An article from Colombo Telegraph forwarded by the Asian Human Rights Commission
By Jayakumar Thangavelu
A Senior Police Officer’s Perspective Of Investigations Into Political Crimes
In addressing this subject, I put down my experience of forty years in the Sri Lankan Police, where I retired as Deputy Inspector General, Legal Range, of which twenty years were spent in the Criminal Investigation Department, where I had the privilege of starting under Tyrell Goonetilleke, the renowned investigator, as my mentor. My experience in political crimes began with the Tamil insurgency in the 1970s, through the Sinhalese youth (JVP) insurgency of the latter 1980s, the commissions of inquiry in the 1990s, to the last phase of the war (2006 – 2009). Contrary to popular perception, it is my experience that the overwhelming majority of the police officers are well-trained, capable and if left free of interference by politicians and senior government officials, would do an honest job in investigating and interdicting crime. I had shunned politics and worked according to my professional and religious conscience. Indoing so I once confronted a Supreme Court judge who manoeuvred a commission of inquiry towards a political verdict and in another instance defended at the Human Rights Commission two police officers who tried to check criminal behaviour by a minister’s, son in the face of abusive language by the Minister which should have been disallowed in that forum. Nevertheless, I got my due promotions and was never penalised by the department. My career with the Commission of Inquiry into serious violations (2006 – 2009), headed by Justice Udalagama, continued into my retirement. I submitted my resignation to the Commission upon receiving and confirming instructions for my elimination instituted by some senior government officials on account of my witness protection activity. On finding that my resignation did not stanch the active threat to my life, I explained to the Commission and withdrew my resignation. From then on, until the Commission wound up in 2009, my dynamic protection activity had been greatly impaired; it had largely become a matter of protecting myself.
Consequent to certain adverse observations by the United Nations, as mentioned in page 2, in its report titled – ‘Observations of United Nations’, on the Domestic Inquires conducted by Sri Lankan Tribunals, which included the UDALAGAMA COMMISSION, there is much discussion for and against the creation of a hybrid court to investigate alleged war crimes.
As the Head of the VICTIMS AND WITNESSES ASSISTANCE AND PROTECTION UNIT (VWAPU) of the saidUDALAGAMA COMMISSION I consider it my duty to defend the honour, integrity and capability of the Commissioners of the said Commission who were highly respected, proficient, diligent, independent and equal to any task expected of any International Tribunal. I was the Deputy Inspector General (DIG) in charge of the Police Legal Range when I was appointed to head the VWAPU.
I have to state that though the failure of the Commission to conclude its findings cannot be denied, yet the fault lay not on the commissioners but a few state officials, clothed in absolute power and impunity, who thwarted the activities of the Commission.
But I wish to stress that any future inquiry into the alleged violations should not be with a view to imposing penal sanctions on any individual, but with the aim of arriving at the truth, identifying the miscreants and granting of adequate compensation to the victims.
Moreover this would be the desire of the victims too, viz: to ascertain the truth with regard to their loved ones, identify the miscreants and to be granted reparation.
OBSERVATIONS OF THE UNITED NATIONS
In the recent past the United Nations has criticized Sri Lanka on our dismal Human Rights record. Attempts made by the then Government to appoint Commissions of Inquiry, which included the Presidential Commission of Inquiry appointed in November 2006, known as the ‘Udalagama Commission’, “tasked with conducting investigations into sixteen cases, but only completed investigations into seven, including that of the ACF and the Trincomalee 5 case, which it said absorbed most of its resources” (vide paragraph 1211 of the U.N. Human Rights Council Report No.A/HRC/30/CRP.2 dated 16 September 2015).
IIGEP (International Independent Group of Eminent Persons) was present during the hearings and repeatedly expressed concern over the lack of impartiality in the proceedings. IIGEP decided to terminate its mission in April 2008 because it considered that credible investigations into the cases assigned to the Commission were impossible, citing as reasons: the conflict of interest of the Attorney General’s role; lack of effective victim and witness protection; lack of transparency and timeliness of the proceedings; lack of full co-operation of State bodies; and lack of financial independence of the Commission (vide paragraph 1212 of the U.N. Human Rights Council Report No.A/HRC/30/CRP.2 dated 16 September 2015).
Furthermore paragraph 1278 of the said Report mentions, inter-alia “. . . . Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators. Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka. It will be important that the international community supports these initiatives and that they also continue to monitor these developments, to take further actions that may be required at the international level should there not be concrete results”.
MY EXPERIENCE IN THE COMMISSION
I experienced firsthand the interference of certain state officials, who first attempted to completely shut me out of the Commission, and when this failed then attempted to dissuade me from continuing in the Commission and finally when all these attempts failed, conspired to exterminate me.
However inspired by the quotes of Pastor Martin Niemöller and of Rev. Martin Luther King Jr.,
viz:-
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me – a famous statement and provocative poem written by Pastor Martin Niemöller (1892–1984) about the cowardice of German intellectuals following the Nazis’ rise to power and the subsequent purging of their – chosen targets, group after group
“We will have to repent in this generation ,
Not so much for the evil deeds of the wicked people,
But for the appalling silence of the good people” – Martin Luther King Jr.
I feel that my conscience would militate against me if I do not inform the public of the issues I faced in the Commission and I also consider it pertinent to expose the unequal and unfair treatment meted out to the poor and destitute of this country vis-à-vis the politicians and their off spring and the rich and the mighty.
Policemen complain that if they do not abide by demands of Politicians in Power , even when such demands are unreasonable, they face the predicament of being transferred out and being harassed, where they have to look for houses in the new districts they are posted to, find schools for the children and transfers for working wives etc. Policemen affected by this have been those in the ranks up to Asst. Superintendents of Police.
Those above the rank of Superintendents cannot be heard to dole out such excuses since officers of this rank, once they are provided quarters in Colombo, they cannot be required to vacate such quarters, even if transferred out of Colombo, nor can they be demoted.
I presume I was accepted by officials in the Law Enforcement Arm of the State, as one who stood up to what was right, which at times, embarrassed top State Officials, Policemen Senior in Rank to me and even Politicians. This is the reason why State Officials clothed in absolute power and impunity, who intended to thwart the activities of the Commission, wanted me kept out of the Commission.
I have been a boxer from my school days at St.Thomas’ Collge, Mt.Lavinia, where I captained the school boxing team at the age of fifteen. I have been the Champion at the Stubbs Shield meet for schools in Sri Lanka, for several years in different weight classes. Having joined the Police I became National Champion for several years, Captained and coached the Police Boxing Team and was President of the Amateur Boxing Association of Sri Lanka in 2002. Since I was a Sportsman I had the privilege of associating closely with other Sportsmen and Officers of the Armed Forces, as well as several prominent public figures.
In presenting the facts to the Public, my explanations would appear very lengthy, sometimes irrelevant and even somewhat overweening, yet I have to follow this process, since I am mindful that I would be targeted by very eloquent speakers and talented debaters, with an agenda of vilification, through various accusations/criticism, insinuations and aspersions. I am compelled to discuss the following facets of my career, in order to counteract any criticism, or doubts in the minds of the readers because I may not have a fair opportunity of reply.
- Ire of State Officials, Policemen senior in rank and Politicians against me
- Attempts to keep me out of the Udalagama Commission
- My investigational experience and eliciting Information without resort to torture
- Investigations relating to LTTE crimes;
- My straying into LTTE stronghold in Karadiyanaru
- Investigations intoJVP related crimes and the voluntary information provided by them on past and impending serious crimes
- The Paranagama Missing Persons Commission
- A comparison between the Udalagama Commission and the Lalith Athulathmudali and Kobbekaduwa Commissions
- Serious injury suffered in grenade explosion at Kolonnawa oil tank installations
1. Ire of State Officials, Policemen senior in rank and Politicians
In this context I present the following incidents in my career where I had the misfortune of earning the wrath of State Officials, Policemen Senior in Rank and even Politicians owing to my adherence to the Rule of Law in my engagement in certain grave controversial incidents, of which some are:
1.1.1. I was placed in the dilemma of having to give my opinion, in 2003 as the DIG Legal Range over a petition sent by some DIGs over the promotion of one of their batch mates as Senior DIG, (who later became the IGP), whilst there was a case in the Supreme Court pending against him. This petition had been sent to the National Police Commission (NPC) through the IGP. The case in Supreme Court was filed by the Snr DIG to quash the order of the Samarawickrema Commission which was appointed in 1994 by Her Excellency Chandrika Bandaranaike Kumaranatunga, which Commission had recommended the filing of an indictment against the DIG, in the High Court of Batticaloa and recommended the withdrawal of his civic rights, for certain General Election Law violations in the Eastern Province in 1994, which the DIG had committed in favour of the ruling party prior to 1994. However subsequently after the change in Government in 2002, the indictment filed was withdrawn by the Hon Attorney General. But the DIG’s appeal to the Court of Appeal to quash the order pertaining to the withdrawal of civic rights was unsuccessful. Hence he appealed to the Supreme Court.
1.1.2. In the meanwhile the IGP referred the petition to me, for my observations, and went overseas for two weeks on an official assignment. Surprisingly in the interim period that the IGP was away, this particular Snr DIG was appointed Acting IGP by the very Executive who ordered the Commission of Inquiry.
1.1.3. There is a wrong notion conceived by the general public that Policemen fall into the category of UNPers or SLFPers. This is erroneous. It is only a selected band of Policemen who qualify as political policemen. And it is these policemen who change their allegiance with the changes of government and thereafter at the bidding of the politicians in power at the time.
1.1.4. After the incumbent IGP left overseas on his assignment, the Acting IGP telephoned me three days after his acting appointment, calling for my report on the petition against him. He strictly instructed me to ensure that the report is favourable to him and had nothing adverse. My conscience did not permit to comply with this and I addressed the incumbent (Permanent) IGP, who had referred the petition to me, that the Police Commission would not have promoted the acting IGP as Snr DIG, had he disclosed to the Police Commission, the pending appeal filed by him in the Supreme Court, to quash the withdrawal of his Civic Rights. Thus he violated the legal doctrine of “uberrima fides”.
1.2. Then there was this case of a pistol toting son of a Cabinet Minister who was known to terrorize patrons in Night Clubs. After the assault of one Mr.Senasinghe by this pistol toting son, who had pistol whipped the victim on his head causing grave injuries to the victim, injuries that required multiple sutures to his head, in. 2006, CI Dissanayake OIC Bambalapitiya reporting the pistol whipping to Court obtained a remand order on the assailant.
1.2.1. The same day around 12 noon the CI called me, as DIG Legal Range, and told me that the IGP had abused him firstly for reporting facts to court and more for mentioning of the pistol whipping and grievous injuries to Court and moving for remand. The IGP had ordered him to make another application to Court moving for bail on the suspect.
1.2.2. I told the CI that he had taken the correct course of action and advised him not to move for bail and said that I would support his action in Court.
1.2.3. Three days later the CI and his ASP, Mr.Palitha Siriwardena (now SSP) telephoned me and said “Api atharamangwela” meaning “we have been abandoned”, as the Cabinet Minister has complained against the said CI to the Human Rights Commission (HRC), for wrongful arrest of his son and for submitting false facts to court to have his son remanded.
1.2.4. The CI and ASP said that the IGP, DIG Colombo and SSP Colombo were not only not prepared to represent them, but also severely reprimanded and abused them
1.2.5. I told them that I, as DIG Legal, would appear for them before the HRC.
1.2.6. At the HRC inquiry, where I represented the CI and ASP who were present, I countered every argument put forward by the Minister’s lawyer. Midway the Minister requested the permission of the Commissioner to address the Commission. Thereafter the Minister began casting malicious remarks in Sinhala against the Police. I told the Commissioner in English that the Commissioner “should not permit the Hon Minister to cast such disparaging remarks against the Police”. The Minister then responded that he had not come there as Hon Minister but only as A.B.(giving his name). I then told the Commissioner, if this was the case, then the Commission ‘should warn A.B. not to cast such libelous remarks against the Police”. At this comment of mine, the Minister stared at me, and on my gazing back into his eyes without flinching, he immediately left and the inquiry terminated abruptly.
1.2.7. That same evening, when I was in my office, an SP called me and said that the IGP had received a telephone call to his office from an SSP about my appearance at the HRC for the Police officers.
1.2.8. I was informed that the IGP had become furious, saying “eyata mona kekkumakdha thiyenne mekata idhiripathvenna” meaning “what is the pain he (referring to me) suffers to cause him to appear on behalf of the Police Officers, at the HRC. With some other DIGs present endorsing the IGP’s stance, the IGP had ordered the DIG Colombo and SSP Colombo to send him a report concerning my appearance before the HRC.
I was however aware that he would not dare to take action against me because such action would prove his conduct mala fide.
1. The Inter – Ministerial Coordination Committee on Promotion of Sri Lanka’s image abroad,
This Committee chaired by the Secretary Ministry of Foreign Affairs (S/FA), resolved to give adequate publicity to the recirculation of the guidelines of His Excellency, The President, dated July, 2006, – to the Security Forces and the Police – on the awareness of Fundamental Rights of Persons arrested and/or detained.
1.3.1. I as the DIG Legal was charged with the responsibility of educating Police officers at a Divisional Level, on the Police Departmental Circular No. 1926/2006, which embodied the directives of His Excellency, the President. An Additional Solicitor General (ASG), who later became Attorney General, agreed to address the participants on the concerns of His Excellency, the President on the ramifications internationally of non-adherence to Human Rights norms.
2. At such meetings the ASG stressed, inter-alia, the requirement of satisfying the test of reasonable suspicion as espoused in several Supreme Court decisions, when arresting persons on suspicion. We addressed senior Police Officers in Colombo and Ratnapura Divisions, amongst whom were DIGs, SPs, ASPs and OICs of Police Stations and Crime Branches
3. During the tea break at the meeting with officers of Nugegoda Police Division in the first week of May, 2007, an Asst Supdt of Police, who after securing a promise of anonymity from the ASG and I, posed the difficulty that though he was aware of the necessity of such degree of suspicion prior to arrests, the Police Officers had been warned by a top official of the Ministry of Defence that no reasonable suspicion was required to arrest any Tamil who did not have a permanent residence, or permanent job in Colombo and that such persons should be arrested and sent to the Boossa Detention Camp. In fact when a DIG posed the issue of reasonable suspicion, this top official, in anger, had told the DIG to look for another place, failing which he would find another place for the DIG
4. After the tea break the ASG explained to the gathering that an illegal order, even if it be from a senior officer, if executed, would be at the peril of sanction of the officer executing such illegal order. The ASG also undertook to bring this issue to the notice of the relevant authorities.
5. At the Inter–Ministerial Coordinating Committee Meeting of 8th May 2007, I mentioned the concern expressed by the ASP to the Secretary, Foreign Affairs.
6. At this juncture a Deputy Solicitor General (DSG), who was on the Committee loudly protested that the concern expressed by me was not relevant to that forum, and that it would be appropriate only at a meeting conducted by the Ministry of Human Rights and furthermore that it was an internal matter which had to be addressed by the Inspector General of Police. I informed the Secretary, Foreign Affairs, the reason why I brought it up at this forum was because it was this Committee which required me to conduct the relevant training program, and because of my sincere belief that prevention of such incidents would be better than corrective measures after a breach.
7. In view of the opinion of the Deputy Solicitor General, I addressed a letter to the Inspector General of Police the following day, with a copy to the Secretary / Foreign Affairs, the Additional Solicitor General who addressed the Police officers with me, and to the relevant Deputy Solicitor General, who had protested regarding my concerns.
8. The Additional Solicitor General telephoned me the following day and said that the Deputy Solicitor General had checked from him the veracity of my utterance at the meeting described above, to which the ASG had answered in the affirmative. This was followed by a telephone call to me from the Secretary/ Foreign Affairs, who commended me for having addressed this issue.
9. Consequently, having realized that our addressing Police Officers on Human Rights issues would be in contradiction to instructions being issued by the top official of the Ministry of Defence, which virtually nullified and ridiculed our efforts, the ASG and I ceased carrying out this task. Thus ended the noble mission of the Ministry of Foreign Affairs.
2. Attempts to keep me out of the Udalagama Commission
2.1. On the said Udalagama Presidential Commission being appointed, the IGP was requested by the Commission to nominate some officers to be interviewed in order to select a suitable officer to Head the Investigation Unit of the Commission. Understandably the position contemplated by the Commission would require an officer with vast experience in criminal investigations and trilingual skills.
2.2. The IGP on 19.01.2007 nominated five DIGs which included a Tamil officer, and six Senior Superintendents of Police (SSPs). Though the Commission had requested the IGP to nominate me as a candidate to be interviewed, the IGP has stated that I was to retire in 2007, whereas the term of the Commission could extend beyond December 2007 and hence he did not nominate me. Curiously two officers nominated by the IGP were scheduled to retire a few months before me. I also learnt that the Tamil DIG who was considered for the position, had declined the nomination citing perceived threats.
2.3. Moreover, I had more criminal investigational experience than the other officers nominated. Of my 40 years of service in the Police, I served in the Criminal Investigation Department (CID) for over 20 years, from the rank of Probationary Sub-Inspector up to the rank of SSP. Subsequently upon my acquiring a Law Degree and becoming an Attorney at Law, I served in the Police Legal Division as Deputy Director, then Director and retired as DIG Legal Range.
(My investigational experience consistently avoiding torture and the appreciation expressed by hard core criminals whom I interviewed are detailed in paragraph 3 below.
On my own initiative I followed a one month seminar at the International Institute Of Human Rights, Strasbourg, France in 2002. I also published an article in August 2005 on Police Torture, captioned – “Equal Access to Justice – where should it commence to ensure Human Rights” This is available on the internet).
2.4. However I was interviewed subsequently by the Commission and appointed Head of the Victims and Witnesses Assistance and Protection Unit (VWAPU). I sought and obtained the permission of the Commission to recruit my handpicked officials as ultimately it was my responsibility for providing security to victims and witnesses. Accordingly I recruited some of my Police Boxers and others who worked with me long years, in whom I had absolute faith and trust.
2.5. A DSG was appointed ‘Advisor’ to the VWAPU,
2.6. Since the concept of Victims and Witnesses and Assistance and Protection was a novel concept in Sri Lanka, the Commission decided to train three officials of the VWAPU in Sydney, Australia. The members selected were I, as the Head of the Unit, the DSG who was Advisor to the Unit, and the Officer-In-Charge of the Unit, a Chief Inspector of Police. After having obtained the requisite visas and making the travel arrangements in late August, 2007, just three days prior to our departure, there was a message from the Presidential Secretariat, that if Public Servants were to utilize Government funds for this training, such persons should have at least 2 years service remaining in Public Service. I realized that this order was in particular targeting me, to prevent me from attending the training seminar, as I had only a little more than four months left before my retirement in December 2007.
2.7. Furthermore I knew that if I did not attended this seminar, I would have to agree with every suggestion of the Advisor, and if I was to act independently I had to follow this seminar, or resign. Since this course would also have enhanced my knowledge in this sphere, which was closely related to criminal investigation I informed the Commission that I would personally fund the expenses involved.
2.8. It would be relevant to mention here that around the same time DIG Lafir, who had only one more week to retire, went on a two weeks scholarship to Hong-Kong. He subsequently returned after one week of his retirement and remained totally retired. Whereas I had almost four months left after my return from the training course and furthermore I was mandated to serve the Commission until its conclusion.
2.9. Hence the strange decision of Presidential Secretariat was mind boggling.However Mr. Lafir is well known in the Police as a very honourable and competent officer who did not indulge in politics or other mean activities.
2.10. In the course of my duties, on the directions of the Commission, certain vulnerable victims and witnesses were relocated by me, some in foreign countries and some locally. But the Commissioners, in strict adherence to the principle of “Need to Know” never ventured to ask me where I relocated the vulnerable persons. After having coordinated with foreign embassies I sent some of these witnesses overseas and some I relocated locally in areas heavily populated with people of similar ethnicity and social standing, so that they could mingle with the local public without arousing suspicion. I did not take even my driver for these local relocations knowing well that he could be pressurized through various means such as promotions / transfers etc, whereas I was now retired and without any authority in the Police. I went on these assignments with my Deputy to the VWAPU Mr A. Nawaz, Attorney-at-Law and a Deputy School Principal.
2.11. However in mid-September, 2008 I received information that at a top level meeting of Security Forces and Police Personnel chaired by a top official of the Defence Ministry, a Member of the Panel of Counsel from the official Bar assisting the Commission, had informed that I was holding some victims and witnesses incommunicado and was coaxing them to give evidence inimical to the interests of the State. In response the top official had entrusted the task of eliminating me to a unit of the security forces.
2.12. Since this source had previously given me information of the impending assassination of a prominent personality, I totally believed in what he said and on 15th September, 2008, I addressed the Chairman of the Commission Hon. Justice N.K.Udalagamaa letter tendering my resignation, as Head of the VWAPU citing financial constraints and that I wished to pursue my Profession as a Lawyer and also the fact that I was not even in receipt of my pension. But in fact I orally informed the Commissioners of the threat to my life being the real cause for my resignation. The Chairman requested me to remain until the Commission found a suitable replacement, and directed me to avoid coming for the proceedings and to confine myself to the office. This information of the threat to my life was further confirmed by another dear friend, an ex-policeman a very close relative of a Cabinet Minister.
2.13. I strictly adhered to the advice of the Hon Chairman of the Commission in not attending the proceedings of the Commission and believed that threat would cease when the top official learned that I had tendered my resignation and that I did not attend the Commission proceedings anymore and was waiting to be replaced.
2.14. Nevertheless I reasonably fortified my house, and took precautions of having reconnaissance carried out by my staff covering the route I was to take. I lived down a dead end which had only five houses.
2.15. On 2nd October, 2008 my neighbours around 6:30 am informed me that the dogs down the lane had barked very loudly at 1.15 am and when they came out of their houses they saw two persons near my car. These persons had walked off casually on seeing the neighbours coming out. Another youth said he had seen two persons by my car around midnight on two occasions the same week and one who was fair was there on both occasions and left on seeing him. The neighbours had also noticed suspicious motor cyclists down the dead end.
2.16. This convinced me that my threat would remain even if I relinquished my services with the Commission and I believed that I necessarily had to be with the Commission as at this stage it is only the Commission which could provide me protection, and on 4th October, 2008 I addressed the Chairman of the Commission describing the events of the wee hours of 2nd morning and withdrawing my resignation
2.17. In consequence, the Chairman of the Commission addressed the Inspector General of Police on 9th October, 2008 annexing my letter dated 4th October, 2008 Stating that;
“The Commissioners are of the belief that the threats perceived by Mr.Thangavelu result from the obligations of Mr.Thangavelu to the Commission in his capacity as the Head of VWAPU. The VWAPU is entrusted with the functions of providing assistance and protection to victims and witnesses, who are assessed as vulnerable to threats by interested parties to prevent them from testifying before this Commission. There have been instances where witnesses have been threatened with death if they came before the Commission. Such witnesses have been provided protection by Mr.Thangavelu. And as a consequence of such responsibility to the Commission Mr.Thangavelu exposes himself to threats of a similar nature.
“In the circumstances this Commission urges you, as a matter of urgency, to provide adequate protection to Mr.Thangavelu and to have this investigated by the Criminal Investigation Department.
“It would be appreciated if the Commission is apprised of the progress with regard to the two urgent issues described in the preceding paragraph.”
2.18. The IGP never inquired from me about providing security. An ASP recorded my statement and that was all. None of the witnesses was questioned.
2.19. Instead, the Police Department still insisted on the return of my service pistol and declined to release my pension due from December 2007, despite the Chairman of the Commission addressing the I.G.P. by his letter dated 12th June, 2008 urging him to authorize me to retain my weapon quoting the above threats faced by me.
2.20. Moreover at the time, the retiring DIGs were entitled for such privilege and in fact even a retired SSP enjoyed this benefit.
2.21. I also informed top Diplomats of two Foreign Missions about the threat to my person. One Diplomat asked me whether I desired this information be revealed to the top Defence official. I said “Yes, this official should not runaway with the idea that this killing too could be portrayed as Accused Unknown”.
The Commission terminated its proceedings in April, 2009.
3. My Investigational Experience and eliciting information devoid Torture
3.1. I was recruited to the CID by the renowned and distinguished investigator the late Senior DIG Mr. TyrrelGoonetillake. He instilled in us the discipline of investigating crimes without torture and had very long discourses and on the job training on the skills of investigating avoiding resort to torture. He abhorred torture and stressed that anyone stooping to torture was no good as an investigator to remain in the CID. As a young Sub Inspector in the CID, I also had the privilege of assisting, Inspector O.K. Hemachandra (Retried DIG), in the investigation of a case of rape and murder of a school mistress. He educated me on his personal practical experience as a young Sub Inspector, on the futility of perpetrating torture in the course of investigations, which ultimately was an exercise in vanity and a show of power.
3.2. It is with this training and experience and the consequential confidence and skills of investigational aptitude, that I ventured to investigate serious crimes including terrorist related crimes both locally and internationally. These included the atrocities committed by both the LTTE and the JVP. Since I did not perpetrate torture on any of my suspects I have neither been targeted for harm, nor ever threatened.
Eliciting Information without resort to Torture
3.3. I had the privilege of addressing about 100 Inspectors on “Investigation techniques to minimize violation of Human Rights at a Police training programme conducted by the United Nations Development Programme(UNDP) in early July 2005.
3.4. When I asked these officers their opinion of Human Rights, especially the aspect of torture, they said that they had to resort to use of force to solve cases owing to the following reasons:-
- Sense of shame and loss of face if they fail to solve the case by recovering the weapon of the offence or the fruits of the crime, where there were several eye witnesses testifying against the suspect.
- Lack of resources- personnel / vehicles, equipment etc. to pursue their investigations;
- The period of custody of 24 hours was insufficient.
- Pressure from Superior officers to solve the cases, with the implication that the consequences of non-compliance or failure to successfully complete investigations within the time limit would result in unfavorable reports to their personnel file or other strictures, which would adversely affect their career prospects.
2.5. After listening to their response I posed the question whether they had ever carried out acts that could be classified as torture, or whether they had heard of torture being perpetrated on members of the privileged classes such as politicians, their off-spring, the rich and persons of high standing in society, notwithstanding accusations or evidence to attest that such persons had been concerned in murder, sometimes multiple murders, fraud involving millions of Rupees, rape and other such serious crime, or whether force had been used on such persons to extort information or evidence relevant to the crime committed – whether force, or physical intimidation had been used to obtain information on the weapons used for the murders or to trace the stolen/ defrauded loot.
The answer was ‘NO’’.
When I asked them whether I was incorrect in saying that in almost all the instances of torture in Police custody, the victims were the poor, the destitute and the defenseless, they sheepishly admitted it was so.
The answer was ‘YES’.
2.6. The irony of the situation is that torture had been directed against the weakest sections of society – the poor, the destitute and the defenceless, who were in need of the most elaborate protection from the State.
The foregoing paragraphs on The Elicitng Information Devoid Torture is an extract from my Article ‘EQUAL ACCESS TO JUSTICE – Where Should It Commence To Ensure Human Rights” published in the newspapers in 2005 (also available on the Internet)
3. INVESTIGATION IN RELATION TO LTTE CRIMES
3.5. Among the investigations concerning LTTE related crimes, those noteworthy are:
a) Arrest of 3 LTTE suspects who were fleeing after the robbery of a bank at Chenkaladi, Batticaloa in 1977. I was proceeding unarmed with a team of officers from the CID to investigate a politically related complaint in Batticaloa. On hearing of the bank being robbed by an armed gang who escaped in a car, we turned the car around and gave chase to the fleeing car from which some shots were fired. Having followed them a while and realizing they had exhausted all their ammunition, we closed in on them and took into custody 3 of the 4 suspects and recovered the entire loot. The 4th suspect was arrested about two months later in Hatton.
I questioned the suspects without resort to third degree methods and they were indicted in the High Court where I was the principal witness. At the voire-dire inquiry for admissibility of confession by Court, the suspects never alleged any force whatsoever being used on them. All were sentenced to 5 years rigorous imprisonment. They were defended by the late Hon. M.Sivasithamparam, Member of Parliament
b) In March1981, following the heist of gold jewellery valued Rs. 38 Million and cash Rs. 8.1 Million from Peoples Bank, Neerveli, Jaffna and killing of Policemen – by Prabakaran, along with others of the Tamil Eelam Liberation Organization (TELO) – the Leader of the TELO Nadarajah Thangathurai, Selvarajah Yogachandran alias Kuttimni and Selvadurai Sivsubramaniam alias Thevan were arrested about a week later by the Navy on a tip off. These three were arrested, when they were boarding a boat for India from “Manal Kadu ” Point Pedro with the robbed jewellery. They were brought to Colombo and detained at Panagoda Army Camp. In Colombo several Tamil Police officers, some natives of Jaffna and others who had served in Jaffna were proffering expert advice on the terrain of Jaffna in assisting the investigation. I, who was an Inspector of Police then, had to take a back seat as my knowledge of Jaffna was negligible. But when the base of investigations was shifted to the Army Camp Elephant Pass, all these expert officers shied off. Finally I was the only Tamil officer concerned in the investigations based at the Army Camp Elephant Pass for three months.
c) My motivation to investigate any crime was the training and confidence instilled in me by my mentor Mr.Tyrell Gonnetileke and his conviction that if an investigator performs his obligations without considering himself the Judge & Jury, within the frame work of the law, desisting from torture, he need not fear investigating any crime. It was the investigator’s responsibility only to elicit evidence and present it to court. It was the court which had to decide on the guilt of the suspect.
d) The then Inspector General of Police Mr Ana Seneviratne who visited Elephant Pass appreciated my services as the only Tamil officer.
e) Before shifting the base of investigation to Elephant Pass, I was tasked with the responsibility of questioning Kuttimani at the Panagoda Army Camp. Here he informed me, without my laying a finger on him, where he and Prabakaran buried Rs. 3.1 Million of the Rs. 8.1 Million robbed from the NeerveIi bank, three days following the robbery. As an experienced investigator through probing cross questions one could be certain whether the suspect was telling the truth or not.
f) Subsequently it was decided by the top authorities of the CID to take the least important suspect of the three, Thevan, to Jaffna to conduct surprise raids on places to be pointed by the suspect.
g) I requested them to give me Kuttimani and that I would bring Rs. 3.1 million. My request was turned down saying Kuttimani was too much an important person to lose. I said if Kuttimani was to escape, he will have to escape with my life. I was still in active Boxing then.
h) Five teams in five Jeeps left Colombo under the command of an ASP, stayed the night over at Palaly Army camp and left at first light the following morning. I was dropped with 3 Police officers at the house of Sri Sabaratnam (who subsequently led the TELO). I had recorded the statement of Sri Sabaratnam previously. My instructions were for me and my team to conduct a search of the house and be there until the rest of the party returned. No incriminating evidence was found at this house.
i) The house where Kuttimanani referred to as having buried the money was that of a postal peon down the lane right opposite the house of Sri Sabaratnam.
j) At about 3 pm the ASP returned with the rest of the party absolutely exhausted and mostly frustrated as no detections whatsoever had been made and wanted me to immediately return to base with him. I had to plead with him to go to the house of the postal peon. There was a big crowd in the house due to the ceremony of the peon’s daughter’s attaining age. I wanted to dig the place behind the well (where the “thula” strikes the ground) as told by Kuttimani, but the ASP bluntly refused to give me permission. Hence I picked a photograph of the peon from a photo album. When this was shown to Kuttimani in Colombo he confirmed that it was the house of this peon. When we returned to the house the day after, we found the very spot where the money was said to have been buried freshly dug and noticed malatheon sprinkled against insect attack as described by Kuttimani, but the bag of money missing. Prabakaran had removed the bag of money the same evening we first visited.
k) When Kuttimani was sentenced to imprisonment by the High Court set up at Buller’s Road, Colombo 7 he mentioned to Court that all Officers detailed to investigate their crimes, physically attacked him excluding me. He too was defended by the Late Hon M. Sivasithamparm Member of Parliament.
l) I gained the confidence of Kuttimani, who disclosed to me that after Prabakaran fell out with Uma Maheswaran in 1980, the LTTE suffered a setback. At that time the TELO was the most effective militant group besides the LTTE. Consequently Prabakaran had contacted Kuttimani saying he would like to join the TELO. When Kuttimani told this to Thangathurai the latter had said “Kutti” we must be careful, as “Thambi” (Prabakaran), was a dangerous guy and he (Thangathurai) did not know why Prabakaran wanted to join them. But within a few days Prabakaran had somehow inveigled himself into Thangathurai’s group and participated in several crimes of the group, including the Neerveli Bank robbery.
m) Kuttimani confided in me that they were of the belief that it was Prabakaran who tipped off the Navy, which led to their arrest. Kuttimani also said that Prabakaran did not tolerate any threat to his supremacy.
n) I have been concerned in investigations pertaining to LTTE related crimes in Belgium, Holland, Germany and India. I visited India with the IGP and Director CID where Prabakaran and Uma Maheswaran were held in custody following the shoot out between them at Pondy Bazar, Chennai.
4. Straying into LTTE stronghold in Karadiyanaru
4.5. It is this culture of investigation without torture that saved me from disaster at the hands of the LTTE when I strayed into their territory in Karadiyanaru in 2004, during the period of the peace accord . This was when I went in two Police vehicles – a jeep and double cab, both unmarked, driven by Sinhala drivers and a friend of mine resident in the UK and working for British Airways. We were returning having distributed food stuff and other essential items in the East coast following the Tsunami. We wanted to come to Colombo via Badulla. When we went past a temporary barrier at Karadiyanaruwe were confronted by the LTTE, who did a thorough search of our persons and vehicles. We had our Police Identity Cards, but no weapons. I told them that I had by an oversight entered their territory, having performed the noble cause of distributing essential items to the victims of the Tsunami, and that since they did not find any weapons on us they must permit us to turn back.
4.6. One LTTEer tried to communicate over awalkie talkie and even climbed a tree to get clear coverage and on failing left on a motor cycle saying he will come back soon. The time was around 4 pm. When it was nearing 6 pm and getting dark I feared for the security of my two drivers who had young families, and decided to confront the LTTEers. I reminded them again of my noble cause and of our being unarmed, that we intended no malice against them and therefore to let us go, failing which I was going to my vehicle and all they could do was to shoot me. They then begged me to give them 15 minutes and that word would come from the leadership. I said I would give them only 15 minutes and began praying silently as I necessarily had to carry out my threat, failing which I would become a laughing stock to them, which would be detrimental to all of us. By God’s grace the motor cyclist came within about 10 minutes and gave us permission to proceed through their territory to Maha Oya and from there we were to proceed to Badulla as planned. The LTTE would definitely have known about me. Perhaps, we were spared because of my professional reputation as one who functioned by the rules within the remit of duty.
5. Investigations intoJVP related crimes
5.5. After my promotion as an Asst Superintendent of Police, I was transferred as ASP Crimes Nugegoda Division. During the violence of the JVP in the 1987 to 1989 era I was directed to carry out investigations in Colombo, Nugegoda and Mt Lavinia Divisions enlisting 6 Inspectors of Police (IP) to lead 6 teams. Late DIG MrPiyasena who was then SSP Nugegoda Division was overall in charge. Owing to the fear police officers had of the JVP, who had resorted to killing of Police Officers and frequently their family members, I could only get one IP and had to settle for him and two Probationary Sub Inspectors Warnasooriya and Rajapakse to head three teams.
5.6. The JVP threw a grenade at the house of SSP Mr Piyasena in Nugegoda, shot dead SI Rajapakse at his house in Maharagama and cut open his stomach in the presence of his mother, and shot SI Warnasooriya, at Delkanda, Nugegoda. This SI sustained three bullet injuries and had to undergo three surgeries and still has a bullet embedded in his spine. He prematurely retired from the Police in the rank of Chief Inspector.
5.7. In fact an SSP, who was heading a unit of the Intelligence Division of the Police resigned his position as the head of that Unit and he was succeeded by SSP Mr.Nimal Lionel Gunatilleke (the Late Retired DIG).
5.8. I did not receive even a threatening call or letter. In fact I had thirteen hard core JVPers who were concerned in serious crimes and of which two were giving very vital information of crimes hitherto unsolved. One such case was the killing of Independent Student Union leader of the Colombo University Daya Pathirana, who was murdered by slitting his throat at a ferry point in Horana. Until the time of the arrest of these hardcore JVPers, the JVP was blaming the UNP government, whilst the government was blaming the JVP. Some University Students were in custody for a long period of time over this murder. It was suspect Hewahettige Jayatissa of Maharagama, who confessed to me of having abducted Daya Pathirana at Thunmulla junction and killing him at Horana. Consequently the University Students who were in remand were enlarged on bail.
5.9. From time to time Jayatissa also confessed to several other murders and bank robberies. As a result of his continuing revelations I had him together with one R.M.Karunaratne of Homagama who too was providing valuable information, placed in a cell at Welikada Police, as this was the closest Police station in Nugegoda Police Division, to my quarters at Maradana Police.
5.10. With these disclosures I was transferred back to the CID and special teams were formed to investigate their crimes.
5.11. Suspect RM Karunaratne called for me one evening at about 9 pm from Welikada Police, where he was held for over two weeks, and told me that though he had confessed to me many crimes committed, he had withheld a vital piece of information and that this had troubled his conscience. The suspect then informed me of an impending attack on a military installation close to Colombo that very night, or the following night, which he was not certain as it was to be perpetrated after midnight. The JVP had decided on it at a meeting he attended before his arrest. I immediately informed Mr O.K. Hemachandra, who was an SP in the CID and was residing close to Welikada Police. Mr.Hemachadra too came and interviewed him and we passed this information to the higher ups in the Police
The very next night, the Kotelawala Defence Academy was attacked and nine soldiers were killed and their weapons stolen. The same night, the Katunayake Air Force Base too was attacked. Two insurgents were killed in this incident. I had to go to Katunayake at 2 am for investigation
Would any suspect volunteer such information after two weeks in custody, had he been subjected to third degree and / or degrading treatment ?
6. THE PARANAGAMA MISSING PERSONS COMMISSION
6.5. The Chairman of the present Missing Persons Commission, appointed by the previous regime of H.E.Mahinda Rajapakse, inquired from me whether I could assist his Commission as the Chief Investigating Officer. I said, “Yes, I would definitely like to assist you, but nominate my name and see what the powers-that-be have to say”. That was the last I heard from the Chairman.
7. A comparison between the Udalagama Commission and the Lalith Athulathmudali and Kobbekaduwa Commission.
a) I have previously served as the Chief Investigation Officer in the Lalith Athulathmudali and Kobbekaduwa Commission. The Chairman of this Commission was the Deputy Chief Justice at the time and the other two members were late Hon. Justices D.P.S.Gunasekara (then a Judge of the Court of Appeal) and Gamini Amaratunga (then a Judge of the High Court). They both retired later as Judges of the Supreme Court.
b) In both Commissions, the Chairman appeared to have an agenda which was contrary to the spirit of an independent commission, viz.a political witch hunt to blame late President Premadasa for both killings, without an iota of evidence.
c) A woman in her late thirties from Weli Oya, a mother of a twelve year old girl, appeared before the Commission and related fanciful, improbable and implausible tales. Amongst her narratives was that she was married to a 24 year old soldier attached to the security detail of Gen. Kobbekaduwa and that this soldier was the father of her 12 year old daughter. She said her soldier husband was close to Brigadier Ananda Weerasekara (now Ven Ananda Thero in a temple in Ampara) who was appointed by late President Premadasa as the Head of the Rehabilitation Authority to rehabilitate JVPers.
d) I dispatched a team of Policemen, from my unit to Weli Oya, to check on the veracity of the statement of the woman and of her antecedents. They reported that woman was a prostitute in Weli Oya living close to an ambush point of the Sri Lanka Army and was commonly known as ‘Ambush Nona’.
e) The Chairman on hearing this admonished me for checking on her antecedents saying that this was a Commission of Inquiry and not a Court of Inquiry and that he could admit any evidence
f) The Chairman ordered me to apply for a Detention Order on the soldier . I asked the Chairman what the charge was. He asked me why I wanted to know the charge. I said I had to explain the charge to him, record his statement in relation to the charge and if there was prima facie evidence, then apply for the detention order. The Chairman told me, “You first apply for the detention order and the statement could be recorded later”. I then asked him of the applicability of the principle of ‘audi alteram partem’ (hear the other side). The Chairman then said, “We will look into it tomorrow”.
g) However the very following day, I was transferred out of the Commission back to the CID. The other two Commissioners, the late Justices Gunasekara and Amaratunga told me that I was lucky to leave the Commission as there will be another Commission on this Commission. They too resigned from the Commission within a couple of weeks.
h) Prior to my transfer, Brigadier Weerasekara was summoned to the Commission without my knowledge. Since I had not summoned the Brigadier I was surprised as to who had summoned him and was told it was a civilian attached to the commission.
i) The Brigadier had been summoned by this civilian, who was neither in the Legal Profession, nor was a Public Servant. He was the leader of a western “Rock” musical band in Colombo. Neither the other two Commissioners, nor I, knew his status on the Commission. His credentials were that he moved very closely with the Chairman.
j) I then told the Brigadier that I would call the person who summoned him and for the Brigadier to ask him, before making his statement, the reason why he was summoned. Accordingly when the Brigadier posed this question to the civilian in my presence, the civilian looked at me in askance. I told him he should answer the question since it was he who had summoned the Brigadier. On the civilian not being able to reply, I apologized to the Brigadier for the embarrassment caused and politely told him he was free to go.
k) When compared to the Udalagama Commision, which was carefully constituted and designed to standards compatible with reputed Commissions in the International scene, the Lalith Athulathmudali and Kobbekaduwa Commission was biased and bereft of natural justice, on account of the predilections of the Chairman of this Commission.
8. Serious injury in grenade explosion at Kolonnawa oil tank installations
8.5. Subsequent to the LTTE exploding the Kolonnawa Oil Tank Installations in 1995, I was at the scene at about 3:45 am. and whilst I was speaking to an SSP and four ASPs I heard something falling behind me and noticed an object which was about just six inches behind me, which then exploded and I saw the embers falling. I felt my internal organs going haywire. I coughed out blood and dropped to the ground unable, to breathe, nor move. I prayed to God who made me get up and run amidst rapid gun fire. I ran about 100 yards and the SSP, who was taking shelter brought me in his car to the accident service of General Hospital, Colombo.
8.6. Through sheer determination I kept myself conscious until I was wheeled into the operating theatre and there I heard someone say “check his blood group, his pulse rate is dropping”. I knew I was close to dying and yelled that I was A+, and allergic to Penicillin, and that I was bleeding inside and that I could not breathe. I was subsequently informed that I had had a cardiac arrest that very moment. Twelve pellets had entered my body and my left lung was ruptured. Of the 12 pellets, one was in my heart adjacent to the coronary sinus and this was removed after fifteen years in 2010when I underwent a cardiac by-pass surgery. The pellet was given to me as a souvenir in a bottle by the Heart Surgeon. The 11 other pellets are yet in my body.
Twenty three persons died in this incident as a result of “friendly fire” in the aftermath of two grenade explosions at the time of the incident.. My car which was about 20 meters away from where I had fallen had 9 bullet holes.
It is by the Grace of my Lord Jesus Christ that I am miraculously alive today and without any impairment to my sight or hearing.
It is only God who has the Right of Life and Death over his all his creation, and no other, however powerful and mighty they be.
Conclusion
I have put down my experience to assist thinking about the task the country is faced with in the wake of the UNHRC resolution. Truth seeking is here the principal task. My experience tells me that persons complicit in crimes are more likely to tell the truth when not confronted with the threat of punishment. Placing the untrammeled truth on record is the primary task. The question of crimes during the war by both sides is besides a criminal, also a political issue requiring consideration of mitigating factors. While individual responsibility remains paramount in law, those carrying arms who committed crimes on both sides, are also victims of the political dispensation and propaganda by others not involved in the fighting that spurred crimes against humanity. The question of punishment requires careful consideration by a separate court under appropriate guidelines.
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The views shared in this article do not necessarily reflect that of the AHRC.
