By Rajan Hoole –
At the end of Chapter 3, we made reference to the press report of 28th May which announced a non-jury trial shortly for Gandhiyam leaders Arulanantham David and Somasundaram Rajasundaram. The CID had then accused Rajasundaram of trying to make peace between Uma Maheswaran of the PLOTE and Prabhakaran of the LTTE, and having requested the French authorities to provide training to Tamil youth. These charges were not backed by tangible evidence and after a further 56 days of sleeping over them, the case was brought to Court on 22nd July. Evidently, neither the judge nor the senior state counsel believed that there was a case.
Senior State Counsel C.R. de Silva told the Court that charges had [at last!] been framed against the accused and requested the Court to serve them on the accused. David and Rajasundaram were charged with ‘having failed to disclose the whereabouts of terrorist leader Uma Maheswaran and Thambapillai Santhathiyar, and interfering with the arrest of terrorist suspects under the PTA.’
The two accused were respected leaders among the Tamil community and it was three and a half months since their arrest. It was well-known that Dr. Rajasundaram had suffered injuries as a result of torture and moreover the case had created much international interest and concern. In the meantime, there being no viable charges, the two had been basely maligned in Parliament under parliamentary privilege by leading ministers. A self-respecting judge should have made a point by fixing the trial at the earliest opportunity and having the case dismissed.
But this was not how Judge Tissa Bandaranayake of the Colombo High Court chose to proceed. He said that he was not in a position to fix a trial date as another trial was then on, in his court! Asked about their counsel, the accused said that they would retain their own counsel from the next date. Judge Bandaranayake fixed a calling date for 5th September (5 months from arrest!) and said that he would then fix a trial date. One concession the Judge made to the detainees was to issue an order transferring them to fis- cal custody at the remand section of Welikade Prison, from their maximum security prison conditions.
Again the rationale seemed to be to prolong detention through an extended trial over hopelessly inadequate charges. Nearly all the judges who valued their career had got the message. The accused were not transferred to remand custody. Perhaps they themselves did not want to be separated from their companions. Five days after the court appearance Rajasundaram was killed in the second prison massacre, and Senior State Counsel de Silva’s role changed to one of leading evidence at an inquest that was held solely for the purpose of covering up the State’s culpability. In view of the role of the Judiciary in implementing bad laws without protest, the intentions of the State as revealed in a press item on 12th June (Sect. 8.7), and the circumstances of the Welikade prison massacre (Chapter 11); whether Rajasundaram was a victim in part of judicial murder remains a moot question.
The Priests, Dons and Doctor Case
The accused in the case were Rev. Singarayar, Rev. Sinnarasa, Rev. Jeyathilakarajah, Dr. Jeyakularajah and Mr. Nithyananthan, a Jaffna University don and his wife Mrs. Nirmala Nithiyananthan. The charges against them were under the PTA. The first two were accused in con- nection with helping to dispose of money from the Neervely Bank robbery, and the others were accused of helping to treat medically an injured LTTE member (Seelan) without informing the Police of his whereabouts. The arrests took place in November 1982 and the charges were served on 7th February. But the trial was called in the Colombo High Court only on 23rd June 1983.
This time Deputy Solicitor General Tilak Marapone and C.R. de Silva wanted the trial postponed for a novel reason. They said that Judge Robert Silva was to retire in 6 weeks and since the trial cannot be finished before then, the changing of judges would cause discontinuity. Marapone further said that the Court must first adjudicate on the voluntariness of 5 confessions and must also establish the fact of the attack on the Chavakacheri Police Station (where Seelan is said to have been injured). The defence held that the accused had been harassed for a long time and wanted the trial argued to a close without delay under Robert Silva.
Mr. M. Sivasithamparam MP, who was senior counsel for some of the accused protested at the unduly harsh and humiliating treatment of the accused who were brought from prison in a caged truck at 8:30 AM and were made to remain in the truck until the trial opened at 10:00AM. He pointed out that such a show of security was unwarranted given that the accused were not charged with anything remotely approaching murder. Bala Tampoe, another senior counsel, made a spirited response to the prosecution saying that it was inappropriate to bring up the issue of the judge’s retirement now given that the charges were served four and a half months earlier. He said that the accused had not committed any crime under normal law and had since November been denied a chance to say what they had to say. Robert Silva decided that the trial would commence on 27th June and asked the prosecution to open the hearing.
This was not the end of novelties. On 27th June, the prosecution comprising Tilak Marapone, C.R. de Silva, Kanthilal Kumarasiri and Mohan Peiris arrived in Court and asked for a postponement. Their reason: ASP Punya de Silva had suffered a heart attack and was in the intensive care unit, as supported by a medical certificate produced by them. Bala Tampoe objected, pointing out that there were 20 witnesses and Punya de Silva’s presence was not crucial. He pointed out that of the 5 confessions, two can be spoken for by ASP Chandra Jayawardena. The retiring judge postponed the case by two months to 24th August. Just over a month later four of the accused survived the second prison massacre by a hair’s breadth.
We may add here that Punya de Silva made an almost miraculous recovery from his debilitating heart condition and, more than 16 years later, saw the new millennium as DIG, CID.
Dr. Tharmalingam and Kovai Mahesan
This was a case that showed the State to be at its most ridiculous. The two had been arrested after making an appeal to the world over violence against Tamils in Trincomalee. By stretching matters they could have been charged under the PTA with incitement – a legitimate monopoly of the State and the Colombo press, apparently, going by how the two behaved. But this would be to interpret legitimate protest by a minority under attack as incitement. It is safe to assume that the State had no intention of framing charges that would have of necessity been in the realm of the ludicrous.
Habeas Corpus applications were filed on behalf of the two, who were respectively president and secretary of the TELF, on 6th July, by Mr. Rudramoorthy who represented them. The two petitions before the Court of Appeal averred that the two gentlemen “were senior members of the Tamil Eelam Liberation Front which has as its main aim the liberation of the Tamil speaking people of Ceylon and the establishment of Tamil Eelam.” The application said that Dr. Tharmalingam and Kovai Mahesan were generally interested in the welfare of Tamil speaking people in Ceylon. In the application on behalf of Tharmalingam were listed a number of incidents of violations by the security forces in both Trincomalee and Jaffna districts. The application stated that the 1st respondent DIG W.B. Rajaguru (then in Jaffna and recently IGP) had taken no action to prevent the incidents in his area. It added that both Tharmalingam and Mahesan were innocent of any crime, that Tharmalingam is a vegetarian from birth and suffers from ailments needing constant medical attention, and that Kovai Mahesan is a journalist of 15 years suffering from blood pressure (Hemachandra Nanayakkara in the Daily Mirror of 7th July 1983).
The bench comprising Justices H.A.G. de Silva and Justin Abeywardene decided that the Court of Appeal did not have the jurisdiction to release the two who were detained under Emergency Regulations, but responded to the habeas corpus application by directing the Attorney General through a member of his de- partment to inform the Court on 18th July the whereabouts of the two detained. These two again had a narrow escape three weeks later in Welikade jail.
*To be continued..
*From Rajan Hoole‘s “Sri Lanka: Arrogance of Power – Myth, Decadence and Murder” published in Jan. 2001. Thanks to Rajan for giving us permission to republish. To read earlier parts click here