"...Strange forebodings of ill, unseen and that cannot be compassed.
As, at the tramp of a horse's hoof on the turf of prairies,
Far in advance are closed the leaves of the shrinking mimosa,
So, at the hoof-beats of fate, with sad foreboding of evil,
Shrinks & closes the heart, ere the stroke of doom has attained it."
- Henry Wadsworth Longfellow, from Evangeline
Over the five years leading up to July 1983, as indicated in the last chapter, the Judiciary had been browbeaten and a clear message had gone down to judges who valued career advancement. After the Referendum, it meant waiting a further six years for a possible change of government. We now go into a few cases of how Tamil detainees under the PTA were faring at the hands of this combination of the Judiciary and the Attorney General’s department. This has a significant bearing on the gory fate that overtook 53 of the detainees.
About 12 young persons including Mr. Varatharajaperumal, a member of the academic staff of the University of Jaffna, were produced before the Colombo Fort Magistrate S.I. Imam on 21st June 1983. They had been detained in the neighbourhood of Batticaloa on 1st April. On that occasion Varatharajaperumal who was not attached to any group then, had conducted classes on Marxist theory on the outskirts of Batticaloa for young members of the EPRLF as part of the Marx centenary observances. The exercise books on which the youth took notes were sent by the Police for translation as possible evidence of terrorist activity.
Also produced in Court was a calendar for 1983 bearing the slogan ‘Victory to the Struggle for Eelam.’ State Counsel Sarath Jayasinghe told the Court that some were caught while selling the book ‘Lanka Rani’, adding that the book and calendar had been sent for translation. More time was asked to prepare charges. The counsel representing the detainees demanded their release as no charges were forthcoming after 81 days. But order was reserved by the Magistrate for a further 7 days.
There is absolutely no doubt that the AG’s department knew that there could be no valid charges. ‘Lanka Rani’, a book published by Arular in 1978 had enjoyed a wide circulation. The story is based on Tamil refugees from the 1977 violence sailing to Jaffna from Colombo aboard the Lanka Rani and explores the theme of how the Tamils were led to the demand for separation. Even under the Sixth Amendment to the Constitution which was not yet in existence, it is hard to see how promoting the book could have been an offence.
Evidently, it seemed the State had become so alien to the Tamil speaking people (25% of the populace), that it had no trusted officials in the AG’s department or the Police to assess what was being written in Tamil. To the State Counsel, mentioning the title of a Tamil book seemed the equivalent of proffering a criminal charge. One is reminded of how the university authorities at Peradeniya jumped to the conclusion that Balasooriyan was a Tiger (Sect. 4.7).
On 29th June, again the CID told the Court that they were unable to conclude investigations since the Department of Official Languages had not sent a translation of the printed matter. Magistrate S.I. Imam again refused bail for the detainees and put off hearings to 13th July. On 13th July the Magistrate put off hearings to 27th July for the same reason. This turned out to be the day of the 2nd Welikade prison massacre.
The game here was clear: use the PTA to detain indefinitely; whether there were valid charges or no did not matter.
We mentioned in Chapter 6 that Ghandiam had already been targetted through the Press at the height of the McCarthyite frenzy. Then the Sunday Island of 28th November 1982 had as its lead item, “Red Barna, Gandhiyam Movement to be Probed”, by Peter Balasuriya. It said:
“Informed sources said that President J.R. Jayewardene will personally look into the activities of Red Barna, now involved in community work in the Batticaloa District. The investigation follows a request from Minister K.W. Devanayagam. The Minister, it is understood, referred to the work of Red Barna in the Batticaloa District and Ghandiam in the Jaffna District and wanted them investigated…Regarding Ghandiam, the Minister of Social Services has been asked to make inquiries and submit a report to the Government…”
This was pure innuendo, but nothing specific.
On the same day the Weekend carried a report titled “Probe on two foreign social groups here” by Ranil Weerasinghe and Jennifer Henricus, full of wild allegations very much in keeping with the spirit of the times. Some extracts from it follow:
“The Weekend reliably understands that the probe was ordered by President J.R. Jayewardene after K.W. Devanayagam raised the matter at a high level meeting. The organisation which is Scandinavian-based is being probed by the Ministry of Plan Implementation under President Jayewardene and the other operating in the North by the Ministry of Social Services.
"One of the groups involved primarily in rehabilitation work had very close links with the terrorist movement it has been found. This organisation which is believed to be funded in part by church organisations and from overseas is also believed to have benefited a great deal from funds channelled to it by terrorists themselves.
"Several of its farms were under surveillance and searched on several occasions by the Army after it had been revealed that they provided hideouts, supplies and assistance to terrorists being hunted down by the security forces.
"Members of this group were also found to have brought down groups of foreign organisations to the North for what were virtually ‘indoctrination’ classes on the alleged suppression of minority groups in Sri Lanka.
"The Scandinavian organisation in the East carries out subtle sabotage against government development projects.
"The organisation directly backed by militant separatist groups is alleged to be recruiting youth only from Jaffna for its projects.”
Rather than a news report, the tone and contents of this item have the character of a poison pen letter. The trial by media of Gandhiyam leaders had begun in November ’82, and in retrospect, after the prison massacre, even a sentence of death had been passed with Press complicity. This campaign was undoubtedly articulated by Jayewardene himself on the advice of someone close to him. K.W. Devanayagam had little reason to be excited about Gandhiyam’s work in the North, and in 1975, when the UNP was in the opposition, had even co-operated with groups close to the Gandhiyam in settling displaced Hill-Country Tamils around Batticaloa. Jayewardene had Devanayagam’s undated resignation letter in his pocket, from 28th October 1982, leaving Devanayagam with an unenviable choice if he were to contradict the boss. It may also be noted that Devanayagam subsequently accompanied Gamini Dissanayake in the meeting with government agents just before the July ’83 violence where threatening noises were made against refugees looked after by Gandhiyam in the Trincomalee District.
We may also note how the private and ‘independent’ media were more effectively playing the role of the UNP government’s hatchet men than the Government controlled media themselves. This was particularly true of the Sun Group.
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 fiscal 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 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 connection 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.
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 department 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.
While the AG’s department and the Judiciary were going along with prolonging the detention of persons whose opposition to the Government was broadly within a democratic framework, and charges against whom could not be made to stick, the following report by Peter Balasuriya appeared prominently in the Island of 12th June 1983 under the heading “Army Empowered to Kill Fleeing Terrorists":
“The Prevention of Terrorism Act and the Criminal Procedure Code are to be amended with immediate effect to give wider powers to the Army to curb terrorism in the North and other pockets of terrorist activities.
"According to the proposed amendments in respect of terrorist suspects attempting to break jail or making a bid for freedom, army personnel will be empowered to use force in the course of apprehending them, even if it leads to their death. In the event of death, the need for inquest proceedings are also[sic] to be done away with. A report to the Attorney General’s Department on the circumstances leading to the suspect’s death would suffice for further action. These powers are to be made operative only in the case of [terrorist suspects]. This proposal is now before the Government for approval…”
This proposal may seem superfluous in the context as Emergency Regulation 15A came into force on 3rd June when the PSO was brought into effect. This regulation enabled the disposal of dead bodies without inquest with the perpetrators maintaining anonymity – i.e. ‘the freedom of battle field’. The new proposal is interesting because it was largely superfluous. It addressed itself particularly to ‘terrorist suspects’ supposedly ‘breaking jail’. Also envisaged was an army presence near the suspects.
The relevant context in which this proposal was made was the transfer of Tamil detainees from army custody at Panagoda camp to fiscal custody at Welikade jail. This was after the Judicial Medical Officer, Dr. Salgado, examined Dr. Rajasundaram who was held at Panagoda camp and confirmed that he had sustained injuries from torture. The Court was petitioned and the other detainees too expressed a wish to be transferred to fiscal custody. But the Ministry of Defence took it in bad spirit as evident from the testimony of Don Kulasekera Perera Balasuriya (58) who testified at the inquest after the second prison massacre in July. Mr Balasuriya who was administrative officer MoD/dossiers and detainees, said that charges of mistreatment made by the detainees were baseless, but the Government had acceded to the transfer from military to fiscal custody. The transfers as testified by him took place as follows: the first batch of 25 transferred from Panagoda to Welikade on 3rd June 1983 and fresh detention orders issued. Six detainees transferred on 6th June. The final batch of 27 was transferred on 14th June.
The proposal which surfaced on 12th June appears to be a response to these transfers. Although strictly speaking they were at Welikade under fiscal custody, a platoon of troops was placed outside the gates ostensibly to prevent their escape. A similar arrangement had been made earlier when suspects in the 1962 coup attempt were detained.
A notable feature of the proposal was its suddenness as though the Government suddenly realised that there was an endemic problem of dangerous Tamil prisoners escaping. There was no such problem. The prisoners were brought to the South into alien surroundings. Escape was exceptional. Thambapillai Maheswaran had earlier escaped from Panagoda and was caught. Most had no desire to escape. They were political prisoners and were reasonably confident of being released through the courts.
This sudden concern with dangerous prisoners escaping was therefore totally unwarranted and the measures of indemnity were extra-ordinary - extraordinary because if it were a question of armed jail busting no one would question the use of arms to prevent it. Thus the situation envisaged in the proposal dealt with hypothetical unarmed escapees. Where the effect of this proposal differed from ER 15A is that “some of these powers are to remain in force even after the Emergency is lifted.” This is to say the key provisions would remain part of the law of the land under the Prevention of Terrorism Act.
Under the PTA arrests could be made without warrant and the detainees could be kept in undisclosed locations indefinitely with no rules governing conditions of detention and interrogation. Combined with the proposed amendment, it would have amounted to a licence to murder. Perhaps the Government moved slowly because its human rights record was coming under criticism worldwide after reports by AI and the ICJ. The Sun reported on 6th July, 19 days before the violence, that the Government is likely to make a series of far-reaching amendments to the PTA. One might conclude that these intentions were overtaken by events.
From the pointed reference to ‘terrorist suspects’ and the essential superfluousness of the move, we may infer that it reflected a state of mind within the ruling class rather than a need – the same could have been done under a State of Emergency, that is, nearly always. The rulers had decided that the most expedient way to deal with ‘terrorist suspects’ is to kill them, and the proposed amendments to the PTA were a message to this effect. It is hard to resist the inference that this state of mind is inseparable from the massacres at Welikade jail and the broader violence in general. After all, the Tamils as a whole had been repeatedly portrayed as being agents of terrorism while at the same time having it good under the open economy.
Thus by 23rd July, several trends were converging towards an extra-judicial blow-up. The Government had apparently rolled up the political map in the South, and this very success, combined with its authoritarianism, was making it more angry about its lack of control in the North. Though having only minute resources in comparison with the State, the very notion that there should be a ‘Gandhiyam’ trying to counter its own agenda drove the Government towards violent measures. The courts were themselves acting as though they were unable to decide whether their function was to try the so-called ‘terrorist suspects’ and release nearly all of them or to prolong their detention under conditions of uncertainty. The Judiciary and the AG’s department too must take a share of responsibility for the harrowing fate of the detainees, if one grants that the State had given an indication of its intentions and that detentions were being prolonged without valid reason. Last but not the least, an illegitimate government was looking for a diversion, and the main opposition and leading elements of the society at large, swallowed the bait in an attempt, actively or passively, to demonstrate their ideological conformity.
The indications are that by the time Jayewardene gave the Daily Telegraph his extra-ordinary interview, a plan had been discussed at the highest levels and the wheels were moving. An indication of how the law authorities, security forces and police would conduct themselves in the event of a violent communal outbreak in which elements of the State took the lead was contained in the episode of demonstrations against supreme court judges. Although no one was physically hurt, the affront towards leading symbols of the Law also contained in it the State’s contempt for the Law. It was widely known that the demonstration was the work of UNP shock troops in the form of its trade union, the JSS.
Jayewardene had an alibi, having been out of the country. To the ministers it seemed to have been a practical joke. When a man came forward as the organiser of the demonstrations, the Attorney General could not make up his mind about proceeding against the man. The Police were taking cover behind the fact that no one came forward to give evidence – who would, when they knew the Government to be the culprit?
The Sun of 22nd June 1983 published Ranil Weerasinghe’s interview on the subject with Edward Gunawardene, DIG of Police, Metropolitan Range. Gunawardene said that names had been given anonymously implicating the governing party’s trade union – the JSS. He thought that this could be the 'work of mischief makers who wanted to frame these trade union activists'. He however conceded that there may have been a genuine informant providing details.
Gunawardene knew how to talk to journalists without seeming too partial. But where his investigations would lead to was clear. The DIG Metropolitan in 1983 was the same officer during whose presence in Jaffna in June 1981, its Public Library was burnt, and governments had been careful about whom they put in charge of the Metropolitan Range.
As for the thinking concerning Tamil detainees that was surfacing in the highest circles at this time, the killing of at least 20 detainees in Vavuniya on 2nd December 1984 provides a vivid illustration. This was the time the newly formed Media Committee under Dr. Wickrema Weerasooriya, an Australian national and brother-in-law of Gamini Dissanayake, was having its trial run. At a press conference held at the defence ministry (Island 4.12.84) he announced that 32 terrorists were killed in two operations. 12 were killed in army operations around Kent and Dollar Farms. (Surely the twelve were not Tigers - who conducted a massacre there 3 days earlier and would not have around when the security forces arrived!) In the second incident according to Dr. Weerasooriya, 20 terrorists were killed (the BBC said 30) and 2 wounded when terrorists attempted to attack the Northern Command HQ at Vavuniya. The terrorists killed were said by Dr. Weerasooriya to be those under detention at the camp who attempted to escape during the attack.
The purpose of the attack, he said, was to rescue the terrorists detained at the Centre. The terrorists from outside who launched the attack fled upon the soldiers opening fire. None of them, he said, was killed in the attack. One soldier guarding the Command Centre also died in the battle, he added.
The report above speaks for itself. Doctor Weerasooriya, it is said, was removed from his media role not long afterwards. About 3 weeks earlier Lalith Athulathmudali was in Vavuniya as National Security Minister for the opening of the new JOSSOP (Joint Special Services Operations) building. He was shown talking to captured 'terrorists' who were said to be pouring out their heart to him in the manner of repentant sinners.
Another report from a survivor said that several of those killed belonged to the PLOTE. There was an escape plan, it is said, which was leaked and several of the prisoners were killed. Some were badly beaten. There was no attack from outside. This report came from a survivor whose legs were broken. The incident is again a reflection of the press item cited from the Island of 12th June 1983, and suggests that such ways of dealing with the more spirited prisoners had become part of the mental make-up of the system. What began with Tamils in 1983 became a flood when dealing with Sinhalese youth from 1988.