28 November, 2020

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The Strains On Judicial Integrity

By Rajan Hoole

Dr. Rajan Hoole

Dr. Rajan Hoole

Antecedents Of July 1983 & The Foundations Of Impunity – Part XI

Former Chief Justice M.C. Sansoni was clearly a man acting under pressure. The Commission itself became a forum for organised perjury against Tamil leaders, while the Report avoids any mention of the activities of the Sinhalese leaders.

A number of witnesses trooped in and claimed that Mrs. Amirthalingam had said at several meetings that she would make slippers out of the skins of Sinhalese and she cannot rest until she swims in the blood of the Sinhalese. One such witness was the Ven. Nandarama Thero, the chief priest of the Naga Vihare, Jaffna, who claimed that the statement was made at an election meeting close to his temple on 4th July 1977. The police report of that meeting was called, and it showed that Mrs. Amirthalingam did not speak at the meeting. Pointing out that not in a single meeting has this charge against Mrs. Amirthalingam been backed up by a police report, Sansoni dismissed these charges as a ‘dangerous and evil conspiracy’.

Former Chief Justice Milliani Claude Sansoni

Former Chief Justice Milliani Claude Sansoni

Yet, time and again excerpts from these allegations have been reproduced in the Press, without mentioning that Sansoni convincingly refuted and dismissed them. The impression that is sought to be conveyed is that the Tamils are fond of leaders who make gory, threatening speeches.

These claims about speakers wanting to swim in Sinhalese blood and make shoes out of Sinhalese skins have been repeated by T.D.S.A. Dissanayaka in his War or Peace in Sri Lanka (p. 20). He says that these speeches were made by ‘callow youth’ from TULF platforms, but rumour attributed them to Mrs. Amirthalingam, and such reports triggered off the violence. He does not mention his source, but not a single police report has been cited in the Sansoni Report to show that such statements were at all made by anyone.

This is one of those instances where Sansoni showed the competent judge in him. He resisted attempts to frame and character-assassinate individuals and was sympathetic to individual victims. Another instance concerned Dr. J.T. Xavier, then surgeon at Trincomalee Hospital. His case illustrates the general vulnerability of Tamils in this system.

Dr. Xavier who was at Gampaha Hospital was interdicted on an allegation of bribery shortly after Mrs. Bandaranaike’s government assumed power in 1970. No charges were served for 1 1/2 years. Then N.L. Jansz, retired judge- advocate of the Army went into the matter and acquitted him. Even so, W.P.G. Ariyadasa, who was minister of health, sent him a letter saying that he was guilty. He was reinstated after 2 1/2 years. During his interdiction he read widely and later published a book on the common origins of Tamil and Sinhalese. This plea for national unity was interpreted as racism by several Sinhalese ideologues.

On 21st August 1977, three members of the family of Pushpa Jayanthi, a Sinhalese resident of Trincomalee, were shot dead by Tamil hoodlums. At Trincomalee hospital Dr. Xavier had Pushpa Jayanthi X-rayed and found that she had a compound fracture in the right upper arm where a pellet was lodged. There were no other pellets found that could cause injury to internal
organs. While she was under treatment, the Police without informing Dr. Xavier transferred her to Kandy hospital. There she was treated by the surgeon Dr. Douglas Wickremasinghe.

Later, some interested group prevailed on her to say that she was deliberately neglected by Dr. Xavier, and also got several other witnesses to say so. Dr. Xavier’s earlier incident at Gampaha was also brought up and he was charged by lawyers of the interested party with being an active Tamil racist and even a Tiger agent. Dr. Wickremasinghe too first stated before the Commission that he had removed two pellets from Pushpa Jayanthy distinct from the one embedded in the fracture, which Dr. Xavier was emphatic, were not there.

Later under cross-examination by Siva Rajaratnam, Dr. Wickremasinghe admitted that the hospital records he subsequently examined showed no evidence of the presence of other pellets. He also admitted that, this being a judicial case, Pushpa Jayanthy could not have come into possession of the pellets which she said were removed from her body. Sansoni dismissed the charges and exonerated Dr. Xavier. The case also illustrates the role played by cross-examination.

Those who defend Sansoni point out that the Commission and Sansoni himself were handicapped in many ways. The powerful team of Tamil lawyers led by Sam Kadirgamar QC and P. Navaratnarajah QC who appeared at the beginning of the sittings in Jaffna then dropped off, leaving the Tamil side weak on cross- examination. The State decided to intervene when it thought that things might get out of hand. Deputy Solicitor General G.P.S. de Silva who appeared for the State at the beginning, later dropped out citing personal reasons. He was considered a person who would have been uncomfortable about lowering his ethical standing. His place was taken by State Counsel A.D.T.M.P. Tennekoon.

Sansoni who earlier did not want to prolong commission sittings into 1979, unaccountably changed his mind. It was then that a host of Sinhalese groups and police officers came into the witness box to testify against Tamils and Tamil leaders. Many of them were persons whose record does not stand up to scrutiny. Their testimony could be found in the last 3000 or so pages of the record running into about 15,000 pages. Sansoni in effect reopened issues like the IATR conference of 1974 which he earlier said did not lie within his mandate.

There were also occasions on which the Commission received threats. We also learn that GA Vavuniya who had seen a good deal of mob activity sought a private audience with Sansoni. He pleaded on grounds of his safety to be exempted from testifying. Sansoni acceded to his request. A particular defence of Sansoni maintains that he was after all a judge who had to go by the evidence placed and supported before him. One of those close to him put it in this vein, “As a judge Sansoni may be guilty before the court of the people, but not before the court of the Law”. Another instance illustrates the strain he was under.

At the close of the first chapter, Sansoni had already suggested that the cry for Eelam was the main cause of the August 1977 violence. He adverted to this again at the very beginning of Chapter VI on ‘Measures Necessary to Ensure the Safety of the Public and to Prevent the Recurrence of Such Incidents’. As though feeling uncomfortable that the case had not been argued adequately, he opened the chapter with the following:

I have already expressed my views on the cry for Eelam raised by the TULF. The Ven. Madihe Pannasiha, Fr. Caspersz and many other persons have stated that it was the main cause of the disturbances. Therefore, the first measure I would recommend, to prevent a recurrence of the disturbances, is that this claim be abandoned.

This extract was given wide publicity and has ever since been cited with much satisfaction (e.g. V.P. Vittachi’s Sri Lanka, what went wrong, p. 63).

What is almost unknown is the fact that on 8th November 1980, Fr. Paul Caspersz said in a letter to Sansoni: “…I am disturbed at being made to appear that I ever took up the position that the cry for Eelam raised by the TULF was the main cause of the disturbances. This is not, and has never been, my view.” Fr. Caspersz also attached to the letter the relevant extract from the official verbatim record of his evidence before the Commission.

The correction was neither implemented nor publicly acknowledged and Sansoni’s claim above went into history with the name of Fr. Caspersz as a supporting authority.

Sansoni did acknowledge that in many instances the Police had failed to discharge its functions of protecting the victims and preventing incidents. Sansoni Report also called upon the Government to discuss with the TULF the areas of conflict it identified viz., education, employment and colonisation. This was lost as against the propaganda value of the Report.

Among the other positive recommendations of the Report was payment of compensation to the victims. Where matters stand to this day, is described in an article by S. Thambyrajah in the Weekend Express of 8th August 1998:

From 1977 onwards, I along with several other victims, jointly and severally, have made several appeals to the government for payment of compensation for loss and damage to private properties in accordance with the commendation of the Sansoni Commission, without success. Separately, I have been writing letters to the press regularly which the media has so kindly published. (Sun 12.9.77, 18.2.82, 5.3.82, 4.6.82; Observer 26.1.81; Sunday Times 18.3.90 with a full investigation report; Island 19.8.94, 1.6.95; Sunday Observer 11.2.96; The Weekend Express 27.2.96, 8.8.97; Daily News 15.2.96, 4.8.97).

“In spite of all these governmental authorities have conveniently forgotten this subject of compensation to the 1977 victims.

Enough was conceded in the Sansoni Report for the TULF to call for a debate in Parliament and place its case on record. But they instead became paranoid over the strictures passed on them and ignored the entire report. The question of compensation too, was not pursued by them. Compensation for the victims was after all an important purpose of the Commission, and it was on a request by the TULF that the Commission was appointed. By washing its hands off the matter merely because of strictures passed on them, the TULF let down the victims badly. By ignoring the report, the TULF allowed the UNP government to bury the truth about the 1977 violence and plan for something more severe. This was unpardonable in a party elected to guide the destiny of the Tamil people.

Former Chief Justice Miliani Claude Sansoni was a man fighting a battle within himself. During the latter stages of the Commission hearings he remarked to a confidante gravely, “I have never before headed a political commission.”

In judging Sansoni’s report we must go beyond the individual and take into consideration the milieu in which he was working. In a context where the politics of the nation is wayward, and the executive both too powerful and thoroughly unscrupulous, to expect a good commission report on a matter involving high stakes, is to expect too much from individuals.

The strains on the judiciary have been evident for a long time – we have already mentioned in Chapter 1 the Supreme Court judgement on the Citizenship Bill.

*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

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    “In judging Sansoni’s report we must go beyond the individual and take into consideration the milieu in which he was working. In a context where the politics of the nation is wayward, and the executive both too powerful and thoroughly unscrupulous, to expect a good commission report on a matter involving high stakes, is to expect too much from individuals.”

    All the more reason where there has to be an international component in the inquiries into war crimes committed by the armed forces, LTTE, Paramilitaries and those directing them.

    In favour of Justice Sansoni I should say if not for him I would have been further penalized after the 1977 riots. The word riot in itself a misnomer, because it was one sided. The Tamils did not resist or react.

    In continuance of my previous comment relating to my resignation from my position at the Perdeniya University, I wish to say something in favour of Justice Sansoni. Once I was at University of Guelph in Canada, I received a notice from the Peradeniya University that instructions had been given to the Sri Lankan High Commision in Ottawa not to renew my passport for the reason that I had not fulfilled my contract to serve the University after obtaining my post-graduate qualifications. I replied that I could not, because the Peradeniya University and Sri Lanka did not provide me the safety and security to do so. I also addressed a letter to Justice Sansoni detailing what was unfolding and with copies of my correspondence with the Peradeniya University. He took immediate action and ensured that my passport was renewed.

    Dr.Rajasingham Narendran

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    I am not sure if Mrs A quite sought to be a vampire.
    But she is known to have often said in very emotive language many things that very offensive towards the Sinhalese.
    The A couple did such things including inducing youth to violence for Mr A to regain his lost place in the Tamil political hierarchy.

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    Dr. RN,

    Rajan Hoole sets the record straight on the false claim by some people of Mrs.A making a speech referring to “slippers” and ‘skin.” But I recall you yourself as well as Mahesan Niranjan criticized Mrs.A on CT for such speeches, taking canards at face value; I and a few others like Backlash or Kettikaran questioned that. I hope Rajan Hoole’s writing sets the record straight once and for all. Mrs.A herself has denied she ever made such speeches.

    Sekara,
    I recall attending about 3–4 TULF meetings in 1977 in which Mr and Mrs A spoke; sure they made what looked like fiery speeches but it was more in the lines of why some Perera who got fewer marks at the A/Ls than a Kandasamy should be admitted to university while the latter was denied admission? or why a well-trained and well-qualified Tamil pilot was not hired by Sri Lankan Airlines on account of his being Tamil? or “Say you are a Tamil, hold your head high!” There was no blatantly emotional or racist speeches that I heard at that time. There have been many canards unleashed by troublemakers, and responsible people shouldn’t repeat those unless they themselves heard such speeches.

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      I have not attended TNA or FP meetings between 1970 and 1977. But there are witnesses to confirm that Mr A declared in public which people do not deserve a natural death.
      His indirect role and emotional involvement in the killing of Duraiappa is no secret.
      Blood consumption and human leather footwear were among the rather unusual political themes on FP/TNA platforms in the 1970s, and were talked about.
      Mr & Mrs A have at least moral responsibility on that score.
      The pair is responsible for misleading a section of the Tamil youth.

      There are Tamils who told me that Mrs A has said some pretty nasty things, and was admired for that. It will take a while for me to confirm.

      But I do not take these speeches literally. They are as empty of content as other drivel we hear on election platforms.
      When I received an anonymous postcard in the 1970s threatening me with death for appealing to vote for VP against SJVC, I told about it to a fiery young Tamil nationalist whom I knew well and added “Promises! Promises!!”

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      Agnos,

      Thanks. We have had irresponsible politicians and an utterly irresponsible and vicious media, for a very long time. The same media groups report differently in the three language streams! A very explosive mix. It is very hard to differentiate between fact and fiction in this country, if one is to rely only on the media for information. Our politicians, a very irresponsible lot even in the past and more so now, given their sordid quality, set the pace for the media.

      I heard a speech by W.Dahanayake in Kelaniya in 1956. We were driving past the venue and my father had stopped to listen to what was being said. I distinctly remember Dahanayake putting up two fingers and asking the audience, how they could be be equal. He said that if they were to be equal, the longer or the larger finger had to be cut and if sio, it will hurt and bleed! He was speaking at the height of the Sinhala only campaign and was referring to the Sinhalese and Tamils! I doi not know whether the media reported this.

      Similar reporting and now extensive discussions, yet go on in a much more sophisticated manner in the media and even CT is not an an exception. Many comments in CT are directed at distorting and even writing new history. Many others spew double distilled bigotry and racism, with gay abandon and utter irresponsibility.

      I have known the Amirthalingam’s personally, but have not attended any of their meetings. They were out and out politicians, who were prone to much subterfuge. They would say something in public and do just the opposite behind the political screen. I know this for certain.

      Dr.RN

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    Obviously, the judges decide on facts placed before them. When a racist Buddhist monk from Jaffna Temple, comes forward to tell a blatant racist lie about Mrs A, a Sinhala judge would give weight to what the monk says.

    The judge would expect the character of a Buddhist monk to be according to the teachings and the ways of Buddha. But racism or anti Tamilism in a monk, will make racism supersede the teachings and cast the ways of Buddha into the waste bin.

    Lack of spirituality amongst the Buddhist priests, filtering down to the Sinhala masses was the cause of violence and death done to the Tamils.

    Indigenous Tamils asked for Tamil Eelam (TE) because there was military occupation of NE by SL, state sponsored discrimination and repression, and Sinhala majoritarianism, similar to apartheid in South Africa.

    Tamils had no equality, dignity and justice; the basic requirements of Democracy.

    There was nothing wrong with asking TE. It was a democratic request for human rights and democracy by the suffering people of N&E. But how the oppressing Sinhalese responded to t6he requ8est was absolutely ugly, uncivilised and wrong. They should have settled the issue by a political dialogue.

    Justice Sansoni made a mistake by showing that asking TE was wrong, making the Sinhalese justify that they can take an upper hand on Tamils.

    It is such miscarriage of justice by “eminent judges” on Tamil issues, made the UNHRC to ask SL to have overseas judges, prosecutors and investigators.

    UNHRC and the International community were absolutely right.

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