Impunity in times of uncertainty – Part V: The ACF Commission: to exorcise ghosts of truth that continued to haunt regardless

By Rajan Hoole and Kopalasingam Sritharan –

Under the watchful eyes of Justice Udalagama and State Counsel Kodagoda the Commission exercised enormous selectivity, not to reveal the truth, but to suppress it and to block every hole through which it peeped.

The JMO advanced the time to early morning by about eight hours to when it might be argued that the LTTE was present despite Reuters reporting the JMO’s original time of the killings, soon after the autopsies on the 7^th, as 4^th afternoon. To protect the fake time, Rev. Sornarajah who saw the ACF staff late morning, instead of early, had to be chased out of the Commission and his testimony used selectively to point to the LTTE. The fact that SSP Jayasekera claimed to have come with OIC Ranaweera, who arrived on 3^rd August rather than 4^th night, and was absent when the OIC directed a team to the ACF office on the 3^rd, had to be suppressed, despite contradictory testimony from SSP Samarakoon and Lt. Meepawla at the Mutur Jetty.

A 5.56 mm bullet recovered from the body of Romila by Dr. Dodd at the second autopsy, created a furore because it pointed to a weapon used by the commandos and very unlikely by the LTTE. The identification of type was supported by two police officers present at the inquest. Dr. Dodd later claimed inexplicably that the bullet type was the common 7.62 mm, but the original photograph taken by Dodd and given to the government analyst was not produced (UTHR (J)) Special Report No.27).

By deliberately suppressing the time of the killings, which was afternoon, as by permitting Gomin Dayasiri to intimidate Rev. Sornaraj in the commission premises and keeping out witnesses who knew otherwise, particularly Shanmugarajah, Chairman Udalagama claimed that the LTTE was in control early morning and no witness saw the Army; and then disingenuously introduced the LTTE as the possible killers, “There was other evidence like the presence of Muslim home guards. They had access to the weapons. And it could have been LTTE (BBC 14 Jul.2009).”

It was not the end of the immense stress the victim families were put through. Through the Police, Gomin Dayasiri, the lawyer for the Army got the Police to bring the ACF families to Fort Frederick and asked them to sign letters blaming the LTTE. Senthoorkumaran, who received a phone call in the evening from his sister Kohila about 4.00 PM just before she was killed, was later abducted and tortured. The Commission knew that Jayasekera deliberately gave the wrong time he had entered Mutur, to justify his absence at the time of the killings. It was just as well that they wrapped up the Commission saying there wasn’t enough money to clear its work.

Even if not intended, the way the Commission functioned to exorcise the truth made it a display of state racism. It has repeatedly happened when the truth is advertised as hurtful to the Sinhalese. It has defined the shape of our judiciary and the treatment of minorities who call for justice. There were many exceptions. Deepika Udagama as chairman of the Human Rights Commission, did a salutary job in advancing the protection of Muslims during the communal violence against them in 2019.

Instances we have given above suggest that overall, the Judiciary and law enforcement are quite rotten where the minorities are concerned. Yasantha Kodagoda is now a supreme court justice and is likely to become chief justice. Given the nature of his training and performance in the ACF case, what could the minorities expect from him as a judge? 

Recent history has shown that many of these adverse consequences would inevitably trickle down to the Sinhalese. The Easter bombings on 21^st April 2019 showed inexplicable negligence by the State to the point of being complicit. It is by now well-known that Army-Mohideen for whom there was an arrest warrant from 2017 for his association with Zahran’s violent activity, was in close contact with the Police and Army. So close it seems for a wanted man that he kept very little away from his handlers. Though closely monitored, he assisted Zahran in stockpiling munitions and helped his family to move from Kattankudy to Sainthamaruthu on the eve of the bombings. Media reports indicate that the Police got a haul of information by arresting Mohideen, whom they called the second in command, soon after the Easter bombings (IANS, ITV, Washington Post 26 Apr.2019).

Senior DIG Kapila Jayasekera was posted to Batticaloa in July 2017 when Zahran’s was the only armed group in his area. Army-Mohideen lived and acted under his very nose and he apparently knew nothing, although the SIS had given information that Mohideen was involved in training armed groups. On 7^th March 2019, ASP Wickremasekera of the CID sent men to interview Army Mohideen, but evidently left him as a mere informant. On 16^th April a bomb on a bicycle had been detonated near Kattankudy. The IGP had been informed and he asked ASP Wickremasekera to investigate. Surely, the Police, the Army and Jayasekere in particular, could not have missed Mohideen’s visible moves on the eve of the fateful Easter.

One also sees the kind of state we would have when its movers and shakers use outfits like the Civil Defence Force (CDF) as an instrument in their dirty work, as in the ACF killings, confident that the minions would not bite the hand that fed them; perhaps, they did not.

The handlers of these minions finally became front runners for political office. How the Easter bombings affected the coming presidential election leaves much to be answered. A part of the problem is that the kind of training Jayasekere had in anti-terrorism is not of the cognitive kind. He was a political cop who had not done any honest policing: for his ilk, if the person is a Tamil and you don’t like him, just kill! Unfortunately, we have a president who earned his spurs dealing summarily with Sinhalese youths in Matale during the second 1987-1990 JVP insurgency – by the lorry-loads – even as the LTTE in that period imitated them in dealing with Tamil dissent in the North. Leaving such men to defend the country’s interest and security in a time of peril is not a cure.

We come back to the central problem. It is life and its quality that we want to enhance. What is then the urgency in protecting the Sri Lankan Rupee when Lankan life has been made very cheap? We are happy to learn that in the current protest to send home the present leaders, questions about our bloody past and future have also been raised. We end with a note on the latter. 

A Social Democratic Future? 

In the final analysis the strengths of our institutions depend on whether our politics provides the social basis and harmony to sustain them. One leader who thought deeply about this was Sir Ponnambalam Arunachalam, who during his active years after 1913 advanced universal suffrage, free education and trade unions to protect the rights of workers. For our political future he pointed to the examples of Switzerland and Denmark, where social democracy prevailed. Pointing to the special place education enjoyed in Scotland, he said, there “education, elementary and secondary is so widespread and higher education so well-provided for, that one boy in four goes to the University. No wonder that in every part of the Empire, Scotsmen hold a position quite out of proportion to their population (Our Political Needs, 1917).”

A facet that marks out the Nordic countries and Switzerland is their respect for International Law. That enabled them to resolve their problems, social and diplomatic, peacefully. A pledge made by an accredited representative of a government to his counterpart in another, is recognized as binding in international law. From 1922 Immigrant Indian labour was brought to Ceylon on a government to government undertaking that they would be entitled to the same rights as the other local inhabitants. By 1940 our leaders were brazenly denying that any undertakings were given. It led in 1949 to removal of the franchise the immigrants had long cherished under the law. It put us on the wrong side of international law, to pay the price our peccancy entailed.

In 1997, our Foreign Minister Lakshman Kadirgamar acceded in Geneva to the Optional Protocol to the International Convention on Civil and Political Rights (ICCPR), which allowed appeals to the UN body against convictions, especially under the PTA, in local courts. This was a right citizens enjoyed under international law. Singarasa appealed and received in 2006 a recommendation by the UN Human Rights Council for a revision of the crippling sentence imposed on him under the PTA. Our Chief Justice Sarath Silva ruled infamously that laws under the ICCPR are not laws in Sri Lanka unless adopted by its Parliament. Like the rejection of our earlier undertakings on Indian immigrant labour, this new ruling placed us firmly in the category of a paraiah state. In a laughable move to appease the UN, Sarath Silva’s rejection of the Optional Protocol led to the passage of the local ICCPR Act, which gave the Police enhanced powers of arbitrary detention, completely nullifying habeas corpus which was a mitigating aspect of the colonial state.

Our impressions about countries are formed by experience and from what we read in the news. Those who have been expatriates would have faced the question of where to bank their savings. Instinctively, they would feel comfortable with banks in Switzerland or the Nordic countries that try to be at peace within themselves and with their neighbours. They would think twice about depositing it in a bank in our country. Finally, it goes back to integrity in government, stability and protections that are enforceable.

We must ask, if the current crisis ends peacefully and an IMF agreement enables us to limp on, do we go back to the same state structures that bred discord and made us backward? Our leaders who when it was convenient paid lip service to Arunachalam and undermined his vision completely, left us a wounded nation. We flattered ourselves a democracy, which we were not after the Citizenship and Franchise Acts that followed independence. How could we be, after making villeins of the most productive section of our working class that enabled us to limp through the past decades? We became a slave state like colonial Virginia. We hobbled ourselves with nationality and ethnicity, fought over dubious histories, and bloodied ourselves.

It is good to see what we were at the onset of British rule in 1799, from one of the earliest laws in our statute book – Lord North’s Proclamation: “We hereby do allow liberty of conscience and the free exercise of Religious Worship to all persons who inhabit and frequent the said settlements of the island of Ceylon, provided always that they quietly and peaceably enjoy the same without offence or scandal to Government.”

Lanka was long a collection of settlements where people were free to come and go, minding their own business. Intercourse with India formed an important aspect of our intellectual, commercial and cultural life. The diminution of that contact was presaged by centralization, the railways and war time rationing. Instead of developing the North, the North thoughtlessly became prisoner of the postal order economy, which absorbed the educated youth from the North. It had to end, and when Sinhala Only ended it, we were left with ethnic conflict. Any settlement to the ethnic conflict will have to loosen the tight grip Colombo has on the entire country. The now dormant economic potential of the North was captured in Prideham’s Ceylon published in 1850:

“Point Pedro is not, as is commonly supposed, the northernmost point in Ceylon, it being two miles distant. It is called by the natives Parettitorre or Cotton harbour, from the great quantity of cotton formerly produced here, and by the Portuguese was named Punto das Pedras, or rocky point … A considerable trade is carried on with the Coromandel coast in palmyra timber, in return for which are imported grain, cloth, &c.” He also describes another port nearby: “There is a passage for boats up the river, which is very intricate and terminates a few miles to the west of Point Pedro at Tondeman-aar,”

The 1871 Census shows that in comparison with 47 ships anchored in Colombo and 31 in Galle, there were 35 anchored in Jaffna, 10 in Pt. Pedro and 13 in Kayts. Those northern ports are largely closed today. The prosperity of the North, its intellectual development and commerce, were closely entwined with this sea traffic. The national tea economy and the Northern Tamils’ postal order (remittance) economy were an unsustainable aberration. Tamil politics was unrealistically tied to its educated youth getting a disproportionate share of government clerical service jobs, which influenced our politics, and our errant response to Sinhalese nationalism.

One cannot avoid being struck by the story of Allen Abraham, no doubt a largely self-taught man who was professor of Tamil and then Mathematics at Jaffna College. A native of Karainagar (Kayts), his flair for Astronomy was no doubt nurtured by the poetry and cadence of the sea and its traffic that were the lifeblood of his community. In 1912 he was made Fellow of the Royal Astronomical Society for his original work on Halley’s Comet. Where are the erudite products of Jaffna College today and where is Jaffna? The dominance of Colombo in our lives is economically and intellectually stultifying. We need elbow room.

We have a long way to go to gain social democracy. But reopening the ports in Jaffna to resume their natural traffic would be a great gain to life in this country. For children in Jaffna to go to events like the annual book exhibition in Chennai (Madras) and to visit its scholarly and cultural events by sea and rail, would make the North cosmopolitan and intellectually active as it once was and become in turn a great boon to this country. An arid North that produces largely emigrants is no boon to the country.

George Bell the Bishop of Chichester was no pacifist, but radically opposed carpet bombing of German cities during the second world war. But William Temple the archbishop of Canterbury, a member of the labour party, thought it not inappropriate that Germans should pay for the crime of backing the Nazis. The important difference was that Bell through regular contacts knew the German people, as not all being Nazi supporters. Bell was in close touch with Bonhoeffer and Hans Schonfeld, who kept him informed of the group that was plotting the assassination of Hitler. This contact during the war enabled the blossoming of the European Union at its end.

Even here at the height of the war Tamils benefitted from such friendships some of whom have featured in our writing above. Our future depends on our ability to keep to the middle ground.

Even here at the height of the war Tamils benefitted from such friendships some of whom have featured in our writing above. Our future depends on our ability to keep to the middle ground.

Appendix 1

Appendix 2

Appendix 3