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Selected Writings by Dharmeratnam Sivaram
Selected Writings by Dharmeratnam Sivaram (Taraki)
Where the bold dare to tread
21 February 1999
The law and order system has contributed in no small measure to rip the ethnic fabric of this country apart. There are hundreds of Tamils, many of whom I know personally, who are so embittered by their personal encounter and experience with the law that they have totally and irredeemably lost faith in the Sri Lankan polity itself; they are convinced that it is intrinsically unjust to their community.
On the other hand there are others who still feel that the country's law is not sufficiently geared to deal with "Tamil terrorism"; that the PTA and emergency regulations should be more draconian. The attitude stems from a deeply embedded notion that all Tamils could be potential terrorists.
For more than two decades the Emergency regulations and laws which arose under its aegis such as the Indemnity Act, the PTA and the Proscription of the Liberation Tigers Act have inexorably transformed the country's judicial system in the northern and eastern parts of the island into a travesty of justice.
But in recent months there have appeared on the scene some judicial officers in Jaffna, Mannar and the east who are boldly impressing upon the Police and the army that law counts despite the singular advantages the security forces enjoy in carrying out their duties under the Emergency regulation and the PTA.
Take for example Jaffna additional magistrate S.A.E Ekanathan. He made the Foreign Ministry to clarify its position on the alleged mass grave in Chemmani. The presumption of the Foreign Ministry is the most recent reminder of the cavalier fashion in which powers that be in Colombo treat the operation of the law in the North and East. (See my column in the Midweek Mirror of Feb.17 for the Foreign Ministry's Chemmani fiasco).
Mr. Ekanathan has also changed a common practice in Jaffna with regard to the disposal of the bodies of persons killed in 'confrontations' with the security forces - a practice inconsistent with the law.
A magistrate's order is required under the emergency regulations to dispose the body of a 'terrorist suspect' killed by army or police.
Since courts were re-established in Jaffna, it was customary for a Police constable to report such a death to a magistrate and obtain an order from him to dispose the body. Mr. Ekanathan has now told the Police they should act according to the procedure stipulated by the emergency regulations for the disposal of bodies. He has now instructed the Police that an ASP or an officer above his rank should conduct an inquiry at the spot where the body was found and submit his report to the magistrate.
It is only then, according to Mr. Ekanathan, that the magistrate can issue an order for the disposal of the body as stipulated by the emergency regulations. This may prevent problems that arise over the slipshod disposal of bodies in Jaffna and even the abuse of the law.
Last Wednesday three PTA cases came up for hearing in the high court of Batticaloa. The accused in one was a 16-year-old boy, Thambapillai Yuvanathan. He was arrested when he was 13 in Valaichenai. The Police had taken him into custody on 15/10/1995 when he was cycling towards Valaichenai town from his village. He was accused of concealing a grenade under the seat of his bicycle. A case was filed against Yuvanathan under the PTA on 19/5/1997. (Note that the boy had to languish in jail for two years before he could even hope for the possibility of justice)
The Police had failed to submit to the courts any of the productions required for the case - the boy's cycle or its seat or the grenade that was allegedly concealed under it. The judge A.N Ramachandran observed among other things that it was not possible to hide a grenade under the seat of a cycle and acquitted the boy.The other two PTA cases he took that day were typical - Tamils accused of failing to provide information about the Tigers. Hundreds of Tamils are arrested and jailed for this offence under the PTA.
In one case, the accused was a 19 year old girl called Maniam Wijayalakshmi of Murakottanchenai north of Batticaloa, charged with failing to provide information to security forces about some LTTE cadres in the area. She was arrested by the Army in September, 1997 at the Murakottanchenai sentry point. When the case came up before the Eastern High Court last Wednesday, the State Counsel moved for a date to take the evidence of a Senior Superintendent of Police who had recorded the confession of the girl.
The defence counsel objected to the application stating that the police officer had failed to appear in the court on five dates earlier. The Court upheld the objection and directed that the evidence of the District Medical Officer S.Chandrapalan who examined the accused while in police custody be recorded. The DMO said in his evidence that he had examined the accused and found deep wounds on many parts of her body indicating that the girl had been burnt with cigarettes. This was while she was in police custody, before she made the confession submitted in court.
The Judge acquitted Wijayalakshmi stating that it had been proved that she had made the confession under duress, when she was in police custody. In such cases under the PTA the typist, the translator of the confession and the Police officer above the rank of ASP who recorded the confession of the accused are the witnesses and the confession is the only production required.
The question that arises in connection with this case is: what is the status in law of the Razeek group to arrest suspects? Scores of civilians are arrested regularly by the TELO, PLOTE and the Razeek group in the East. Many, like Koneswaran, are detained by these groups and then handed over to the Police who file PTA cases on them for failing to provide information about the Tigers.
Theoretically no one is safe under this system. What is the guarantee that the vengeful and semi- literate boys who work for the army will not abuse such provisions of the PTA and emergency regulations?
The Mannar judge Manickavasagam Ilancheliyan has also boldly demonstrated in recent times that the law of the land need not be a system subservient to the interests and convenience of the enforcers of the law.
I will take one instance among many in which he has refused to go along with the manner in which the PTA and emergency regulations have been applied in his district for more than two decades.
The army confiscates items and things which it considers are banned from civilians going to the LTTE dominated part of the Wanni through Uyilankulam in the Mannar district. Soft drink bottles, cycle spare parts, clothing, Panadol cards, scissors, washing and toilet soaps, biscuit packets, kerosene (five litres per person is permitted. if 5.5 or 6 litres are found then the whole can is confiscated) stationery, canned foods etc., are seized every day at the Uyilankulam checkpoint.
The goods pile up at the end of the month into a massive stock which according to conventional estimates amounts to no less than 20,000 rupees. It is alleged that a large portion of these confiscated items is pilfered. However, the Police produce the goods eventually in courts for the judge's order to dispose of them.
The practice all these years has been for the judge to issue the necessary order sought by the Police.
But Manikkavasagam Ilancheliyan has instructed the Police that under the law they have to produce the person who was taking the banned items and they have to establish the manner in which the seized goods may constitute a threat to the country's security.
Lawyers in the north say that this will not the corruption and the harassment of innocent civilians which it entails.