Impunity In Times Of Uncertainty – Part II – Looking to the past: the political cultivation of an obliging Judiciary to violate rights

By Rajan Hoole and Kopalasingam Sritharan –

Article 29 (2) of our Independence Constitution made it unlawful for Parliament to pass legislation that discriminated against any community. Namely, lawmakers must not subject to disabilities, or confer privileges unequally among communities. In plain language all communities were equal under the Constitution. But almost immediately following Independence, Parliament passed legislation denying Plantation Tamils the Franchise which all permanent residents were given under the 1931 Donoughmore Constitution.

The Supreme Court of Sri Lanka pic by Madahawa Tennakoon

This disenfranchisement so plainly violated Article 29 that many of us wondered credulously if the law was so esoteric that it took specialists to see that it had deep, hidden, meanings inaccessible to ordinary readers. Though the disenfranchisement was upheld by the Supreme Court, a reluctant Privy Council went to the absurd extent of deeming the Plantation Tamils an itinerant community, coming and going according to job availability, to justify the Act when in fact it was their continued sweating in Ceylon’s hills while many sought safer refuges that kept the war time economy intact.

It took the 1964 judgment of O.L. de Kretser in the Colombo High Court to restore our confidence in our common sense understanding of the law as written for the ordinary reader. He deemed the Sinhala Only Act passed in 1956,[1] ultra vires because it gave advantage to one community which the other did not have; and was therefore an infringement of Article 29 of the Constitution, and therefore void. But the Supreme Court dodged de Kretser’s challenge. Sinhala Only was encrypted by a brute force majority into the 1972 Constitution. Starting with the Citizenship Acts, our law ceased to be founded on principles, reason, and humanity.

The ascendancy of J.R. Jayewardene and his punitive communal violence of 1977 and his crushing of the 1980 General Strike left us with the beginnings of arbitrary law.

Although aimed at suppressing the lowliest, the new trend that followed – disrespect for fundamental principles of justice – also affected the highest. Hardly any one of our assassinated leaders was accorded the minimal honour of a proper inquiry. They were indifferently disposed.

As much as ordinary people were shocked by the assassination of Prime Minister S.W.R.D. Bandaranaike in September 1959, the Government of the compromised Party he founded was struggling to hide its embarrassment. It was only at the previous April’s Party summit that Bandaranaike’s leading antagonist Buddharakkita Thero tried unsuccessfully to unseat Bandaranaike and install W. Dahanayake as prime minister.

Buddharakkita’s hatred of Bandaranaike was well-known, but the trigger had been pulled by Somarama Thero as witnessed at the scene. The Penal Code deemed the accomplices to the crime equally guilty and the punishment was death. The Parliament led by Bandaranaike’s shrunken party trying to find cover for themselves, passed a law that in effect revived the death sentence and confined it to Soma Rama Thero.

The jury in the trial court ignored the direction of Justice T.S. Fernando not to take account of the testimony of persons indicted as accomplices to the crime against anyone else but themselves. No doubt influenced by the gripping testimony of Inspector Newton Perera who was indicted as an accomplice and Soma Rama’s confession to the Magistrate which he later withdrew and substituted a plea of not guilty; the jury found Buddharakkita Thero, his business associate H.P. Jayawardana and Soma Rama Thero guilty of the murder.

The trial had major defects from the planning stages. In the absence of testimony by others not indicted as accomplices, there was no direct evidence against Buddharakkita or Jayawardana.

Jayawardana was indicted mainly because he was a frequent companion of Buddharakkita. But others associated with Budddharakkita were not prosecuted. At the pre-trial hearing the Magistrate released Mrs. Vimala Wijewardena, Buddharakkita’s close companion and political ally. Also not brought to trial was Nawaloka Tycoon. Police investigators, Inspectors Tyrrell Goonetilleke and Seneviratne, told court it was Nawaloka Tycoon who supplied Buddharakkita with the fatal bullets he sought and obtained from CID Superintendent B.C. Perera; Perera later committed suicide. Thus, the most promising way of cornering Buddharakkita, the supply of the fatal bullets, was ignored, despite which the jury made up its own mind from coloured testimonies they found convincing.

Based on the jury’s verdict, Justice T.S. Fernando, went according to the Penal Code and pronounced death sentences on Buddharakkita, Jayawardana and Soma Rama. The defence counsel Phineas Quass surely had a point when he described the Crown’s prosecution of Buddharakkita and Jayawardena “as an Edgar Wallace type cloak and dagger story, where statements were made providing supposedly circumstantial evidence that was not evidence at all, but ‘fiction.’”

Hanging Buddharakkita, the powerful chief incumbent of Kelaniya Temple, who intimately knew the darker sides of leading politicians would have carried a heavy political cost. On15^th January 1962, eight months after the judgement, the Court of Criminal Appeal further damaged the standing of justice in Lanka when Chief Justice Basnayake leading a five-judge bench commuted the death sentences on Buddharakkita and Jayawardana to life imprisonment while leaving Soma Rama’s intact. It would have been more acceptable had Parliament retroactively removed the death sentence for murder, which Bandaranaike had previously done, and was after his assassination reimposed by Parliament ad hominem against Soma Rama.

But the Dahanayake Government wanted to hang Soma Rama to mitigate its embarrassment and had no interest in justice.

This violated a fundamental principle of law, which makes no difference between the guilt of a killer and his accomplice. Justice T.S. Fernando had rightly ignored the unconstitutional ruling of Parliament. The subsequent Court of Criminal Appeal under Justice Basnayake had deliberately upheld the Parliament’s ruling as politically expedient. Miliani Sansoni, who later became Chief Justice had occasion to regret this when he ruled on the 1962 coup case on 25^th February 1963: “Quite recently … a bench of five judges of the Court of Criminal Appeal upheld a sentence of death [against Soma Rama] passed upon a conviction for a murder committed at a time when under law the death penalty did not attach to the offence of murder. The penalty of death attached only by reason of legislation enacted with retroactive effect.”

It was once more a matter of the courts validating bad laws passed by Parliament with retroactive effect, starting with the disenfranchisement of Plantation Tamils whose franchise had been granted by the Donoughmore Constitution of 1931 and reaffirmed by Articles 29 and 91 of the 1948 Independence (Soulbury) Constitution. The Supreme Court which opportunistically upheld disenfranchisement should instead have ruled it to have been unconstitutional and spared the country the decades of agony that followed. Instead, when some judges (as de Kretser) in the 1960s began resisting Parliament’s attacks on fundamental principles, the game was once again changed. Colvin R. de Silva’s 1972 Constitution removed all checks in the Soulbury Constitution and made the Parliament’s rulings unassailable.

Our courts from independence accepted laws passed by Parliament with simple majorities ignoring the stipulation of a two thirds majority of the entire house for legislation that violated constitutional rights.

Peter Maxwell’s manual which every lawyer has, says, “It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.” One of these fundamental principles is jus soli or citizenship by birth. Irresistible clearness means that you cannot make a person stateless under the pretence of legislation to confer citizenship on residents. Exclusion must be clearly spelt out.

The permissibility of vagueness, as in the repeated partisan observance of Article 29, explains why our laws have fared badly in defending rights. And in one instance the Supreme Court in comments from the Bench actually appeared to justify the motives behind mob attacks on unarmed Tamils.

Twenty-seven Tamil inmates were brutally killed in the attack on Bindunuwewa Rehabilitation Camp on 25^th October 2000; hundreds of others witnessed the attacks. Prominent in the attack were some of President Kumaratunga’s party supporters, aided by senior police officers. The youth who they killed had been arbitrarily detained on suspicion of being LTTE, and some were LTTE conscripts who sought safety in surrender to the Army after escape from their captors.

The Human Rights Commission’s investigation team, which comprised Faisz Mustapha, Godfrey Gunatilleke, Mrs. Manouri Muttetuwegama, Sarath Cooray and N. Selvakkumaran quickly dismissed official claims: “From all the information that we have received in the course of our inquiry, it is clear that the police officers approximately 60 in number, have been responsible for a grave dereliction of duty in not taking any effective action to prevent the acts of violence that resulted in the deaths of 27 inmates and injuries to several other inmates of the Bindunuwewa camp.” Despite the high standing of the Commission, its finding was contradicted by the Government Spokesman Ariya Rubasinghe, that the victims were armed provocateurs. This claim which was reflected in President Kumaratunga’s evasive statement influenced Justice P.H.K. Kulatilaka’s Commission Report and the Supreme Court. Kulatilaka stated in a Sunday Observer article (22 Feb.2015):

“Evidence revealed that at the time of the attack Anton James had been giving telephone calls to some unknown person. … Anton James was a LTTE spy or a ploy planted by the LTTE to create a revolt in the Centre to attract international attention and sympathy for their cause. Presence of the hard core LTTE terrorist in the Centre had a devastating influence on the inmates.”

Even after 15 years Kulatilaka had to stick to an absurd story, when in fact James had phoned for help that their camp was under attack. He had asked his brother to get help from Brigadier Zacky in Batticaloa whom James knew. Kulatilaka however ironically records that about midnight, hours before the attack, a caller from Batticaloa had informed HQI Seneviratne that the Bindunuwewa camp was under attack (UTHR (J) Special Report 19). One infers that officialdom from the President downwards, the security services and the Justices knew the truth, and believed that its exposure would hurt Sinhalese interests at a time when the LTTE had made some notable military gains (before its internal fractures took their toll). James was a helpless man. The use made of him in propaganda showed the weakness of Sinhalese chauvinism that had infected even the judiciary.

The event was made more scandalous by the presence of 60 armed police officers in addition to Army personnel who did next to nothing to stop the massacre. The massacre while the Police stood by was so sensationally harrowing that the Government which had turned a blind eye until that point felt the need to ceremonially punish a scape goat.

In a badly managed hearing apparently relying on a vague notion of command responsibility in the absence of a legal provision incorporating the doctrine in criminal law, the High Court used the two most senior police officers, who were present and therefore most answerable, as witnesses to prosecute two relatively junior police officers, who were given death sentences. The five sentenced appealed to the Supreme Court.

Alan Keenan of the International Crisis Group observed, “there were good reasons to throw out the convictions on appeal – for reasons of the unsound, and unfair, application of command responsibility. Had the Supreme Court done this [in its verdict on 27^th May 2005], it would also have given greater weight to the principle of command responsibility in Sri Lankan jurisprudence – something that is urgently needed to address our impunity problem. It chose instead a route to acquittal that was eminently questionable.”

Human Rights Watch that was represented at the Supreme Court hearing observed, “Impartial observers of the Supreme Court hearing said the justices were openly hostile to the prosecution and seemed to have decided beforehand that the accused were unfairly sentenced. One justice publicly reminded the courtroom to remember that the inmates who had died were members of the LTTE, suggesting that this might mitigate the guilt of the accused (2 Jun.2005).”

One of the five judges present on the bench was N.K. Udalagama, who was placed in charge of the Commission of Inquiry appointed by President Rajapaksa with an International Independent Group of Eminent Persons (IIGEP) to investigate 16 cases of “serious violations of human rights” in 2006.

Two of the major cases were the exhibition killing of five Tamil students on the Trincomalee sea front on 2^nd January 2006 and the killing of 17 employees of Action Contre la Faim (ACF) in Mutur on 4^th August 2006.

The Commission’s verdict on the ACF case and silence on the killing of the five students in Trincomalee were on the same lines as the judicial remarks in the Bindunuwewa case, namely when Sinhalese kill perceived enemies of the race, however helpless and innocent, no one has any business to stand in judgment. That is the reality among an influential section of the Judiciary.

In the killing of the five students, Dr. Manoharan, the father of the victim Ragihar defied police intimidation to stand up and demand justice. Because of his determination the Army failed in its efforts to pass off the deaths as owing to accidental explosion of grenades the boys had carried, rather than shooting by the paramilitary police, the STF. The authorities had counted on fear among the hundreds of witnesses to come forward to ensure that their cover up succeeded. But the case has refused to go away.

Dr. Manoharan’s advocacy to see justice done led international organizations to also take up the cause, forcing the Government to take the first steps as arresting the STF men. But Dr. Manoharan was not the only family member to speak up. For a government determined that not a squeak should come from any adverse witness, the show of defiance at a memorial ceremony for the five boys by Yogarajah Kodeeswaran, whose brother Hemachandran was killed, had been noted by SSP, Kapila Jayasekere, who had presided over the killings (UTHR (Jaffna)).

Kodeeswaran worked for the ACF and was stationed in Mutur on 4^th August when he and 16 of his aid worker colleagues were killed. Our reports show how elements of the Police, Army and Navy took part in the killing of the five students, and how official links between the two cases manifested.

[1] The Official Language Act No.33 of 1956, which made Sinhala the official language of administration, putting Tamil speakers at a distinct disadvantage.