14 November, 2018

Blog

July 1983: Betrayal Of The Absolute Right To Justice

By Basil Fernando

Basil Fernando

Basil Fernando

It has been 33 years since Black July, 1983. These 33 years have been part of our lifetime. We have witnessed not only the horrendously criminal acts of July 1983, but also what happened by way of justice after those serious crimes.

I would like to illustrate my point in terms of one single event: the Welikada prison massacre. This was without a doubt an act that falls within the definition of crimes against humanity. What concerns me here are the procedures of the so-called inquiries which were held into this crime. Various inquiries were announced and undertaken, and some reports were published. What becomes quite prominently clear is that, during all these inquiries, some of the senior members of the Attorney General’s Department played a blatant role in sabotaging justice. The state, rather than using the occasion to get the message across that it did not condone such acts and that it stood for the defense of the absolute right to justice, in fact proved the very opposite.

What matters is not only the criminality of those who committed the crimes, but also that of those who orchestrated the crimes. Their motives could be understood when we recall that these prisoners were those who were standing in various inquiries and trials in the Colombo courts in relation to charges of terrorism. I was myself a witness to some of these trials, including the famous trial of Kuttimani. These trials were, naturally, attracting the attention of the public inside Sri Lanka and outside. One of the very purposes of an open trial is to open a whole matter to public scrutiny. The public have a right to observe criminal trials and the right to reach their own judgments, not only regarding the crimes but also the purposes and motives of all parties involved. Through such trials, the public learns about every aspect of public issues, represented by both the accused and the state. These particular trials also had a certain theatrical impact. For every hearing, the prisoners were brought with many security guards and in a convoy of vehicles. This was expensive. It also attracted the attention of society to the events taking place in the courts.

Black July 83 -  Boralla | Photo - Chandraguptha Amarasingha

Black July 83 – Boralla | Photo – Chandraguptha Amarasingha

It appears that one of the main purposes of those who orchestrated the crimes at the prison in 1983 was to stop these trials becoming a public spectacle, and also to stop the public debate on these matters, which were taking place in and outside the country. Thus, in the attack on the prisoners there was also an attack on the very principle of open trials.

In the period that has followed the 1983 events, we have not seen any highly public trials like those relating to Kuttimani. Kuttimani’s trial also showed the manner in which judges looked into these cases, extricating themselves from the political aspects and purely concentrating on the legal examination of crimes, as they would do in any other criminal case. An exemplar is the manner in which Kuttimani’s trial was brought to an end by the great judge Tudor De Alwis. Before pronouncing his verdict, he rose from his bench – which was hardly ever done – and told the prisoner that when he, the judge, sat down he would have to carry out his obligations as a judge; however, he went on, he did not consider Kuttimani to be an ordinary prisoner. If, someday, the president was to use his prerogative to pardon Kuttimani, the judge would be one of the people who would be happy with that decision. Having said that, the judge sat at his bench and pronounced the accused guilty, and thereafter, the sentence that was to follow was the death sentence.

The killing of the prisoners was to stop all such demonstrations, not only of the accused and the prosecutors, but also of the judiciary, in showing their own views in the face of these problems. Through this attack on open trials, the people were denied of one of their basic rights, which was to be observers of such open trials and to make up their own minds about things of importance taking place in their societies.

The worst aspect was regarding the inquiries and their outcomes. The direct participation of senior state counsels was used to sabotage the inquiries. The manner in which the inquiries were carried out showed that the Sri Lankan state was not intent on delivering justice to these prisoners, treating them merely as ‘others’ without the right to justice. They were treated as a special category – terrorists –and even in the sphere of justice they were treated in that manner.

What was lost was the respect for justice as an absolute right. The Sri Lankan state did not demonstrate a will and capacity to uphold justice irrespective of whatever they thought of the accused.

The result was that everyone, citizens as well as those involved in justice institutions – including the judges -, saw that the Sri Lankan state would not treat the issue of justice in the way that it should be treated. They would not uphold justice irrespective of the consequences. The result not only affected the prisoner-victims in these cases, but also everyone who would come before the courts in Sri Lanka. No one could have absolute faith that the Sri Lankan state would do everything it has to do in order to ensure that the outcome of his or her case would be in terms of justice and justice alone.

It was this shaking of the faith in justice that should have been in the mind of the people who were dealing with the problem of reconciliation in the past few decades. The reconciliation is not only important to the victims of crimes, but also to the very structure of the state. When justice does not have the central place it should have within the structure of a state, there is a fundamental deficiency in that state. What the reconciliation process does is, among other things, restores the state structure back into what it should be, with a re-establishment of a firm capacity to uphold justice.

The Sri Lankan state today does not represent itself as capable and committed to upholding justice. That means that it cannot be a state as envisioned in a democratic state structure, one that is capable of upholding the rule of law. That endangers everyone, including the rulers themselves.

Under these circumstances it is not a surprise when the former president, Mahinda Rajapaksha, condemns attempts to inquire into enforced disappearances, claiming that that would be an attack, according to him, on the armed forces. Again, what we see is the idea that justice should be sacrificed whenever the state decides to do so. It is this danger that the government, the opposition and the civil society has not yet come to terms with. The fundamental consideration in dealing with reconciliation is to end this dangerous situation. In making a constitution, a primary concern should also be to undo every form of relativism regarding the administration of justice.

The crimes committed in 1983 and the denial of justice thereafter goes beyond the limits of common sense. However, Sri Lankan society as a whole has failed to realize this enormous imbalance, and thereby it keeps itself exposed to every kind of societal danger.

Print Friendly, PDF & Email

Latest comments

  • 14
    2

    There have been riots between the two races since independence and the crimes committed by the majority against the minority is immeasurable and cannot be forgotten that easily. There cannot be any reconciliation between the two communities at any time. Therefore secession is the only way forward for peace in the country. This cry for separation is widespread all over the world.
    1. Catalonia is asking for separation from Spain,
    2. Scotland is asking for separation from Great Britain.
    3. South Sudan declared its independence from Sudan in 2011.
    4. Singapore, one hundred years ago, was a malarial swamp.It is where
    it is today seceded from Malaysia.
    5. Venice wants separation from Italy. For over 1,100 years Venice was
    its own governing republic. “The Merchant of Venice” describes the
    thriving economic conditions of the day.
    6. Quebec wants to secede from Canada. Like Catalonia, Quebec has a
    a separate language from the rest of the country. It was only by 1%
    the referendum to secede was defeated but definitely Quebec will
    secede from Canada soon.
    7. Crimea is separated from Ukraine.
    8. In America, any one state could secede from the Union.
    9. Transnistria wants separation from Moldova. Moldova, a breakaway
    republic was a part of Romania. However this secession nation has a
    breakaway republic of its own: Transnistria, also called
    Transdniestria. It claimed its independence from Moldova in 1990
    and fought a war several years later to force the point.
    10. Kashmir wants independence from India.
    There are few more to name. I am a firm believer that if we most
    suffer under corrupt governments that steal money and deprive us from freedom, those governments should be as small as possible. The right to liberty,freedom

    • 2
      12

      Sellam

      “There have been riots between the two races since independence and the crimes committed by the majority against the minority is immeasurable and cannot be forgotten that easily.”

      Yes. Crimes committed by the Paras in the Land of Native Veddah Aethho.

      Thanks.

      You forgot Marin Luther, asking for separation from Roman Catholicism, and Coming up with 95 Theses.

      So, similarly, the Tamils should come up with 95 Theses for why they want a Separate State.

      1. Sinhala “Buddhism” not Following Buddhism.
      2. Sinhala, or truly Para-Sinhala following racism against their Para-Cousins, Para-Tamils.
      3. Para-Sinhala and Para-Sri Lankan Tamils, following racism against the Para-Indian Tamils.
      4. The need for Para-Sri Lankan Tamils to follow Vellahala Castism and Racism, towards non-Vellahala Tamils and other non-Vellahalas who speak Tamil.
      5. The need for Para-Sri Lankan Tails to ethnically cleanse the Tamil speaking Para-Muslims from the North and the East , of the L:and of Native Veddah Aethho.

      Sellam, now you can 90 more theses, like to the the works of Rev. Martin Luther, to your Theses.

      The 95 Theses

      Die 95 Thesen

      “Out of love for the truth and from desire to elucidate it, the Reverend Father Martin Luther, Master of Arts and Sacred Theology, and ordinary lecturer therein at Wittenberg, intends to defend the following statements and to dispute on them in that place. Therefore he asks that those who cannot be present and dispute with him orally shall do so in their absence by letter. In the name of our Lord Jesus Christ, Amen.”

      http://www.luther.de/en/95thesen.html

  • 4
    3

    There have been riots between the two races since independence and the crimes committed by the majority against the minority is immeasurable and cannot be forgotten that easily. There cannot be any reconciliation between the two communities at any time. Land grabbing, destroying minority culture is going on ever since. Therefore secession is the only way forward for peace in the country. This cry for separation is widespread all over the world.
    1. Catalonia is asking for separation from Spain,
    2. Scotland is asking for separation from Great Britain.
    3. South Sudan declared its independence from Sudan in 2011.
    4. Singapore, one hundred years ago, was a malarial swamp.It is where
    it is today seceded from Malaysia.
    5. Venice wants separation from Italy. For over 1,100 years Venice was
    its own governing republic. “The Merchant of Venice” describes the
    thriving economic conditions of the day.
    6. Quebec wants to secede from Canada. Like Catalonia, Quebec has a
    a separate language from the rest of the country. It was only by 1%
    the referendum to secede was defeated but definitely Quebec will
    secede from Canada soon.
    7. Crimea is separated from Ukraine.
    8. In America, any one state could secede from the Union.
    9. Transnistria wants separation from Moldova. Moldova, a breakaway
    republic was a part of Romania. However this secession nation has a
    breakaway republic of its own: Transnistria, also called
    Transdniestria. It claimed its independence from Moldova in 1990
    and fought a war several years later to force the point.
    10. Kashmir wants independence from India.
    There are few more to name. I am a firm believer that if we most
    suffer under corrupt governments that steal our money and deprive us from freedom, those governments should be as small as possible. The right to liberty, private property and self determination, preservation of culture, language if denied, secession is the only way. If a minority culture is threatened within a state that has a majority culture, the minority needs a right to form a state of its own which would protect its culture.

    • 4
      2

      Don’t forget that at least 6.3 million are there in this country who wish to be in harmony.

      • 13
        1

        sinhala buddhist, like the burmese await the sky to fall.

    • 2
      11

      ” I am a firm believer that if we most suffer under corrupt governments that steal our money and deprive us from freedom, those governments should be as small as possible”
      I do too. But a country of 2 million is only going to have a big government. There is no way of surviving otherwise.

      Yet Eritrean and South Sudanese experiences are that separate state does not necessarily mean peace. The Israel-Palestine two state solution is has not even been considered. Catalonia, Scotland still remains.
      In SL situation, a country surrounded by sea and a big source of income for the whole of 20 million. Then giving away 2/3 of the coastline to a population of 2.2 million after ripping it off from the majority living in relatively densely populated areas alone is a recipe for conflict. Then hundreds of kilometers of border between two countries will create even more trouble. Not to mention the gas resources in Mannar basin has not even realized yet.

      Separation will not bring peace that’s for sure. It will transform one set of problems into another. The choice is between them.

      • 1
        5

        I am still confused as to how to boundary line for separation as +50% of Tamils (Tamil speaking people ) live OUTSIDE North and East.

        Soma

  • 5
    0

    Basil,
    Did you give this write up to the following for vetting ?:
    1.HLDM
    2.IZATH HUSSEIN
    3.MERVIN DE SILVA’S SON DJ & his pal Rohan.
    4.Malinda Seniveratne
    5. Gomyn Dayasri
    6. Rajiva Wijayasinghe
    and few other popular guys.

    They will say SL state regardless of which party in power never used state terror against the minorities. They will say JR declared ” Dhammica Samaajaya “, MaRa emphasised Zero Casualty, Mrs Srimaavo B sought
    Quelled the JVP . Premadasa got the advice of Deng Xia Peng.

    • 4
      1

      Non PhD,

      You missed one name.
      Dr [Edited out] Dayan Jayatileka

    • 7
      0

      “”They will say SL state regardless of which party in power never used state terror against the minorities.””

      extreme right and extreme left come from the same hegelian swelled heads.

      those people are a subset of the majority pretending to be it all but need others money like north korea’s Kim Jung – product of Karl Marx dielectric

      the tamil sun god type another subset of imported vaddukoddai.-product of Karl Marx dielectric

      muslim people are very sinhala and trust the religious edict.

      times they are changing…

      Basil I presume is a `trade union`

  • 4
    13

    Human Right con men are always one sided.

    It is Like Sri lanka went and bombed Palastine, Iraq, Afghanistan, Libya, Syria, Sudan, Yeman, vietnam.

    • 2
      1

      Even animal right activists will not take your side, would they?.

      The pets that lost their house holds and its Tamil owners became destitute, they didn’t have all what human have, otherwise they would have prosecuted a good case against and won…the animal kingdom cannot be that bad compared to SL democratic Govt. of black days. Killing and burning its fellow human who did nothing to provoke such an act and burning at road site without a proper burial or inquiry is only peculiar in SL, the motherland of Sri Lankans. And then the president of this nation, accepting that Tamils are not safe even in places of refuge, load these people on to a ship, again fearing land travel would induce that periotic feeling of looting and rape on the vulnerable Tamils by men of unquestionable character, send to NE, crystalizing the believe of the Tamil extremists, that Tamils are only safer in NE. It took quarter of century to learn even NE is safer for Tamils, all thugs who transformed into and enlisted in other roles committing and engaging in humanitarian rescue operation-again killing thousands of innocent Tamils.

      The picture tells the storey than 1000 words. Look at it every night before you go to sleep, sometime might sanitized in your sleep, brother.

    • 5
      0

      Softy,

      For one thing, the countries that bombed “Palastine, Iraq, Afghanistan, Libya, Syria, Sudan, Yeman, Vietnam” were not pretending that the “citizens in those countries are our own brothers and sisters with whom we want to co-exist in harmony” while continuing with those destruction!

  • 3
    14

    Mr Sellam

    You mentioned a referendum, the main demand of the diaspora.

    Can you enlighten the readers as to who will be entitled to vote in the referendum in your case. Will all Tamils (Tamil speaking people) irrespective of their religion or the date of arrival will be included? In preparing the vote list a DNA check will be required?

    Please don’t try to find fault with me and avoid the issue. Obviously if there is going to be a referendum who is entitled to vote is the first question.

    Soma

    • 2
      11

      Soma,
      The answer is, only the Diaspora Tamils.

    • 9
      2

      Servitude is your heritage??

      The Royal British will tell you that and how Scotland voted if you don’t want an economic embargo.

  • 2
    1

    The unique feature regarding the July 83 massacre was that it was presided over by the son[JR] OF A FORMER JUDGE OF THE SUPREME COURT[E.W.JAYEWARDENA].

    JR chanted Dharmishta Samajaya in 1977;
    He even quoted the famous Latin Dictum:Fiat justitia ruat caelum- LET JUSTICE BE DONE THOUGH THE HEAVENS FALL.
    JR always had his tongue in his cheek,when saying such things!

  • 8
    0

    Basil Fernando,

    Your case in point is but a drop in the ocean. I would trace the dawning of the age of impunity to about the mid-fifties, and every government thereafter felt an absolute right to not be judged in any court, leave aside a court of law, for actions it deemed necessary to ‘defend’ whatever it felt its right to.

    So transgression followed transgression. From the mid-fifties right up to today. the state (and its proxies) got away with murder. The upshot is that our political class now believe they can walk on water. Further, in their incestuous political inter-twining they now shield each other from facing the inevitable.Facing justice, and that too selectively, is for the ordinary man.

    Notwithstanding the innumerable acts of kindness during those times, the blood of 1983 (and of the years leading up to it) glistens fresh in our dazzling sunlight, to remind us of the injustices we heaped upon our Tamil brethren. If it wasn’t them it would have the others.

    Still, we have to keep the faith, there will surely be happier days for the increasingly better informed people of our land.

  • 3
    2

    mr.sellam, do you consider them as riots? how many sinhalese were killed during 1977 and 1983 ‘riots; they not riots. they were pogrums. harm was done by one community and only one community suffered. these were annihilation of one community by another community with the support of the state which strengthened the demand for separation.jr was also part of it.sri lankans should be thankful to india for not taking the opportunity to harm/separate SL.
    -dayal

  • 1
    0

    Basil, you are absolutely the right person to talk about betrayal. You know everything there is to know on the subject.

Leave A Comment

Comments should not exceed 300 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically shut off on articles after 10 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.