix a trial date as another trial was then on, in his
court! Asked about their counsel, the accused said that they would retain their
own counsel from the next date. Judge Bandaranayake fixed a calling date for 5th
September (5 months from arrest!) and said that he would then fix a trial date.
One concession the Judge made to the detainees was to issue an order
transferring them to fiscal custody at the remand section of Welikade Prison,
from their maximum security prison conditions.
Again the rationale seemed
to be to prolong detention through an extended trial over hopelessly inadequate
charges. Nearly all the judges who valued their career had got the message. The
accused were not transferred to remand custody. Perhaps they themselves did not
want to be separated from their companions. Five days after the court
appearance Rajasundaram was killed in the second prison massacre, and Senior
State Counsel de Silva’s role changed to one of leading evidence at an inquest
that was held solely for the purpose of covering up the State’s culpability. In
view of the role of the Judiciary in implementing bad laws without protest, the
intentions of the State as revealed in a press item on 12th June
(Sect. 8.7), and the circumstances of the Welikade prison massacre (Chapter
11); whether Rajasundaram was a victim in part of judicial murder remains a
moot question.
The accused in the case were
Rev. Singarayar, Rev. Sinnarasa, Rev. Jeyathilakarajah, Dr. Jeyakularajah and
Mr. Nithyananthan, a Jaffna University don and his wife Mrs. Nirmala
Nithiyananthan. The charges against them were under the PTA. The first two were
accused in connection with helping to dispose of money from the Neervely Bank
robbery, and the others were accused of helping to treat medically an injured
LTTE member (Seelan) without informing the Police of his whereabouts. The
arrests took place in November 1982 and the charges were served on 7th
February. But the trial was called in the Colombo High Court only on 23rd
June 1983.
This time Deputy Solicitor
General Tilak Marapone and C.R. de Silva wanted the trial postponed for a novel
reason. They said that Judge Robert Silva was to retire in 6 weeks and since
the trial cannot be finished before then, the changing of judges would cause
discontinuity. Marapone further said that the Court must first adjudicate on
the voluntariness of 5 confessions and must also establish the fact of the
attack on the Chavakacheri Police Station
(where Seelan is said to have been injured). The defence held that the
accused had been harassed for a long time and wanted the trial argued to a
close without delay under Robert Silva.
Mr. M. Sivasithamparam MP,
who was senior counsel for some of the accused protested at the unduly harsh
and humiliating treatment of the accused who were brought from prison in a
caged truck at 8:30 AM and were made to remain in the truck until the trial
opened at 10:00AM. He pointed out that such a show of security was unwarranted
given that the accused were not charged with anything remotely approaching
murder. Bala Tampoe, another senior counsel, made a spirited response to the
prosecution saying that it was inappropriate to bring up the issue of the judge’s
retirement now given that the charges were served four and a half months
earlier. He said that the accused had not committed any crime under normal law
and had since November been denied a chance to say what they had to say. Robert
Silva decided that the trial would commence on 27th June and asked
the prosecution to open the hearing.
This was not the end of
novelties. On 27th June, the prosecution comprising Tilak Marapone,
C.R. de Silva, Kanthilal Kumarasiri and Mohan Peiris arrived in Court and asked
for a postponement. Their reason: ASP Punya de Silva had suffered a heart
attack and was in the intensive care unit, as supported by a medical
certificate produced by them. Bala Tampoe objected, pointing out that there
were 20 witnesses and Punya de Silva’s presence was not crucial. He pointed out
that of the 5 confessions, two can be spoken for by ASP Chandra Jayawardena.
The retiring judge postponed the case by two months to 24th August.
Just over a month later four of the accused survived the second prison massacre
by a hair's breadth.
We may add here that Punya
de Silva made an almost miraculous recovery from his debilitating heart
condition and, more than 16 years later, saw the new millennium as DIG, CID.
This was a case that showed
the State to be at its most ridiculous. The two had been arrested after making
an appeal to the world over violence against Tamils in Trincomalee. By
stretching matters they could have been charged under the PTA with incitement –
a legitimate monopoly of the State and the Colombo press, apparently, going by
how the two behaved. But this would be to interpret legitimate protest by a
minority under attack as incitement. It is safe to assume that the State had no
intention of framing charges that would have of necessity been in the realm of
the ludicrous.
Habeas Corpus applications
were filed on behalf of the two, who were respectively president and secretary
of the TELF, on 6th July, by Mr. Rudramoorthy who represented them.
The two petitions before the Court of Appeal averred that the two gentlemen “were senior members of the Tamil Eelam
Liberation Front which has as its main aim the liberation of the Tamil speaking
people of Ceylon and the establishment of Tamil Eelam.” The application
said that Dr. Tharmalingam and Kovai Mahesan were generally interested in the
welfare of Tamil speaking people in Ceylon. In the application on behalf of
Tharmalingam were listed a number of incidents of violations by the security
forces in both Trincomalee and Jaffna districts. The application stated that
the 1st respondent DIG W.B. Rajaguru (then in Jaffna and recently
IGP) had taken no action to prevent the incidents in his area. It added that
both Tharmalingam and Mahesan were innocent of any crime, that Tharmalingam is
a vegetarian from birth and suffers from ailments needing constant medical
attention, and that Kovai Mahesan is a journalist of 15 years suffering from
blood pressure (Hemachandra Nanayakkara in the Daily Mirror of 7th
July 1983).
The bench comprising
Justices H.A.G. de Silva and Justin Abeywardene decided that the Court of
Appeal did not have the jurisdiction to release the two who were detained under
Emergency Regulations, but responded to the habeas corpus application by directing
the Attorney General through a member of his department to inform the Court on
18th July the whereabouts of the two detained. These two again had a
narrow escape three weeks later in Welikade jail.
While the AG’s department
and the Judiciary were going along with prolonging the detention of persons
whose opposition to the Government was broadly within a democratic framework,
and charges against whom could not be made to stick, the following report by
Peter Balasuriya appeared prominently in the Island of 12th June 1983 under the heading “Army Empowered to Kill Fleeing
Terrorists":
“The Prevention of Terrorism Act and the Criminal
Procedure Code are to be amended with immediate effect to give wider powers to
the Army to curb terrorism in the North and other pockets of terrorist
activities.
"According to the proposed amendments in
respect of terrorist suspects attempting to break jail or making a bid for
freedom, army personnel will be empowered to use force in the course of
apprehending them, even if it leads to their death. In the event of death, the
need for inquest proceedings are also[sic]
to be done away with. A report to the Attorney General’s Department on
the circumstances leading to the suspect’s death would suffice for further
action. These powers are to be made operative only in the case of [terrorist
suspects]. This proposal is now before the Government for approval…”
This proposal may seem
superfluous in the context as Emergency Regulation 15A came into force on 3rd
June when the PSO was brought into effect. This regulation enabled the disposal
of dead bodies without inquest with the perpetrators maintaining anonymity –
i.e. ‘the freedom of battle field’.
The new proposal is interesting because it was largely superfluous. It
addressed itself particularly to ‘terrorist suspects’ supposedly ‘breaking
jail’. Also envisaged was an army presence near the suspects.
The relevant context in
which this proposal was made was the transfer of Tamil detainees from army
custody at Panagoda camp to fiscal custody at Welikade jail. This was after the
Judicial Medical Officer, Dr. Salgado, examined Dr. Rajasundaram who was held
at Panagoda camp and confirmed that he had sustained injuries from torture. The
Court was petitioned and the other detainees too expressed a wish to be
transferred to fiscal custody. But the Ministry of Defence took it in bad
spirit as evident from the testimony of Don Kulasekera Perera Balasuriya (58)
who testified at the inquest after the second prison massacre in July. Mr
Balasuriya who was administrative officer MoD/dossiers and detainees, said that
charges of mistreatment made by the detainees were baseless, but the Government
had acceded to the transfer from military to fiscal custody. The transfers as
testified by him took place as follows: the first batch of 25 transferred from
Panagoda to Welikade on 3rd June 1983 and fresh detention orders
issued. Six detainees transferred on 6th June. The final batch of 27
was transferred on 14th June.
The proposal which surfaced
on 12th June appears to be a response to these transfers. Although
strictly speaking they were at Welikade under fiscal custody, a platoon of
troops was placed outside the gates ostensibly to prevent their escape. A
similar arrangement had been made earlier when suspects in the 1962 coup
attempt were detained.
A notable feature of the
proposal was its suddenness as though the Government suddenly realised that
there was an endemic problem of dangerous Tamil prisoners escaping. There was
no such problem. The prisoners were brought to the South into alien
surroundings. Escape was exceptional. Thambapillai Maheswaran had earlier
escaped from Panagoda and was caught. Most had no desire to escape. They were
political prisoners and were reasonably confident of being released through the
courts.
This sudden concern with
dangerous prisoners escaping was therefore totally unwarranted and the measures
of indemnity were extra-ordinary - extraordinary because if it were a question
of armed jail busting no one would question the use of arms to prevent it. Thus
the situation envisaged in the proposal dealt with hypothetical unarmed
escapees. Where the effect of this proposal differed from ER 15A is that “some of these powers are to remain in
force even after the Emergency is lifted.” This is to say the key
provisions would remain part of the law of the land under the Prevention of
Terrorism Act.
Under the PTA arrests could
be made without warrant and the detainees could be kept in undisclosed locations
indefinitely with no rules governing conditions of detention and interrogation.
Combined with the proposed amendment, it would have amounted to a licence to
murder. Perhaps the Government moved slowly because its human rights record was
coming under criticism worldwide after reports by AI and the ICJ. The Sun reported on 6th July, 19
days before the violence, that the Government is likely to make a series of
far-reaching amendments to the PTA. One might conclude that these intentions
were overtaken by events.
From the pointed reference
to ‘terrorist suspects’ and the essential superfluousness of the move, we may
infer that it reflected a state of mind within the ruling class rather than a
need – the same could have been done under a State of Emergency, that is,
nearly always. The rulers had decided that the most expedient way to deal with
‘terrorist suspects’ is to kill them, and the proposed amendments to the PTA
were a message to this effect. It is hard to resist the inference that this
state of mind is inseparable from the massacres at Welikade jail and the
broader violence in general. After all, the Tamils as a whole had been
repeatedly portrayed as being agents of terrorism while at the same time having
it good under the open economy.
Thus by 23rd July,
several trends were converging towards an extra-judicial blow-up. The
Government had apparently rolled up the political map in the South, and this
very success, combined with its authoritarianism, was making it more angry
about its lack of control in the North. Though having only minute resources in
comparison with the State, the very notion that there should be a ‘Gandhiyam’
trying to counter its own agenda drove the Government towards violent measures.
The courts were themselves acting as though they were unable to decide whether
their function was to try the so-called ‘terrorist suspects’ and release nearly
all of them or to prolong their detention under conditions of uncertainty. The
Judiciary and the AG’s department too must take a share of responsibility for
the harrowing fate of the detainees, if one grants that the State had given an
indication of its intentions and that detentions were being prolonged without
valid reason. Last but not the least, an illegitimate government was looking
for a diversion, and the main opposition and leading elements of the society at
large, swallowed the bait in an attempt, actively or passively, to demonstrate
their ideological conformity.
The indications are that by
the time Jayewardene gave the Daily
Telegraph his extra-ordinary interview, a plan had been discussed at the
highest levels and the wheels were moving. An indication of how the law
authorities, security forces and police would conduct themselves in the event
of a violent communal outbreak in which elements of the State took the lead was
contained in the episode of demonstrations against supreme court judges.
Although no one was physically hurt, the affront towards leading symbols of the
Law also contained in it the State’s contempt for the Law. It was widely known
that the demonstration was the work of UNP shock troops in the form of its
trade union, the JSS.
Jayewardene had an alibi,
having been out of the country. To the ministers it seemed to have been a
practical joke. When a man came forward as the organiser of the demonstrations,
the Attorney General could not make up his mind about proceeding against the
man. The Police were taking cover behind the fact that no one came forward to
give evidence – who would, when they knew the Government to be the culprit?
The
Sun
of 22nd June 1983 published Ranil Weerasinghe’s interview on the
subject with Edward Gunawardene, DIG of Police, Metropolitan Range. Gunawardene
said that names had been given anonymously implicating the governing party’s
trade union – the JSS. He thought that this could be the 'work of mischief makers who wanted to frame these trade union
activists'. He however conceded that there may have been a genuine
informant providing details.
Gunawardene knew how to talk
to journalists without seeming too partial. But where his investigations would
lead to was clear. The DIG Metropolitan in 1983 was the same officer during
whose presence in Jaffna in June 1981, its Public Library was burnt, and
governments had been careful about whom they put in charge of the Metropolitan
Range.
As for the thinking
concerning Tamil detainees that was surfacing in the highest circles at this
time, the killing of at least 20 detainees in Vavuniya on 2nd December 1984
provides a vivid illustration. This was the time the newly formed Media
Committee under Dr. Wickrema Weerasooriya, an Australian national and
brother-in-law of Gamini Dissanayake, was having its trial run. At a press
conference held at the defence ministry (Island
4.12.84) he announced that 32 terrorists were killed in two operations. 12 were
killed in army operations around Kent and Dollar Farms. (Surely the twelve were
not Tigers - who conducted a massacre there 3 days earlier and would not have
around when the security forces arrived!) In the second incident according to
Dr. Weerasooriya, 20 terrorists were killed (the BBC said 30) and 2 wounded
when terrorists attempted to attack the Northern Command HQ at Vavuniya. The
terrorists killed were said by Dr. Weerasooriya to be those under detention at
the camp who attempted to escape during the attack.
The purpose of the attack,
he said, was to rescue the terrorists detained at the Centre. The terrorists
from outside who launched the attack fled upon the soldiers opening fire. None
of them, he said, was killed in the attack. One soldier guarding the Command
Centre also died in the battle, he added.
The report above speaks for
itself. Doctor Weerasooriya, it is said, was removed from his media role not
long afterwards. About 3 weeks earlier Lalith Athulathmudali was in Vavuniya as
National Security Minister for the opening of the new JOSSOP (Joint Special
Services Operations) building. He was shown talking to captured 'terrorists'
who were said to be pouring out their heart to him in the manner of repentant
sinners.
Another report from a
survivor said that several of those killed belonged to the PLOTE. There was an
escape plan, it is said, which was leaked and several of the prisoners were
killed. Some were badly beaten. There was no attack from outside. This report
came from a survivor whose legs were broken. The incident is again a reflection
of the press item cited from the Island of 12th June 1983, and suggests that
such ways of dealing with the more spirited prisoners had become part of the
mental make-up of the system. What began with Tamils in 1983 became a flood
when dealing with Sinhalese youth from 1988.