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Home > Tamils - a Nation without a State> Struggle for Tamil Eelam > The Martyrdom of Thangathurai & Kuttimuni > Nadarajah Thangathurai's Dock Statement, 1983 > Defence Counsel, Nadesan Satyendra's Address to Court, 1983 > Sri Sabaratnam Memorial Lecture, 1987
THE MARTYRDOM OF
Address by Counsel for
The question that arises for the Court's consideration at this stage of the trial is not whether these Accused, Nadarajah Thangathurai, Selvarajah Yogachandran, Subramaniam Devan, Nadarajah Sivapatham and Nadesudasan are guilty as charged or not. The question that arises for consideration is the way in which such guilt may be proved. Specifically the question the Court is called upon to decide is whether the statements alleged to have been made by these Accused to the Police, are statements which are admissible in law to prove their guilt.
This is a matter of procedural law. It is procedural law that creates the
frame within which justice may be done. It has been rightly said that
'procedural law is not the humble hand-maiden of substantive law but that it
appears as an arsenal on the frontier of the Constitution to secure the efficacy
of the rights of man in all that touches justice'.
I stress the fundamental and constitutional nature of the matter before you, because I seek to direct the attention of the Court to that which underlies the matters upon which this Court is called upon to deliver its judgment in these proceedings. This case is concerned with law and order in times of emergency. It is concerned with liberty and the way in which liberty may be safeguarded. It is a case which is being tried under a special law - the Prevention of Terrorism Act.
We have heard much from the Prosecution about national security. If national security is to mean anything at all it must be concerned with securing the freedom of the individuals who constitute the nation. That is what national security is about.
It is true that balances must be struck particularly in times of emergency but in this area of the law I can, perhaps, do no better than to read to this Court, that which Lord Chief Justice McDermott said in the Juridical Review in 1972 - statements which retain their eloquence, relevance and power even today or perhaps, even more so today, here in Sri Lanka. He was writing on Law and Order in times of Emergency. He said that a passion for liberty is the mark of a free people. He said that it was much more than a piece of political rhetoric to say that it is not for glory or riches or honours that a people fight but only for liberty which no good man will consent to lose but with his life.
Then comes the passage to which I would direct this Courts attention and is the reason for my citing Lord McDermott to you. He said:
It is my respectful submission in this case that it is of some considerable
importance that the efforts made on behalf of national security do not have the
result that no one is any longer secure. If it be otherwise, we in Sri Lanka may
well be standing on a slippery slope with no sure way of knowing where or how to
stop and in the words of the Privy Council in the Liyanage case that which is
done once, if it is allowed, may be done again in lesser crisis and in less
The case in the voire dire is in broad approach, a case concerned with custodial interrogation. I refer to the aspect of custodial interrogation for the reason that on that matter of fact the Prosecution and the Defence are not in issue. It will be my submission and I will support it by authority, that custodial interrogation per se raises a presumption that that which is said in response to such interrogation is not voluntary.
The case in respect of each of these Accused, has a common feature and that
salient feature is, to use the words from a judgment of the US Supreme Court,
"incommunicado interrogation of individuals in a police dominated atmosphere."
Custodial interrogation takes place in privacy and privacy results in secrecy and that which is done in secret is not susceptible of easy proof. But despite these difficulties of proof, what does the evidence show?
It is a significant feature of the voire dire inquiry that the Prosecution
did not lead any evidence at all about the physical conditions under which the
accused were detained at the Panagoda camp. The only evidence that was led was
the evidence of these Accused and their evidence on this aspect of the matter
was not subject to cross-examination by the Prosecution.
What then is the emerging picture on the basis of that which is common ground. A man is taken into custody by the police or the army. He is not told why he is arrested. He is taken to a special camp and kept in custody under heavy armed guard. He is not served with any detention order or any legal document in respect of the detention. He is not permitted to receive any visitors. He is not permitted to consult his lawyers. He is not permitted to communicate in writing. He is not given newspapers and he does not know what is happening in the outside world. He does not know how long he will be in detention. In that atmosphere that man is questioned by police and the questioning takes place for days on end and is investigative in character.
If one stops at this stage of the examination of the testimony in this case
and asks the question: 'Were answers given by any of the Accused to
interrogation under these circumstances voluntary or not', then if there was no
other evidence in the case, I submit that the Court would come to one conclusion
and one conclusion only, and that is that the statements were not voluntary.
Here, it is important to remember that the Prevention of Terrorism Act does
not set out the terms under which a person may be kept in custody. The terms are
terms which are set out in the detention order and those which may have been
imposed, in fact, during custody by the custodians. The Court is not prevented
by the Prevention of Terrorism Act to look at the terms of the custody to
determine whether those terms affected the voluntary nature of the statement or
But in the present case the detention was a detention which was
incommunicado. It is my submission that the interrogation of each of these
Accused was an instance of incommunicado interrogation of a person in a police
and army dominated atmosphere and that such interrogation raises a presumption
that the statements made in consequence of such an interrogation were not
It is my submission that this is the approach that this Court will adopt in considering the rest of the evidence in this case relating to allegations of assault and torture, of cruel, inhuman, degrading treatment - evidence which has been led on behalf of the Accused and sought to be denied by the Prosecution witnesses.
But first, what is the evidence for the Prosecution? We have the evidence of
a very select and selected band of investigators.
What is this evidence and how should this Court evaluate that evidence?
Firstly, the evidence must be placed in its context. What were the
circumstances under which this investigation was commenced in April 1981? We
have the evidence that on the evening of the 6th of April, the 1st Accused
Thangathurai, 2nd Accused Yogachandran and the 3rd Accused Devan were brought to
Colombo. It is also in evidence that on 6th of April the Director of the
Criminal Investigation Department had requested Mr Jurampathy and Mr
Kanagasingam to stand by. They were requested to stand by to participate in the
investigation of the Neervely bank robbery.
Again, in respect of an investigation into such an important matter, the
Director, Criminal Investigation Department took the step of requiring the
officers whom he selected for the investigation to be on stand by, even before
the three Accused had been brought to Colombo. It is also in evidence that it
was known to the police at that time that the 2nd Accused Yogachandran was a
much wanted man.
Police investigation starts on 7 April without any briefing!
On the morning of the 7th of April, we have the conference at the office of the Director, CID. We have the evidence of Mr Jurampathy, we have the evidence of Mr Lal Mendis and we have the evidence of Mr Kanagasingham that they were all present at this meeting with the Director, CID on the morning of the 7th. It is here, Sir, that in my submission the evidence for the Prosecution begins to fall apart, step by step.
What does ASP Jurampathy say? He says he was there on the 7th of April and he
received a direction from the Director, CID to record the statement of the 3rd
The question that the Court will ask is whether the evidence of Mr Jurampathy
on that matter accords with the reasonable conduct of an investigator.
Why does Assistant Superintendent of Police Jurampathy lie?
Why does Mr Jurampathy lie? Why does he adopt the posture of a fair judge?
What is it that Mr Jurampathy seeks to hide?
But that is not all. When Mr Jurampathy is told by the Director to record the
statement of the 3rd Accused Devan, as a loyal and dutiful officer, what does he
do? What is the step that he takes in this important investigation where he had
been required to stand by since the 6th of April? He wishes to keep an open mind
and therefore he did not want to be briefed. Very well. But what does he do?
Here is an important investigation. The 1st Accused Thangathurai and the 3rd
Accused Devan had already been brought to Panagoda. The 2nd Accused Yogachandran
is at the Army Hospital. Devan, from whom Mr Jurampathy was asked to record a
statement, was there, waiting for him at Panagoda. But Mr Jurampathy who did not
want to be briefed about the case, also did not want to go to Devan.
Very well, the 7th of April is over and the Director has told him to record a
statement from the 3rd Accused Devan but Mr Jurampathy did not want to see Devan
on the 8th as well.
Ten minute silence while water was brought to the injured Yogachandran!
But when he goes to hospital what does he do? When ASP Jurampathy goes to the
hospital where the 2nd Accused was, instead of going to the 3rd Accused in
respect of whom he was directed to record a statement, what did he ask?
Mr. Jurampathy, the experienced Assistant Superintendent of Police, would have this Court believe that he is speaking the truth when he says that he cannot remember anything at all of the questions that were asked on the 8th of April and furthermore he says that no record was kept of the questioning.
But why is Mr Jurampathy not speaking the truth on that matter? Why? What is
it that happened on the 8th that he does not want to speak about? Again why was
no record kept of the questioning on the 8th?
Failing memory is contagious so far as these investigating officers are concerned...
Of course, this failing memory is contagious so far as these investigating officers are concerned. It is not only Mr Jurampathy's memory which fails in respect of that which happened on the 8th of April.
The 8th of April seems to have been an inauspicious day for memory.
ASP Kanagasingam also has problems with his memory.
Again, Mr Kanagasingam of course has another disease which he seems to have
got from ASP Jurampathy. He too, after he is told by the Director, CID to record
the statement of Yogachandran, goes back to his normal work and routine duties.
He does not want to go to the hospital to see the 2nd Accused Yogachandran on
This crime pad according to the evidence in the case, is a carefully machine
numbered pad with sequential numbers so that the statements may be properly
recorded and statements are not fabricated. It is the evidence that each officer
is given a separate sequentially numbered crime pad and there is no duplication.
Be that as it may, on the 8th of April we have Mr Kanagasingam with a loss
of memory and Mr Jurampathy with a loss of memory.
We have a picture unfolding and it is important, Sir, in view of certain
submissions that I shall presently make, to see that picture clearly.
Mr.Jurampathy was asked whether he saw a typewriter there at the time of his
questioning. He said that there was a typewriter. He said the typist was PC
Abdeen. He said that he took PC Abdeen with him.
The Court will see, Sir, that Mr Kanagasingham's evidence is on the same lines in respect of the questioning of the 2nd Accused Yogachandran. Mr Kanagasingam questions Yogachandran on the 8th in the morning and the afternoon but no record is kept. Mr Kanagasingam questions Yogachandran on the 9th morning but no record is kept. Mr Kanagasingam questions Yogachandran on the 10th of April at Panagoda. Again no record is kept. Furthermore Mr Kanagasingam cannot remember the nature of the questions asked during these occasions. But says Mr Kanagasingam, on the 11th when he questioned the Yogachandran, Yogachandran made a voluntary confessional statement.
Once again one sees the picture: Questioning, no record kept, inconsequential questions are asked, cannot remember what was asked, and suddenly the accused comes out with a 'voluntary confessional statement'. It is a picture, Sir, that the Prosecution witnesses have sought to paint in this witness box to get over the difficulty over what they were in fact doing during those days in the Panagoda camp.
A picture it is said, speaks a thousand words...
A picture it is said, speaks a thousand words. What is the picture of the
investigation that emerges from the evidence of the police witnesses led on
behalf of the Prosecution?
According to Mr Jurampathy it was subsequent to this rather pregnant
period from the 7th to the 9th, that on the 10th morning at the time he
questioned, the 3rd Accused Devan, suddenly gave birth to a statement and made a
clean breast of the matter.
As we say in Tamil, the police officers were trying to bury a whole
pumpkin in a plate of rice.
Clearly the evidence of Mr Henry Perera contradicts the evidence of Mr Hemachandra. Mr Hemachandra says that all that was recorded was the fact that the 3rd Accused Devan was questioned. Mr Henry Perera speaks of a recollection of a questioning and recording during a period of one hour. Furthermore, it is a fact that a typed statement recording the answers of the 3rd Accused Devan on the 9th of April was not furnished at any stage to the Defence in this Case.
The Defence position is that these Accused were questioned and assaulted on the 7th, 8th and 9th. The Prosecution case is that until Devan's statement on the 10th of April, no information had been obtained from any of these Accused in respect of the Neervely bank robbery investigation. The statement of Devan in respect of the 10th of April was the first breakthrough. The only two persons who had been questioned at all before the 10th were the 3rd Accused Devan and the 2nd Accused Yogachandran. No record had beenkept of the questions or of the answers. The Prosecution case was that the 2nd Accused Yogachandran had been questioned about his injury. So far as the 3rd Accused Devan was concerned it was about his family background.
But what does Mr Henry Perera say? Remember, Sir, I asked Mr Henry Perera how
he had gone back home after the questioning on the 9th. He said that he went in
Mr Jurampathy's car. I asked him whether he had spoken to Mr Jurampathy about
the questioning at Panagoda camp.
It is my submission, Sir, that the evidence of Mr Jurampathy in relation to the recording of the statement of the 3rd Accused Devan, is not evidence which this Court or any court would accept. It is the submission for the Defence that these Accused were in fact, interrogated and assaulted on the 7th, 8th and 9th of April 1981.
ASP Henry Perera was not only a silent but also strong...
I have already submitted to the Court that the evidence of ASP Henry Perera
gives the lie direct to the testimony of ASP Jurampathy. Of course Mr Henry
Perera himself was not only a silent man but also a strong man. He said that he
went with Mr Jurampathy to assist Mr Jurampathy in the questioning. Having gone
there to assist Mr Jurampathy in questioning, Mr Henry Perera would have the
Court believe that he was a silent spectator who occasionally went out of the
room for a breath of fresh air. When experienced police officers such as Henry
Perera get into the witness box and say things such as this, any Court would ask
the question: Does it conform to what one would reasonably expect of such an
officer? Is it believable that an investigating officer concerned with the
investigation of the Neervely bank robbery went out for a breath of fresh air
from time to time, to speak to nobody but to just go out and come back?
But the incident of the 9th of April is not the only matter on which Mr
Jurampathy spoke an untruth in this witness box. He sought to paint an
investigative picture where he had been directed to record the statement of the
3rd Accused Devan, Mr Kanagasingam had been directed to record the statement of
the 2nd Accused Yogachandran and Mr Lal Mendis had been directed to record the
statement of the 1st Accused Thangathurai.
The Court will recall the evidence of the Accused that they were questioned by Mr Jurampathy, by Mr Kanagasingam and others together. The Court will remember the specific evidence of the 1st Accused Thangathurai that he was questioned by Mr Jurampathy. The Court will also remember the evidence of the 1st Accused, Thangathurai, that Mr Kanagasingam was present at some of the questionings. But Mr Kanagasingam does not admit in these proceedings that he questioned the 1st Accused Thangathurai or the 3rd Accused Devan; he questioned only the 2nd Accused Yogachandran.
In the face of this conflict of testimony, wherein lies the truth?
In the face of this conflict of testimony, wherein lies the truth? If Mr
Jurampathy is not speaking the truth then certainly he is seeking to hide
something. It cannot be that he suffered a lapse of memory in respect of the
questioning of the 1st Accused Thangathurai. Not even Mr Jurampathy says that he
suffered a lapse of memory in this instance. He asserts he did not question the
1st Accused Thangathurai.
Mr Jurampathy clearly played the lead role in the assault operation. It was perhaps because of that that ASP Gunasinghe regarded Mr Jurampathy as the Head of the Investigation team, although Mr Jurampathy somewhat reluctantly said that Mr Lal Mendis was the senior man. Perhaps Mr Jurampathy was a man after Mr Gunasinghe's own heart.
The story of a compartmentalised investigation is not true... the Jeff and Mutt act
But one thing is clear, and that is that this story of a compartmentalised investigation is not true. Mr Jurampathy's evidence that there were no discussions between the officers before the statements were recorded is not true. The investigative picture of each of these investigators acting as it were in separate compartments, searching after and recording separate statements is unreal.
The true picture which emerges gradually is a picture where some officers
in the investigating team adopted the tough attitude, the assault attitude, the
intimidating attitude, the threatening attitude. And then, of course, there was
the mild-mannered, soft-spoken Mr Lal Mendis who was concerned with building up
a rapport with the man whom he was seeking to question.
Of course, the Court will recall that ASP Lal Mendis showed a certain pride in his investigating skills. Mr Lal Mendis, after all, was the most senior of the officers who were in the investigating team. Undoubtedly he was a man who had a deep knowledge of the several investigating ploys that may be adopted.
In the judgement of the US Supreme Court in Miranda vs. Arizona which I referred to this Court yesterday, there is an interesting passage about one such ploy:
"One ploy often used has been termed the friendly and unfriendly act or the Mutt and Jeff act. Mutt is the relentless investigator who knows the subject is guilty and is not going to waste any time. He has sent a dozen men away for crimes such as this and he is going to send the suspect away for the full term. Jeff on the other hand obviously has a kind heart. He has a family himself. He has a brother who is involved in a serious scrape like this. He disapproves of Mutt and his tactics. But he cannot hold Mutt off for very long. The suspect will be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff will stand by quietly and demur at some of Mutt's tactics. But when Jeff makes his plea for co-operation, Mutt is not present in the room".
That, Sir, was the judgement of the US Supreme Court in 1966 where the Court referred to the third degree techniques of the FBI in the United States. The US Supreme Court on that occasion having described the technique, struck out statements that were obtained in consequence of such investigation.
One Jeff and several Mutts ... plus some Assistant Mutts...
Ofcourse, in the investigation team that was so carefully selected for the investigation of the Neervely Bank robbery in Sri Lanka in 1981, we had one Jeff and several Mutts. Mr Lal Mendis was the Jeff of the investigation team. But the lead roles for the Mutts in that investigation team were played by Mr Jurampathy, Mr Kanagasingham, Mr Gunasinghe and Mr Henry Perera. They were ably assisted by some assistant Mutts like SI Karunaratne, of Inpam and Selvam fame and hand picked by Mr Gunasinghe.
The Court will see that so far as Mr Jurampathy is concerned, after he
obtained and recorded the statement of the 3rd Accused Devan on the 10th, the
persistent and persevering Mr Jurampathy goes to the 3rd Accused and questions
him again on the 11th for 2 hours or so. But that is not all. He goes on the
12th and again questions the 3rd Accused Devan for another 2 hours or so.
But that is not all. Mr Kanagasingam says that he recorded the statement of
the 2nd Accused Yogachandran on the 11th and 12th - but he did not stop at that.
He went again on the 13th and questioned Yogachandran. He persisted in the
questioning on the 14th and again on the 15th of April. He says he questioned on
each of those days for 2 to 3 hours.
The question that this Court and any court will ask is: "Why did it take
Mr Kanagasingam three hours to find out that Yogachandran had nothing new to
And then what happens? The 2nd Accused Yogachandran who had nothing new to
say on the 13th, who had nothing to say on the 14th, who had nothing new to say
on the 15th, and who was questioned at the Panagoda camp on the 16th, goes to
the salubrious climate at Elephant Pass on the 18th and suddenly finds he has
something to say and makes a statement.
But that is not all. We have the persistent and persevering Jeff in the Jeff and Mutt act, Mr Lal Mendis. ASP Lal Mendis having questioned the 1st Accused Thangathurai on the 10th, on the 11th, on the 12th, on the 13th and 14th had still not got a voluntary statement. The Ist Accused Thangathurai had not made a voluntary statement of any kind at Panagoda, although on the evidence of Mr Lal Mendis there was persistent questioning of the 1st Accused. Thangathurai is then taken to the salubrious climate of Elephant Pass and wonders of wonders and lo and behold the 'voluntary statement' flowers out of the Thangathurai's mouth on the 19 April 1981.
What was it in the salubrious climate of Elephant Pass which made the Accused give birth to statements on 18 and 19 April 1981?
What was it, Sir, in the salubrious climate of Elephant Pass which made all
these Accused give birth to these statements on the 18th and 19th of April 1981?
But what does the Prosecution say? What is the Prosecution's explanation for this sudden change of attitude. After all, it is the Prosecution evidence that the 2nd Accused Yogachandran had nothing new to say after the 12th. It is the Prosecution evidence that the 1st Accused Thangathurai had nothing to say at Panagoda which was worthy of recording. Any court concerned with justice will ask itself that question: What happened when these Accused were taken to Elephant Pass?
Yet again the Court will test the testimony of the police witnesses by the
seemingly trivial things which assume a truly great significance. I asked the
experienced ASP Jurampathy, "Why was this decision taken to go to Elephant
But the unreasonableness of the answer that Mr Jurampathy, who played such a lead role in the investigation, did not know the reason for the shift to Elephant Pass must have bothered Mr Jurampathy and his advisers. Because a few days later when Mr Jurampathy's assistant Mr Hemachandra was asked what was the reason, the assistant knew the reason which the superior did not know. Mr Hemachandra was a gentleman whose evidence was that he had been directed to assist Mr Jurampathy. Would any court seriously believe that a person who was in charge of the investigation in the way that Mr Jurampathy was, did not know the reason for this shift to Elephant Pass? It is the submission for the Defence that at the time that Mr Jurampathy was questioned on that matter, Mr Jurampathy well knew the reason but he could not state that reason to Court.
But what is the reason that Mr Jurampathy's able assistant Mr Hemachandra gives? Let us look at it. He says that since the alleged robbery took place in Jaffna district, it would facilitate the operations part of searching and so on if the Accused were held in Elephant Pass. Let us examine that reason again coldly in the light of reason.
Carefully planned shift to Elephant Pass was made on the basis that statements would be forthcoming once the climate changed
So far as the 3rd Accused Devan was concerned, he, according to the
Prosecution evidence, had made a statement, had been taken on the 12th evening
to Jaffna and the police were satisfied that Devan was speaking the truth. So
far as the 2nd Accused Yogachandran was concerned he was not willing to say
anything more, despite the persistent questioning of the able Mr Kanagasingam.
The 1st Accused Thangathurai had not made any statement at all.
Mr Jurampathy looms large in this investigation. He was sometimes modest.
He was the man who said he did not like to speak about himself. The Defence
submission is that he had every reason for such reservation.
Of course there are other matters also on which Major Dharmaratne's knowledge
is somewhat shaky. There are occasions when his memory also tends to fail. For
example, he was asked about the suspects he had seen being questioned. He was
unable to say who questioned, who was questioned and when the questioning was.
On other occasions, of course, he sought refuge in 'national security'.
The Court will recall that I put a specific question from the Tamil record in
the Sivanesan case, the portion marked 1D1 to Major Dharmaratne. In 1D1 the
matter was set out in question and answer form. In 1D1 Major Dharmaratne does
not merely state that when he went there the fans were being removed. But he
went on to say that apart from the wires being removed the switches were also
Chilli powder smoke
It is this same reluctance which one sees in the testimony of ASP Jurampathy
when he was questioned about Inspector Egodapitiya.
It is the submission for the Defence that on the evidence led before this Court the chilli powder treatment appears to be a tried and tested method of police investigation. It was a tried and tested method to handle difficult situations and clearly the police were in a difficult situation without having found the money and the weapons in April 1981. Eight point three million rupees of cash had been lost. It was feared that this would fall into the hands of the liberation movement. The weapons that had been used had not been found and it was feared that they would be used again. But despite all efforts at Panagoda the money and the cash were not forthcoming.
Specially prepared Elephant Pass torture camp
So it was that the scene of action was shifted to the
specially prepared Elephant Pass detention camp, specially prepared with fan
hooks and wall hooks. At that detention camp, on the evidence of the Prosecution
itself, at least 20 persons were kept in custody.
On that matter the Court has the evidence of the Accused. The evidence
that they were manacled to bars fixed to the wall. This Court will need to
look at the evidence given by each one of the Accused in this witness box here.
The Court will bear in mind that these Accused on the very first day of this
trial told this Court that this Court had no jurisdiction to hear this inquiry.
I have submitted before and I submit again: these are no ordinary Accused. This case cannot be separated from the commitment of these Accused to the liberation of the Tamil Eelam. It is only in the light of that commitment that the steps taken by the army and the police in this case can be properly understood. The evidence of the police officers and the army officers cannot be considered in vacuo without considering it in the context of the liberation struggle of people of Tamil Eelam and the role of the police and army in suppressing that struggle. It is the submission for the defence that Mr Juramapathy's evidence that the case was not concerned with national security or the Tamil Eelam movement, is clearly false.
It is the duty of this Court to evaluate the testimony of each of these Accused and say: Are these Accused speaking the truth or not? This Court would not adopt the approach suggested in the cross-examination of these Accused that because you are members of the Tamil Eelam Liberation movement you will come here and say anything to embarrass the Government of this country and therefore you cannot be believed. These Accused have got into that witness box, affirmed that they will speak the truth and said that they are speaking the truth. If this Court takes the view that it has jurisdiction then it shall treat these Accused in the witness box in the same way as any other witness in the witness box who has taken the affirmation to speak the truth. When the evidence of each of these Accused is examined, this Court will have to ask itself a rather important question and that is whether each of these Accused when they got into this witness box displayed a certain literary genius for fiction.
Hung upside down from a fan hook
When the 3rd Accused Devan stated in this witness box that Inspector Sritharan assaulted him in Jaffna was that a fiction? When Devan said that at the time of the assault when he complained that his body was in pain, he was asked to do dips, was that also an exercise in fiction? When Devan affirmed that at Panagoda he was kept in a cell with white ceramic tiles and that there was light from four lamps which made him so warm that he could not sleep, was that also fiction? When Devan spoke of being hung from that fan hook in Elephant Pass and he spoke in this witness box of the froth that came out of his mouth was that also fiction? When he said that he cried but he could not cry any more because the froth was coming out, was that also an exercise in clever fabrication? When Devan said that on the 20th of April he was taken down unconscious and that when he recovered consciousness a rice meal was brought to him by a constable, was that also fiction? Was the police constable and the rice meal figments of the imagination of the 3rd Accused? And when he said that when he tried to eat his hands were moving backwards and would not move forwards, was that also a fiction? And when he demonstrated in this Court how he held the right hand with his left hand and somehow got the rice into his mouth was that also an exercise in acting and drama?
This Court will look at the detailed testimony elicited during the cross-examination of Devan and ask itself whether this was some clever fabrication set out in such a wealth of detail and that it came out of the imagination of the 3rd Accused. Is it that Devan is a great literary figure and also to boot a great dramatic actor? No Sir, any court with a conscience will hesitate, to accept the position that this Accused got into the witness box and fabricated this story to further his case in this Court. What happened at Panagoda and at Elephant Pass during this period will remain a blot on all those concerned with the administration of this country, a blot that will remain for many years to come.
Six yards of bandage from Nadusedasan's leg wound
The Prosecution will have this Court believe that it was not only Devan who was the great dramatist and novelist but also that the 6th Accused Nadesudasan was no less a dramatist and novelist. When Nadesudasan said that at the time that he was arrested, Army Officer Mayadunne took the wrist watch from his hand and put it in his pocket, was that a figment of the Nadesudasan's imagination? When Nadesudasan speaks of six yards of bandage which were taken out of his wound, was that also a product of his fertile imagination? When Nadesudasan pointed out the protuberances on his right leg in open Court was that some drama that he enacted here? And when he spoke of that which happened to him on the 7th of August and the 8th of August at Palaly, of the assaults that led him to pass faeces involuntarily, was that too something that he had imagined? Is that the position of the Prosecution?
Was it because it was such a clear case of 'imagination' that although the
Prosecution called ASP Gunasinghe, they did not place before this Court any
evidence from ASP Gunasinghe about the happenings on the 8th and the 9th at the
Palaly camp. ASP Gunasinghe it is said was the person to whom Nadesudasan was
handed over - that is the evidence of Major Zahir. And it was the evidence of
Major Zahir that Nadesudasan was questioned by the police thereafter on the 7th,
8th and 9th but strangely ASP Gunasinghe gives no evidence about that
Again, when the 2nd Accused Yogachandran says that his moustache was pulled, was that also something that he thought would make a good story to tell this Court? The Court will look at the intrinsic content of the many and varied details of the Accused's evidence in this case. On the night of the 6th of April, Yogachandran says that he was manacled to the bed at the army hospital. Is there any contra evidence on that matter led by the Prosecution? And if there is no other evidence would the Court accept unchallenged evidence of the 2nd Accused Yogachandran? Again when the Court looks Yogachandran's evidence that his bed was shaken in the night, and there is no evidence to the contrary in the Prosecution testimony, would the Court accept that evidence of the 2nd Accused? Or is it that nothing that the Accused say in this Court is acceptable to this Court and will not be accepted?
When the 1st Accused Thangathurai speaks of the room that he occupied at Panagoda would this Court accept this evidence or not? When Thangathurai spoke of lights in that room, will the Court accept that evidence or not? Again, when Thangathurai spoke of the visit of one of the army officers to that cell and the statement of that officer that he could not stay there for more than 10 minutes because it was too warm, was that also a fabrication? Again when Thangathurai spoke of the 20th of April when he had been hung up from the fan hook, brought down and manacled to the room, a police constable came there, took sympathy and put the manacles onto a lower bar so that he could lie on the floor, was that also a fabrication?
Or is it the position that whilst the accused were in custody and held
incommunicado they had been tutored to say all this? Or is it the prosecution
case that the only persons who were permitted to visit the accused, the lawyers,
had tutored the accused? Is that the position?
Brutalisation and cover up
The Court will look at what each of these Accused has said and ask itself the question whether the evidence given by each of these Accused could possibly have been fabricated, could possibly have been manufactured and could possibly have been tutored. No, Sir, it would have required much more skills than any human could have had to have manufactured each of these stories which the Accused have related in this witness box. The hearing of that evidence itself may brutalise those who hear it. The allegation and the charge against the police administration of this country is that they have so brutalised their procedure and further that they have got into this witness box and sought to lie and hide what they had done.
The words of Lord Sanky which is quoted in the Miranda case at page 708 are apposite.
"It is not admissible to do even a great right by doing a little wrong. It is not sufficient to do justice by obtaining a proper result by irregular or improper means".
One cannot salve one's conscience by saying the result is all right therefore we can turn a blind eye on the procedure. And a voire dire inquiry is concerned with procedure. A court if it fails to face up to that issue would be surrendering the role which justifies its existence.
"Third degree brutalises the police. It hardens the prisoner against society and lowers the esteem in which the administration of justice is held by the public".
Indeed if such conduct is permitted those in power in this country will be standing on that steep and slippery slope not knowing where or how to stop.
The conduct of the police in this case, apart from being brutal, was also a contravention of the provisions of the Constitution.
The Court will recall the evidence of each one of these Accused that at the time they were arrested they were not told why they were arrested. There was no cross-examination whatever directed to that question as to whether they were told or not told the reason for their arrest. What is more, there was not a scrap of evidence led by the Prosecution in this case in respect of the question whether these Accused had been given the reasons for their arrest at any time.
Section 13 of the Constitution expressly provides that any person arrested shall be informed of the reasons for his arrest. Section 13 further provides that no person shall be arrested except according to procedure established by law. All these Accused have been arrested in contravention of article 13 of the Constitution of this country.
Further not only was the arrest illegal but none of these police officers had any right to even interrogate any of these Accused. The Court will recall that I asked several of the police witnesses time and again under what section of the law they interrogated these Accused. And they all ended up by saying that it was under section 7(3) of the Prevention of Terrorism Act. Unless the Legislature in its wisdom seeks to amend this section now, my submission is that section 7(3) has no application whatever to these Accused.
What does section 7(3) say? A police officer conducting an investigation
under this Act in respect of any person arrested under sub-section 1 of section
6 or remanded under section 7, sub-section 1 or 2 of the Act may interrogate
such person. Section 7(3) does not apply to the 1st, 2nd and 3rd Accused because
they were not arrested under section 6(1) of the Prevention of Terrorism Act nor
were they kept in remand under section 7.
Perhaps it was because the Prosecution recognised this difficulty that when it came to the arrest of the 6th Accused we had the delightful evidence of Capt. Mayadunne. The Court will recall the evidence of the 6th Accused that the man who caught him and arrested him was the Army Capt. Mayadunne and not the police. But of course it was realised that if it was an arrest by the army, section 6(1) would not operate and accordingly section 7(3) also would not operate. So of course on the 7th of August 1981 we had Capt. Mayadunne sprinting after the 6th Accused hotly pursued by Sub-Inspector Udugampola. But perhaps that is a story which can be reserved for another day.
The drama with Captain Mayadunne...who sometimes forgot his lines
Yesterday I was addressing Court on the arrest of the 6th Accused. That was a matter on which learned State Counsel led that evidence of Lieutenant now Captain Mayadunne. At the time that evidence was led learned State Counsel asked Capt. Mayadunne the leading question whether the Sri Lanka police and the army had joined together in this exercise. And to that leading question the witness answered, "Yes". Then Capt. Mayadunne stated that when he went to the compound of Murugiah's house he saw somebody running away and he gave chase to that person. The learned State Counsel specifically questioned Capt. Mayadunne whether it was only he who chased after the person who had run away. Capt. Mayadunne replied that it was he who gave chase to the person who was running away but other persons came in search of Capt. Mayadunne. Capt. Mayadunne thereafter said that the chase was for about 400 yards or so.
And then came yet another leading question from State Counsel in the course of examination-in-chief. It was a leading question directed to ascertaining the purpose for which Capt. Mayadunne chased after the Nadesudasan. It is the Defence submission that that leading question suggested to Mr Mayadunne the answer he should give as to the purpose for which he gave chase. The question was, "At that time you wanted to stop the man who ran away?" And Capt. Mayadunne's reply was a simple yes. Capt. Mayadunne stated that later on he got closer to Nadesudasan, jumped and there was a struggle and he was able to capture Nadesudasan. Capt. Mayadunne said all this took some time and further in answer to a question from learned State Counsel whether at that time anybody else was there, he answered that nobody else was there.
It is thereafter that Capt. Mayadunne would have the Court believe that a little drama took place out in the open in this little village in Jaffna. One can almost picture the scene which Capt. Mayadunne seeks to paint. There is Capt. Mayadunne having captured Nadesudasan and presumably with the gun in his hand that Capt. Mayadunne says he fired in the air.
Capt. Mayadunne asks this person whom he has captured, "What is your name?". Because it is Capt. Mayadunne's evidence that whenever he sees anybody running he chases after him and then asks him, his name.
And at this moment, in this little village in Jaffna, as Capt. Mayadunne asks this question there is the dramatic entry of Sub-Inspector Udugampola on the scene. The timing is perfect. It was, Sir, fortunate for Capt. Mayadunne that Udugampola came with such perfect timing because otherwise, according to Capt. Mayadunne, he would not have known what to do with Nadesudasan after he stopped him. Because Capt. Mayadunne in the witness box has come prepared to state one fact: "I did not arrest Mr Nadesuthasan". "It is true that I struggled with him, it is true that I captured him, it is true that I took him into custody but I did not arrest him".
Capt. Mayadunne has shown a certain knowledge of the law. One would have thought that a military officer like Capt. Mayadunne having done all that he had done would have had no problem in saying, "Yes, I arrested him". But Capt Mayadunne says that in that little village there was the 6th Accused who had been captured by him, and Sub-Inspector Udugampola comes there and we have this little scene in the drama being enacted. He says Sub-Inspector Udugampola told me, "Arrest him!"
Of course on Mr Mayadunne's own evidence when Sub- Inspector Udugampola told him, Mayadunne had already captured Nadesudasan. And that he had done not on the instructions of Mr Udgampola at all. Because Capt Mayadunne would have this Court believe, and he was specifically questioned on this, that at the time that he went to Murugiah's house on the 26th of August1981 he did not even know that he had to make an arrest, let alone arrest of Nadesudasan.
Learned State Counsel than asked him another question and the series of questions asked by learned State Counsel in the examination-in-chief of Capt Mayadunne as recorded in this case is itself a self-revealing matter. Clearly learned State Counsel in asking the question was seeking to fill in another little facet of this drama at this little village in Jaffna on that day. He asked Capt Mayadunne did Sub-Inspector Udugampola say why or the reason for the arrest of the 6th Accused. And although the horse had been brought to the water it was not wanting to drink. And poor Capt Mayadunne said, "I do not remember what was said."
Sometimes, Sir, even an army officer forgets his lines in a drama. But of course the Prosecution did not call Sub-Inspector Udugampola into the witness box to render his own lines. And it is the evidence of the 6th Accused Nadesudasan that he was not told at any time why he was arrested. When the Court comes to consider the testimony of Capt Mayadunne the Court will also recall the evidence that Capt Mayadunne gave that Murugiah's house was a house that was known to him before. He said that it was a house to which he had gone with Jegan in search of Nadesuthasan in April 1981. He said that as an army officer in Jaffna he had a chart of the houses where suspects live and this was one of the houses in respect of which he had a chart.
But of course, Mr Mayadunne would have this Court believe that although the August 1981 exercise was a joint exercise he somehow did not know what the whole exercise was about. It is the submission for the Defence, Sir, that Capt Mayadunne's denial that he did not know that the operation was to look for Nadesudasan is false and is deliberately false. It is a difficulty that Capt Mayadunne got into because he had come prepared to enter the witness box and say that he did not arrest the 6th Accused and that he did not even know that the operation was for the arrest of the 6th Accused. The fact is that the 6th Accused was arrested by the army, and taken to the army Palaly camp.
The truth is that the arrest was by the army and the custody at the Palaly
camp was also in the army. In the same way as Capt Mayadunne seemed to have some
legal knowledge about custody and capture, Major Zahir also seemed to have some
legal knowledge about custody and keeping people for security.
In the result insofar as the 1st, 2nd, 3rd and the 6th Accused are concerned, it is the submission for the Defence that each one of them was arrested not by the police but by the army or by the navy. And on that ground alone the arrest is not an arrest under section 6(1) of the Prevention of Terrorism Act.
No reasons given for arrest
There is a further submission. It is the unchallenged testimony in this case that none of these Accused were given reasons for their arrest. It is a matter in respect of which there is a total absence of evidence on the part of the Prosecution in this case. It is a matter in respect of which the testimony of each of these Accused has been untouched by cross-examination in this case. It is the submission for the Defence that such an arrest where the Accused, where the person arrested is not informed of the reason for his arrest, is a violate of article 13 of the Constitution of this country.
It would be a very peculiar and strange Constitution where an officer of the State can act in contravention of a person's fundamental rights and then say that statements which are obtained afterwards from such an accused can be used in judicial proceedings to deprive the accused of this liberty.
The 1978 Constitution on the face of it did go far and set out rights which were not enacted in any Constitution before that. There is a Tamil proverb that you cannot make a curry from a vegetable that appears only on an ola leaf. It is not enough for those rights to be some paper exercise in some document. There is a prime need to translate constitutional rights from thin paper and give them the thick edge of action. It is my respectful submission that this Court will give those rights that appear on the thin paper of the 1978 Constitution, the thick edge of action.
It is the submission for the Defence that the arrest of these Accused in contravention of article 13 has the result that the arrest is a nullity, and because that arrest is a nullity in law, it is for that reason as well not an arrest under section 6(1) of the Prevention of Terrorism Act.
So for two reasons therefore the Defence submits that the arrest of these Accused is not an arrest under section 6(1) of the Prevention of Terrorism Act.
And since these Accused had not been arrested under section 6(1) it is the submission for the Defence that no police officer had the right of access to these Accused under section 7. It is the submission for the Defence that since these arrests were not an arrest under section 6(1) the police officers did not have the right to take these Accused anywhere for the purpose of interrogation or investigation. And the submission for the Defence is that since these Accused had not been arrested under section 6(1) and had not been remanded under section 7, section 7(3) of the Prevention of Terrorism Act has no application whatever to these Accused.
It is the further submission for the Defence that the police were not entitled in law to interrogate the Accused under any purported authorisation by the Minister of Internal Security. Section 9 of the Prevention of Terrorism Act authorises the Minister to do only one thing and one thing alone. He is authorised to make a detention order. He is not permitted to authorise anybody to interrogate suspects. The only power that has been conferred by the Legislature on the Minister is to issue the detention orders. The power to issue a detention order does not include a power for the Minister to either interrogate or to authorise anybody else to interrogate.
It was perhaps because of the recognition of this fact that Mr Jurampathy
when he was questioned said, "Yes, I questioned him under section 7(3) of the
Act and not under any authority of the Minister." The subsequent police officers
who gave testimony after Mr Jurampathy persevered with that section until ASP
Henry Perera got into the witness box.
It was after my cross-examination of the police witness about the detention
orders, that eventually in the re-examination of Mr Henry Perera the document X4
was marked by the Prosecution. And finally, it was at the concluding stages of
the voire dire inquiry that the document X11 was also marked. What does X4 say?
It is dated the 8th of April 1981 and is a letter from the Minister of Internal
In the result it is the submission for the Defence that neither X4 nor section 7(3) of the Prevention of Terrorism Act could have been used by the police officers to interrogate any of these Accused. And insofar as X4 purports to so authorise, it is nullity in law and made in excess of the Minister's jurisdiction.
Detention orders are a nullity
And that, Sir, leads me on to a consideration of the detention orders themselves. In essence it is a short and simple straightforward submission. It is a submission which now finds support in the judgement of the learned Chief Justice in the Vijaya Kumaratunge case. That was a case in which the learned Additional Solicitor-General appeared on behalf of the State whilst the proceedings in the present case were going on. It is a case which examines the impact of a detention order in the context of article 13 sub-article 4 of the Constitution of this country.
I specifically invite the Court's attention to the first detention orders served on each one of these Accused because it is during the period of these detention orders that these Accused were questioned and interrogated. These are the detention orders 1D2, 2D2, 3D1 and 6D1. In each of those detention orders the Minister has ex facie stated the reason for the detention. In 1D2 the Minister states that he has reason to suspect that Nadarajah Thangavelu is connected with or concerned in the murder of several police officers, bank robberies in the North. Each of the other detention orders are substantially so far as my submission to Court are concerned in the same form.
That is to say each of the other orders give as the reason for the detention that the Minister suspected that each of the Accused was connected with or was concerned in specified offences which had already taken place. Each of these detention orders seek to imprison these Accused on the basis that the Minister has reason to suspect that the Accused were connected with or concerned in an offence that has already been committed.
The detention orders on the face of it do not say that the Minister was concerned with the prevention of any offence whatever. Preventive detention for the maintenance of order is a matter for the executive of the country. But a detention of a person on the basis that he has done something or is suspected to have done something is a punishment which only the judiciary of a country can order. No Minister merely because he suspects a person of an offence can order that he put into prison. The Constitution of this country does not permit it and once again, Sir, it is my respectful submission that this Court will give the thick edge of action to the provisions of the Constitution.
Detention orders contravene the mandatory provisions of article 13(4) of the Constitution...
In the Vijaya Kumaratunge case the learned Chief Justice held that the
Minister is bound by what he had himself ex facie said in the order. One cannot
go outside the order in search of reasons which the Minister may or may not have
had but which he has not said in the order. And it is for that reason Sir, that
it is the submission for the Defence that the detention orders issued in respect
of each of these Accused contravenes the mandatory provisions of article 13(4)
of the Constitution which enacts that no person shall be punished by death or
imprisonment except by order of a competent court.
It is here, Sir, that I would once again with respect commend the Court's attention to the judgement of the US supreme Court in Miranda. An understanding of the nature and setting of any custodial interrogation is essential to our decisions today.
"It is obvious that such an interrogational environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation". And the next sentence, Sir, I would very specially request The Court to consider when The Court comes to write your orders in the voire dire inquiry. It comes from a judgement of the Supreme Court of the United States which judgement has found acceptance throughout the civilised world. The Miranda judgement, Sir, is a landmark judgement in the field of civil liberty. And this is what the US Supreme Court said:
"Unless adequate protection devices are employed to dispel the compulsion inherent in custodial surroundings no statement obtained from a defendant can truly be the product of his free choice".
"The current practice of incommunicado interrogation is at odds with one of our nation's most cherished principles - that the individual may not be compelled to incriminate himself. We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervour with which it was defended. Its roots go back into ancient times and in the trial of John Lilburn, the Accused resisted the Star Chamber oath and declaimed stating:
In sum the privilege is fulfilled, and this is important, in sum the privilege is fulfilled only when the person is guaranteed the right to remain silent, unless he chooses to speak on the unfettered exercise of his own will. The crucial test of voluntariness is that the person who is questioned must be told that he is not compelled to answer. That is the test which Miranda applied and that is the only test which stands up in common-sense to determine voluntariness.
What sort of voluntariness is this...
What sort of voluntariness is it if the Accused are led to believe that they must answer the questions that are asked of them? What sort of voluntariness is it where confidence is gradually built up in order that the Accused may unsuspectingly answer the questions that they are asked without being told that they have the right to be silent? The single most important step which both the Judge's Rules in England as well as in the Miranda vs Arizona case emphasised was that the interrogator must tell the questioned person clearly and unambiguously that he has the right to be silent. It is only then that, when the man speaks thereafter, that he speaks voluntarily because he had the choice to be silent.
Voluntariness means freedom to choose whether to make a statement or not to make a statement. An answer in an investigative interrogation can be said to be voluntary only if the Accused was told that he has the right to be silent. The Court will recall that I carefully and systematically cross-examined each of these police witnesses as to what it was that they told these Accused at the time of the questioning. Not one of them said that they told any one of these Accused that they had the right to be silent. And this was in a case of investigative custodial interrogation, in a police and army dominated atmosphere where the overwhelming presumption would be that the Accused felt compelled to answer the questions that they were asked.
The right to silence is the concrete and feasible assertion of the fundamental principle that the Prosecution must prove their case and that no obligation lies upon the Accused to prove their innocence. And it is this which finds expression in article 13(5) of our Constitution which enacts as a fundamental right that every person shall be presumed innocent unless he is proved guilty.
The vital point for vigilance in a free society is the moment when the individual gets into the hands of the police or of a State official whether he be a navy officer or an army officer. At that moment that individual will be alone, he will be faced by a person wielding extensive powers given by the State, with knowledge how best and to what extent they may be exercised. The only protection afforded to the individual at that point is his right to say, "No, I will not be questioned; I will not be bullied; I will not incriminate myself or my family or friends as you desire me to do".
It is the submission for the Defence that even apart from everything else in this case, which is admittedly a case of custodial interrogation, the absence of this procedural first step vitiates the entirety of the statements thereafter. The Accused were not informed that they had the right to be silent and on that ground alone, the statements are not admissible in law.
Our government is the potent omnipresent teacher.. for good or for ill, it teaches the whole people by example...
I have, Sir, almost done, I commenced Sir, with a reference to something which Lord McDermott said. I would like to read now something which Mr Justice Brandeis said in the Olmstead case in 1928:
It is my respectful submission to this High Court of Colombo in the year 1983
that it will set its face resolutely against the pernicious doctrine that in the
administration of criminal law the end justifies the means.
I have submitted to the Court before and I submit again that this is no
ordinary bank robbery case and these Accused are not bank robbers. They have
stated in this witness box that they are Tamils and that they have committed
their lives to the liberation of their people.
From the Jaffna Daily, Eela Nadu, 19 February 1983
"இனமக்களின் விடுதலைககாக தமது வாழ்வை அர்பனணித்தவர்கள்" - நீர்வேலி வழக்கு தொகுப்புரையில் சத்தியேந்திரா