by T. Sabaratnam
18. Tamils lose faith in commissions
Lost Faith in Judiciary
Police Inspector Gurusamy was killed by TELO as punishment for the role he played in the police cover game of the events connected to the August 1977 anti- Tamil riots. His assassination was the signal of the loss of faith of the Tamils in government-appointed commissions, the Sansoni Commission in particular.
Sansoni Commission was appointed by Jayewardene on 9 November 1977 after Amirthalingam had told parliament on 18 August about the atrocities committed by the police in Jaffna during 13-17 that month. The government and the police made use of the commission to witch-hunt the TULF leader. The commission found the TULF and the Tamils guilty of creating an atmosphere of hostility towards them among the Sinhalese with the Tamil claim for a separate state and with acts of violence. The Commission, in effect, told the Tamils ‘you asked for it and you got it.’
The Tamils had lost faith in the judiciary before that. They lost faith in the judiciary when it refused to invoke the constitutional safeguards Section 29 of the
Soulbury Constitution provided for the minorities.
The Soulbury Constitution provided in Section 29 1 (C):
“No such law shall… confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religion.”
Section 29. 4 provided a further safeguard by laying down the condition that “parliament may amend or repeal any of the provisions” of the constitution by passing it with a two-third majority.
Judicial intervention was invoked under the Soulbury Constitution in two instances to correct the injustice committed by the citizenship laws. The first intervention was in regard to a discriminatory act by the Sinhalese against the Tamils. In this first case, the Badurdeen case, Badurdeen and Cader challenged the restrictive interpretation given by Immigration and Emigration officials to the phrase “ordinarily resident” contained in the Ceylon Citizenship Act. The officials held that wife and minor children of the applicant for citizenship should have lived in Ceylon for seven years prior to the date of application.
Justice Basnayake held that it was enough if the wife and minor children were with the applicant at the time of application. Privy Council upheld the Supreme Court decision. Those decisions would have benefited about 50,000 Tamils. The government amended the law to suit the official interpretation, thus nullifying the benefit Tamils would have derived through judicial action. That case did not involve the protection accorded by Section 29.
Protection under Section 29 was first invoked in the Kegalle Case. In that case, Ceylon Workers Congress Joint Secretary K. G. S. Nair filed a case against the Registering Officer for rejecting his claim to be registered as an elector. District Judge of Kegalle N. Sivagnanasundaram ordered Nair’s name be restored in the electoral list, holding that the citizenship laws were ultra vires the constitution. He held that the citizenship laws conferred on one community a disadvantage not conferred on other communities, thus violating Section 29. 1 (C).
The Commissioner of Immigration and Emigration, Madanayake, appealed against the order of the Kegalle District Court to the Supreme Court. The 3-judge bench of the Supreme Court, comprising Chief Justice Jayatileke and Justices Pulle and Swan, in 1952 smashed the decision of the Kegalle District Court by holding that the citizenship acts were non-discriminatory since it applied equally to all communities. The CWC appealed to the Privy Council which affirmed the decision of the Supreme Court. The Privy Council held the citizenship laws were within the meaning and scope of Section 29.
The compatibility of the Sinhala Only Act with Section 29 1 (C ) of the Soulbury Constitution was challenged by C Kodeeswaran, a government clerical servant, when his salary increment was suspended in April 1962, because he failed to sit a Sinhala examination he was required to pass in accordance with a treasury circular of December 1961. The circular was issued on a directive from Public Administration Minister Felix R. Dias Bandaranaike
in connection with implementation of the Sinhala Only Act.
Felix R.Dias Bandaranaike
Kodeeswaran filed action before the Colombo District Court contending that his rights under Section 29 of the Constitution was violated. He submitted that the Sinhala Only Act had conferred on the Sinhalese an advantage that was not conferred on him, a member of the minority Tamil community. He showed that under the Sinhala Only Act a Sinhalese officer working in the Tamil-speaking Northeast was exempted from learning Tamil, while a Tamil officer generally functioning in his own language in the NorthEast was forced to learn Sinhala. The disadvantage conferred on the Tamil community was quite clear, he submitted.
To avoid an awkward hearing on the validity of the Sinhala Only Act, the Attorney General raised a preliminary objection, viz., that a public servant was not entitled to sue the Crown (i.e. the State) for arrears of salary.
O.L. de Kretzer who was then district judge, in his judgement delivered in 1964, over-ruled the preliminary objection. He also ruled in favour of Kodeeswaran on the incompatibility of the Sinhala Only Act and Section 29, deeming the Act bad in law. The Attorney General appealed against this judgement to the Supreme Court. The case was argued before a bench comprising Chief Justice H.N.G. Fernando and Justice G.P.A. Silva.
Walter Jayawardena QC, Acting Attorney General, who appeared for the state, submitted that the relationship between a government servant and the state was governed by the English Common Law which does not permit a public servant to sue the state for arrears of salary. Ranganathan Q. C. who appeared for Kodeeswaran submitted that the relationship was governed by the Roman Dutch Law which did permit a public servant to sue the state.
Fernando CJ, in his judgement, ruled in favour of the state, holding the relationship between the state and its servant was governed by the English Common law and Kodeeswaran could not sue for arrears of salaries and set aside the verdict and decree of the District Court. He also stated in his judgement that he had not called upon Jayawadene to submit his arguments on the Sinhala Only Act, since the action had been decided on a point of a general law.
Kodeswaran appealed to the Privy Council in 1968 and the case was heard before Lord Hodson, Viscount Dilhorne, Lord Pearson and Lord Diplock. Among those representing Kodeswaran were Sir Dingle Foot QC, Ranganathan QC and S.C. Crossette-Thambiah. Among those representing the Attorney General were E.F.N. Gratiaen QC and H.L. de Silva.
The judgement of the Privy Council
was delivered by Lord Diplock on 11 December 1969, on the eve of the 1970 general elections, setting aside the Supreme Court judgement on the preliminary issue. The Privy Council held that the relationship between the state and its public servant was governed by the Roman Dutch Law and Kodeeswaran had the right to sue the state.
The Privy Council declined to comment on the Sinhala Only Act since neither they nor the Supreme Court had heard any arguments on these matters, and thought it inappropriate to comment without the considered opinion of the Supreme Court of Ceylon. It rejected the Supreme Court's judgement on every key point. Thus, by means of a tortuous argument, the hearing on the validity of the Sinhala Only Act was circumvented.
The Privy Council remitted the case to the Supreme Court for a hearing on the validity of the Sinhala Only Act and the treasury circular. However, the case was not listed. It was not pursued by Kodeeswaran because, during the tenure of the Dudley Senanayake government of 1965, the treasury circular stopping the salary increments of those who did not pass the Sinhala examination had been amended and all Tamil public servants received their arrears of salary.
The District Court's ruling that the Sinhala Only Act was void had not been challenged by the State at the Supreme Court or at the Privy Council. In this sense, the Act remains void in law, but the State decided to ignore de Kretzer's ruling and live with the law, thus debasing judicial process.
The United Front Government of Sirimavo Bandaranaike that came to power in 1970 circumvented the District Court ruling by incorporating the Sinhala Only Act in the 1972 Republican Constitution and doing away with Section 29 of the Soulbury Constitution. The 1972 Constitution made Parliament supreme and also did away with appeal to the Privy Council.
In the Amirthalingam Trial-at-Bar, the validity of the 1972 Republican Constitution was challenged on two grounds.
Tiruchelvam Q.C. submitted that the Soulbury Constitution, in Section 29.4, provided for amendment or repeal of any of its provisions with a two-third majority and did not provide for its total replacement with a new constitution. The Attorney General answered saying that the United Front Government had obtained the mandate from the people to enact a fresh constitution.
The three judges who heard the Trial-at-Bar did not express an opinion about this matter or about the more important objection Tiruchelvam placed for their consideration. He submitted that even conceding that the United Front had obtained the mandate to enact a new constitution, it had failed to get the consent of the Tamil people who constituted a separate nationality. The Tamil people had voted for a federal constitution in the 1970 election.
The judges ducked that issue and held that, since the emergency regulations under which Amirthalingam and others were arrested had lapsed and the arrests were not lawful, the court constituted to hear the case was not properly constituted. Since the court was not properly constituted, it had no authority to express an opinion about the validity of the Republican Constitution.
The Attorney General appealed against the order of the High Court that the emergency regulations had lapsed and the Supreme Court held that the emergency regulations were valid and, thus, the court had been validly constituted. It directed the High Court to proceed with the hearing of the case against Amirthalingam. That was not done because the Attorney General withdrew the case against Amirthalingam, thus preventing the judges expressing an opinion about the validity of the Republican Constitution.
On 20 September 1976, the day after the presiding judge, J. F. A. Soza, delivered the 67-page judgement in the Amirthalingam trial-at-bar, I asked Thanthai Chelva for a comment about the judgement. He declined to say anything on record, but made a general statement that, in Sri Lanka, Tamils cannot expect justice from the legislature, executive or the judiciary, the three organs of the state.
He said Tamils had lost faith in the Sri Lankan courts. “Sri Lankan courts are not prepared to examine the extent of the safeguards Section 29 of the constitution that provided for the minority in Sri Lanka,” he said.
The Tamils lost faith in judicial commissions with the disappointing performance of the Sansoni Commission. Tamils were happy when Jayewardene announced that he would appoint a judicial commission to investigate the Jaffna incidents when Amirthalingam raised them in parliament on 18 August. They were pleased when Jayewardene met on 22 August with former Chief Justice M. C. Sansoni, a Burgher, and a judge held in high esteem, and persuaded him to accept the task of inquiring into the incidents that broke out in Jaffna and spread to the rest of the country.
The one-man commission was appointed on 9 November 1977 with the mandate to “(1) ascertain the circumstances and causes that led to, and the particulars of, the incidents which took place in the island between 13 August 1977 and 15 September 1977; (2) whether any person or body of persons or organisation, etc. were in any way the cause of the violence; and (3) to recommend such measures as may be necessary for rehabilitation, public safety and prevention of a recurrence.”
The Commission commenced sittings on 8 February 1978 and wound up on 10 December 1979. It sat in Jaffna, Anuradhapura, Colombo, Kandy and Trincomalee. The evidence on record is quite exhaustive. The final report was submitted to President Jayewardene on 22 July 1980 and published as a sessional paper on 4 November 1980.
The main task before the commission was to “ascertain the circumstances and causes” of the August 1977 riots and identify “any person or body of persons or organisation, etc.” that were in any way the cause of the violence. Sansoni, in his 277-page report, fixed the cause of the violence on the TULF leadership, because it fostered a climate of hostility in the country, but failed to identify anyone who had caused the disturbance.
Sansoni, in his report, said the communal violence was retaliation by a section of the Sinhala people because a section of the Tamil leadership asked for a separate state and fostered the militant movement. Thereby, Sansoni had propounded a new judicial theory that political demands by a minority community that are unpopular with, and resented and resisted by, the majority community is sufficient cause for the members of the majority community to indulge in violent activities against the members of the minority community. In brief, ‘you provoked the majority community and you got it’ seemed to be the finding of the Sansoni Commission.
“So far as the population of the whole island is concerned, the claim of a separate state is unpopular and will be resisted by the majority community… It must be remembered that violence or the advocacy of it begets violence, and it is one lesson which the disturbances of August and September 1977 should have taught us all.”
Analysts say Sansoni’s conclusion was a paraphrase of Jayewardene’s provocative speech in parliament on 18 August 1977, delivered in reply to Amirthalingam’s statement. Jayewardene said,
“The vast majority of the people in this country have not got the restraint and the reserve that Members of Parliament, particularly those in the front ranks, have been used to. They become restive when they hear such remarks as that a separate state is to be formed; that Trincomalee is to be the capital of that state; that Napoleon had said that Trincomalee is the key to the Indian Ocean; and therefore Trincomalee is going to be the capital of the state...
“Whatever it is, when statements of that type are said and the newspapers carry them throughout the island, and when you say you are not violent, but that violence may be used in time to come, what do you think the other people in Sri Lanka would do? How will they react? If you want to fight let there be a fight; if it is peace, let there be peace!”
After a prolonged applause by members of his party, Jayewardene added:
“That is what they will say. It is not what I am saying. The people of Sri Lanka will say that.
“When this happened in Jaffna - When Sinhalese boutiques are attacked, when government property is attacked - every railway train bringing people from there to the South spread the stories - all that caused the death of the most innocent Tamil people and Muslim people, which should never happen. I am very sorry that it should have happened....”
Analysts like Rajan Hoole, a violent critic of the TULF and Tamil militant movements, say that anyone who followed the two-year proceedings of the commission, which recorded the evidence of 952 victims and witnesses in its 298 sittings and examined the affidavits filed by 275 affected persons, and read the report would conclude that Sansoni was under pressure to stick to the unwritten brief laid down in Jayewardene’s speech.
Sansoni maintains throughout the report that the claim of a separate state and violence, or the advocacy of violence, were the causes of the riots. He blames the Tamils for the mob attacks unleashed on them. “You created the conditions of hostility and you got it,” was his verdict. The only thing he failed to say was “You deserved it.”
“Teaching the Tamils a lesson” and instructing the police to “turn the other way” was part of the political culture of independent Sri Lanka. The very first non-violent, democratic protest was given that same treatment. Around 200 peaceful satyagrahis, who sat crosslegged and prayed on the Galle Face green in Colombo on 5 June 1956, calling upon the S. W. R. D. Bandaranaike government to make Tamil also an official language, were assaulted by Sinhala mobs and the police turned the other way.
S. Ponniah in his booklet titled, Satyagraha- The Freedom of Movement of the Tamils of Ceylon records the illuminating incident that shows the origin of this culture. Between 9.30 am and 10 am on 5 June 1956, Prime Minister Bandaranaike
drove in his car to parliament to introduce the Sinhala Only Act. He saw the satyagraha and stopped his car. He took a look at it and laughed at the sight of the Sinhala thugs assaulting the satyagrahis. A senior police officer went to him and asked him whether to chase away the thugs. Bandaranaike’s reply was, “Let them have a taste of it.” A little later when Amirthalingam entered parliament with a bandaged head Bandaranaike shouted, “Honourable wounds of war.”
The culture of violence and police inaction continued that day in some parts of Colombo and the following day in Gal Oya in the eastern province. It was repeated on a bigger scale in 1958 during that year’s riots. It was again used by Sirimavo Bandaranaike to disrupt the Federal Party satyagraha of 1961. For Jayewardene violence was the natural and the effective way of silencing protest. He used it against his Sinhala political opponents, supporters of the Sri Lanka Freedom Party, in July 1977. He announced two days before the 21 July 1977 election he would,
“…give a period of leave after the election results to the law enforcement agencies.”
On the days following the election, government supporters roamed the country in state vehicles celebrating Jayewardene’s victory and attacking his opponents. The police looked the other way. The incidents in August 1977, was the next instance. In 1980, the same medicine was administered to trade unionists who struck work. Trade union leaders were assaulted, and strikers sacked. In 1981 and 1983, Tamils were again taught the lesson. In 1984, Chief Justice Hema Basnayake was given that treatment. A mob surrounded his official residence and threatened him because he made some remarks against Jayewardene.
Justifying the Culture of Violence
Sansoni, in his report, had justified that culture of violence. His failure to find answers to the two core questions, who burnt the Jaffna Old Market in the early hours of 16 August and how did the violence spread to the rest of the country, had made his enquiry futile.
Who burnt the Jaffna Old Market on 16 August morning? To help answer that question, let us reconstruct the picture from evidence recorded by Sansoni himself. A group of police constables stopped three youths travelling on bicycles near Puttur junction on the afternoon of 15 August. They left their bicycles and ran away. One of them fired with a revolver as he fled. A bullet hit police constable Bandara on his thigh.
L.A. Saverimuttu, Jaffna correspondent of the Colombo daily Sun interviewed Jaffna Superintendent of Police (SP) A. S. Seneviratne about that incident on 15 August evening. A. S. Seneviratne was furious about the incident. He told Savarimuttu, a retired government servant, that the Tamils would pay dearly for the gun-shot injury caused to Bandara.
A Tamil police constable, Sattanathapillai, in his testimony said that A. S. Seneviratne held a meeting of all police officers in his residence on the night of 15 August. He spoke disparagingly about the Tamils. He said shooting Sinhala policemen could no longer be tolerated. Sattanathapillai said that after the meeting a group of policemen made an entry in the log book that they were going to Pungudutivu, but went instead to the market and set fire to it, at 1.30 AM.
The fact that the policemen went to the old market and burnt it was corroborated by shopkeepers and others. They said over 100 policemen had gone to the market in police vehicles and set fire to the old market. The hair of the persons who burnt the market was short cropped. They wore kaki shorts. They carried weapons. They spoke Sinhala language. They came to the market in police vehicles. Police vehicles were parked in the bus stand.
Several shop owners testified that people gathered there on hearing about the burning of the market and they started throwing stones at those setting fire to the market. They also lit old tyres to block the arsonists fanning out further. The men, finding that resistance growing, got into the parked police vehicles and drove towards the police station. Sansoni rejected this entire body of evidence as “quite insufficient” and as “prejudicial hearsay evidence.”
Then who burnt the old market? Police evidence, led by Assistant Superintendent of Police (ASP) Noordeen, said the police got the information that a mob was rioting in the town and they went there to restore order. Sansoni accepted this evidence. Sansoni held that “an unruly mob had taken possession of the town” and the police went there to restore order.
He rejected the evidence of many respected persons, including Dr. Balasingham and M.R. Joseph, a businessman, who described the situation as a “reign of Police terror.” Joseph testified that he saw ASP Noordeen driving fast towards the Bus Stand shouting, “Shoot them like dogs. It is either they or we.”
The basic questions Sansoni ignored were:
Why did the mob take over the town in the early hours of the morning? Why did the Tamils burn their own town?
In Jaffna, police-public confrontation ha been building up for a long time, especially after the police shooting at the 1974 January Fourth Tamil Research Conference in which nine people died of electrocution. Sansoni, though it did not fall within his mandate, gave room for the police to reopen the matter and counter the de Krester report, which blamed the police. Researchers are requested to read chapter 2 of Hoole’s book about the incident, available in Welcome to UTHR, Sri Lanka.
Readers are also requested to take note of the fact that police officers who “taught the Tamils lessons” were all promoted. ASP Chandrasekera, who disrupted the Tamil Research Conference in 1974, was promoted by Sirimavo Bandaranaike. Jayewardene made Ana Seneviratne the Inspector General of Police (IGP) while the Sansoni commission was sitting. Jayewardene also promoted A.S. Seneviratne to Deputy Inspector General (DIG Metropolitan) and Ronnie Gunasinghe his immediate subordinate.
Researchers are also requested to consider the following eyewitness account of the events published by Rajan Hoole, of the University Teachers for Human Rights (Jaffna), a virulent critic of the TULF and the LTTE, in Chapter 2 of his book Sri Lanka: Arrogance of Power, Myths, Decadence and Murder. The account was given by a youth of Kottady who was, at the time of the incident, 14 years old and who joined a militant movement eight years later. It reads,
“In the night of the 15th, word spread that there were fires in the town area and that the Police were setting fire to some shops. The young men rushed to the area. My elder brother went ordering me that in no circumstances should I leave home. I joined some of those of my age and watched from a drain close to the ‘Satturathu’ or CSK (i.e. Hospital Road – KKS Road) Junction, keeping a safe distance from my elder brother. I saw policemen and police vehicles in the bazaar area. Only a few of the men were armed and they could not easily see us.
“Some of the elders had brought used tyres, piled them up at CSK Junction and set them on fire, creating a barricade so that the Police could not come into our area. I saw some policemen coming there and pulling out the sign-post with the street names. Using the sign-post they lifted a burning tyre by its loop, carried it and threw it on some inflammable material in the Old Market, thus setting it on fire. We all threw stones at the policemen. Eventually they took off in their vehicles.
“The next morning while I was going to school I heard that members of the public had grabbed the guns from two policemen who had come to do sentry duty at a bank. I saw one of them being assaulted. I took the compass from my box of geometrical instruments and gave the policeman a prick on the thigh before proceeding. One gun was smashed. The other I heard was recovered by the Police when those who had it, left it outside and went into Subhas Caf
Posted November 12, 2003