Impunity in times of uncertainty – Part III: Commission of Inquiry: Testify at your own Peril

By Rajan Hoole and Kopalasingam Sritharan –

PC Shanmugarajah from Nuwara Eliya, then attached to Mutur Police, was the sole Tamil witness to the ACF massacre. He related his experience to a confidant, and this enabled us to be in contact with him by phone during the period of his ordeal.

* Shanmugarajah with several other policemen went before the Commission in 2007, which was at that time selecting witnesses to be called up for the hearings. Before he entered, a police superintendent assisting the Commission had warned him, “While you are in the Commission, we are looking after your wife and children. As long as you tell the right story, they will be safe.” He duly told the Commission that he saw nothing. This was months before we got to know him.

Later a Tamil commissioner, Dr. Nesiah, told the Commission’s Chairman, Justice Udalagama, privately about this witness with a view to his protection and testimony. About that time the IIGEP took him under their protection.

* President Rajapaksa got to know of this and stopped the live video conferencing of witnesses.

The IIGEP had to be content with video recording Shanmugarajah’s testimony and obtaining his signed affidavit. His damning testimony was given to us by David Savage formerly of the Australian Federal Police who assisted the IIGEP (Appendix 1). When these were presented to the Commission in late 2008, Deputy Solicitor General Kodagoda, who was meant to lead the evidence impartially, dismissed Shanmugarajah as contradicting his own statement made to the Commission’s investigating team just after being warned by a senior police officer assisting the Commission (Appendix 1). The only eyewitness testimony was thus quashed. As we shall see, his testimony was most crucial in falsifying Jayasekera’s escape route. He asserted Ranaweera’s presence at the Mutur camp on 3^rd and 4^th August which gave the lie to Kapila’s testimony of leaving Trincomalee for Mutur late on the 4^th with Ranaweera.

The Government’s case for exonerating itself from culpability for the attack on the international humanitarian mission, was clumsy, risible and callous. Chairman Udalagama and several commissioners fell in line.

* Police DIG Thangavelu, a capable Tamil investigator whom several commissioners recommended for the investigation unit was turned down by the President.

 Just before the killings of the ACF victims on 4^th August 2006, one of the victims Kokila had telephoned her brother Senthoorkumaran about 4.00 PM. The Government Pathologist D.M. Waidyaratna had told Peter Apps of Reuters soon after the post-mortems on 8^th August that the likely time of death was the afternoon of Friday, 4^th August.

But the Pathologist later changed his verdict and gave the Commission the time as early morning on the 4^th. The testimonies quoted in our report, both official and otherwise point to the LTTE having mostly cleared out of Mutur by the 3^rd evening. Official attempts to blame the LTTE for the killings centred on a claim in the pro-LTTE Tamilnet that ‘LTTE fighters returned to their positions Friday (4^th).’

The crucial nature of the time turned the Commission’s Investigation Unit into an intimidation unit. Methodist minister Sornarajah who was in Mutur a few hours before the killings told the Commission at the preliminary hearing in 2007 that he had seen the ACF staff alive about 8.30 AM on the 4^th but also saw some LTTE cadres that morning. Sornarajah was intimidated to the point of breakdown by the Police and by the Army’s lawyer Gomin Dayasiri, even as the Commission’s verdict used his sighting of the LTTE eight hours before the killings in a bid shift the blame for the massacre. Commissioner Nesiah tried to console the distraught witness.

* Led by the Army’s lawyer Gomin Dayasiri Dr. Nesiah was eventually hounded out of the Commission with accusations that he had a conflict of interest; there was almost no protest.

* Senthoorkumaran who had told the police in Trincomalee that he had received a call from his sister Kohila on the 4^th evening just before the killings was regularly intimidated and once, abducted, and tortured.

The Commission became an institution of abuse and intimidation where several senior figures, particularly among the Police assigned to assist it, were involved. Udalagama and Kodagoda could hardly deny complicity. Kodagoda is on the way to a leading position in the Justice Dept.

The New Sinhalese Right: Rear Admiral Sarath Weerasekera and the Club of Impunity

We observed in our reports that when major violations were committed by the State from 2006 – 2010, the killings were done in such a way as to make denials easy and prosecution a thankless task.

The law-and-order machinery of the state in Sri Lanka was, and continued to be, highly politicised and nothing it says could be trusted.

Seeking to end Sri Lanka’s protracted armed conflict, international donors pushed the Government to appease the LTTE, which in turn drove Chandrika Kumaratunga to compromise with hard core elements in her own party. With her appointment of Sarath Silva, a man with an elastic conscience, as Chief Justice, her government lost direction.

The Sunday Island Defence Correspondent captured the atmosphere four days after the Bindunuwewa Massacre on 29^th October 2000, noting:

“A strange blend of political thuggery by hard core Sinhalese elements, temporary emotions among the people in the Bandarawala area that were simmering about the war in general, and incompetence on the part of the police officers in the area.” 

 Ignoring the warning posters for the massacre on the back of her election portraits and the agency of her own party, in particular Uva Chief Minister Weerawanni, she tried to minimise the murder of 27 young Tamils, which was reminiscent of the Welikade Prison massacre of 1983, as an ‘unfortunate incident.’

Out of deference to the LTTE in the Norwegian peace process, she in 2004, ordered the Army to stand aside and let the LTTE cross Verugal River and massacre young conscripts in the breakaway Karuna group, even though the split had decisively damaged the LTTE militarily. Things were getting dirtier.

As we pointed out in Appendix II of UTHR (J) Special Report No.29, the aftermath of the Supreme Court’s handling of the Bindunuwewa case was marked licence given to Sinhalese extremist elements who drew their precedents from past communal attacks on minorities. Meanwhile hard-line elements were flexing their muscles and the Government capitulated. Twelve days before the Bindunuwewa verdict, on 15^th May 2005 Rear Admiral Weerasekera who was in charge of the Navy’s Eastern Command, moved to boost Sinhalese extremist claims to Trincomalee by aiding the Patriotic National Movement (PNM) led by the JVP’s Wimal Weerawamsa to erect unlawfully a Buddha statue near the Trincomalee Market.

Instead of intervening directly, as commander-in-chief, Kumaratunga got the Tamil Attorney General Kamalasabayson to deal with it. Chief Justice Sarath Silva used a counter-petition brought by an extremist local Buddhist monk to arm-twist Kamalasabayson into dropping the case for the removal of the statue. It would have been very painful for Kamalasabayson, who was himself a native of Trincomalee. It was the kind of humiliation a Sinhalese officer could, with his majoritarian political affiliation, inflict on a Tamil having about the same seniority. Unsupported, Kamalasabayson crawled home, and refused a routine extension until 60 by President Rajapaksa upon his reaching 58 in 2007; he died of cancer the same year.

In his final years, Kamalasabayson was a strong advocate for witness protection. The Bindunuwewa verdict where open communalism was advanced from the bench must have caused him much pain. When the new barbarism revealed itself in the murder of the five students in Trincomalee, the way the authorities behaved made witness protection like something on another planet. There was no further room for him as AG.

Being vulnerable in the Parliament and Supreme Court, CJ Silva used a petition by PNM’s extremist rival the JHU, to shorten Kumaratunga’s presidential term by a year to end in late 2005. With the Norway-brokered ceasefire, which the LTTE never took seriously anyway, at breaking point Sinhalese extremists had a field day.

After the Buddha statue fiasco Weerasekera while retaining his uniform was shunted out by Kumaratunga to a nominal post of Deputy Chief of Staff, free to stir the political cauldron.

Just after the erection of the Buddha statue, on 21^st May 2005, young Lankan director Vimukthi Jayasundera’s film Sulanga Enu Pinisa (For Wind to Blow) was the joint recipient of the Camera d’Or prize for the best film presented at Cannes. The film was a strong critique of the militarisation of society.

With the onset of the election campaign Weerasekera declared in the Sunday Times of 4^th September 2005, “If there is a film on war even indirectly contributing towards fulfilling terrorists’ objectives wilfully, then it amounts to treason and should be dealt with severely.” 

Three weeks later Rear Admiral Weerasekera wrote in the Sinhalese Sunday ‘Divaina’ that producers of such films should be labelled as terrorists and hanged. This was a strange role for an officer in uniform. Mahinda Rajapaksa won the presidential election on 17^th November 2005, with the cynical blessings of the LTTE which banned the Northern Tamils from voting. (Weerasekera’s action parallels that of academics and politicians in Jaffna who in 2018 blocked the screening of Jude Ratnam’s international award-winning Demons in Paradise, e.g., in Munich and Cannes.)

It was time for the Weerawamsas and Weerasekeras to claim their reward. The latter needed something to justify his uniform and was given the Home Guards and called the head of the Civil Defence Force, a position formally given to him upon retirement in October 2006. In the face of political killings by the LTTE, the new club of impunity comprised birds of a feather brought together in the heady opportunism of the declining months of the Kumaratunga presidency and the licence they received from President Rajapaksa and his brother and Defence Secretary, Gotabhaya.

* Among the first of the actions of the new group was the assassination of Batticaloa MP Joseph Pararajasingham on Christmas Eve 2005, followed by the assassination of five students on the Trincomalee sea front on 2^nd The murder was committed by STF men who were despatched to Trincomalee by retired DIG Police Kottakadeniya who was the Government’s advisor on police matters. The killings were carried out under Jayasekere, a police officer who had done a stint in the STF, and was SP Trincomalee during Weerasekera’s erection of the Buddha statue the previous year. The killing involved elements of the STF, Navy and Police.

Tamil Lives do not Matter; but worse for Sinhalese who let the side down

Stirring communal passions to activate violence goes back to Mettananda, a leading educationist who with Buddharakkita brought Bandaranaike to power. On 5^th June 1956, the day Parliament passed Sinhala Only Tamil protestors launched a satyagraha on Galle Face Green. Mettananda, who had indicated that Sinhalese protestors could meet force with force, told those on the Green that they need not be afraid of the Tamil satyagrahis and urged a boycott of Tamil businesses.

* Later that morning the satyagrahis were attacked, stoned, humiliated and injured by a Sinhalese mob led by Junior Minister K.M.P. Rajaratne (Neil DeVotta, Blowback). 

 Weerasekera too showed a certain sophistication. He knew it was not good for him to give public vent to his true feelings about Tamils. Writing on the Amparai violence against Muslims in March 2018, the attackers alleging that a Muslim eatery was serving infertility drugs, D.B.S. Jeyaraj very cautiously fingered Weerasekera as the instigator without mentioning him by name, saying that during his stay in Amparai before the riot he met with lots of Sinhalese youth and had a series of meetings with police officials (Ft.lk 17 Mar.2018).

Strangely, Weerasekera, who could have ignored it, became sensitive, as the theme had resonance with other columnists and readers as he acknowledged (Ft.lk 3Apr.2018). Without making a personal attack on Jeyaraj or answering his substantive allegation, Weerasekera suggested, “If Jeyaraj knows the “extremist politico” who was behind this heinous attack on Muslims, then before writing to the newspapers he should have informed it to the Police.” The entire problem was that going to the Police with such a complaint was like going to a shadow or worse. But Weerasekera was subsequently cautious.

When after the Easter attack in 2019, Sinhalese extremist followers of Gotabaya Rajapaksa, with elections in view, started a huge campaign to crucify Dr. Shafi on the ridiculous charge of sterilising Sinhalse women, Weerasekera was restrained. He addressed the “People’s Movement Against Wahhabi Extremism” on 4^th August but kept away from attacking Dr. Shafi.

According to an intelligence report called by President Kumaratunga, in the early hours of 15^th May 2005, when the illegal Buddha statue was planted in Trincomalee, Weerasekera addressed ‘a team of three-wheeler drivers offering a transport service and assured them he would ensure the statue would not be removed (Iqbal Athas, Sunday Times 19 Jun2005).’ He had used the Mettananda method for attacking Tamil protesters against Sinhala Only in 1958: Make the provocation and keep out of the way.

Weerasekera’s intemperateness showed when he attacked Sinhalese whom he regarded as traitors, as with the attack described above on award-winning film director Vimukthi Jayasundera in September 2005. By Kumaratunga keeping him on, in a dud post that sounded big without subjecting him to any disciplinary action, the office of Deputy Chief of Defence Staff became the propaganda wing of the Navy, encouraging the worst traits of indiscipline as the killing of youths abducted for ransom in the coming years.

On 21^st May 2006, as the country edged close to war, President Rajapaksa attended a kool party hosted by his ally EPDP leader Douglas Devananda at his Layards Road office in Colombo with former LTTE deputy leader Karuna and Devananda seated on either side of him. This was four days after Rajapaksa castigated the EPDP leader for massacres at Allaipiddy which our investigations determined were done principally by the Navy.^[1]

Importantly, the Navy Chief Sandagiri was also present at the party. The main outcome was that Karuna and Devananda agreed to cooperate with Rajapaksa on the breakup of the merged North-East Province (an anathema to the JHU and JVP). In return for the cooperation, Karuna was promised the interim administration of the East for five years and Devananda, that of the North for the same period (UTHR(J) Special Report No.29).

The meeting laid the ground for closer cooperation between the Government, the EPDP and Karuna Group. Ironically, the latter’s initial crushing by the LTTE was aided by the Government and Norwegian Peace Makers in April 2004. We said in the same report that the Tamil MP Raviraj, who was articulate in all three languages, was killed in Colombo on 10^th November 2006 by Karuna Group cadres brought to Colombo by an extremist Buddhist monk and sheltered in a temple in Colombo.

The Chief Justice throws his weight into the cover up of Fr. Jim Brown’s murder

The LTTE had attacked and temporarily held Allaipiddy on 13^th August 2006. The Navy at Allaipiddy and Velanai was then under the command of Cdr. Nishantha Koggala.

On the next day, 14^th August, Fr. Jim Brown, the parish priest of the local Roman Catholic Church had taken two civilians injured in the attack by the Navy to Jaffna on his motorcycle when the Navy had confronted him threateningly. Subsequently, Fr. Jim met Koggala at the Velanai Camp on 17^th August; the encounter evidently made matters worse for him. There was miscommunication about how Fr. Jim survived the government shelling from Palaly, and Koggala reportedly commented threateningly, “Ah, so you dug bunkers for the LTTE.” The following day Fr. Jim mentioned this to Acting Kayts Magistrate Mrs. Nandasekaran, who advised him that since it was widely known that Koggala had threatened him, he should see him again and try to clear his prejudices.

On 20^th August, Fr. Jim left for Allaipiddy from Bishop’s House Jaffna with a layman Wenceslas carrying a large quantity of drinking water for the people sheltering in the church after the Navy’s attack. The two were witnessed going into Allaipiddy past the naval checkpoint at 2.00 PM by a priest who had spoken to him. The alarm went out on 22^nd August that Fr. Jim and Wenceslas were missing.

On 23^rd August, on her way back to Jaffna from Kayts, Magistrate Nandasekaran sent her police escort to remove the logbook giving the names of those who passed the Allaipiddy navy checkpoint. The naval personnel there refused to turn over the book. That night, Chief Justice Silva used his power as Chairman of the Judicial Service Commission to remove Nandasekeran from the post of Acting Magistrate, Kayts. The logbook was never produced.

In a related occurrence, Wimaleswaran and Mathivathanan of the Socialist Equality Party (SEP) went from Velanai to Pungudutivu in March 2007 and according to the naval log at Pungudutivu, as ascertained by Wije Dias of the SEP, the two entered Pungudutivu at 5.30 PM and left for Velanai at 6.30 (World Socialist Web Site). The two are since missing. The commander at Velanai then was Hemantha Peiris.

Other episodes purely criminal in character followed. EconomyNext (23 Feb.2019) reported, “The CID found evidence that [during 2008 – 2009] the young men abducted and later killed had been detained in locations controlled by the then navy spokesman D. K. P. Dassanayake and Commander Sumith Ranasinghe.”

As a reminder: when Navy Commander Admiral Wasantha Karannagoda petitioned the Supreme Court against his arrest in connection with the abductions for ransom and murders of the “Navy 11” he noted that as per a Police B Report of the CID dated 2^nd August 2017, Travis Sinniah who was then Deputy Area Commander East had charged that:

(a) Illegal detention cells were functioning under [Karannagoda’s] supervision at the Trincomalee Navy camp known as ‘Gunsite’; (b) [Karannagoda] had instructed Travis Sinniah not to supervise or conduct any activities with regard to these cells; (c) [Karannagoda] and several others were aware of the fact that persons were detained at these cells and later killed; and (d) [Karannagoda] is responsible for the killings of detainees held in the said cells.

After giving the testimony Sinniah is believed to have left for Australia and re-joined after a change of government in 2015 (Sri Lankan Navy: A Collective Blind Eye, International Truth and Justice Project (ITJP), 2019).

 The licence to kill Tamils on suspicion given to the armed forces had by this point degenerated to the level of banditry. We described the foregoing as background to important new testimony on the ACF case. Without this context readers may find it difficult to place this testimony alongside what we have covered in our previous reports^[2]. The new testimony below mentions several names. We provided the background above not just for clarity, but also to not risk being unfair to any of those named.

New Testimony on the ACF Massacre – how does it fit in?

The ACF office had been set up in Mutur in order to provide fresh drinking water and relief to the locals after the Boxing Day tsunami of 2004. Most employees were Tamils from Trincomalee. By the end of 2005 the ceasefire was in tatters. We said in Special Report No. 22, “Landmine attacks against the security forces by the LTTE and reprisals by the Army and Sinhalese home guards forced a large number of Tamils to leave their homes last April and flee east to Eechilampattu division in the LTTE controlled zone (Mutur East) in May and June [2006]. Security fears had also compelled many, including Muslims feeling threatened by the LTTE, to scale down cultivation.”

On 19^th July 2006, a day after the Tamil displaced expressed their grievances to the Divisional Secretary Eechilampattu, the LTTE closed the Mavil Aru sluice gate, which denied water to many farmers in the Allai scheme. Then we have from Army.lk (26 Dec.2017), “The government took [a] momentous decision on July 27, 2006 to conducted (sic) the mission to secure the release of Mavil Aru from the Tiger hold.”

We got to know that in late July 2006, about a week before the attack on the ACF office, Sarath Weerasekera who had recently taken on the informal role as chief of the Civil Defence Force (CDF, the Home Guards and the Karuna Group), held a meeting at the Nilaveli Navy Camp, under Commander Priyal de Silva. Commander Hemantha Peiris of Thiriyai Camp and Lieutenant Commander Sumith Ranasinghe of Naval Intelligence East were also said to have been present.

At the meeting, Weerasekera allegedly asked the officers for help to act against the ACF in Mutur and place the blame on the Karuna Group. Peiris and Silva were reluctant, so Weerasekera called Defence Secretary Gotabaya Rajapaksa in their presence and told him that Peiris and Silva would not support the plan unless there was authorisation from higher up. After the call, Weerasekera and Ranasinghe stayed behind to discuss matters, while Peiris and Silva reportedly left.

The killing of the ACF staff took place eight days later on 4^th August, the opportunity being provided by the LTTE occupying large parts of Mutur on 2^nd August and then being driven out. We believe the Government thought it a foolproof opportunity to kill and shift the blame on to the LTTE. When the fact of the massacre was later made public, the media blamed the LTTE, but the general opinion among navy personnel as we understand it was that Gotabhaya was working very closely with Weerasekera and Ranasinghe, and that the killing was done by Ranasinghe in partnership with the CDF.

We believe the fact of the meeting, and what was discussed there, as having a strong mark of authenticity, but that does not say how the killings happened. The discussion ties up with the Kool Party Pact of 21^st May 2006 discussed earlier.

The date too is very significant in explaining how the ACF was fingered for elimination. Kapila Jayasekera who directed the killing of five students in Trincomalee had already, we pointed out, marked out Yogarajah Kodeeswaran, an ACF employee who in a moment of defiance had publicly voiced at a meeting in situ his determination to seek justice for his brother Hemachandran. The Army was about to launch an operation involving Mutur East and the displacement of Tamils from the area was part of the hidden agenda of army operations from the time Tamils were militarily evicted in 1984 to plant the Sinhalese colony of Weli Oya. At the end of the Mutur operation Tamils were evicted from Sampoor to mark out an intended industrial zone that however did not take off.

Having the ACF in Mutur with Tamil employees having international access was no doubt insufferable from the standpoint of state agenda.

Law-enforcement institutions in this country have deliberately been made to fail, and as the conversation above indicates, the State has used all means of terror, intimidation and appeals to Sinhalese identity to cover up and confuse. This makes it is very hard for anyone to uncover the workings of extra-judicial measures. That is why the victims have been demanding international investigation and prosecution, but Governments have refused citing eminent standards of British justice they believe are being observed in Sri Lanka.

The 2006 Commission of Inquiry was to receive important testimony from the police officer Shanmugarajah, whom it in 2008 blocked from video conferencing. But DSG Yasantha Kodagoda threw his affidavit practically into the dustbin about 23^rd Nov. for the very facile reason, known to him, that intimidation by the police assisting the Commission had earlier forced Shanmugarajah to feign complete ignorance. By this time commissioners wanting results were demoralised by the expulsion of Dr. Devanesan Nesiah who tried to keep the Commission on even keel when the important witness Rev. Sornarajah was intimidated in the Commission’s premises. The IIGEP too left in frustration.

There is much we could gather from the testimony above and from Shanmugarajah’s affidavit (Appendix 1) together with some of the commission proceedings. Much of this was said in UTHR (J) Special Report No. 33 of 4^th August 2009, where we identified SSP Kapila Jayasekera as the likely executor of the murders.

Our expectation was that a benign political change would lead to rigorous investigation. That has not happened, and the families of victims have continued to live in fear of the State and any uniformed presence in their neighbourhood. We go over the evidence in the light of the testimony above and try to tie up some ends.

[1] On the night of 13^th May 2006 the Navy killed an extended family of thirteen in Allaipiddy and five civilians in nearby Velanai. Except for one person of uncertain affiliation, people of the area consulted by us identified the Navy as the perpetrators.

[2] In particular see, Special Reports 30, 33 and 34