President Maithripala Sirisena held successive discussions with two Tamil delegations in Colombo on Thursday October 19th 2017. The meetings were about the issue of Tamils detained in various prisons under the Prevention of Terrorism Act(PTA) in general and the hunger strike undertaken by three detenues at the Anuradhapura jail in particular. The focus at both discussions was more on the situation regarding the three prisoners on hunger strike as much concern has been expressed about their physical condition.
Three Tamil men detained at the Anuradhapura jail commenced a hunger strike on September 25th 2017. They were 30 year old Mathiyarasan Sulakshan from Karanavaai , 40 year old Rasathurai Thiruvarul from Velanai and 28 year old Ganeshan Tharshan from Nawalapitiya. They were all former members of the Liberation Tigers of Tamil Eelam(LTTE). All three had been indicted at the Vavuniya High Courts but the Attorney-General had suddenly transferred the case to the Anuradhapura high court.
Thiruvarul, Sulakshan and Tharshan embarked on a hunger strike demanding that their case be re-transferred back to the Vavuniya high court again. Their physical condition began deteriorating . On Sep 29th Ganeshan Tharshan was taken to the A’pura prison hospital. On October 5th Mathiyarasan Sulakshan and Rasathurai Thiruvarul were warded at the A’pura prison hospital. On Oct 9th all three were admitted to the Anuradhapura General hospital. On October 15th the trio was transferred to the A’pura hospital’s intensive care unit. Unconfirmed reports say the three have been brought back to the Anuradhapura prison hospital now and are in a stable condition.
President Sirisena’s first meeting at 12 noon was with family members of the three prisoners on hunger strike. Rasathurai Thiruvarul’s wife, Mathiyarasan Sulakshan’s mother and aunt, Ganeshan Tharshan’s mother and brother were among the relatives who met the President. Sulakshan’s sister Krishanthy a first year student at the Jaffna Varsity was not part of this delegation as she was a member of the Jaffna varsity student group which also met the President on the same day. The family member group was accompanied by two members of the Tamil Eelam Liberation Organization(TELO). One was ex-Jaffna district MP and present Northern Provincial councillor MK Sivajilingam. The other was former Batticaloa district MP and ex- eastern Provincial councillor Govinthan Karunakaram.
Northern Governor Reginald Cooray
The President’s meeting with family members of the prisoners on hunger strike was arranged by Northern province governor Reginald Cooray on a request made by Sivajilingam. Governor Cooray was also present at the meeting. Among others present at the meeting were Law and order minister Sagala Ratnayake, Rehabilitation and Prisons Reform minister D.M.Swaminathan, State minister for Defence Ruwan Wijewardene, Deputy minister of Justice and Buddha Sasana Sarathie Dushmantha, Defence secretary Kapila Waidyaratne, Secretary to the President Austin Fernando and key officials from the Attorney – Generals Dept.
The second meeting with the Jaffna varsity students was at 1.30 PM. This meeting with the president was also facilitated by Northern province governor Reginald Cooray who was present on the occasion. The same set of ministers, deputy ministers and key officials at the earlier meeting were present at this one too. The Varsity delegation was led by the Jaffna University Students Union (JUSU)President Krishnameenan and Secretary Jackson.Sulakshan’s sister Krishanthy was also part of the undergraduate group. Earlier the Jaffna Varsity Arts Faculty union had launched a fast unto death campaign unilaterally. However the JUSU stepped in and got it deferred. Thereafter a meeting with the President was arranged.
According to informed sources President Sirisena had listened to representations made by the two delegations with a great deal of sympathy. He also listened with interest to requests made about releasing all the prisoners under an amnesty.However he seemed troubled and offended at one point when the outspoken Sivajilingam reportedly said” People are saying if Mahinda Rajapaksa could release 12,000 ex-tigers why cannot Maithripala Sirisena release a hundred ex – tigers”?
The president however assured the delegations that he would arrive at a concrete decision regarding the case transfer to Anuradhapura sometime next week. He said that both Justice minister Thalatha Atukorale and Attorney – General Jayantha Jayasuriya were out of the country and were scheduled to return only on Monday October 23rd. He would discuss the matter in detail with them and thereafter with Govt ministers at the cabinet meeting.
President Sirisena he would take a positive decision by Wednesday October 25th. When family members said that the condition of the prisoners on a hunger strike could worsen to a fatal level by then the president reassured them saying that such a thing would not happen. The president told family members that he had instructed prisons and hospital authorities in Anuradhapura to ensure that the condition of the three fasting prisoners does not deteriorate dangerously.
Complicated and Controversial Matter
The case concerning Rasathurai Thiruvarul, Mathiarasan Sulakshan and Ganeshan Tharshan is a complicated and controversial matter. In order to understand its complex ramifications a brief re-run into some of the war related events of 2009 is required. The LTTE during its long war with the Sri Lankan armed forces had at times been able to capture alive members of the Police ,Army.Navy and Air Force. A contingent of such defence services personnel were kept as prisoners by the Tigers in the Thiruvaiyaaru area of Kilinochchi in 2008.
When the battle for Kilinochchi was raging and the army began edging closer, the LTTE shifted the prisoners further north to Murasumottai near Paranthan. Though the army tried very hard to reach Kilinochchi town the LTTE with its “trench and bund” defensive strategy managed to hold them off for many months. However the situation changed dramatically when the 58 division led by Gen. Shavendra Silva advanced from west to east along the Poonagary- Paranthan road axis and reached Paranthan on December 31st 2008. With the fall of Paranthan the LTTE had to move out of Kilinochchi which was seized by the Army on Jan 2nd 2009. Likewise the LTTE had to withdraw from the Kilaly – Muhamalai-Nagarkovil defence line within the Jaffna peninsula also. This led to the re-taking of Elephant pass by the armed forces on Jan 7th 2009.
This dramatic reversal of the military balance in January 2009 compelled the LTTE to retreat hastily from the Kilinochchi regions into the North – eastern Mullaitheevu district’s littoral and hinterland regions. The defence services members incarcerated by the tigers as “Prisoners of war” were also relocated into Mullaitheevu district. The prisoners comprising Eighteen persons from the Navy and Eight from the Army were moved to a tiger base in a place called Vannipunam in the Vallipuram Grama Sevaka division within the Puthukkudiyiruppu AGA division of Mullaitheevu district. It was in Vallipunam that 61 schoolgirls were killed on August 14th 2006 in aerial bombardment. The schoolgirls between 14 to 18 had been forced by the LTTE to attend a first aid training camp at Vallipunam. The Govt maintained that the Air Force had bombed a LTTE training camp.
The rapid advances made by the 58 and 53 divisions from different directions towards the Devipuram area in Puthukkudiyiruppu made the Vallipunam tiger base quite vulnerable.The LTTE therefore decided to vacate Vallipunam and withdraw further. The question of the Navy and Army prisoners loomed large. It was then that the dreaded LTTE intelligence chief Shanmugalingam Sivashanker alias “Pottu Ammaan” issued the order to execute the prisoners detained at Vallipunam. The captured navy and army personnel were under the authority of the LTTE intelligence division. Incidently the beleaguered LTTE also killed or forced to commit suicide, several seriously injured tiger cadres in those times because they could not provide adequate medical treatment. Likewise transporting and detaining the defence personnel captives was also a problem for the retreating Tigers.Thus 26 prisoners comprising 18 Navy and 8 Army personnel were executed in cold blood in Vallipunam. Their bodies were dumped in a pit and set on fire.Later it was filled with sand. This had reportedly happened on January 16th 2009.
LTTE Intelligence Chief “Pottu Ammaan”
The Tamil prisoners on a hunger strike are allegedly part of the LTTE squad which detained the 18 Navy and 8 Army personnel as prisoners and then executed then in cold blood on the orders of Pottu Ammaan. (The LTTE intelligence chief reportedly killed himself on May 18th 2009 in Mullivaaikkaal but his body was not found). Protracted investigations by various intelligence organs of the State as well as probes by the Police Terrorism Investigation Division(TID) have reportedly uncovered information of the trio’s allefed complicity in the killings. Furthermore it is said that Sulakshan, Thiruvarul and Tharshan have also tendered “confessions” to a magistrate while in custody. In addition three other ex-LTTE members with first hand knowledge of the incident have agreed to become state witnesses. It is on the basis of all these that the Attorney – General has seen it fit to indict the three for the alleged murder and for allegedly aiding and abetting the murder of 18 Navy and 8 Army personnel on or about the 16th of January 2009.
Rasathurai Thiruvarul, Mathiyarasan Sulakshan and Ganeshan Tharshan surrendered to the army in May 2009 and were initially detained at Omanthai. Thereafter they were reportedly taken to Colombo and Boosa and brought back to the North again. After intensive interrogation an indictment (2491/13)was filed at the Vavuiya High court in July 2013 against Mathiyarasan Sulakshan and Ganeshan Tharshan. Rasathurai Thiruvarul was not charged initially. Almost four years later an amended indictment was filed in June 2017. In the amended indictment Rasathurai Thiruvarul was named as first accused with Sulakshan and Tharshan as second and third accused respectively. 67 Witnesses were also listed.
Most of the listed witnesses were members of the Army,Navy, Police and Prisons Dept officials. However among the witnesses listed in the indictment are three Tamil youths. According to the indictment they are Sinnarasah Ganeshkumar of Navakiri in Putur, Aarumugam Jyotheeswaran of Lindula and Vanniyasingham Sujeevan of Kumarapuram, Paranthan.All three are former members of the LTTE who were detained for some years after May 2009 and released after undergoing rehabilitation. It is believed that the testimony of these three witnesses could strengthen the prosecution’s case against Thiruvarul,Sulakshan and Tharshan.
The trio of Sulakshan, Thiruvarul and Tharshan have been detained for more than eight years since 2009. They were transferred to Anuradhapura jail after the Vavuniya prison riots in 2012. Their case became rather a protracted exercise after the original indictment was filed in 2013. The case was taken up many times and postponed for many reasons including lack of translated documents, unavailability of witnesses, absence of key officials etc. During this period Mathiyarasan Sulakshan engaged in several hunger strikes demanding that he be released or brought to trial. Each time the hunger strike would be ended after receiving assurances from Govt ministers,officials or Tamil political leaders.
Up Country Tamil From Nawalapitiya
Mathiyarasan Sulakshan and Rasathurai Thiruvarul are Jaffna Tamils while Ganeshan Tharshan is an up country Tamil hailing from Nawalapitiya in the Central province. Thiruvarul is from Ward 6 in Velanai west. Velanai is one of the Islands off Jaffna falling under the Kayts constituency. Mathiyarasan Sulakshan is from Karanavaai north in the Vadamaratchy sector of Jaffna. According to relatives Sulakshan’s father Arlvarpillai Mathiyarasan was a minor politician who served as an elected member of the Vadamaratchy South West Pradeshiya Sabha for many years. He passed away in 2015. Apparently Sulakshan too is highly political and possesses leadership skills. He was in the forefront of several non – violent agitations while in prison. The Tamil media in Sri Lanka and abroad has been giving much prominence to Sulakshan alone in this matter.
The Police TID has since January this year been arguing that cases featuring sensitive testimonies of ex-LTTE witnesses should be heard in southern courts. In the case of “Thiruvarul-Sulakshan – Tharshan” witnesses did not turn up when the matter was taken up at Vavuniya on August 1st 2017. Counsel from the A-G dept then stated that the case needed to be transferred to a court in the south to enable the attendance of witnesses. The case was put off by three weeks.
When the case was taken up at the Vavuniya high court in the third week of August , Sulakshan,Thiruvarul and Tharshan began a fast unto death campaign demanding that their case should be heard in Vavuniya and not transferred to another court in the South. However when the case was heard in Vavuniya before High court judge Balendra Sashi Mahendran, witnesses failed to turn up. Judge Sashi Mahendran who is highly respected in judicial circles was the chairman of the three bench trial – at – bar which heard the schoolgirl Vidya Sivaloganathan rape and murder case in Jaffna. When state counsel said that the case may have to be transferred outside Vavuniya to ensure witness attendance Judge Sashi Mahendran took positive action to remedy matters.
According to Lawyer Anton Punithanayagam who has been appearing for the three suspects at the Vavuniya courts , Vavuniya High court judge B.Sashi Mahendran had said that he would not let matters drag on like this and would take steps to expedite the case. Thereafter the judge had fixed three successive days in September for the case to be heard. The dates were September26th, 27th and 28th respectively. Letters were sent out by courts to all 67 witnesses informing them that they should be present in court during those days. ” But what happened was that just one week before the case was to be heard again in Vavuniya , the Attorney-General Jayantha Jayasuriya transferred the case to the Anuradhapura High Courts”, Anton Punithanayagam told me over the telephone.”The A-G is authorised under the PTA to transfer cases from one court to another ” added lawyer Punithanayagam.
Vavuniya High Court Judge Sashi Mahendran
Sulakshan, Thiruvarul and Tharshan who started a hunger strike in August had abandoned the fast after three days upon hearing that the Vavuniya High court judge Sashi Mahendran had assured the case will be heard in full in September. But when they heard that the A-G had transferrred the case to Anuradhapura the trio launched a hunger strike again from September 25th. This move by the three has met with tremendous support from the Tamil people at large particularly the student community of Jaffna and Baticaloa varsities.
Several Tamil politicians and MP’s have also extended support. There is a rising tide of opinion within the Tamil community which voted overwhelmingly for President Maithripala Sirisena in the Jan 2015 polls that the “Nallaatchi Arasaangam” (Good Governance Govt) is not playing fair by them. So great is this sentiment that even the Tamil National alliance (TNA) boycotted the President’s visit to Jaffna on October 13th. A protest Hartal saw the North being at a stand-still. An amusing sideshow was the unorthodox interaction between President Sirisena and a group of black flag waving protesters in Jaffna.
There have been many instances in Sri Lanka where cases against members of the armed forces have been transferred out from the North and East to courts in the south. This has been done in the interests of the accused based on the principle of presumption of innocence unless or until proven guilty. In some of these cases Sinhala speaking juries have let the accused go scot free despite evidence to the contrary. In this instance the same consideration does not seem to have been extended to the accused. The case concerning Tamil speaking accused has been transferred to Anuradhapura where the language of the courts is Sinhala. This will cause many problems to the three mono lingual Tamil accused. For one thing they may find it exceedingly difficult to obtain proper legal representation. Their present lawyer Anton Punithanayagam told me over the telephone that he would not continue if the case was to be heard in Anuradhapura. Mr. Punithanayagam said that the case had been assigned to him by the Center for Human Rights and Development (CHRD) headquartered in Bambalapitiya.
What is the reason for the Attorney – General’s controversial decision to transfer this particular case from Vavuniya to Anuradhapura? According to informed legal sources the A-G is very keen that justice should be done in this case as 18 Navy and 8 Army personnel have been executed in cold blood and their bodies burnt. Even though “confessions” have been obtained from the three accused the A – G is not sure whether they will be adequate to prove guilt beyond a shadow if doubt in a court of law. Confessions made to authorities while being detained or under interrogation are admissible under the PTA but not so in normal law. There have been precedents where judges have disregarded confessions obtained under duress and granted the benefit of the doubt to the accused. Besides the government has taken a policy decision to repeal and replace the draconian prevention of terrorism act(PTA) in due course.
Evidence By Three Former Tiger Witnesses
As such the A – G is relying very much on the evidence to be given by the three former tiger witnesses. According to knowledgeable legal circles the witnesses in question are extremely worried and anxious about giving evidence in open court in Vavuniya. Since this case concerns what may very well amount to a “war crime” committed by the tigers the potential witnesses fear for their physical safety and security if the case is heard at a court in a Tamil area. They feel that they would be safer in a court situated in a Sinhala majority area. One of the witnesses Vanniyasingham Sujeevan has left Sri Lanka already and indicated that he would be willing to return voluntarily and testify in a Sinhala area court. However exaggerated or imaginary these fears may be the sentiments cannot be discounted by the A- G. The Attorney-General needs these witnesses to testify voluntarily to clinch his case. Hence the decision to transfer the case to Anuradhapura.
However sources stated that the Attorney – General would have no objection to the case being heard in Vavuniya if his key ex-LTTE witnesses are ready to give evidence there. For this guarantees of full security have been given. If the would be wtnesses accept such guarantees and are prepared to give evidence in Vavuniya the A-G too is ready to conduct the case in Vavuniya. Otherwise he will continue with the case in Anuradhapura. A source close to Mr.Jayasuriya said “Jayantha is an upright, honourable lawyer with experience as a prosecutor in the International criminal tribunals of Rwanda and the former Yugoslavia. He must have agonized a great deal before transferring the case to A’pura. He would have done it only because he had no choice in the pursuit of justice”.
Opposition Leader Rajavarothayam Sampanthan
TNA leader and Leader of the opposition Rajavarothayam Sampanthan moved an adjournment motion in Parliament on October 17th. The motion was seconded by MA Sumanthiran MP. Mr. Sampanthan while speaking in support of the motion took up the issue of Tamils being in prison for alleged LTTE links even now. Sampanthan also referred to the transfer of the case in question from Vavuniya to Anuradhapura. The veteran MP From Trincomalee who is also a lawyer explained in detail the consequences of such a transfer. This is what Mr. Sampanthan said –
“An unnecessary complication has been created by the transfer of some cases from Vavuniya to Anuradhapura. If witnesses needed protection, such protection could have been provided without the cases being transferred”.
“The accused in the cases to be transferred from Vavuniya where the Language of the Courts is Tamil to Anuradhapura where the Language of the Courts is Sinhala are from the North-East and are Tamil speaking and not proficient in Sinhala. Their cases being transferred to Anuradhapura where the Language of the Courts is Sinhala is a denial of their constitutional right to have their Cases heard in Tamil a language which they can understand. In a criminal prosecution the rights of an Accused person are fundamental. He has a right to fully comprehend the evidence and the Case presented against him”.
“By such transfer the Accused is also denied the opportunity and the right to Legal Assistance of his choice These and other factors could prejudice a fair trial. The proposed transfer reflects a measure of insensitivity to the fundamental rights of an accused person. The Prisoners have been continuously carrying on a Fast against such transfer. This situation needs to be addressed on an urgent basis”.
TNA spokesperson and Jaffna district parliamentarian MA Sumanthiran who seconded Sampanthan’s motion also spoke about the issue of releasing Tamil prisoners. Incidently Sumanthiran had arrived from a trip to New Delhi on that day and driven to straight to Parliament to second and speak on Sampanthan’s adjournment motion. Sumanthiran had left the previous week as part of the Sri Lankan delegation led by Fisheries minister Mahinda Amaraweera to discuss the Indo – Lanka fishing dispute with Indian officials. Before leaving for India, Sumathiran had met with President Sirisena, Justice minister Thalatha Atukorale and Attorney – General Jayantha Jayasuriya when the Justice ministry Oversight committee report was formally handed over to the president. Sumanthiran had raised the issue of the three fasting prisoners with the President on that occasion and urged that the case be transferred back to Vavuniya.
Prisons Reforms Minister D.M. Swaminathan
After Sampanthan and Sumanthiran spoke, Law and Order Minister Sagala Ratnayake, Rehabilitation and prisons reforms minister D.M. Swaminathan and Deputy justice minister Sarathie Dushmantha also spoke during the adjournment motion debate. Mr. DM Swaminathan emphasised strongly that the physical health of the prisoners on a hunger strike was fine and there was nothing to fear. Sarathie Dushmantha said he would convene a high level meeting to discuss the situation. However he later shelved the idea because President Sirisena himself had two meetings with Tamil delegations and said he would take a decison by October 25th.
The indictment of Rasathurai Thiruvarul, Mathiarasan Sulakshan and Ganeshan Tharshan is a politically volatile issue. The LTTE has been implicated in a case where 26 members of the armed forces held prisoners have been executed in cold blood. This charge if proved beyond doubt would amount to a ” war crime”. However the case must be conducted in a manner that would demonstrate to the world at large that the judicial process is working fairly and freely.
For as the British Lord Chief Justice Hewart ruled in a landmark case in 1924 “It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. As such the onus is on the government to ensure that justice should be done and seen to be done by persuading the Attorney – General to re-transfer the case to Vavuniya and extend full protection to all witnesses testifying in the case.
This article written for the “DBS Jeyaraj Column” appears in the “Daily Mirror” of October 21, 2017, it can be reached via this link:
DBS Jeyaraj can be reached at email@example.com