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Home > Tamilnation Library > Eelam Section > Ethnic and Communal Violence : The Independence of the Judiciary - Timothy J Moore
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TAMIL NATION LIBRARY: Eelam
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This report was compiled by the author following a visit to Sri Lanka during the period the 4th to the 18th of June, 1983. Events reported in it are current as at the 17th of June, 1983. The author's original mission was to attend as the observer on behalf of the Commission at a trial in the High Court of Sri Lanka which was to have commenced on Monday the 6th of June. That case, which is dealt with later, specifically, in the report, did not proceed for the reasons outlined with respect to it. The writer felt nevertheless, that it was his duty to take the opportunity, whilst in Sri Lanka, of preparing a report commencing, in terms of specific instances, where the earlier report entitled "Ethnic Conflict and Violence in Sri Lanka" prepared by Professor Virginia Leary of the New York State University at Buffalo left off. That meant, in reality, a commencing time of August 1981 with respect to the specific events canvassed by this report. During the gathering of material for this report, the author had the opportunity of discussions with senior political figures in the government party (United National Party), the official opposition (Tamil United Liberation Front) and the major Sinhalese opposition party, and the principal government party before the 1977 election, (Sri Lankan Freedom Party). In addition, the author had discussions with a number of members of the Sri Lankan judiciary, the Attorney General (senior Crown law officer in Sri Lanka), senior police officers, senior members of the legal profession, representatives of various human rights organizations in Sri Lanka, people who had been detained by the army and members of the families of detainees, prominent citizens of Jaffna and Vavuniya and, most importantly, a disparate group of Tamil citizens in the northern province, particularly the Jaffna Peninsula, and a similar but perhaps less structured number of Sinhalese citizens from Colombo. Unfortunately, a number of people to whom the author sought to speak were absent from the country during most of the author's visit and he was unable to seek their opinions and comments. Of prime importance, in this respect, were the President of Sri Lanka, His Excellency J. R. Jayawardene and the Honourable C. S. Thondaman, Parliamentary Leader of the Ceylon Workers Congress party and the Government Minister responsible for plantation industries and a prominent political representative of the plantation Tamil population. It is also regretted that a number of other persons refused to meet the writer. In particular, an interview was refused by the Honourable T. B. Werapitya, the Minister for Internal Security, under whose Ministerial control the issuing of detention orders lies, and Brigadier Balthazar, the Commanding Officer of the Army detachments in the northern province. The author wishes to thank those who co-operated with him in his mission. Not all those with whom he held discussions are named, for to do so, in some cases, might result in prejudice to the continued physical or economic wellbeing of those involved. Tim Moore, LL.B., M.P., Member for Gordon (N.S.W.), |
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The mission which the author sought to originally undertake was to act as an observer at the trial of five accused persons on charges under the Prevention of Terrorism Act for failing to provide information to police with respect to persons who were suspected of being "Tigers". When the author applied for a visa to visit Sri Lanka, the nature of his mission, and the desire that he also examine , as far as would prove to be possible, general human rights and Rule of Law issues in Sri Lanka was set out to the consulate from which the visa was sought in the following terms:-
As the specific trial for which the author had travelled to Sri Lanka was not proceeded with during the author's visit, his attention was turned to other Rule of Law issues which, coincidentally, emerged significantly during his visit. This report traverses the current position with respect to tensions and conflict between the Tamil and Sinhalese communities in Sri Lanka and also deals with a range of Rule of Law issues of wider implications. In accordance with the statement made in the author's letter to the Sri Lankan Consul when applying for a visa, the author has not - except to the extent necessary for dealing with the general issues - sought to intrude into domestic Sri Lankan politics. |
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1. December 1982 Referendum to Extend the Term of the Current Parliament In 1980, Sri Lanka signed the International Covenant on Civil and Political Rights. Article 25 of the Covenant provides that every citizen shall have the right and opportunity "to vote and be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot guaranteeing the free expression of the will of the electors". The Constitution adopted following the election of the U.N.P. government led by now President Jayawardene in 1977 provided for a system of proportional representation rather than for single member constituencies. President Jayawardene, when speaking on the decision to introduce a proportional representation system for future elections said (Hansard Volume 23(23/9/77) column 1235):-
However, following the presidential election of the 20th of October, 1982, in which President Jayawardene was re-elected, early, for a further six year term, the political attraction of retaining the bloated government majority which had been obtained in 1977 became clear as this would permit amendment of the Constitution whereas a general election in 1983 might well not see the United National Party obtain the two thirds majority required by Article 82(5) for the amendment of the Constitution. The government therefore determined that the life of the parliament and the term of all sitting members would be extended for six years by a Constitutional amendment which would require approval at a referendum. In commenting on this concept, the Secretary General of the International Commission of Jurists is quoted in the newspaper "The Island" on the 28th of November, 1982, as saying:-
The referendum was carried with 3,141,223 votes in favour (54.66%) and 2,605,983 votes cast against (45.34%), on polling day December 22, 1982. From a list of nationwide voting that has been inspected by the author, the only area that overwhelmingly rejected the referendum was Jaffna where the vote was, approximately, 95% no and 5% yes with some 260,000 in total, cast on the Jaffna Peninsula. The Civil Rights Movement of Sri Lanka has published a critique of the referendum questioning whether it was, in fact "free and fair". This analysis, released in January 1983, in summary, alleges that there were serious defects both prior to the poll and on polling day. The Movement also draws attention to some statistical analyses in selected electoral districts that would appear, prima facie, to raise grave questions as to the accuracy of the count returned from those districts. With respect to the "conditions under which the campaign took place", the Civil Rights Movement of Sri Lanka instances the following five factors as "militating against the peoples' freedom of choice":-
The Civil Rights Movement reported events which concerned it relating to polling day under the following headings:- "(1) Illegal symbol display. The matters detailed in these criticisms would be such to cause serious concern as to the fairness of the polling. With respect to the voting patterns, the Civil Rights Movement states that:-
The report goes on to detail an analysis of some electoral areas in the following terms:-
The author shares the concern expressed by the Secretary General of the International Commission of Jurists about the desirability of use of a referendum to extend the term of the parliament and also is deeply concerned as to whether the referendum, in fact, was conducted freely or fairly and could be taken as representing an expression of opinion of the people of Sri Lanka. 2. 18 May, 1983 Parliamentary By-Elections On the 18th of May, by-elections were held in 18 of the 168 constituencies of the national parliament and in 50 local government bodies throughout Sri Lanka. The by-elections were called in those electorates held by government members in which the government had not obtained a majority in the referendum held the 22nd of December, 1982. One commentator in the Lanka Guardian (1/6/83) advances a series of alternative theories as to why the by-elections may have been called:-
Despite a devaluation some three months prior to the by-election and price increases in a range of essential commodities which substantially increased the cost of living, the United National Party government won 14 of the 18 by-elections. Petitions contesting the validity of the results have, however, been lodged with respect to all the results. What is of concern, with respect to these by-elections does not relate to their results but to a notice of motion given by the Honourable V. Perera, M.P., Minister of Parliamentary Affairs and Sports for a select committee to inquire into the by-election held in the Mahara constituency. This constituency is subject to petitions with respect to the result in which the U.N.P. candidate beat the candidate of the Sri Lanka Freedom Party by only 45 votes. This constituency was the one where a potential future leader of the S.L.F.P. had sought to enter the parliament. In the Far Eastern Economic Review (2/6/83) the commentator on the by-elections wrote:-
As there is an established legal procedure for dealing with petitions disputing election returns, the author considers it undesirable that such a parliamentary inquiry be pursued as it is both an implicit criticism of the judiciary who will be hearing the petitions and an apparent political pre-empting of any decisions that might be made with respect to those petitions. |
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1. Chronology of Relevant Events The author sets out below a selected chronology of relevant events (concentrating on more recent events) that have occurred which contributed to the communal conflict between the Tamil and Sinhalese communities in Sri Lanka. They commence after the final incidents discussed in the report of Professor Virginia Leary entitled "Ethnic Conflict and Violence in Sri Lanka": October 1981 - Three people (two army) killed in Jaffna. 29 April 1982 - Three supporters of the U.N.P. (two of them heading the party's list of candidates for the May local government polls) shot dead by "Tigers". August 1982 - Kuttimani and Jegan sentenced to death for the Neervely bank cash robbery. 17 August 1982 - Sri Lanka named by the U.N. Human Rights Committee as being one of 22 countries in which the practice of "political disappearances" is widespread. 20 October 1982 - Presidential election re-elects President J. R. Jayawardene. 14 November 1982 - Arrest of Father Singarayer, Father Sinharasa. 20 November 1982 - U.N.P. supporter in Punnalakadeuvan shot dead. 22 December 1982 - Parliamentary Extension referendum. 19 January 1983 - Mr K. T. Pulendran, U.N.P. organizer from Vavuniya electorate shot dead by unknown assailants. February 1983 - Following a Supreme Court Decision that Superintendent(1) P. Udagampola had seriously violated the fundamental rights of a Buddhist monk by seizing leaflets being handed out by the monk against the December 1982 referendum, a Cabinet directive was issued that the Superintendent be promoted from Class 1 to Class 2 Superintendent and the government paid the compensation and costs awarded by the Supreme Court against the police officer. 18 February 1983 - Police Inspector and driver shot dead at Point Pedro. 22 February 1983 - T.U.L.F. M.P., Mr M. Alalasundaram shot (not fatal) (Jaffna District Weavers Co-operative Society Limited - fraud allegations and corrupt dealings allegations) (Tigers). 28 February 1983 - Supporters of the "Tigers" set fire to two C.T.B. buses in Jaffna. 4 March 1983 - Five "Tigers" ambushed two army vehicles at Kilinochchi injuring five soldiers. 14 March 1983 - 16 huts of Tamil refugee settlers at Pankulam (near Trincomalee) burnt by government officials. The settlement is one assisted by Gandhiyam. 6 April 1983 - Arrest of Dr Rajasunderam of the Gandhiyam movement (Secretary). 8 April 1983 Arrest of Mr S. A. David, the President of Gandhiyam, in Colombo. 10 April 1983 - Death of Navaratnarajah in police custody. 18 May 1983 - Local council elections and attack by "Tigers" near Jaffna leaving two army personnel dead and approximately 160 houses damaged by fire after the army went on the "rampage". 4 June 1983 - Mr Thilagan, an organizer of the pro-government J.S.S. trade union and a U.N.P. candidate at the May Jaffna municipal election shot dead. 7 June 1983 - Over 40 soldiers from the Rajarata Rifles have deserted in protest because of the dismissal of four other members of the regiment who were involved in acts of arson and looting in Jaffna on 18 May, 1983, following an official inquiry during which they were found guilty of excesses. June 1983 - Sub-Inspector V. Ganeshanathan was promoted to Inspector Class 2 (with a special Cabinet statement announcing the promotion) 24 hours after a decision of the Supreme Court held that the actions for which he had been especially promoted out of normal seniority had caused a breach of the fundamental constitutional rights of Mrs V. Goonewardena, a former L.L.S.P. Member of Parliament. Early June 1983 - Call by the Honourable Festus Perera, M.P., Minister for Fisheries, to the militant youths to enumerate their grievances. 10 June 1983 - Posters calling upon the people to take up arms against the repression of the state have appeared overnight on the walls of Jaffna. 16 June 1983 - 22 year old man shot dead by military patrol when he failed to halt when ordered to do so at Nallur. No inquest was held into his death and a Defence Ministry Certificate was obtained to waive the inquest procedure. This certificate was obtained before the body was returned to relatives. 2.Jaffna - 18 May 1983 On the 18th of May 1983, 18 Parliamentary by-elections throughout the south of the country took place as well as the regular cycle of municipal elections. The "Tigers" had demanded that Tamils in the northern province boycott the elections for these local bodies, and the political aspects of this are dealt with elsewhere in the report. In order, however, to endeavour to enforce the boycott, a group of about eight "Tigers" attacked the Kantharmadam polling booth at 4 p.m. and exchanged small arms fire with the soldiers and police supervising the polling booth for about 25 minutes. This exchange left two soldiers dead and several policemen seriously injured. At 5 p.m. that evening a state of emergency was declared. Later in the evening, following a reconnaissance of the area of the Kantharmadam polling booth by helicopter, a large number of trucks and jeeps loaded with soldiers dressed in either uniform or civilian clothes entered the residential area surrounding the polling booth. For some hours these soldiers burnt houses and vehicles in the general vicinity of the polling booth and looted from the houses that they entered and damaged. Local estimates put the damage at 6.5 million rupees. One local source alleges that "64 houses, 3 mini-buses, 9 cars, 3 motor cycles and 36 bicycles" were set on fire during this vandalism by the army. The author had the opportunity of visiting the Pallam Road/Arasady Road area in the vicinity of the Kantharmadam polling booth and observing, first hand, the damage caused during this incident. The author also had the opportunity of discussing the incidents with a cross-section of local residents. Although the army has commenced disciplining the soldiers involved, the author understands that, to date, adequate offers of compensation for damage caused by these members of the armed forces have not yet been made to local residents who were attacked and dispossessed. A number of the local residents had produced written accounts of the activities of the army to be furnished to the police as a basis of a claim for compensation. One such account read:-
This person's estimate of his loss amounted to nearly a quarter of a million rupees. Similar stories were told to the author in varying degrees of severity of loss at all the premises he inspected. In a number of cases, the medical and psychological consequences to local residents are still being experienced. A number of families lost virtually the whole of the means of their livelihood. On the same day, during separate incidents in the centre of Jaffna, attempts were made to repeat the burning of part of the market area. This attack by a group of soldiers at approximately 8.30 p.m. on the evening of the 18th of May was unsuccessful. During an attack by some of these personnel attempting to set fire to the Jaffna Co-operative Stores, which is located opposite the Jaffna General. Hospital, there came a realisation that their actions were being observed from the junior doctors' quarters on the first floor of the hospital building. Small arms fire was then directed at these doctors and the hospital building. A junior member of the non-medical staff of the hospital was injured during this attack. 3 - Vavuniya - 1 June 1983 On the 1st of June 1983, "Tigers" attacked and killed two members of the Sri Lankan Air Force while they were in the local market area on what had been, the author was informed, a regular and predictable visit to make local purchases. The attack was both by small arms fire and explosives from inside one of the adjacent shops. In response to these murders, the locally-stationed members of the Sri Lankan armed forces set fire to the shop from which the attack had been made and the adjacent market area which is behind a row of shops facing Vavuniya's principal thoroughfare. The author has inspected the site of the attack and of the fires and it is obvious that it is most fortunate that the fire did not spread further and engulf more of the premises in the local market area. The damage, however, extended to some 16 or 17 small shops involving the burning of the method of livelihood and considerable portion (or, in some cases, the totality) of the assets of the traders involved. It was put to the author that the fact that the origin of the attack came from one of the shops which was burnt should be regarded as prima facie evidence of involvement of, at least, that trader in the actions of the "Tigers". The author was not able to discuss that proposition with the trader involved and hence makes no judgment with respect to the assertion. Moreover, the author considers that any such attempt at "justification" of the burning of the shops is specious. Principally, imposition of such "lynch mob justice" is repugnant to the Rule of Law. As a subsidiary issue, in addition, even if one were minded to accept that "justification" - which the author absolutely rejects - the shops and livelihoods of a considerable number of traders who could not, by any stretch of the imagination, be accused of complicity in the killings were involved. The author would hope that the government will make swift and adequate compensation for those whose buildings, assets or livelihoods were seriously affected. |
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(i) The North The General Position in the Northern Province The author was able to visit the Jaffna Peninsula and the town of Vavuniya during his visit to Sri Lanka. During these visits, he had the opportunity of discussing the present position in those areas with senior political and other prominent Tamil members of the community as well as with the senior police officer at each location. Despite the events dealt with elsewhere in this report under the heading"Events of May/June 1983 in the Northern Province", the author found both areas quiet and subdued. Notwithstanding the disquiet of the civilian population, and an obvious and understandable reluctance to be on the streets at night, there was no sign of any immediate tension in those communities. 1. The Army on the Jaffna Peninsula The author sought interviews with Brigadier Balthasar, the Army Officer Commanding the army contingent on the Jaffna Peninsula, Major General T. Weeratunga, the Commanding Officer of the Sri Lankan Army, the Minister for Internal Security and Deputy Minister for Defence, the Honourable T. B. Werapitiya, M.P., the Honourable R. Premadasa, M.P., Prime Minister and Acting Minister of Defence as well as the Secretary to the Ministry of Defence, Col. C. Dharmapala. The army officers and the Minister for Internal Security formally declined to see the author and the Prime Minister and the Secretary to the Ministry of Defence had not replied by the time the author had left Sri Lanka. One senior source informally indicated that a major discipline problem existed within the Sri Lankan Army as it had never, other than the 1971 J.V.P. insurrection in southern Sri Lanka, been involved in any form of conflict. As another person put it, "the army has never fought a war". Following the incidents of the 18th of May dealt with elsewhere in this report and the hooting of both senior T.U.L.F. Members of Parliament when calling on senior army officers in Jaffna to discuss these incidents together with, anecdotally reported, hooting of some senior army officers in Jaffna, a number of soldiers of the Rajarata Rifles Regiment were dismissed after an official disciplinary inquiry was conducted. In protest against this enforcement of discipline, a significant number (estimates ranging between 40 and 80) of other soldier members of the regiment deserted. At the time the author left Sri Lanka, a number of these had returned to their unit and were being held pending further disciplinary investigation. A major pro-government newspaper, the "Daily News", in Colombo, had also reported that five officers from this regiment had been cashiered for complaining about disciplinary action being taken against the soldiers following the events of the 18th of May. The author also understands, from reliable sources, that there is considerable unrest in the army over the possibility of postings to the Tamil areas (the C Jaffna Peninsula in particular). There is also a considerable additional financial cost to the government with one, unconfirmed (and thus accepted by the author as having no more value than hearsay) report that additional a money allowances were paid to soldiers taking postings on the Jaffna Peninsula. Reliable sources have informed the author that rotation of service and leave postings occur in such postings more frequently than is normal in Sri Lankan military practice. Some incidents of harassment of Tamil passengers on trains between Jaffna and Colombo have occurred, these being occasioned by army personnel going on leave. During the early period of the author's visit to Sri Lanka, the train service between Colombo and Jaffna was suspended because of acts of violence directed at trains and their passengers on the Colombo/Jaffna service, but these were not necessarily caused by army personnel. It would appear that the army and the government are now determined to discipline soldiers who are proved to have either "gone on the rampage" or to have opposed the disciplining of such soldiers if events during the author's stay are a definite indication of future policy. Certainly government spokesmen have indicated that is the case If so, the author believes that the government is to be ea-amended for this attitude. It is unfortunate that it contrasts with the attitude of the government discussed elsewhere in this report, apparently, with respect to police officers against whom there are court findings of violating fundamental rights guaranteed under the Sri Lankan Constitution. 2. The Police in the Northern Province During the author's visit to the northern province, he had the opportunity of meeting, in Jaffna, the Deputy Inspector General of Police for the Northern Range, Mr Rajaguru and two of his senior officers and, in Vaviyuna, the Superintendent of Police for that police district, Mr Herath. (a) Jaffna Of the police force in the Jaffna Peninsula, the author was informed that 85% of the officers and men stationed in the police stations in this area were Tamils. From the author's discussions with Tamil citizens in the Jaffna area, this fact is not sufficiently widely appreciated amongst the general community. Perhaps some of the confidence that is clearly lacking in the local police force might, in some small measure, be cured if this position were better explained to the local population. There is clearly, however, an increasing difficulty of lack of co-operation between the police force and the community within which it works relating to the prevention, detection and resolution of "normal crime" matters. Whilst it might be understandable - although unacceptable - to the author that there be a lack of co-operation with respect to "political" crimes and the activities and identities of the "Tigers", lack of co-operation with the police in the prevention and detection of petty theft and other "normal crime" cannot, in the long run, assist the maintenance of the Rule of Law - even should a political solution be found to the other overriding concerns of the local community. Overall, however, respect for the police appears comparatively high in the Jaffna Peninsula, although, undoubtedly, incidents of maltreatment of detainees in the hands of the police as instanced in the case of the youths whose deaths were investigated by the Parliamentary Select Committee chaired by the Honourable L. Athulathmudali, Minister for Trade and Shipping, which is dealt with elsewhere in this report and with the findings of the inquest into the death of Inthirarajah, which is discussed under the section of this report dealing with inquests into deaths in custody, have not assisted. All that being admitted, there does not appear to be any overriding pattern of systematic ill treatment of prisoners in the custody of the police - in distinct contrast with that which would appear to be the position with respect to the army. It would appear that there is a supreme irony in the current comparatively high standing of the police in the Jaffna Peninsula as it has been caused, to no small measure, by a single action by members of the army. Arising out of the incidents on the 18th of May during the aftermath of a "Tiger" attack on a local government polling station and the resulting burning and damage or destruction of a large number of civilian houses and property which was accompanied by some looting by the army (incidents which are dealt with at greater length under the discussion of democracy and elections over the period 1981/1983) there was made an attempt, by the police, to contain the fires. These police, led by D.I.G. Rajaguru were prevented, at rifle point, from doing so by the army personnel present. One account has a submachine gun prodded into the D.I.G.'s stomach. Whether this version of events is correct or not, and the author is of the personal opinion that it is at least substantially correct, it has passed into "truth" amongst the local community. The result of both the attempt to preserve their property by the police and the poor treatment by the army of the most senior officer of the police force in the province (particularly as that officer is, himself, a Sinhalese) has led to a wry affection for that officer and his men. It is unfortunate, perhaps, that that affection will not necessarily endure and has not, certainly, led to any stimulation in the level of co-operation with the police force in their normal law enforcement duties. Equally, there are some specific members of the police force for whom feeling is strongly antipathetic based on histories of personal conduct and actions with respect to people in their custody. This is undoubtedly reinforced by the apparent position that police officers who have taken action which is in support of government policy, even action later found by the courts to have been illegal may receive accelerated or apparently preferential promotional treatment. Although these aspects are dealt with elsewhere in this report, the fact that an adverse judicial finding may, apparently, stimulate promotional opportunities, has undoubtedly encouraged some of the limited number of less scrupulous police in the northern province. (b) Vavuniya The author was able to have lengthy discussions with the T.U.L.F. M.P. for Vavuniya and also with the Chairman of the local District Development Council who is also a member of the T.U.L.F. As well as these discussions, and some other less structured discussions with people from the local district, the author was able to have a comprehensive discussion with the Superintendent of Police for the Vavuniya district, Mr Arthur Herath. Following the incidents of the 1st of June (dealt with elsewhere in this report) including the murder of two members of the Sri Lankan Air Force and the burning of part of the Vavuniya markets, tension was high. However, the district was reportedly quiet at the time of the author's visit. The percentage of the local police force who were Tamils is of the order of 25% - significantly lower than that existing in Jaffna. A similar problem exists with respect to the almost non-existent level of co-operation between members of the local community and the police force when dealing with matters of "normal crime". (ii) The position in the eastern province Unfortunately, largely because of time restrictions, the author was unable to visit Trincomalee, the area in which tension existed at the time of the author's visit to Sri Lanka. There have been a series of incidents during the period of the author's visit, in which disturbances occurred at Trincomalee including the attempted bombing of the T.U.L.F. Member of Parliament, and, in a rare burst of politically-ecumenical thuggery, a virtually simultaneous attack on the U.N.P. political organizer for that area. An informal curfew was imposed, following a conference of police, armed services and local community leaders, so the author was informed, on the weekend of the 11th and 12th of June. This informal curfew, lasting up to 18 hours in a 24 hour period, has continued unabated until the author's departure from Sri Lanka. Indeed, shortly prior to the author's departure, unconfirmed sources (later found to be exaggerated) reported that three youths (two Tamil and one Sinhalese) had been killed in a clash with the armed forces in Trincomalee. This city and its surrounding districts-are particularly sensitive because of the perceived encroachment into traditional Tamil areas under the government's resettlement schemes which have been discussed elsewhere in this report. (iii) The Current Position in Colombo As was reported in the inquiry of the Honourable Mr Sansoni, who headed the special Presidential Commission of Inquiry into the 1977 communal disturbances, rumour of what has, or is alleged to have, occurred in the community of the Jaffna Peninsula with respect to Sinhalese there suggests pockets of disturbance in Colombo and the south. The number of killings, fortunately, has been small, but deaths have still occasionally occurred. For example, a Tamil doctor's house and dispensary was broken into and, in the resulting fracas, the doctor was murdered. Fran the public and private reports of the incident, the motives for the attack would appear to have been racial. More serious, however, has been the tension on the university campuses in the south between Sinhalese and Tamil students. In the Medical School in Colombo and the Engineering School at Kandy, there has been serious recent friction on racial grounds with Tamil students being driven from their classes and their student hostels. It seems a great pity to the author that members of the Sri Lankan community who have, apparently, the potential to become part of its intellectual and economic elite by virtue of professional training should descend to the level of the mob in these matters. |
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The author did not seek direct contact with the "Tigers" but understands that, on two occasions, oblique indirect contact was made with him on their behalf. On one occasion, the matter was not pursued and, on the other occasion, the author himself declined to pursue the contact. On neither occasion, in the view of the author, did the approach constitute information encompassed by Section 5 of the Prevention of Terrorism (Temporary Provisions) Act of 1979. (a) Number of "Tigers" Various "estimates" were offered to the author as to the number of "Tigers" carrying arms or prepared to do so - whether presently in Sri Lanka or elsewhere. These ranged between 25 and 1,200. It was obvious that no-one appears to know exactly how many "Tigers" there are. There are, however, two distinct and, at present, separately operating groups with similar methodology. Accepting the reservations with respect to accuracy of source information, the author believes it is reasonable to conclude that there are, at most, between 40 and 70 "Tigers" carrying arms, as a total of the two groups, in Sri Lanka at any given time. Further, the author believes that there are up to a further 450 to 700 persons who are in training, off the island, who are prepared to return and bear arms in what they and their supporters describe as their "struggle for Eelam". The author has no definite information as to the location of the bulk of the people who are off the island but, anecdotally, it would appear that the majority of them are in southern India. (b) Philosophy It would appear that the two groups might loosely be described as comprising a Marxist-oriented one and an anarchic one, although the evidence of this amounts to no more than hearsay arising out of posters and statements purportedly made on behalf of these groups and statements made by an organization called the General Union of Eelam Students at the University of Jaffna. This group states that they have no contact with the "Tigers" and reject their methodology but informed pro-government sources and also anti-government supporters of "Eelam" believe them to have strong links with one of the "Tiger" groups. (c) Tactics Not only do the "Tigers" attack members of the police and the armed services on a hit and run basis, but they also have obtained considerable public sympathy for what are perceived to be their "Robin Hood" acts of "social retribution". These are exemplified, perhaps, by attacks on the T.U.L.F. Member for Kopay following the controversy over the financial and trading records of the Jaffna Weavers Co-operative Society. It is also obvious that the two groups use their members in areas where they are not personally known and that they rotate their activists with periods on the island and periods off it. (d) Support (i) Within the Northern Province There is no doubt that the "Tigers" enjoy widespread passive support amongst a considerable portion of the population in the northern province, particularly on the Jaffna Peninsula. That support, however, simply extends to not complying with the provisions of Section 5 of the Prevention of Terrorism (Temporary Provisions) Act which places an onus on members of the public to give information concerning the activities of members of organizations such as the Tigers to the authorities. The level of active support, amongst the general population, in providing food and shelter, would seem to be very much less. But a cautionary note needs to be sounded here. It became obvious to the author that the more occasions upon which the army brutalised detainees in its custody and released them, after lengthy periods of detention, without charges being laid against them, the higher the sympathy level in the communities from which those detainees cane was for the activities of the "Tigers" and, possibly, the higher the likelihood of active support being given to them. (ii) External Governmental Support During the author's discussions, he had the opportunity of asking whether it was felt that the "Tiger" groups were being officially supported by governmentally-associated organizations off the island. Theories that were advanced to him included, as the alleged mentors of the "Tigers", the K.G.B., the C.I.A., the Indian Government and the Libyan Government. The author, on the evidence available to him discussed below, comes to the tentative conclusion that neither "Tiger" group is externally armed or financed on a governmental or quasi-governmental basis. By way of preliminary comment, the author wishes to make it clear that, during his early working life, he was both a member of the Australian Army Reserve and worked, for a period of time, in the mining industry with explosives and has some (limited) formal technical training with the manufacture and use of explosives. The level of sophistication of explosives used by the "Tigers" and their apparent lack of knowledge of simple techniques relating to shaped charges, for instance, indicates a law level of training and expertise in this area. Similarly, from information available to the author, the weapons used by them appear to be principally - if not exclusively - those stolen from raids on police or military installations. The tactics, additionally, appear to display none of the military sophistication that one might associate with other groups of so-called "freedom fighters" such as the P.L.O. or the I.R.A., with whom the supporters of the "Tigers" would seek to have themselves grouped. |
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"Tamil Grievances"
1. Language Article 18 of the Constitution provides that the Official Language of Sri Lanka is Sinhala and Article 19 provides that the National Languages shall be Sinhala and Tamil. Whilst, theoretically, both languages may be used throughout the government service and may be used in parliament, local government, official documents and the like, in practice the status of the Tamil language has remained a significant grievance amongst the minority community. Despite, indeed, the statutory provisions with respect to equality of the languages, the practice has, in reality, been much less. The government is to be commended, should the actions promised be carried through, for its announcement during the author's visit of positive steps to assist overcome language problems. In the Daily News (14/6/83) steps to remove language tensions are reported:- "President Jayewardene has ordered the formation of special Tamil units in every ministry to provide Tamil translations to Sinhala letters sent to Tamils," Home Minister K.W. Devanayagam said. He said the cabinet was agreed that all letters sent to Tamils should be accompanied by a Tamil translation. Many ministers felt the non-implementation of the Tamil language provisions was the main irritant antagonising the Tamils, he said. He added that although Tamil had been made a national language under the 1978 constitution, it was not implemented due to administrative constraints like the non-availability of Tamil translators and typewriters. The special Tamil units would overcome this problem. The minister said he himself was annoyed when he received official correspondence in Sinhala as he had to call someone to read them for him. 'You feel that you are suddenly made illiterate', he said. Mr Devanayagam said he was happy that President Jayewardene and his cabinet colleagues were very understanding. 'On the policy level all are agreed that the Tamils should transact their work with the government in their language. On the administrative level it is not yet possible. We will get over that hurdle soon,' he said." The author has been informed that Tamils corresponding with the government in their own language frequently receive letters in Sinhala or discover that their correspondence is simply ignored. 2. Economic Allocation The author had the opportunity of visiting the Jaffna General Hospital and observing the conditions under which the medical and nursing staff performed their duties. It was later suggested to the author by informed local commentators not members of the hospital staff that the central government discriminated against this hospital, compared to other general hospitals in the health services of Sri Lanka with respect to the per capita economic allocation for equipment and capital expenditure as well as with respect to running costs. Similar complaints, in respect to other aspects of resource allocation in education and other areas were made to the author. Whether this is true or not, the government has either not applied principles of equity in its economic allocations or it has failed to adequately explain the equity of the budgetary allocations. 3. Education - The education system discussed in the report of Professor Leary in which a basically racial quota system for admission to tertiary institutions was discussed is still in operation. As the Tamil population has, historically, always sought to strive for education to, arguably, a greater degree than the general Sinhalese population, this quota system remains a continuing source of friction. 4. Regionalization - District Development Councils First established in 1981, District Development Councils have assumed the functions of the village and urban councils which they replaced. These councils, which were meant to provide a political solution to the demands for some form of regional autonomy in the north and east, have also been given some minor additional functions and have been given a District Minister from the central government as, effectively, the unelected head of the body. The councils have received no additional central government funding for their new role. The result is that, in the Jaffna Peninsula, apart from the donation by the areas' Members of Parliament of the "discretionary sum" assigned by the central government to each member, there would have been virtually no funding, other than rate revenues locally raised. As an experiment in effective decentralization of power, they have been an abject failure. Unfortunately, their failure, after so much having been promised for them, has simply exacerbated disbelief of the stated intentions of the central government to resolve the grievances of the Tamils in the north and the east with respect to a level of power sharing. 5. Jaffna Library On the 1st of June, 1981, the Jaffna Municipal Library was burnt during the communal disturbances. With it went not only a major library and reference collection but also significant irreplaceable artifacts and texts relating to Tamil history and culture. The author had the opportunity of visiting what remains of the library and inspecting the rebuilding programme. A major grievance to a community which prides itself on its education is the slowness of this rebuilding process and the apparent withholding of significant sums of money donated for the rebuilding of the library by the central government. 6. Mahaveli Development Governments of Sri Lanka, assisted by substantial overseas aid, have embarked on a series of major hydro electric and irrigation schemes using the waters of the country's largest river system, that of the Mahaveli River. Part of the scheme is being used to open up many hundreds of thousands of acres of previously low cultivation land to levels of intensive cultivation experienced on better quality land elsewhere on the island. Tamils in the Vavuniya District and parts of the eastern province have reservations over aspects of this scheme which they fear will discriminate against them. The author is unable to judge whether those fears will become reality as he was unable to seek a meeting with the minister responsible for the scheme. The fears are:- (a) that, at a particular future stage in the scheme, when a governmental choice must be made as to whether a diversion of waters for irrigation is made north or north-westward toward the Vavuniya District or southward into areas which might be available for Sinhalese settlement, the government will not take a decision favouring the Tamil area. The author has no knowledge of whether the Vavuniya alternative is technically feasible, economically feasible or socially desirable. He simply wishes to record that this fear of discrimination, whether real or imagined, needs to be allayed as it may well increase the tension between the two communities particularly as the Vavuniya District abuts Sinhalese districts; and (b) that the irrigation projects will be used to resettle large numbers of Sinhalese families in what have been traditional Tamil districts and, more particularly, electorates. Apparently, it is believed that resettlement of Sinhalese in the eastern province has, in part, contributed to the dilution of T.U.L.F. parliamentary-representation in the area resulting in the government party (the U.N.P.) now holding three electorates in the eastern province. These feelings, with respect to resettlement, have undoubtedly contributed to the tensions in Trincomalee during the author's visit to Sri Lanka.
The proponents of Tamil Eelam argue that the northern and eastern of the nine provinces of Sri Lanka coincide with the historic boundaries of the kingdom of Jaffna and argue a case that seeks to establish that sovereignty over these territories was never ceded to any conqueror and that, even if such concession had been made at any time in the past, the unilateral renunciation of links with the United Kingdom which took place at the assumption by the government of Mrs Sirimavo Bandarianake's government in 1972 resuscitated the Tamil sovereignty which had merely lain dormant until then. This argument is put, comparatively succinctly, by Mr R. Balasubramaniam, a Tamil Attorney-at-Law from Jaffna who wrote of it, in the Jaffna-based "Saturday Review" newspaper, on the 19th of February, 1983. This argument is reproduced in Appendix 1 to this report. In the abstract theory of international law, it would appear that the Tamils have, at the very least, an arguable case, and possibly, a sustainable one. The niceties of the abstractions of what might be considered metaphysical international law are, however, in reality, not in line with the factual position. The political reality - both within Sri Lanka and within the world community - must be that the sovereignty argument fails. During any political discussions for the resolution of the difficulties in the relationship between the Tamil and Sinhalese communities, the very most that the Tamil people can seek is a symbolic acknowledgement, if the government is prepared to make it, that there has been, in the past, a right to sovereignty which is now subsumed in the integrity of the Sri Lankan nation. To argue, politically, economically or, indeed, socially, for a separate nation state of Tamil Eelam is to fly in the face of the reality that the two communities and their economic, social and physical infrastructure are inextricably interlinked. To seek to separate them would do grave damage to the interests of each of the separate peoples. More importantly, in terms of the world of reality, virtually all of the significant cross-section of the leadership of the Tamil community with whom the author had discussions in both the north and Colombo concede that a separate nation could not be a reality and that the desirable political solution, which is obtainable with goodwill in each of the communities, would be based on forms of regional or federalist provincial autonomy using systems such as the Swiss, West German, Canadian, United States or Australian forms of government as possible models. It is significant that these leaders will admit that the claim for a separate nation is an "ambit" one, as this confronts the resolution unanimously adopted at the First National Convention of the Tamil United Liberation Front held at Vaddukoddai in May 1976 which said, inter alia:-
It is therefore important to realise that, in reality, there is little support for any real demand for a separate "Tamil Eelam" amongst the leadership of the Tamil peoples in Sri Lanka. Both in Colombo and in Vavuniya, the author had the opportunity to meet representatives of the Gandhiyam movement, a non-political, non-racial and ecumenical movement involving both Tamils and Sinhalese in the resettlement of Tamil refugees from the hill country. The movement had continued work commenced by the Tamil Refugee Resettlement Organization in both the Vavuniya and Trincomalee districts. The village settlements were designed to make these previously economically disadvantaged Tamil families self-sufficient on small lots of land. It would appear that some sections of the government service regard the Gandhiyam settlements as havens for the "Tigers" and view the Gandhiyam movement, itself, with grave suspicion. On the 14th of March, 1983, 16 huts occupied by Tamil refugee families at Pankulam, in the Trincomalee area, were attacked by members of the government service and burnt. On the 6th of April, Dr Rajasunderam, Secretary of the movement, was arrested and taken into detention under the Prevention of Terrorism Act, 1979, and this was followed by the arrest of Mr S. A. David, President of the movement, on the 8th of April. The author has had the opportunity of discussing the treatment of these two detainees with persons closely associated with them and there appears to be little doubt that they are being accorded the same regime of ill treatment whilst in the custody of the armed services that the author details elsewhere in this report. During the incidents which took place in Vavuniya on the 1st of June, service personnel destroyed a farm and children's home operated by the Gandhiyam movement at Kovilkulam, about one and a half miles from the centre of Vavuniya. The author had a brief opportunity to visit the farm and see the burnt-out buildings and equipment. Twelve farm workers were taken into custody for a short period of time for questioning at the army camp and the Gandhiyam office in Vavuniya was also attacked. The author discussed the operations of the movement with a wide range of people in Sri Lanka and comes to the conclusion that it is not involved in politics or with the "Tigers" but is a genuine social service organization. The Sinhalese suspicions with respect to its resettlement activities appear to arise more from increases in Tamil populations in areas close to Sinhalese settlements than from any legitimate grievance about its activities.
In addition to the initiatives with respect to language mentioned earlier in this report, a series of significant speeches were made by prominent government members calling for peaceful solutions to the communal problems. In the Sun newspaper in Colombo (9/6/83) the Prime Minister, the Honourable R. Premadasa is quoted as saying that "the bullet was not the answer to terrorism in the north which had to be solved by attending to the economic needs of the people". The same article quotes the Honourable Festus Perera, Minister for Fisheries, as admitting that the youth in Jaffna had "genuine grievances" and he identified areas of "education, development, employment, language and necessary powers and funds" as being major difficulties. The Sunday Observer (5/6/83) carries a report that Rs 700 million had been set apart from World Bank aid for the development of accelerated programmes in the Mannar and Vavuniya districts in the northern province. These projects are to provide, it was announced, a series of irrigation and electricity schemes together with improvements in health and education services which would also be accompanied by a wide ranging series of agricultural, forestry and fisheries projects. A small minority of the members of the Tamil community with whom the author discussed these initiatives sought to dismiss them as tokenism. It would appear that they may amount to a new commitment by the government to the problem of the northern and eastern provinces. If the promise of the Prime Minister in his remarks cited above that:-
is fulfilled, then significant progress will have been made in the resolution of the communal grievances. |
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1. Independence of the Judiciary (i) Demonstration against Supreme Court Judges Following the decision with respect to the breach of the fundamental constitutional rights of Mrs Vivienne Goonewardene, a former L.S.S.P. Member of the Sri Lankan Parliament (which is discussed elsewhere in this report) a demonstration occurred on the morning of Saturday the 11th of June outside the homes of the three judges of the Sri Lankan Supreme Court who had handed down that decision. The demonstrators, apparently 200 in number at each location, allegedly travelled in buses bearing identification of, and purportedly belonging to, the Ceylon Transport Board, the government-run public bus enterprise. Each of the demonstrations involved the carriage of placards attacking the judges over the Vivienne Goonewardene decision. At one location, at least, obscenities were shouted and one person threatened to throw a paving stone but was restrained by his fellow demonstrators. In the instance of the demonstration against Mr Justice Soza, the information of the demonstrators was quite clearly out of date as the judge had moved from that address some three years earlier. A most serious aspect of these demonstrations is the impossibility that the judges found in obtaining assistance from the police with respect to the demonstrations. In the case of the demonstration outside the former home of Mr Justice Soza, an altercation arose with respect to the demonstration with students at an adjacent hostel resulting in some minor physical violence. However, when police assistance was directly sought with respect to this, it is reported that the officer attended, saw the nature of the demonstration (and apparently its participants), and declined to take the matter further. Additionally, two of the judges attempted to phone the police emergency number to request urgent assistance. It appears that, throughout the relevant period of about four hours, the police emergency number was "out of order". One of the judges, however, Mr Justice Ratwatte, is reported to have had the number answered, on one occasion. After he announced who he was, the answerer of the telephone inquired of a third party as to what should be done. The judge was then informed that he had run a "wrong number". In the opinion of the author, these events amount to an outrageous attempt to intimidate the judiciary in the course of its duties. On the morning of Monday the 13th of June, the judges of the Supreme Court, without one of their judicial brethren who was 'on circuit', met to consider the matter of these demonstrations. That meeting, after a considerable time, adjourned until the following day to permit the absent judge to participate in the discussions. On that following day, after a meeting of the judges lasting two hours, the Chief Justice issued a statement on behalf of all the judges of the Supreme Court. That statement read:
The author had the opportunity of consulting with the Chief Justice, Mr Justice N. Samarakone and several other judges of the Supreme Court. Condemnation of the incidents outlined above has been universal and politically-ecumenical in the Sri Lankan community. Editorials ranging from the press of the Communist newspapers through to those of government-owned newspapers unanimously condemned these attempts to intimate the judiciary. The Prime Minister, the Honourable R. Premadasa M.P., issued a statement following a meeting of the Cabinet on Wednesday the 15th of June, that the government would instruct the Inspector General of Police, that is, the officer in charge of the Sri Lankan police force, to undertake a rigorous investigation of the incidents, no matter who was discovered to be the culprit, in order that the matter be appropriately and publicly resolved. The author also had the opportunity of a lengthy discussion with the Honourable Nissanka Wijeyeratne, M.P., Minister of Justice, on the subject oh the afternoon of the Prime Minister's announcement. He intimated to the author the government's extreme concern over the incident and its determination to see that it is impartially and rigorously dealt with. As one of the judges against whom these demonstrations were mounted, Mr Justice Colin-Thome, is also one of the two judges subject to an investigation by a parliamentary Select Committee which is discussed elsewhere in this report, the author is of the view that it is imperative, for the public perception of the independence of the judiciary, that this investigation by the Inspector General of Police be vigorous, public and swift. The author was asked to comment from the point of view of the International Commission of Jurists, with respect to these incidents and the thrust of statements made is reflected by one which appeared in the Colombo "Sun" of Tuesday the 14th of June which read as follows:
The author has formed the view that the response of the judiciary to these demonstrations has been the opposite of that which was sought by their instigators and that the entirely unintended effect of strengthening the independence of the judiciary in Sri Lanka will be the outcome. That this is unintended, is obvious. That it is desirable, is manifest. (ii) Select Committee into Judges Following the defeat of the Sri Lanka Freedom Party government led by Mrs Bandaranaike in 1977, legislation was passed establishing a Special Presidential Commission of Inquiry to inquire into alleged "abuses" and "misuses" of power by members of the former government. The Inquiry principally dealt with the allegations made against Mrs Bandaranaike and Mr Felix Dias Bandaranaike, former Minister of Justice in the S.L.F.P. government. In 1982, Mr Felix Dias Bandaranaike filed an application against one of the members of the Special Presidential Commission of Inquiry, Mr Justice K.C.E. de Alwis alleging that the judge was "guilty of misconduct in that he had entered into a financial transaction with a person in respect of whom an inquiry was pending before the Commission". An order was sought preventing the judge from sitting as a member of the Commission of Inquiry. In October 1982, the Sri Lankan Supreme Court ruled in favour of the applicant. The Chief Justice, Mr Justice Samarakoon, held that the judge had not been guilty of misconduct but that the conduct was inappropriate. Mr Justice Wimalaratne and Mr Justice Colin Thome held that the judge had been guilty of actual misconduct. Following the decision, the now former judge K.C.E. de Alwis wrote to President Jayawardene alleging that the findings against him were unfair and that the two judges who had made a finding of "actual misconduct" were prejudiced against him and making a series of further allegations, including that the application by Mr Felix Dias Bandaranaike had been prepared in the chambers of Mr Justice Colin Thome. On the 8th of March, 1983, the Sri Lankan Parliament carried a motion to suspend standing orders and a motion was carried to set up a select committee to investigate the allegations against Mr Justice Wimalaratne and Mr Justice Colin Thome. At the time of the author's visit, the select committee which is being chaired by the Honourable Nissanka Wijeyratne, M.P., Minister for Justice and minister in charge of the administration of the court system was still proceeding. The author is of the view that the establishment of this committee cannot assist in maintaining public confidence of the independence of the judiciary from political interference. Whether or not the committee investigates its terms of reference in a fair and impartial fashion, there can but be the suspicion that supervising the judicial conduct of the bench rather than its personal conduct might be an underlying aim. An interesting sidelight of the establishment of the select committee arises from proceedings for contempt of court taken by Mr S.R.K. Hewamanne, a member of the legal profession, who petitioned the Supreme Court in respect of the report of the notice of motion to establish the select committee which appeared in the government-controlled Daily News as being in contempt of court. The author had the opportunity to listen to concluding argument before a five justice bench of the Supreme Court in this case. Counsel for the petitioner was arguing that the offence of contempt of court was sui generis and was not either a "civil or criminal proceeding" which are subject to exclusion of jurisdiction by the absolute nature of parliamentary privilege and the specific terms of the Sri Lankan Parliamentary Papers Act. Counsel for the editor was arguing traditional defences with respect to fair and accurate reporting of parliamentary proceedings, parliamentary privilege and the like. At the time of writing, the decision with respect to this application had been reserved but not delivered.
(i) General In the first half of 1978, the Parliament of the Republic of Sri Lanka passed a law entitled the Proscribing of Liberation Tigers of Tamil Eelam and other Similar Organizations Law, 1978. This specific measure which, in its preamble, stated
as the reasons for the enactment. In 1979, Sri Lanka's Parliament passed the Prevention of Terrorism (Temporary Provisions) Act, 1979, of which Clause 29 provides that the Act should only operate for a period of three years from the date of its commencement. The Review of the International Commission of Jurists, No. 29 of December 1982, says, inter alia, when dealing with amendments to the Prevention of Terrorism (Temporary Provisions) Act:-
Contrary to this recommendation recent amendments made to the Act have enlarged its application. In March 1982, an amending Act deleted Section 29 of the Act which limited its operation to a period of three years, thereby making the Act permanent. Further a new Section 15A was added which states that
The new Section empowers the executive to transfer a remanded prisoner from the prison where he is held to some other place of detention. The reasons for and the use being made of this new Section are not known, but in principle it appears objectionable." (ii) Detention Under the Prevention of Terrorism Act Under the provisions of the Prevention of Terrorism Act, 1979, individuals may be held for total periods of up to 18 months without being charged or brought before a court. Generally, that detention is at the hands of the Sri Lankan Army rather than the civil prison authorities. Quite apart from the treatment of those who are detained, several other problems of significance arise with respect to detention. These relate to knowledge by the detainees' family and legal representatives of their whereabouts, and access by family and legal representatives to the detainees. There is no formal notification to the next of kin of a detainee that the person has been taken into detention. In the Jaffna Peninsula, from whence most of the detainees have been removed (and all detainees, to date, under the Prevention of Terrorism Act, 1979, have been Tamils, the writer was informed), habeus corpus applications are lodged within weeks of a young person "disappearing". Given the time taken for preparation of the application and the time allowed to the authorities to respond, it is often three or four months before there is an official acknowledgement that the missing person is held in detention. With that acknowledgement, in most instances, apparently, comes no detail as to where the person is being held and certainly no giving of immediate access to family or legal representatives. Even after the habeus corpus application has been heard, and an order made by the court for access to the detainee by his legal representatives, further obstacles are placed in the way of the legal representatives. Until recently, orders made by the court were for access to detainees at a specified location where the detainee was allegedly being held. Often, when the legal representatives attended at the nominated location, they would be informed that the detainee had been moved and that their order for access had no validity with respect to the place of detention. Thus, a further application to the court was necessitated. Recently, the courts have made orders for access to detainees in custody "wherever held" by the army and, in one instance, a new ploy has been devised to apparently circumvent these access orders. The Minister for Internal Security may transfer a person detained by the army under the Prevention of Terrorism Act to civil prison. In this instance, an order for access to a detainee "held by the army, wherever held" was not permitted by the officer in charge of the civil prison where the detainee was held as the order for access specified a place where the prisoner was being held by the army. The author had the opportunity of discussing the position with respect to detention with the legal representative of first instance of a significant number of the detainees under the Act. The author also had the opportunity of reading the files of a number of the detainees and examining the statistical register with respect to detention under the Act by this Attorney. These records disclose that there have been 270 persons, in the Jaffna Peninsula, who have been taken into detention, under the Act, since the 1st of January 1981. Of these, 181 have been released without having been charged. The average length of detention, without charge, of those persons who were released was between three and four months. From discussions with detainees and families of detainees, the author accepts that it is the almost universal practice of the military authorities to physically assault and mistreat these persons who have been in their custody with the principal locations for that assault being the Elephant Pass army camp and the Panagoda army camp in Colombo. As discussed elsewhere in this report, the author finds that this treatment is not only in breach of Article 11 of the Sri Lankan Constitution which states that "no person shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment" but is also carried out on a systematic basis. This treatment is also in breach of the International Covenant on Civil and Political Rights to which Sri Lanka is a State Party after having ratified the Covenant. Unfortunately, Sri Lanka has not ratified the Optional Protocol to permit individuals, other than other States party to the Covenant, to complain and proceed against Sri Lanka for breaches of the Covenant. In the section of this report dealing with "fundamental rights cases", the author deals with the reasons why there is no legal remedy for those who are systematically abused whilst in detention and what remedies the government should make with respect to this. At the time of writing, 89 persons were currently in detention under the Act - the longest detained of them (one Somasundaram Manoranjithan) has, apparently, been in detention since the 3rd of March, 1982, without having been charged with any offence. In addition, a significant number of habeus corpus applications with respect to the persons still in detention had not yet been heard. Because of the volume of use of the Act, such applications take three to four months to be heard. From informal records held in Jaffna, the author has discovered that at least 23 members of the Tamil community have died in, or as a result of being in, army or police custody since July 1979. In addition, four persons have "disappeared" whilst in such custody and must be presumed to be dead. In August 1979, the Parliament of Sri Lanka established a Select Committee "to inquire into and report on the allegations against the Sri Lanka police" made by Mr A. Amirthalingam, M.P., Leader of the Opposition, with respect to six deaths, or presumed deaths, in the custody of the police on or about the 13th and 14th of July, 1979. The committee heard extensive evidence and presented its report to the Parliament. This was ordered to be printed on the 6th of July, 1982. At the time of the author's departure, on the 18th of June, 1983, no official copy was available but a photograph of a Table Copy was made available. Set out below is an extract with respect to these incidents from the conclusions and recommendations of the report:
At the time of writing of this report, the recommendations of the Select Committee, which was chaired by the Honourable Lalith Athulathmudali, M.P., Minister for Trade and Shipping and a prominent government spokesman, had not been implemented. The author deplores this apparent disregard of what has been a bipartisan political finding of homicide, prima facie, whilst in police custody. Whilst visiting the Jaffna Peninsula, the author had the opportunity of not only meeting families of those currently in detention but of meeting and talking to a number of people who had been held in detention for periods of up to 14 months and who had been released without being charged. The detention in all instances of former detainees with whom the author spoke, was in the custody of the army, not of the police, with the detention principally taking place at either the Elephant Pass camp or at the Panagoda camp in Colombo. The former detainees detailed to the author systematic inhumane and violent treatment at the hands of those who were detaining them over long periods of time. The mildest forms of ill treatment related to sleep, food and hygiene deprivation and ranged to far more violent forms of what can only be described as torture. One detainee had had repeated beatings while being hung upside down by a rope attached to the ceiling of an "interrogation" room. Another instance related to a detainee being dragged round a room by a wire attached to his testicles. Several instances were reported to the author of persons being hung upside down with a bag covering their head into which was introduced fine ground dried chilli powder. Evidence of the effect of this on the metabolism of the lungs was read by the author in the inquest depositions mentioned elsewhere in this report. There is no doubt, in the mind of the author, that systematic mistreatment of detainees is practised by the army. However, the author wishes to make it clear that he does not assert that senior officers of the army either encourage or condone this conduct. However, equally obviously, it is in the hands of those senior officers to ensure the eradication of this grossly unacceptable yet systematic behaviour. Given the provisions of the Prevention of Terrorism Act with respect to reversing the onus of proof relating to the admissibility of "confessions" by accused persons, the principal thrust of the systematic mistreatment of detainees by the army appears to be directed at extracting "confessions" from detainees. The author was unable to obtain permission from the civil prison authorities to visit the six accused in the two cases for which he had specifically been briefed to attend as the International Commission of Jurists observer. In those cases, the accused are stated to have made "confessions" whilst in custody. The accused allege that these "confessions" were extracted from them under duress. The author, not having discussed these matters with them, is therefore unable to judge the veracity of those assertions. Certainly, in affidavits filed with the courts in a variety of applications related to the case, those assertions are made by the accused. It appears obvious, however, that the treatment in the hands of the detaining authorities of these accused has markedly improved after the accused made the "confessions" sought of them by the detaining authorities. (iii) Admissibility of Confessions Quite apart from the objections to the Prevention of Terrorism Act with respect to the detention and treatment of persons in detention under the Act, the provisions of the Act with respect to "confessions" are repugnant to concepts of the Rule of Law. Under the Act, a confession may be admitted as evidence against an accused. Section 16 of the Act reads:-
Section 24 of the Evidence Ordinance, on the other hand, provides that a "confession" is irrelevant in criminal proceedings if it has or appears to have been made under inducements, threats or promises. The burden of proof with respect to establishing that the "confession" was a voluntary one will be on those seeking to adduce the "confession" as evidence. Section 16(2) of the Prevention of Terrorism Act, set out above, makes it clear that the burden of proof is reversed and is now placed on the accused to show that the confession is not voluntary. In cases involving the Prevention of Terrorism Act at the time of writing this report, the main evidence adduced by the prosecution related to "confessions". In these cases, the accused failed to discharge the burden that had been placed on them to prove that the "confessions" were not voluntary. Given the author's findings detailed above with respect to the systematic regime of inhumane and violent treatment meted out to detainees in army custody, it is repugnant that the burden of establishing that pattern of behaviour to invalidate a "confession" should lie on the accused in distinction from the normally expected provision with respect to "confessions". |
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Abolition of
Inquests
On the 4th of June, new regulations were promulgated under the Public Security Ordinance removing the necessity for inquests to be held into deaths of persons which occur in police or armed services custody or arising out of or in connection with the actions of the police or the armed services. The powers were given to the police and the armed services, in these circumstances, to simply dispose of bodies without an investigation into the cause of death. The specific terms of the regulation were reported in one local paper as being:-
Not only does the regulation remove a fundamental scrutiny of the actions of the police and the armed services which the author considers to be totally unjustified, but the Gazette containing the terms of the order itself was not available to the legal profession - or to the police or the armed services - one week after the announcement of the new regulation. During the author's stay, two specific instances were raised with him that clearly demonstrated the necessity for inquests to be held. The first case, that of Inthirarajah, concerned the death of a young Tamil man in Jaffna Prison Hospital. The death occurred after the man was delivered to the prison hospital by the police in whose custody he had been held. The author has had the opportunity to read the whole of the evidence at the inquest before the magistrate in Jaffna at which a finding of homicide was returned. The medical evidence at the inquest detailed 28 injuries to the deceased which had been occasioned whilst he was in custody and which, cumulatively, led to his death. Although that inquest had concluded with the finding of homicide some considerable time before the author's visit to Sri Lanka, no charges have yet been proferred arising out of the finding of the inquest. The second, and more recent case, involved a much publicised inquest into the death of Navaratnarajah who died in army custody. The Judicial Medical Officer who examined the deceased Tamil youth found 35 significant injuries to him which had cumulatively led to his death. These injuries can only have occurred whilst he was in custody. A verdict of homicide was returned by the Jaffna magistrate on Tuesday the 31st of May at the end of his judicial inquiry into Navaratnarajah's death whilst in custody at the Gurunagar army camp, Jaffna, on the 10th of April. The deceased had been arrested two weeks earlier on suspicion under the Prevention of Terrorism Act in connection with the ambush of two vehicles on the 4th of March at Kilinochchi. Similarly, no charges have yet been laid arising out of that case. The author does not know whether these cases are examples of a wider problem or constitute an exhaustive list, in recent times, of adverse coronial findings relating to deaths of persons in custody. However, whichever is the position, public confidence in the physical wellbeing of persons in detention of the army, particularly, or the police can be further diminished by the promulgation of this regulation. Indeed, given the comments and observations of the author in respect to mistreatment of persons in the custody of the army, it is a significantly retrograde step to remove judicial scrutiny of deaths of people in that custody. To say that the regulation is designed to remove an inhibition on the police and the army which was preventing them from carrying out their duty for fear of legal examination is, in the view of the author, a specious one. Anything that inhibits a person from killing another human being must, of necessity, be desirable. To argue that the police and the army, by implication, should be placed on an equal footing with that of the "Tigers" is not to provide a legitimate reason for the status of the forces of the government but to lower those forces to the capricious and arbitrary level of those who have placed themselves outside the law. At the time of the author's departure from Sri Lanka, the first order had been issued with respect to the death on the 16th of June, 1983, of a 22 year old Tamil man who was shot dead by a military patrol when he failed to halt when ordered to do so at Nallur near Jaffna. No inquest was held into his death and a Defence Ministry certificate was obtained to waive the inquest procedure. This certificate was obtained prior to the body being returned to relatives for burial or cremation.
Chapter III of the Sri Lankan Constitution guarantees a number of fundamental rights including:-
A wide variety of other freedoms are purportedly protected by this chapter of the Constitution including those set out in Article 14 which reads:-
On March the 8th, 1983, International Women's Day, Mrs Vivienne Goonewardene at about 8.45 a.m. staged a demonstration "displaying banners and placards at the American Embassy emphasizing the need to preserve the Indian Ocean as a peace zone and protesting against the establishment of a nuclearised military base on the island of Diego Garcia. They also handed over at the embassy a letter signed by the petitioner and the leaders of two other women's organizations and addressed to President Reagan". (Extract from Supreme Court Judgment). Mrs Goonewardene and a number of her fellow demonstrators started to walk back to Mrs Goonewardene's house. As they passed the Kollupitiya police station, a group of policemen removed the banners that were being taken back for storage.
Mrs Goonewardene determined to test whether her treatment whilst exercising her rights under Article 14 of the Constitution had amounted to a breach of Article 11 or Article 13(1) of the Constitution of Sri Lanka. Article 126 of the Constitution permits the Supreme Court to investigate such matters and determine what action shall be taken with respect to them. Article 126(1) and (2) (the relevant portions of Article 126) read:-
In early cases when applicants had unsuccessfully petitioned for redress, the court had applied a very narrow interpretation of the words in Article 126(2) "infringed by executive or administrative action" so as to mean only that action which had, virtually, been specifically condoned or initiated as government or departmental policy. In the case of the petition by Mrs Vivienne Goonewardehe, the court considered the question of "executive or administrative action" in the context of Article 126(2) after dealing, extensively, with the question of whether the petitioner had been able to establish a breach of either Article 11 or Article 13(1). On the facts of the case, the Supreme Court held that a breach of Article 13(1) did exist and then turned to the question of "executive or administrative action". As indicated in an earlier quotation from the judgment of the court, the petitioner had cited the Inspector General of Police as the second respondent and the Attorney General as the third respondent. It was submitted by senior counsel for the first respondent and supported by the representatives of the second and third respondents "that liability on the basis of executive or administrative action can be established only if the state has either expressly or impliedly authorized or ratified or adopted or condoned or acquiesced in the acts constituting the infringement". The judgment of the court dealt with the specific instance briefly but then turned to deal with the general question definitively. That portion of the court's judgment reads:-
The author had the opportunity of discussing this finding with respect to the scope of "executive or administrative action" with a number of senior members of the legal profession in Sri Lanka. It would appear that the Supreme Court has now decided that the state will bear far greater responsibilities for the action of its employees than previous decisions or doctrines appear to have permitted. A major restriction still exists in. Article 126(2) however, with respect to persons in detention, as in cases of breaches of fundamental rights of such detainees, lodgement within one month of alleged breach will not be possible. The author has made a specific recommendation that the government should permit, with respect to persons in detention, such applications to be lodged within one month of that person ceasing to be in detention. That the government's majority to permit it to amend the Constitution does not appear to have been retained by methods countenanced by the Rule of Law, as discussed elsewhere in this report, is immaterial. The government of Sri Lanka has the necessary parliamentary majority to make such an amendment to the Constitution and it should so do. The author wishes to also specifically note his concern that the police officer against whom the finding was made, Sub-Inspector Ganeshananthan was, by special decision of the Sri Lankan Cabinet, promoted and a decision made that the state would pay the compensation awarded against him. This, at best, unfortunate juxtaposition of events can but undermine confidence in the judicial system if adverse findings against police officers are permitted to be interpreted as triggers for promotion rather than actions worthy of censure. This has been an unfortunate (or undesirable) series of events as in an earlier case alleging fundamental breach of human rights decided in 1983, an adverse finding against a police officer had also led to his Cabinet-approved and out of normal seniority promotion. |
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5.
Charges against Father Singarayer and Others
The original intention of the author's visit to Sri Lanka was to act as the international legal observer at the trial of Father Singarayer and four other accused of protecting or assisting persons who were involved in an attack on the Chavakachcheri police station in October, 1981. One of the accused who was a medical doctor had been allegedly involved in giving treatment to a wounded unnamed person who is alleged to be a "Tiger" involved in the attack on the police station. The second involved, allegedly, Father Singarayer and a fellow priest in failing to give information with respect to persons who had committed the Neerveli bank robbery on the 25th of March, 1981. These trials were set down for hearing on Monday the 6th of June before Mr Justice Robert Silva in No. 1 Court of the High Court of Sri Lanka in Colombo. For a variety of reasons dealt with later in this section, the trial did not proceed. At the time of the author's arrival in Sri Lanka, the accused had been held in detention since the middle of November 1982. At the time of taking into detention of the priests, the Rt Rev Deogupillai, O.M.I., Bishop of Jaffna, offered to the detaining officer to produce the priests wherever and whenever requested by the armed services. This offer was refused and the priests were arrested. Ina letter to the President of the Republic of Sri Lanka, the Bishop set out his views of the arrest and detention of the priests from his diocese in the following terms:-
During the period that the prisoners were in detention, all of them made "confessions" to the detaining authorities. Despite the difficult onus placed on the defence by Section 16(2) of the Prevention of Terrorism Act, 1979, it was the intention of senior counsel for the defendants to seek to prove that the "confessions" had not been made voluntarily. The author sought from the Controller of Prisons permission to visit the accused in these cases but this was refused on the grounds that the author was neither a relative of nor a legal representative for any of the accused. By this strict application of prison regulations - an application which the author understood was not otherwise being strictly applied save in his own case - the author was not able to discuss allegations of torture with respect to the extraction of the "confessions" from the accused in this case. In a letter to the Rt Rev Frank Marcus Fernando, President of the Bishops' Conference of Sri Lanka from Welikade Prison on the 8th of May, Father Singarayer states, inter alia:-
Further in the same letter, he says:-
The trial did not commence on the 6th of June and, as the author has been subsequently informed after his departure from Sri Lanka, has now been postponed until August, at the earliest. On the morning of the 6th of June, the author was fortunate to be able to attend the conference, in the chambers of Mr Justice Robert Silva, over the conduct of the proceedings. Present were senior counsel for the defence and two of the junior counsel for the prosecution, the Secretary of the Civil Rights Movement of Sri Lanka, the author and the presiding Judge. The initial difficulty arose as Mr Justice Silva was to retire in early August and considerable discussion ensued as to whether the trial would be able to be concluded in the two months' hearing time available. Both prosecution and defence counsel were unable and unwilling to give any guarantee as to this but the defence was willing - absent consent from the Attorney General to bail for the accused - to commence the trial and run the risk that it would be aborted and need to recommence. Counsel for the prosecution were not enthusiastic about this course and, after considerable discussion, the case was adjourned to permit a bail application for the six accused to be argued before the Court of Appeal. When the bail applications came before the Court of Appeal, they were, themselves, pending further consideration of commencement of the trial. When the matters came before Mr Justice Robert Silva, again, they were further deferred to permit the bail applications to be argued. When the bail applications were again before the Court of Appeal, they were opposed, on a preliminary point of law, by counsel for the Attorney General arguing that there was a total exclusion by the Prevention of Terrorism. Act, 1979, of jurisdiction under the Sri Lankan Criminal Code to grant bail to persons charged under the Prevention of Terrorism Act, 1979. The author has been subsequently advised that, on the 1st of July, 1983, the Court of Appeal has ruled in favour of the prosecution and held that it has no jurisdiction to entertain bail applications with respect to persons accused under the Prevention of. Terrorism Act, 1979.
The general position of the Tamils working on plantations has been dealt with as one of the studies in an excellent monograph entitled "The Legal Needs of the Rural Poor in Sri Lanka" published by the Law and Society Trust. The Trust is a body based in Colombo. It was established in June 1982 "with a view to examining the relationship between law and the processes of social and economic transformation". Its findings with respect to the Ratnagiri Division of Palmerston Estate are reproduced in Appendix 2 to this report. In addition, the author had the opportunity of discussions with a senior official of one of the plantation workers' unions who drew the author's attention to the disparity of treatment for plantation workers - the bulk of whom appear to be on nationalised estates - in the granting of cost of living adjustments from and including the 198O Sri Lankan budget compared to the treatment meted to all other government servants since that time. An extract from this union's summary of the position is set out below and should be read in conjunction with the economic analysis of the position of these plantation workers which is contained in Appendix 2 to this report. The summary says: "From the budget of 198O up to date, the Government servants and others have received an increase of Rs.427/- per month; the break up is as follows:-
As against 427/- per month given to the Government servants and other workers, the male plantation worker has received a total increase of (including the cost of living allowance) Rs.67/86 and female worker Rs.57/24. This is made up as follows:-
In addition to the economic discrimination apparently suffered by these people, there arises the difficulties experienced by the 500.000 or so "stateless persons" who are virtually all of southern Indian Tamil descent and who are, or are descendants of, persons whose citizenship was removed in 1947. One senior government source indicates that the government proposes to grant citizenship to 100,000 of these within the next twelve months. But even after this, there will continue to be citizenship discrimination on a significant scale. Indeed, the granting of citizenship by certification still apparently involved differences in rights from those who have citizenship by descent. The author is informed that, for example, official attitudes to citizenship of children have relation to the citizenship status of the male parent when the female parent is a certificated citizen. Thus the children of a mother who is a certificated citizen by an uncertificated father are not automatically granted citizenship and may only obtain it with difficulty.
The Sri Lanka Foundation Institute is a joint project between the Sri Lanka Foundation and the Friedrich-Ebert-Stiftung of the Federal Republic of Germany. The Foundation was established by an Act of the Parliament of Sri Lanka entitled the Sri Lanka Foundation Act, 1973. The activities of the Foundation and the Institute are educational and are conducted in a variety of languages on a variety of subjects. The Human Rights Programme of the Sri Lanka Foundation is exclusively educational and, as a government-established and supported organization, it does not feel that it can participate in human rights protection activities. In 1981, the Institute conducted 93 seminars. Some relevant details of these follow:- (i) Language Medium
The seminars had participants, other than Sri Lankans, totalling 258 persons drawn from 49 countries. In June/July 1982, the United Nations Division of Human Rights in co-operation with the government of Sri Lanka, held, in Colombo, an Asian Regional Seminar on the promotion and protection of human rights. The Institute and the Foundation played a major role in the conduct of, and arrangements for, the seminar. Whilst there has been some, perhaps valid, criticism, by local non-government protection-oriented human rights organizations in Sri Lanka, of the level of participation by such non-government protection organizations, the seminar would appear to have made a useful regional contribution. The author had the opportunity of a meeting with Mr H. W. Jayewardene, Q.C., Chairman of the Board of Management of the Sri Lanka Foundation, to discuss with him the role of both the Foundation and the Institute within the Sri Lankan community. As well as discussing the matters outlined above, the author and Mr Jayewardene also discussed the school-oriented educational human rights activities of the Foundation - particularly Human Rights Day posters and essay competitions and the development of a Human Rights curriculum for later year students in Sri Lankan schools. Whilst the author does not totally accept the validity of the argument that a government-funded human rights body ought not involve itself in human rights protection as this would necessitate the investigation of complaints against the government of the day by a body which had been created by the Parliament, the political reality of Sri Lanka - no matter whether it be under the present U.N.P. government or the previous S.L.F.P. government - warrants the acceptance of this argument. The author has felt it necessary to include this analysis of the operations of the Foundation and the Institute as an allegation was made to him, seriously, that the organizations were "funded by the C.I.A.". The author wishes to make it clear that he rejects those allegations and considers that, within the framework adopted by its Board, the Foundation presently makes a useful contribution with respect to education on human rights and will make an even greater one after the adoption of school curricula in this area. All of the events and circumstances outlined by the author in the body of this report lead him to the conclusion that Sri Lanka is approaching a major crisis with respect to its national adherence to the Rule of Law. The combination of the apparently increasing use of the Prevention of Terrorism Act and its systematic abuses by army personnel involving the torture of detainees has simply served to exacerbate communal tensions and fuel the hostilities that have been evidenced in the communal disturbances of 1977 and 1981. When these events and the unsatisfactory extension of the term of the present Parliament are coupled with the events that the author has described with respect to the independence of the judiciary and the difficulties of acceptance by, apparently, lower orders of the police and the army of the fundamental rights enshrined in the Sri Lankan Constitution, the author is of the view that Sri Lanka has reached a point in its political and human rights development when it is faced with the alternatives of remaining one of the few genuinely democratic third world countries with a Parliament elected by (almost) universal adult suffrage; with an independent and fearlessly impartial judiciary and with a general political and constitutional system which permits governments to change after their merits and ideologies have been judged in a comparatively fair political process or of the Sri Lankan nation beginning a slide to the almost inevitable excesses of a one party state. The mechanism for the preservation of the Rule of Law, freedom and the fundamental rights guaranteed by the International Covenant on Civil and Political Rights to which the Sri Lankan government acceded in 198O are all still in place. One major inhibition to any process of restoration of the Rule of Law lies in the actions of the "Tigers" which the author has condemned elsewhere in this report. The strident demands for the separate nation state of Tamil Eelam accompanied with the murder of those who presume to disagree with this demand and/or support the governing United National Party make total reconciliation far more difficult than might otherwise be the case should all political parties approach the communal and other problems in a spirit of good will and determination to seek a resolution. In his inquiry into the 1977 communal disturbances, the former Chief Justice of Sri Lanka, the Honourable M. C. Sansoni, who constituted the Special Presidential Commission of Inquiry into the events of 1977, said with respect to the demand for this separate nation state of Tamil Eelam:-
It is obvious, from communal reactions, amongst the Sinhalese, that this judgment is correct. The author makes a series of recommendations which follow which he believes could materially assist to, in the short term, diminish tensions and improve the observation of the Rule of Law and, in the longer term, hopefully, resolve many of the problems within Sri Lanka both communal and otherwise. The author sets out below a number of recommendations that he wishes to make with respect to the present position in Sri Lanka. Some of them, he quite clearly realises, are not likely to be accepted by the government - such as that advocating the repeal of the Prevention of Terrorism Act, 1979 - however, he feels constrained to make such recommendations for completeness of his report. However, where a major recommendation is unlikely to be acceptable, the author has endeavoured to make less dramatic recommendations on the same subject which might be capable of acceptance. 1. All Party Conference on Regionalism In the 1977 manifesto of the(then opposition) United National Party, there was a clear commitment to an all-party conference to endeavour to establish a proper societal and political framework that would markedly reduce or hopefully eliminate tensions between the Sinhalese and Tamil communities,. That conference has never taken place. There have been, on a number of occasions in the past, "pacts" between the government of the day and the principal Tamil political parties. These pacts have always failed because of the attack launched on them, for purely expedient political reasons, by whichever of the major parties was, at that time, in opposition. The author is of the view that the concept of an all-party conference is worthy of resuscitation. At the present time, both the government and the official opposition, the Tamil United Liberation Front, have much to gain from a peaceful and orderly resolution of communal problems. The difficulty would appear to lie with acceptance of such a proposition by the major Sinhalese political party in opposition, the Sri Lanka Freedom Party, led by Mrs Sirimavo Bandaraniake. In order that the conference might be convened, should the government be prepared to take such a step, co-operation of the S.L.F.P. in the conference and seeking to implement any resolutions arising from it is vital. The author held a lengthy discussion with Mrs Bandaraniake, at her home, in Colombo, and specifically asked her whether the S.L.F.P. would be prepared to take part, co-operatively, in such a conference if it were convened by the present United National Party government. Mrs Bandaraniake indicated that her party would be prepared to participate in such a conference. The author wishes to make it absolutely clear that the question was put specifically and precisely and the answer elicited was specifically in the affirmative without qualification. The author further asked Mrs Bandaraniake whether she felt a political solution to the communal tensions was desirable and, apart from making the predictable remarks indicating that she felt that all present problems arose from the actions of the present government and that no blame attached to her administration, she unequivocally indicated that she favoured a political resolution to the conflict. The author does not presume to postulate the nature of the political solution which might be available. That, clearly, is the province of the parties to such a conference. The author, however, does presume to assert that the government ought to convene the conference promised in its 1977 manifesto and test the co-operation of the S.L.F.P. confirmed to the author by its leader. 2. Closure of Elephant Pass Army Camp The author came to the conclusion, both whilst in Jaffna and in Colombo, that the Elephant Pass army camp, which straddles the very narrow isthmus that links the Jaffna Peninsula with the main body of Sri Lanka, is a powerful negative symbol the life of citizens of the Jaffna Peninsula. The author has made a specific finding, earlier in this report, that regular and systematic inhumane treatment of detainees under the Prevention of Terrorism Act takes place at the Elephant Pass army camp. This, of itself, engenders opposition to its presence amongst Tamils on the Peninsula. This is overwhelmingly reinforced by the fact that the isthmus upon which it is located some 25O yards wide with the army camp at what would appear to be the narrowest point. It symbolically divides the Tamil who rightly regard it as a symbol of persecution from the main body of Sri Lanka. The Elephant Pass camp is easily recognisable as being located to permit virtually instant severance of land communication by road and rail between the Jaffna Peninsula and the rest of the country. Any person travelling by road or rail onto the peninsula must pass the camp and have its symbolism reinforced if he is a Tamil. The government should be aware of the powerful negative symbolism engendered by this military installation and should, as a gesture, close it and make symbolically free the link between the Jaffna Peninsula and the main body of the island of Sri Lanka. 3. Repeal of the Prevention of Terrorism Act, 1979 The earlier report by Professor Virginia Leary for the International Commission of Jurists also canvassed this recommendation. The author does not wish to further pursue what ought to be a self-evident step to be taken to reinstate the Rule of Law. The author also realises, equally obviously, that this step is not likely to be taken given the recent permanence imparted to legislation that was originally stated to be "temporary". Hence, the author would wish to make two lesser specific recommendations of changes to the Act in the hope that they might be more acceptable to the government. First, removal of the reversing of the onus with respect to confessions. The author suggests that Section 16 of the Prevention of Terrorism Act, 1979 should be amended to remove the onus of proving that a confession was obtained by duress, threat or other inducement and reinstating the provisions of the Sri Lankan Evidence Ordinance and firmly place the burden of establishing the voluntariness of a confession upon the prosecution which is the accepted standard of evidenciary procedure elsewhere. Second, the Act needs to be amended to permit persons who have been charged under its provisions to be released on bail pending trial. During the period of the author's visit to Sri Lanka, a test case was undertaken with respect to bail for accused charged under the Prevention of Terrorism Act and the decision had not been handed down at the date of writing this report. Should the decision uphold the submission of counsel on behalf of the government, the government should introduce amending legislation to permit the release on bail of persons charged under the Act prior to them coming to trial. As a subsidiary issue, should bail be granted, a guarantee should be given that there would be no redetaining of persons granted bail unless some further subsequent offence was allegedly committed. 4. Places of Holding Detainees Because of the established and systematic patterns of inhumane and degrading treatment and torture practised by the army, all detention, whether under the Prevention of Terrorism Act, or any other Acts relating to "normal" criminal law, should be in the hands of the civil authorities when that detention lasts for any period of time. As the author expects the government not to repeal the Prevention of Terrorism Act, he advocates that detention by the armed forces should be limited, at the very most, to a period of 48 hours after which the detainees should automatically be transferred to the civil custodial authorities. Being held in such civil custody should also be accompanied by the rights of access for legal advisers and visits by family and friends available to "normal" criminals in custody. 5. Access to Redress or Breach of Fundamental Rights At present, Article 126(2) of the Sri Lankan Constitution, requires that any person who -
For persons held in detention under the Prevention of Terrorism Act and who are systematically ill treated, the one month limit for lodging a "fundamental rights" application is obviously unrealistic. The government should consider amending the Constitution to provide that the application must be lodged within one month of the alleged breach of the individual's fundamental rights or within one month of the person being released from custody of the police or the armed forces if it is proposed to allege that such breach took place whilst the person was in that custody. 6. Reinstatement of Inquests The government should immediately revoke Regulation 15A promulgated under the Public Security Ordinance. As, clearly, the government will not accede to this proposal, the government should consider amending the regulation to provide that the automatic holding of an inquest will only be waived if an officer of the police force of the rank of Assistant Superintendent or above or an officer of the armed forces of the rank of Major or its equivalent and above establishes to the satisfaction of a judge of the High Court of Sri Lanka that such inquest should be waived. Such hearing, preferably, should be public. 7. Army Presence in Jaffna It is clearly desirable, for both the re-establishment of normal law enforcement and diminution of communal tensions on the Jaffna Peninsula, that the presence of the armed forces there should be at no greater density than that which occurs throughout the remainder of Sri Lanka. The author would recommend that the government set a target date for reduction in strength of the armed forces on the Jaffna Peninsula to the community norm and that excess service personnel be gradually withdrawn toward that target. 8. The Role in Employment of District Ministers Much comment was made to the author of the undesirability of the use of the "chit" system of appointments to junior civil service posts by District Ministers. Whilst it was obvious, to the author, that the degree of "political patronage" involved in employment was much greater than that which applied in his own country, tensions arose from the system when District Ministers imported their supporters who resided well away from the local area for appointment to positions with District Development Councils and the like. Several instances were drawn to the author's attention where the District Minister for Vavuniya had arranged employment for Sinhalese recruits, from outside the Vavuniya district, to be appointed to positions that there were locals perfectly capable of filling. Indeed, the point was made that there were perfectly well qualified local supporters of the U.N.P. government who were available to be appointed to these positions. The author does not suggest that the patronage system can or should be abandoned immediately. Perhaps, however, its operation ought be examined to ensure that, at least, local applicants received some priority in employment even though some political test might then be applied as to suitability. 9. Freedom of Residence Occupation and Movement The author is of the view that the second most important recommendation that he proposes to make is that all parties - not simply the government or the Sinhalese community - but all parties, particularly the Tamil communities in the north-must acknowledge the absolute and irreducible freedom that should exist in all Sri Lankan citizens without regard to race, religion or colour to reside and seek to pursue their occupation and religion anywhere in the island. In the author's preamble, he indicated that he found the most distasteful matters he examined whilst in Sri Lanka were those that arose from the killing of U.N.P. supporters in the north (whether Tamil or Sinhalese) purely on the basis of their expression of their political beliefs. Should there be any prospect of healing of the divisions within and between the communities that comprise Sri Lanka, there must be an absolute acknowledgement of freedom of belief, residence and religion throughout the island. 10. Discipline within the Armed Forces The incidents of the 18th of May and the 1st of June clearly indicate that the problems of 1977 and 1981 with respect to discipline in the armed forces of Sri Lanka have not been overcome; as the author reported earlier, one commentator said that this was because "the army has never fought a war". Although the author was unable to obtain an interview with personnel associated with the armed forces - despite his seeking such contact - the author is of the view that improved discipline will not come purely through the punitive process which, at the time of the end of the author's visit, was being applied to the officers and. men of the Rajarata Rifles regiment over the incidents in Jaffna on the 18th of May and subsequent disciplinary proceedings and desertions from the regiment. Experience in modern army would clearly indicate that the pivotal disciplinary positions are at the senior non-commissioned officer level. The author would recommend that the government should, at least consider, sending senior non-commissioned officers of the Sri Lankan army on attachment, if it is able to be diplomatically negotiated, to units of other Commonwealth nations armies that might be able to assist in the promotion and inculcation of the installation and maintenance of military discipline. 11. Use of Languages in the Public Service The author has commended, elsewhere in this report, the moves by the government to ensure that persons corresponding with the public service in Tamil at least receive a Tamil translation appended to the original of the reply. The author believes that this, symbolically, is most important to relations between the two communities. The author recommends that economic resources should be allocated at the fastest attainable rate for the purposes of fully implementing this programme as a first step to the proper recognition of the Tamil language within the national administration. 12. Economic Grievances of the Tamil Communities Whilst the author readily acknowledges that the political system of countries such as Sri Lanka will never entirely permit a totally equitable distribution of resources - indeed such equitable distributions exist, in theory only, in even the most advanced western democracies - the perception of discrimination in economic resource allocation and economic development by the peoples of the north is significant. The government of Sri Lanka must endeavour, where the grievances are real, to redress them and, where they are imagined, better explain the reality of the economic distribution. As the author has already remarked in this report, he has not been able to make a detailed analysis of the budget papers of Sri Lanka and does not presume to comment on the merits or otherwise of these arguments. 13. Jaffna Municipal Library. Considerable sums of money, including some Rs 800,000 raised by the Rotary Clubs of Sri Lanka, and significant amounts of overseas aid were donated to a special presidential fund for the rebuilding of the Jaffna Municipal Library following it being fired by members of the armed forces or their supporters during earlier communal violence. The present position with respect to the Library is analysed elsewhere in this report and the author wishes to make it clear that it is a real grievance amongst the people of Jaffna that the reconstruction of the library facilities is proceeding slowly and that so little of the money donated by their fellow citizens both of the island and of the world has been released for use in this project. Speedy action in this respect would greatly enhance community relations. 14. Abandonment of Torture The Sri Lankan Government should immediately and specifically denounce the systematic ill-treatment of persons in detention - usually army detention. This denunciation should be accompanied by a vigorous programme to remove any officers who have led or acquiesced in this behaviour coupled with strict disciplining of all non-commissioned officers and private soldiers also involved. Such a programme is essential for any Tamil acceptance of a restoration of integrity to the army. |
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Tamil Rights : Is it an Internal Problem? - Reversion of
Sovereignty [see also Right to Self Determination - Tamil Eelam ] Is the Ceylon Tamil problem an internal problem? This question is being raised by several persons whenever some other country discusses the Ceylon Tamil problem. In a technical sense Ceylon Tamil problem is not an internal problem. This is because the sovereignty of the Ceylon Tamil nation which was ethnically, geographically and linguistically separately identifiable and distinct, has revived since 1970. Thereafter the Ceylon Tamil nation has not been conquered by the Sinhalese Nation. The Ceylon Tamil Nation has not consented to the constitution of the Democratic Socialist Republic of Sri Lanka. Furthermore this constitution has no legal continuity with the past. Therefore the Ceylon Tamil nation is entitled to exercise the sovereignty which is already vested in them and be a free distinct separate state or decide to federate with the Sinhala State or States. Let us analyse and examine this contention. To start with, I set out below a brief resume of the submissions and arguments advanced by the late M. Tiruchelvam Q.C. on behalf of the defence and referred to in the judgment of the Trial-at-Bar No.1 of 1976 in the case of the "Republic of Sri Lanka -vs- Appapillai Amirthalingam" : Symbolic repudiation "Once there is a break in legal continuity the sovereignties of the inhabitants of the Island until then under eclipse so to speak, appear once again. Hence the sovereignty of the Tamil Nation which was ethnically, geographically and linguistically separately identifiable and distinct revived". "Historically the territory called Jaffna Patam that belonged to the Tamil Nation lay in the northern and eastern portions of Ceylon from the limits of Puttalam and Mannar to the Kumbukkan Oya". "Therefore if an autochthonous constitution is to be promulgated the consensus of the majority of the Tamil Nation should be unequivocably obtained". "In fact the Tamil members showed their repudiation of the Constitution in a symbolic way when they made a bonfire of it by way of Public demonstration". "Autochthony cannot be established by a mere counting of heads. The question is, does the majority of the Tamil Nation accept the new Constitution? That should have been ascertained by a referendum or plebiscite, but this was not done". "As the Constitution had no legal continuity with the past and as the claims that it is autochthonous were also not valid the constitution is illegal and the courts set up under it are not valid". The three High Court Judges before whom this was raised could not make a pronouncement on this issue for the reason?
As the matter is still open it will be useful and interesting to analyse further this argument and see to what extent this argument of the late M. Tiruchelvam Q.C. is correct. Prior to the arrival of the Portuguese there were three major Kingdoms in Ceylon vis: Kotte, Kandy and Jaffna. The sovereignties of the inhabitants of these three major Kingdoms were vested in the respective King of each Kingdom. In the year 1597 AD the Emperor of Kotte Dom Jade Paria Pandar who conceived such an affection for the Portuguese left for Portugal and thereafter bequeathed his Kingdom to the King of Portugal (see CHILAO by Rubeiro pages 90 and 91).
On the death of the King of Kotte the sovereignty of .the King of Kotte passed on to the Portuguese. At that time the Kingdom of Jaffna Patam had its own native King (see Ceilia by Reberiro pages 90 and 91). The boundaries of Jaffna Patam are given in the "CLEGHORN MINUTES".
The Kingdom of Jaffna held on up to 1619 AD and with the fall of Jaffna the sovereignty of the Tamils which was vested in the King of Jaffna passed on to the Portuguese. These two sovereignties later passed on to the Dutch and then to the British while the sovereignty of the people of Kandy which was vested in the King of Kandy also passed to the British in 1815. Though the British had taken over the entire island these three areas were administered separately up to 1833 till these areas were amalgamated on the recommendation of the Colebrooke Commission. When Independance was granted to Ceylon, the Ceylon Independence Act of 1947 provided only for the grant of an Order-in-Council. The Ceylon Constitution Order-in-Council became effective with effect from 4th February, 1948. This Order-in-Council did not empower the Ceylon Parliament to alter the Constitution completely but only provided for amendments to provisions of the Constitution without in any way contravening Section 29(2) of the Constitution. But in the case of India the Indian Independence Act empowered the Constitution Assembly that existed at that time to draft and adopt a Constitution for the whole of India. Therefore to enact a new Constitution in 1970 Mrs Srimavo Bandaranaike the then Prime Minister moved a resolution at the Constitution Assembly on the 19th day of July, 1970 to break the legal continuity with the British Parliament and further resolved to declare and proclaim. "Sri Lanka to be a free sovereign and independent Republic... ... deriving its authority from the people of Sri Lanka and not from the power and authority assumed and exercised by the United Kingdom nor from the said Constitution of Ceylon ." With the break in the legal continuity the sovereignties of the inhabitants of the island namely people of Kandy, Kotte and Jaffna revived to the respective people. Therefore in the absence of the legal continuity or the consent of the Tamil Nation the Constitution enacted is not Valid and binding on the Tamil Nation. With the revival of the sovereignties the Tamils as well as the Kandyans were entitled to exercise their sovereignties and enact and adopt a Constitution for each of them. But the Kandyans have consented to amalgamate and have one Constitution even though they were entitled to function as a Separate State. But the Tamils have up to date not consented to the present Constitution and are therefore entitled to exercise the sovereignty which is already vested in them and be a free distinct separate State. |
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