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Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."

- Tamil Poem in Purananuru, circa 500 B.C 

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Home > Tamils - a Trans State Nation > Struggle for Tamil Eelam > The Martyrdom of Thangathurai & Kuttimuni > Nadarajah Thangathurai's Dock Statement, 1983 > Defence Counsel, Nadesan Satyendra's Address to Court, 1983 > Sri Sabaratnam Memorial Lecture, 1987

THE MARTYRDOM OF
OF THANGATHURAI & KUTTIMUNI

Address by Counsel for the Defence,
Nadesan Satyendra , 15 to 17 February 1983


I stress the fundamental and constitutional nature of the matter before you...

The question that arises for the Court's consideration at this stage of the trial is not whether these Accused, Nadarajah Thangathurai, Selvarajah Yogachandran, Subramaniam Devan, Nadarajah Sivapatham and Nadesudasan are guilty as charged or not. The question that arises for consideration is the way in which such guilt may be proved. Specifically the question the Court is called upon to decide is whether the statements alleged to have been made by these Accused to the Police, are statements which are admissible in law to prove their guilt.

This is a matter of procedural law. It is procedural law that creates the frame within which justice may be done. It has been rightly said that 'procedural law is not the humble hand-maiden of substantive law but that it appears as an arsenal on the frontier of the Constitution to secure the efficacy of the rights of man in all that touches justice'.

Procedural law is civilisation's substitute for private vengeance and self-help. Rules of procedure for the resolution of conflicts and disputes are concerned with securing the maintenance of a stable social fabric and it is for that reason that they have assumed a fundamental and constitutional importance.

I stress the fundamental and constitutional nature of the matter before you, because I seek to direct the attention of the Court to that which underlies the matters upon which this Court is called upon to deliver its judgment in these proceedings. This case is concerned with law and order in times of emergency. It is concerned with liberty and the way in which liberty may be safeguarded. It is a case which is being tried under a special law - the Prevention of Terrorism Act.

We have heard much from the Prosecution about national security. If national security is to mean anything at all it must be concerned with securing the freedom of the individuals who constitute the nation. That is what national security is about.

It is true that balances must be struck particularly in times of emergency but in this area of the law I can, perhaps, do no better than to read to this Court, that which Lord Chief Justice McDermott said in the Juridical Review in 1972 - statements which retain their eloquence, relevance and power even today or perhaps, even more so today, here in Sri Lanka. He was writing on Law and Order in times of Emergency. He said that a passion for liberty is the mark of a free people. He said that it was much more than a piece of political rhetoric to say that it is not for glory or riches or honours that a people fight but only for liberty which no good man will consent to lose but with his life.

Then comes the passage to which I would direct this Courts attention and is the reason for my citing Lord McDermott to you. He said:

"If some day the well being and survival of a whole nation comes in some way to depend on finding out a secret locked in some man's mind, Parliament might think it right to sanction methods now unlawful which would be likely to make interrogation productive. But we may hope and pray that such a day is far distant. Should it be thought that the day has already arrived, those in power would stand on a steep and slippery slope with no sure way of knowing where or how to stop and liberty might come to die from the efforts made on her behalf".


We in Sri Lanka may well be standing on a slippery slope with no sure way of knowing where or how to stop...

It is my respectful submission in this case that it is of some considerable importance that the efforts made on behalf of national security do not have the result that no one is any longer secure. If it be otherwise, we in Sri Lanka may well be standing on a slippery slope with no sure way of knowing where or how to stop and in the words of the Privy Council in the Liyanage case that which is done once, if it is allowed, may be done again in lesser crisis and in less serious circumstances.

It is my submission that that which may appear to concern only the Accused in this case, is a matter that is of concern not only to them, and not only to the Tamil people but also a matter that should be and ought to be of concern to all who live in this land. With respect, Sir, I would submit that the Court would be mindful, and I can do no more than say that the Court would be mindful, that that which is permitted once may well become a way of life - a way of life which may encourage further abuses and excesses.

The case in the voire dire is in broad approach, a case concerned with custodial interrogation. I refer to the aspect of custodial interrogation for the reason that on that matter of fact the Prosecution and the Defence are not in issue. It will be my submission and I will support it by authority, that custodial interrogation per se raises a presumption that that which is said in response to such interrogation is not voluntary.

The case in respect of each of these Accused, has a common feature and that salient feature is, to use the words from a judgment of the US Supreme Court, "incommunicado interrogation of individuals in a police dominated atmosphere."

In the evidence led in the voire dire, if one matter has been established beyond doubt, that matter is that each of these Accused was subjected to incommunicado interrogation whilst in custody.

In itself custodial interrogation is perhaps more psychologically orientated rather than physically orientated. But the 'blood of the accused is not the only hall mark of an unconstitutional inquisition'. The principal psychological factor is interrogation in privacy and in custody.

In the US case, Miranda vs Arizona, there is an interesting passage, about custodial interrogation in the United States. The rationale of the interrogation is set out very frankly and this Court when reading that judgment may compare that which is said there with the testimony of the various police witnesses in the voire dire. The Court may ask itself the question whether the questioning of the accused who stand before you, was not on all fours with that which is described in Miranda vs Arizona.


Custodial interrogation takes place in privacy and privacy results in secrecy and that which is done in secret is not susceptible of easy proof...

Custodial interrogation takes place in privacy and privacy results in secrecy and that which is done in secret is not susceptible of easy proof. But despite these difficulties of proof, what does the evidence show?

  • It is common ground that each of these Accused from the time of their arrest was in the custody of the police and/or the army.
  • It is common ground that during the period in custody they were at all times surrounded by heavy army guards. It is common ground that they were kept in special army camps such as Panagoda, Elephant Pass and Palaly.
  • It is also common ground that none of the Accused were permitted any visitors.
  • Further, it was the evidence of each of these Accused that they were not permitted to see any attorneys-at-law. They were not challenged on that evidence in cross-examination and furthermore, no contra evidence was led by the Prosecution.
  • It is also common ground that none of these suspects was able to communicate with the outside world during the period of custody. The evidence of each of these Accused to that effect was not even touched upon in the cross examination of these Accused. What is more, not a scrap of evidence was led by the Prosecution to counter that evidence of the Accused.
  • None of the Accused were supplied with any newspapers and the evidence of the Accused that they were not given any reading material was not challenged in any way in cross-examination. Moreover on that matter again no evidence was led on behalf of the Prosecution to counter that evidence of the Accused. It was the evidence of each of these Accused that they were not given any writing paper or material during that period when they were under arrest.
  • It was further the evidence of each of these Accused that they were not served with any detention orders and accordingly did not know for how long they would be kept in custody. Not one question was asked of any of these Accused in cross-examination on the question whether detention orders were served or not. Further, no evidence was led on behalf of the Prosecution to show that such detention orders were served on any one of these Accused.
  • It was the evidence of each one of these Accused that at the time of the arrest they were not told why they were arrested. Again, no cross-examination was directed to the question whether they were told or not told the reasons why they were arrested. What is more, on that question whether the Accused were told the reasons for their detention no evidence whatever was led on behalf of the Prosecution in this case.

It is a significant feature of the voire dire inquiry that the Prosecution did not lead any evidence at all about the physical conditions under which the accused were detained at the Panagoda camp. The only evidence that was led was the evidence of these Accused and their evidence on this aspect of the matter was not subject to cross-examination by the Prosecution.

The evidence of these Accused was that they were kept in a bare room with a raised cement bed. It was the evidence of each of these Accused that from about the 9th of April or so, they also had the benefit of four strong flood lights and that they were not able to sleep. The question is not whether the bare room was a security measure or the flood lights was an additional security measure. The question is whether those were the conditions in which these Accused were kept at Panagoda. That is all. And in my submission on that matter the evidence is all one way.


What then is the emerging picture on the basis of that which is common ground

What then is the emerging picture on the basis of that which is common ground. A man is taken into custody by the police or the army. He is not told why he is arrested. He is taken to a special camp and kept in custody under heavy armed guard. He is not served with any detention order or any legal document in respect of the detention. He is not permitted to receive any visitors. He is not permitted to consult his lawyers. He is not permitted to communicate in writing. He is not given newspapers and he does not know what is happening in the outside world. He does not know how long he will be in detention. In that atmosphere that man is questioned by police and the questioning takes place for days on end and is investigative in character.

If one stops at this stage of the examination of the testimony in this case and asks the question: 'Were answers given by any of the Accused to interrogation under these circumstances voluntary or not', then if there was no other evidence in the case, I submit that the Court would come to one conclusion and one conclusion only, and that is that the statements were not voluntary.

It is the case for the Defence and it is my submission that quite apart from the rest of the testimony in this case, quite apart from that, the circumstances which have been established beyond doubt, and which are common ground, must have the result that this Court will say that a presumption has been raised, and I do not go further at this stage, a presumption has been raised that the statements were not voluntary.

Here, it is important to remember that the Prevention of Terrorism Act does not set out the terms under which a person may be kept in custody. The terms are terms which are set out in the detention order and those which may have been imposed, in fact, during custody by the custodians. The Court is not prevented by the Prevention of Terrorism Act to look at the terms of the custody to determine whether those terms affected the voluntary nature of the statement or not.

For instance, a detention order may specify that a particular suspect should be put up every morning at 3 o'clock because of security demands that he should participate in a drill. But if in fact that particular suspect has lost sleep during that period that is a relevant circumstance that this Court will take into account in determining the question whether the statements were made voluntarily or not. Again a detention order may permit visitors to see the suspects. Another detention order may permit lawyers to see the suspects. All these circumstances would be relevant in determining whether the statement was voluntary.


Incommunicado interrogation in a police and army dominated atmosphere raises a presumption that the statements were not voluntary...

But in the present case the detention was a detention which was incommunicado. It is my submission that the interrogation of each of these Accused was an instance of incommunicado interrogation of a person in a police and army dominated atmosphere and that such interrogation raises a presumption that the statements made in consequence of such an interrogation were not voluntary.

Once such a presumption is raised, I submit that the burden lies on the Prosecution to rebut that presumption by satisfactory evidence in this Court. If no evidence is led the Prosecution must fail because the presumption must prevail.

In the case of custodial interrogation, and I will support this by authority, it has been held time and time again that once the fact of custodial interrogation is established, and the presumption is raised, the burden shifts to the Prosecution to show that adequate procedural safeguards were taken to secure that the statement was voluntary.

The Prosecution cannot say, "Yes, it is true you were arrested without telling you why you were arrested." The Prosecution cannot say, "Yes, it is true that you were taken into custody but you were not told why and you were not served with a detention order." The Prosecution cannot say, "Yes, it is true that you were kept incommunicado and you were not allowed to see any visitors and you were questioned for days on end." The Prosecution cannot say, "Yes, you were not given any newspapers and you did not know what was going on in the outside world."

The Prosecution cannot say all this and then say, "Yes, all this is true but you the Accused must now prove that the statement is not voluntary." Because the Accused is entitled to turn around, very humbly and very respectfully, and say that, "You, the Prosecution agree that all this was done and on your acceptance, the presumption is raised without my having to say anything more, that whatever I said was not voluntary and it is you the Prosecution who must rebut that presumption".

It is my submission that this is the approach that this Court will adopt in considering the rest of the evidence in this case relating to allegations of assault and torture, of cruel, inhuman, degrading treatment - evidence which has been led on behalf of the Accused and sought to be denied by the Prosecution witnesses.


What is the evidence for the Prosecution?...

But first, what is the evidence for the Prosecution? We have the evidence of a very select and selected band of investigators.

We had the evidence at the very forefront, at the very beginning, and, in my submission, evidence which seems to permeate through the entirety of the case - the evidence of the Assistant Superintendent of Police - the evidence of Mr Jurampathy. The Court will recall the evidence of Mr Jurampathy who declared that he was a 'God fearing' man.

Of course, as against Mr Jurampathy we had Assistant Superintendent of Police Kanagasingham who said that he did not fear even God.

Then, Sir, we had the evidence of the strong and silent Assistant Superintendent of Police, Mr Henry Perera, who was silent for more than one hour whilst Mr Jurampathy questioned the third Accused Subramaniam Devan on the 9th of April 1981.

We had the evidence of Superintendent of Police, Mr Lal Mendis with his special investigatory methods - the soft approach.

We had the evidence of Mr Jurampathy's able assistant, Inspector Hemachandra, who has now been promoted in the fullness of time to Assistant Superintendent of Police - no doubt as a reward for what he had done.

And, of course, we had the Head of Operations, the unique Mr Gunasinghe, who the Wimalaratne Commission had found guilty of the unwarranted killing of a university student in 1976 and who was recommended for promotion by the strong and silent ASP Henry Perera in 1978.

We also had the army officers Mayadunne, Zahir and Dharmaratne.

That in sum is the evidence led by the Prosecution - the evidence of Jurampathy, Lal Mendis, Kanagasingham, Gunasinghe, Hemachandra and Henry Perera and the three army officers.

What is this evidence and how should this Court evaluate that evidence?

Firstly, the evidence must be placed in its context. What were the circumstances under which this investigation was commenced in April 1981? We have the evidence that on the evening of the 6th of April, the 1st Accused Thangathurai, 2nd Accused Yogachandran and the 3rd Accused Devan were brought to Colombo. It is also in evidence that on 6th of April the Director of the Criminal Investigation Department had requested Mr Jurampathy and Mr Kanagasingam to stand by. They were requested to stand by to participate in the investigation of the Neervely bank robbery.

We also have the evidence that on the same day, on the 6th of April, the Minister of Internal Security issued a detention order in respect of the three Accused Thangathurai, Yogachandran and Devan.

Clearly the investigation into the Neervely bank robbery was no ordinary investigation into a humdrum routine case. The steps taken by the army and police clearly show that if they show nothing else.

The three Accused Thangathurai, Yogachandran and Devan, although they had been arrested in the Jaffna district were brought down especially to Colombo, because it was intended that the investigation should be carried out here in Colombo. Within two days of their arrest Thangathurai and Devan were brought to the Panagoda army camp and the 2nd Accused, Yogachandran, was held in custody at the Army Hospital in Colombo.

Again, in respect of an investigation into such an important matter, the Director, Criminal Investigation Department took the step of requiring the officers whom he selected for the investigation to be on stand by, even before the three Accused had been brought to Colombo. It is also in evidence that it was known to the police at that time that the 2nd Accused Yogachandran was a much wanted man.

Although Mr Jurampathy sought at first to deny that the investigation into the Neervely bank robbery had anything to do with national security, he eventually admitted that in an affidavit filed before the Court of Appeal in a connected matter, he had affirmed that the 3rd Accused Devan was a member of an organisation, the declared aim of which was the establishment of a separate State to be called "Tamil Eelam" by means of armed struggle.

In the result, at the very outset, the conduct of the investigation into Neervely bank robbery was seen to be a matter of some considerable national importance and of some considerable urgency and it is not surprising that it should have been so regarded.


Police investigation starts on 7 April without any briefing!

On the morning of the 7th of April, we have the conference at the office of the Director, CID. We have the evidence of Mr Jurampathy, we have the evidence of Mr Lal Mendis and we have the evidence of Mr Kanagasingham that they were all present at this meeting with the Director, CID on the morning of the 7th. It is here, Sir, that in my submission the evidence for the Prosecution begins to fall apart, step by step.

What does ASP Jurampathy say? He says he was there on the 7th of April and he received a direction from the Director, CID to record the statement of the 3rd Accused Devan.

So I asked Mr. Jurampathy: "Did you obtain a briefing as to what this case was all about?" I asked him whether he tried to find out whether Devan whose statement he was called upon to record had made any previous statements or whether he tried to find out anything about Devan.

The Court will recall the answer of the experienced investigator, Mr.Jurampathy: "No, I did not want to ask because I did not want to be prejudiced against the 3rd Accused Devan."

The experienced investigator Mr Jurampathy was almost judge-like in his conduct of the investigation. He did not want to colour his mind because he wanted to have an open mind when he questioned Devan!

Of course the witnesses who came to the witness stand after Mr Jurampathy did not want to keep the same open mind because they had realised the apparent and obvious unreasonableness of Mr Jurampathy's answer. But so far as Mr Jurampathy was concerned he would have this Court believe that he did not take any steps to get any briefing or information about the Neervely bank robbery investigation before he started questioning the 3rd Accused Devan because he wanted to have a fair and open mind.

The question that the Court will ask is whether the evidence of Mr Jurampathy on that matter accords with the reasonable conduct of an investigator.

The testimony of witnesses must be tested by the standard of conduct of the reasonable man. It is my submission, that the conduct of Mr Jurampathy and his evidence that he did not want to be prejudiced about the 3rd Accused Devan is contrary to the conduct that anyone would expect from any investigator. I submit that an investigator would in the normal course have obtained a proper briefing and ascertained the results of the investigation up to the date before he took over the investigation.


Why does Assistant Superintendent of Police Jurampathy lie?

Why does Mr Jurampathy lie? Why does he adopt the posture of a fair judge? What is it that Mr Jurampathy seeks to hide?

It is the submission for the Defence that he seeks to hide his true attitude to the 3rd Accused Devan. He seeks to hide the fact of his assault on Devan and therefore he tries to make out that his attitude was that of an unprejudiced investigator who could not even brief himself about the investigation so that he may have a truly open mind. It is the submission for the Defence that this evidence of Mr Jurampathy will be rejected out of hand by this Court.

But that is not all. When Mr Jurampathy is told by the Director to record the statement of the 3rd Accused Devan, as a loyal and dutiful officer, what does he do? What is the step that he takes in this important investigation where he had been required to stand by since the 6th of April? He wishes to keep an open mind and therefore he did not want to be briefed. Very well. But what does he do?

After receiving the order he goes back to his office and continues with his routine normal work! That is what he wants this Court to believe. I asked him whether he had any special work that he had to do on the 7th of April and his reply was that it was just ordinary work.

Here is an important investigation. The 1st Accused Thangathurai and the 3rd Accused Devan had already been brought to Panagoda. The 2nd Accused Yogachandran is at the Army Hospital. Devan, from whom Mr Jurampathy was asked to record a statement, was there, waiting for him at Panagoda. But Mr Jurampathy who did not want to be briefed about the case, also did not want to go to Devan.

Of course, Mr Jurampathy would have been in a difficulty if that which Devan said in evidence is true - the evidence of the 3rd Accused, Devan, was that ASP Jurampathy did go to Panagoda on the 7th of April and that he did assault the 3rd Accused. But Mr Jurampathy would have the Court believe that after he got this order from the Director, CID, he did not go to see Devan on the 7th - whether with an open mind or with any other type of mind.

Very well, the 7th of April is over and the Director has told him to record a statement from the 3rd Accused Devan but Mr Jurampathy did not want to see Devan on the 8th as well.

Of course it may be that Mr Jurampathy was engaged in other important work on the 8th. What is it that Mr Jurampathy says that he did on the 8th? He says that he went to see the 2nd Accused Yogachandran in hospital.

So I asked him, "Why is it that you go to the 2nd Accused when you have been asked to record the statement of the 3rd Accused?" And, what, is his interesting reply? Mr Jurampathy's reply was, "I had heard that the 2nd Accused Yogachandran had shot himself and I thought because he had shot himself he must be guilty of something, so that is why I went."


Ten minute silence while water was brought to the injured Yogachandran!

But when he goes to hospital what does he do? When ASP Jurampathy goes to the hospital where the 2nd Accused was, instead of going to the 3rd Accused in respect of whom he was directed to record a statement, what did he ask?

Having gone there to question Yogachandran because he thought the man was guilty because he had shot himself, he goes there and asks him about the wound on his head.

Having asked the question there was a ten minute silence while water was brought to the injured Yogachandran. Thereafter Yogachandran told him about the injury.

Then Mr Jurampathy has a completely blank mind. Mr Jurampathy's memory fails him. Mr Jurampathy who goes to question Yogachandran cannot remember a single question he asked the 2nd Accused Yogachandran on the 8th of April. Mr Jurampathy goes again in the afternoon of the 8th of April to see Yogachandran. But in respect of the afternoon also the memory does not get better. He cannot remember any of the questions that were asked on the afternoon of the 8th of April.

Mr. Jurampathy, the experienced Assistant Superintendent of Police, would have this Court believe that he is speaking the truth when he says that he cannot remember anything at all of the questions that were asked on the 8th of April and furthermore he says that no record was kept of the questioning.

But why is Mr Jurampathy not speaking the truth on that matter? Why? What is it that happened on the 8th that he does not want to speak about? Again why was no record kept of the questioning on the 8th?

Or is it that that which the 2nd Accused Yogachandran had said that he was assaulted on that day by Mr Jurampathy is true? And not unnaturally, no record was kept of that.

It is simple enough to deny an assault but the difficulty arises when you have to account for the time during which you did assault. It is because Mr Jurampathy could not invent in the witness box what he did during that period that he ended up by saying he could not remember. No court will accept the evidence of Mr Jurampathy that his memory failed him.


Failing memory is contagious so far as these investigating officers are concerned...

Of course, this failing memory is contagious so far as these investigating officers are concerned. It is not only Mr Jurampathy's memory which fails in respect of that which happened on the 8th of April.

The 8th of April seems to have been an inauspicious day for memory. ASP Kanagasingam also has problems with his memory.

The Court will recall that ASP Kanagasingham - the man who feared not even God - was also asked to standby on the 6th of April. In fact, so far as Mr Kanagasingham was concerned he had got ready for an inquiry and he had armed himself with a crime pad. He has a vivid recollection of the crime pad being given to him on the 6th of April. The vivid clear recollection of the 6th of April fails him when it comes to the 8th of April. He cannot remember whether he took the crime pad or not. What is it that happened on the 8th of April to have this effect on the memory of the police officers?

Again, Mr Kanagasingam of course has another disease which he seems to have got from ASP Jurampathy. He too, after he is told by the Director, CID to record the statement of Yogachandran, goes back to his normal work and routine duties. He does not want to go to the hospital to see the 2nd Accused Yogachandran on the 7th.

Of course it is the 2nd Accused's evidence that Mr Kanagasingam did come on the 7th and that Mr Kanagasingam assaulted him on the 7th. But Mr Kanagasingam would have the Court believe that given the directive to question Yogachandran, he chooses to sit in his office and carry on with his normal duties and when eventually he goes on the 8th he cannot remember whether he took his crime pad.

This crime pad according to the evidence in the case, is a carefully machine numbered pad with sequential numbers so that the statements may be properly recorded and statements are not fabricated. It is the evidence that each officer is given a separate sequentially numbered crime pad and there is no duplication.

Although Mr Kanagasingam was not in the CID at that time it is a matter of importance that on the 6th of April he was given a crime pad when he was requested to stand by pending the investigation into the Neervely bank robbery. It is the clear evidence in the case that at the time that persons are assigned to investigations in the CID they are, as a matter of course, given crime pads.

Be that as it may, on the 8th of April we have Mr Kanagasingam with a loss of memory and Mr Jurampathy with a loss of memory.

On the 8th of April, Mr Jurampathy having, he says, met the 2nd Accused Yogachandran, thereafter goes back to his office and on the 9th morning he again attends to his normal routine duties! It is Mr.Jurampathy's evidence that he goes to the Panagoda army camp for the first time at about 4 p.m. on the 9th of April 1981.

During a period of two and half days after the directive from the Director, CID to record the statement of the 3rd Accused Devan, Mr Jurampathy would have this Court believe that he took no steps to question Devan. ASP Kanagasingam also does not go to the Panagoda camp till the 10th of April. And the third member of the trio, ASP Lal Mendis does not go to the Panagoda camp till the 10th.

We have a picture unfolding and it is important, Sir, in view of certain submissions that I shall presently make, to see that picture clearly.

The Court will recall that Mr Jurampathy's evidence is that on the 9th of April he questioned the 3rd Accused Devan for about an hour about his family background.

The case that the Prosecution has sought to present here is of an investigation which was started off on the 6th and 7th of April and an investigation which continued at Panagoda on the 9th at 4 p.m. with the questioning of the 3rd Accused Devan. Mr Jurampathy says that on the 9th of April between 4 p.m. and 5 p.m he questioned the 3rd Accused Devan about his family background.

Mr.Jurampathy was asked whether he saw a typewriter there at the time of his questioning. He said that there was a typewriter. He said the typist was PC Abdeen. He said that he took PC Abdeen with him.

We have also the testimony of Mr Jurampathy's assistant, Mr Hemachandra. He said that on the 9th he also went with Mr Jurampathy and he said that he was present at the time that the 3rd Accused Devan was being questioned by Mr.Jurampathy.

He said he assisted by putting one or two questions himself. Mr.Hemachandra confirmed Mr Jurampathy's testimony that the questioning was about Devan's family background. He was asked whether a record was made on a typewriter and he replied, "No, no record was made at the questioning but the fact that he was questioned was recorded." And then according to Mr Jurampathy, on the 10th, after a 20 minute questioning, the 3rd Accused suddenly made a clean breast of it and he got the statement from "the horse's mouth"!

The Court will see, Sir, that Mr Kanagasingham's evidence is on the same lines in respect of the questioning of the 2nd Accused Yogachandran. Mr Kanagasingam questions Yogachandran on the 8th in the morning and the afternoon but no record is kept. Mr Kanagasingam questions Yogachandran on the 9th morning but no record is kept. Mr Kanagasingam questions Yogachandran on the 10th of April at Panagoda. Again no record is kept. Furthermore Mr Kanagasingam cannot remember the nature of the questions asked during these occasions. But says Mr Kanagasingam, on the 11th when he questioned the Yogachandran, Yogachandran made a voluntary confessional statement.

Once again one sees the picture: Questioning, no record kept, inconsequential questions are asked, cannot remember what was asked, and suddenly the accused comes out with a 'voluntary confessional statement'. It is a picture, Sir, that the Prosecution witnesses have sought to paint in this witness box to get over the difficulty over what they were in fact doing during those days in the Panagoda camp.


A picture it is said, speaks a thousand words...

A picture it is said, speaks a thousand words. What is the picture of the investigation that emerges from the evidence of the police witnesses led on behalf of the Prosecution?

We have the request of the Director, CID to certain officers to stand by on the 6th of April 1981.

We have the meeting on the morning of the 7th of April where Mr Jurampathy, Mr Kanagasingam and Mr Lal Mendis were instructed to record the statements of 1st Accused Thangathurai, 2nd Accused Yogachandran and the 3rd Accused Devan.

For two and half days thereafter none of them go to the Panagoda army camp.
Eventually when Mr Jurampathy does go to the Panagoda army camp he questions the 3rd Accused Devan about his family background.

When Mr Jurampathy and Mr Kanagasingam questioned the 2nd Accused Yogachandran on the 8th of April they suffer, each of them, from a lapse on memory as to the questions they asked.

So far as Mr Kanagasingam is concerned that lapse of memory persists even in respect of his questioning of the 2nd Accused Yogachandran on the 9th of April.

In addition, the Prosecution witnesses would have the Court believe that they cannot remember whether they took a crime pad on that occasion. It is a part of the investigative picture that on the 8th and 9th no notes were in fact taken of the questioning.


Pregnant days...

According to Mr Jurampathy it was subsequent to this rather pregnant period from the 7th to the 9th, that on the 10th morning at the time he questioned, the 3rd Accused Devan, suddenly gave birth to a statement and made a clean breast of the matter.

It is the submission for the Defence that the 7th, 8th and 9th were certainly pregnant days. It is the submission for the Defence that the evidence of the police witnesses that they did not go to Panagoda during those days and the evidence of the police witnesses that they cannot remember what they questioned the 2nd Accused Yogachandran about on the 8th and 9th is clearly false. Such evidence and such conduct on the part of the investigating officers so defies reason as to be unacceptable to any court.

It is my submission that the evidence of Mr Jurampathy that he went on the 10th of April to Panagoda and that after 20 minutes questioning, the 3rd Accused made a clean breast of it and that he "he got it from the horse's mouth", is false. The Court will recall that I suggested to Mr Jurampathy that he was the jockey who coerced the words from the horse's mouth. It is the case for the Defence that there had been some hard riding on the 7th, 8th, and 9th of April 1981.

As we say in Tamil, the police officers were trying to bury a whole pumpkin in a plate of rice.

Of course when witnesses give false evidence of this nature leaks do spring. In this case, the leak was sprung by ASP Henry Perera.

According to Mr Henry Perera he was assigned to the investigation on the 8th of April. I asked Mr Henry Perera whether he went to Panagoda on the 8th of April. He replied that he had not. I asked him whether he went on the following day, i.e. on the 9th. He replied that on the 9th he went to Panagoda camp between 4 p.m. and 5 p.m. in the evening along with Mr Jurampathy. He also said that on the following day, i.e. on the 10th, he accompanied the Director, CID to the Panagoda camp. It was his evidence that apart from these two visits he did not take part in the investigation between the 8th and the 12th of April.

I asked him what it is that he did when he went with Mr Jurampathy on the 9th April. He said he did not do anything but Mr Jurampathy questioned. He said PC Abdeen was the typist. He said that PC Abdeen had a typewriter and PC Abdeen came with the typewriter in the car with him and Mr Jurampathy. He said that Mr Jurampathy translated the answers which the 3rd Accused Devan gave in Tamil into English and he said that PC Abdeen typed as Mr Jurampathy dictated. He said that he was not there all the time but sometimes he went out for a few minutes but the questioning continued.

Clearly the evidence of Mr Henry Perera contradicts the evidence of Mr Hemachandra. Mr Hemachandra says that all that was recorded was the fact that the 3rd Accused Devan was questioned. Mr Henry Perera speaks of a recollection of a questioning and recording during a period of one hour. Furthermore, it is a fact that a typed statement recording the answers of the 3rd Accused Devan on the 9th of April was not furnished at any stage to the Defence in this Case.

The Defence position is that these Accused were questioned and assaulted on the 7th, 8th and 9th. The Prosecution case is that until Devan's statement on the 10th of April, no information had been obtained from any of these Accused in respect of the Neervely bank robbery investigation. The statement of Devan in respect of the 10th of April was the first breakthrough. The only two persons who had been questioned at all before the 10th were the 3rd Accused Devan and the 2nd Accused Yogachandran. No record had beenkept of the questions or of the answers. The Prosecution case was that the 2nd Accused Yogachandran had been questioned about his injury. So far as the 3rd Accused Devan was concerned it was about his family background.

But what does Mr Henry Perera say? Remember, Sir, I asked Mr Henry Perera how he had gone back home after the questioning on the 9th. He said that he went in Mr Jurampathy's car. I asked him whether he had spoken to Mr Jurampathy about the questioning at Panagoda camp.

Mr Henry Perera's reply was that Mr Jurampathy said that the 3rd Accused had spoken certain facts about the Neervely robbery. Mr Henry Perera's evidence on this matter is not only contradictory to Mr Hemachandra's but is also contradictory to Mr Jurampathy's evidence in this case.

It is not merely the question of a record and a typewriter but also the content of the questioning. It concerns the important first breakthrough of the investigation team. That first breakthrough was clearly not in terms of Mr Jurampathy's evidence from the horse's mouth on the 10th. Mr Jurampathy's evidence that the questioning on the 9th was about the family background is clearly false. Mr Jurampathy's evidence that having received a directive on the 7th, he did nothing and then suddenly on the 10th the 3rd Accused came out with a clean breast is clearly false. Because when I asked Mr Henry Perera, "did you ask Mr Jurampathy what were the facts about the robbery that the 3rd Accused mentioned?", his reply was that Mr Jurampathy had said that the 3rd Accused had mentioned the whereabouts of the weapons and the money in the Neervely case!

It is my submission, Sir, that the evidence of Mr Jurampathy in relation to the recording of the statement of the 3rd Accused Devan, is not evidence which this Court or any court would accept. It is the submission for the Defence that these Accused were in fact, interrogated and assaulted on the 7th, 8th and 9th of April 1981.


ASP Henry Perera was not only a silent but also strong...

I have already submitted to the Court that the evidence of ASP Henry Perera gives the lie direct to the testimony of ASP Jurampathy. Of course Mr Henry Perera himself was not only a silent man but also a strong man. He said that he went with Mr Jurampathy to assist Mr Jurampathy in the questioning. Having gone there to assist Mr Jurampathy in questioning, Mr Henry Perera would have the Court believe that he was a silent spectator who occasionally went out of the room for a breath of fresh air. When experienced police officers such as Henry Perera get into the witness box and say things such as this, any Court would ask the question: Does it conform to what one would reasonably expect of such an officer? Is it believable that an investigating officer concerned with the investigation of the Neervely bank robbery went out for a breath of fresh air from time to time, to speak to nobody but to just go out and come back?

When police witnesses such as Mr Jurampathy and Mr Henry Perera give evidence in this case, it is by looking at some of the relatively insignificant matters they speak about that their testimony can be truly tested. Because in the big matters such witnesses always come with a prepared story and a prepared denial. It is the submission for the Defence that Mr Henry Perera took himself out of the room because he did not want to speak of that which he did inside the room. It is my submission that the assistance he rendered was the physical assault of Devan and that the evidence of Devan in this regard will be accepted by the Court.

But the incident of the 9th of April is not the only matter on which Mr Jurampathy spoke an untruth in this witness box. He sought to paint an investigative picture where he had been directed to record the statement of the 3rd Accused Devan, Mr Kanagasingam had been directed to record the statement of the 2nd Accused Yogachandran and Mr Lal Mendis had been directed to record the statement of the 1st Accused Thangathurai.

It was a strange and curious picture that Mr Jurampathy sought to paint. The Court will recall that I asked Mr Jurampathy, "Did you question any of the other Accused? Did you question the 1st Accused Thangathurai?" The Court will remember his answer. Mr Jurampathy stated that he had not questioned the 1st Accused Thangathurai at any time. Insofar as the 2nd Accused Yogachandran was concerned, the only occasion was on the 8th of April and there Mr Jurampathy suffers from a lapse of memory as to the content of the questioning. The picture then is one of a compartmentalised investigation. Mr Jurampathy would have this Court believe that each of these three officers carried out that questioning separately.

The Court will recall the evidence of the Accused that they were questioned by Mr Jurampathy, by Mr Kanagasingam and others together. The Court will remember the specific evidence of the 1st Accused Thangathurai that he was questioned by Mr Jurampathy. The Court will also remember the evidence of the 1st Accused, Thangathurai, that Mr Kanagasingam was present at some of the questionings. But Mr Kanagasingam does not admit in these proceedings that he questioned the 1st Accused Thangathurai or the 3rd Accused Devan; he questioned only the 2nd Accused Yogachandran.


In the face of this conflict of testimony, wherein lies the truth?

In the face of this conflict of testimony, wherein lies the truth? If Mr Jurampathy is not speaking the truth then certainly he is seeking to hide something. It cannot be that he suffered a lapse of memory in respect of the questioning of the 1st Accused Thangathurai. Not even Mr Jurampathy says that he suffered a lapse of memory in this instance. He asserts he did not question the 1st Accused Thangathurai.

But then, Sir, we have the concrete categorical testimony of ASP Lal Mendis, and now SP Lal Mendis, who says that Mr Jurampathy did question the 1st Accused Thangathurai. SP Lal Mendis also says the Mr Kanagasingam was present at the questioning of the 1st Accused Thangathurai.

But SP Lal Mendis, the soft-spoken SP Lal Mendis, removes himself from the scene as the questioning by Mr Jurampathy and Mr Kanagasingam of the 1st Accused starts. He said that he was there for part of the time of the questioning by Mr Jurampathy and Mr Kanagasingam but he was not there for the entirety of the period.

Now, Sir, if as the Defence submits and if as Mr Lal Mendis affirms in this witness box, Mr Kanagasingam and Mr Jurampathy did question the 1st Accused Thangathurai, why is it that Mr Kanagasingam and Mr Jurampathy have stated here on oath that they did not. What is it that the God fearing Mr Jurampathy and Mr Kanagasingam who fears no God are seeking to hide from this Court? It is the submission for the Defence that they seek to hide the questioning because it was with the questioning that the assault took place.

Mr Jurampathy clearly played the lead role in the assault operation. It was perhaps because of that that ASP Gunasinghe regarded Mr Jurampathy as the Head of the Investigation team, although Mr Jurampathy somewhat reluctantly said that Mr Lal Mendis was the senior man. Perhaps Mr Jurampathy was a man after Mr Gunasinghe's own heart.


The story of a compartmentalised investigation is not true... the Jeff and Mutt act

But one thing is clear, and that is that this story of a compartmentalised investigation is not true. Mr Jurampathy's evidence that there were no discussions between the officers before the statements were recorded is not true. The investigative picture of each of these investigators acting as it were in separate compartments, searching after and recording separate statements is unreal.

The true picture which emerges gradually is a picture where some officers in the investigating team adopted the tough attitude, the assault attitude, the intimidating attitude, the threatening attitude. And then, of course, there was the mild-mannered, soft-spoken Mr Lal Mendis who was concerned with building up a rapport with the man whom he was seeking to question.

He made a rather intriguing statement at one stage. He said he wanted to build up the confidence of the 1st Accused in him. Apparently the confidence was to be built in order to get something from the 1st Accused on the basis of the "built-up confidence".

Of course, whilst he was building up this confidence, no doubt in his slow and leisured pace during the time that the 1st Accused Thangathurai was in Panagoda, he was aware that Mr Jurampathy and Mr Kanagasingam were also questioning the 1st Accused, from time to time - but on such occasions Mr. Lal Mendis was careful to remove himself from the scene. Presumably that also was a step he took with a view to building up confidence.

Of course, the Court will recall that ASP Lal Mendis showed a certain pride in his investigating skills. Mr Lal Mendis, after all, was the most senior of the officers who were in the investigating team. Undoubtedly he was a man who had a deep knowledge of the several investigating ploys that may be adopted.

In the judgement of the US Supreme Court in Miranda vs. Arizona which I referred to this Court yesterday, there is an interesting passage about one such ploy:

"One ploy often used has been termed the friendly and unfriendly act or the Mutt and Jeff act. Mutt is the relentless investigator who knows the subject is guilty and is not going to waste any time. He has sent a dozen men away for crimes such as this and he is going to send the suspect away for the full term. Jeff on the other hand obviously has a kind heart. He has a family himself. He has a brother who is involved in a serious scrape like this. He disapproves of Mutt and his tactics. But he cannot hold Mutt off for very long. The suspect will be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff will stand by quietly and demur at some of Mutt's tactics. But when Jeff makes his plea for co-operation, Mutt is not present in the room".

That, Sir, was the judgement of the US Supreme Court in 1966 where the Court referred to the third degree techniques of the FBI in the United States. The US Supreme Court on that occasion having described the technique, struck out statements that were obtained in consequence of such investigation.


One Jeff and several Mutts ... plus some Assistant Mutts...

Ofcourse, in the investigation team that was so carefully selected for the investigation of the Neervely Bank robbery in Sri Lanka in 1981, we had one Jeff and several Mutts. Mr Lal Mendis was the Jeff of the investigation team. But the lead roles for the Mutts in that investigation team were played by Mr Jurampathy, Mr Kanagasingham, Mr Gunasinghe and Mr Henry Perera. They were ably assisted by some assistant Mutts like SI Karunaratne, of Inpam and Selvam fame and hand picked by Mr Gunasinghe.

The Court will see that so far as Mr Jurampathy is concerned, after he obtained and recorded the statement of the 3rd Accused Devan on the 10th, the persistent and persevering Mr Jurampathy goes to the 3rd Accused and questions him again on the 11th for 2 hours or so. But that is not all. He goes on the 12th and again questions the 3rd Accused Devan for another 2 hours or so.

This is the Mr Jurampathy who said that he believed that which Devan told him on the 10th and that he was satisfied with what the 3rd Accused told him on the 10th. If Mr Jurampathy was satisfied, if he believed that which Devan had said on the 10th, what was the questioning about on the 11th and the 12th? Again, why was no record kept of such questioning? Or was it that no record was kept because that which was done on those days could not be recorded. Was is it that on those days as well, Devan was assaulted as he has affirmed in this witness box?

But that is not all. Mr Kanagasingam says that he recorded the statement of the 2nd Accused Yogachandran on the 11th and 12th - but he did not stop at that. He went again on the 13th and questioned Yogachandran. He persisted in the questioning on the 14th and again on the 15th of April. He says he questioned on each of those days for 2 to 3 hours.

But, again, no record was kept. Mr Kanagasingam's memory fails him as to whether he took his crime pad or not. After 25 years or more of experience, ASP Kanagasingam would have this Court believe that he cannot remember whether he took a crime pad because it may have got lost when he changed cars. When I asked Mr Kanagasingam why it is that he did not make a record of what transpired at the questioning on the 13th, 14th and 15th, Mr Kanagasingham's reply was, "I did not make a record because there was nothing new that the 2nd Accused said!"

The question that this Court and any court will ask is: "Why did it take Mr Kanagasingam three hours to find out that Yogachandran had nothing new to say?".

If the position is that the 2nd Accused Yogachandran had nothing to add to what he had already said on the 11th and the 12th, surely Mr Kanagasingam would have known that during the first few minutes of talking to the 2nd Accused on the 13th. If Mr Kanagasingham's position is that there was nothing new so far as the 2nd Accused was concerned why did he persist in being in that place for another two hours or more.

What was Mr Kanagasingam doing on the 13th for those two and a half hours or so. Or was he a man who would not take no for an answer? Was he a man who sought to coerce and assault Yogachandran with a view to getting an answer which would satisfy Mr Kanagasingam? Again, if it is that Mr Kanagasingam had got his answer, no, on the 13th, why did he go on the 14th to question the 2nd Accused? Having gone there why did he persist in the questioning for 2 hours on that day? Is it under these circumstances that the Prosecution says that voluntary statements were made by the Accused in custody?

Mr Kanagasingam having got no for an answer even on the 14th persists on the 15th to question once again for about 2 hours or so. It is the submission for the Defence that the admitted custodial interrogation of the 2nd Accused Yogachandran on the 13th, 14th and 15th is clearly indicative of the general investigative pattern adopted by this investigating team.

And then what happens? The 2nd Accused Yogachandran who had nothing new to say on the 13th, who had nothing to say on the 14th, who had nothing new to say on the 15th, and who was questioned at the Panagoda camp on the 16th, goes to the salubrious climate at Elephant Pass on the 18th and suddenly finds he has something to say and makes a statement.

But that is not all. The 3rd Accused Devan, who had made his statement on the 10th and whose statement was believed by Mr Jurampathy, despite being questioned again on the 11th and the 12th, without a record, and therefore having had nothing to say to be worthy of record, is also taken to Elephant Pass and the salubrious climate has the same effect on him and he also makes a statement on the 18th April.

But that is not all. We have the persistent and persevering Jeff in the Jeff and Mutt act, Mr Lal Mendis. ASP Lal Mendis having questioned the 1st Accused Thangathurai on the 10th, on the 11th, on the 12th, on the 13th and 14th had still not got a voluntary statement. The Ist Accused Thangathurai had not made a voluntary statement of any kind at Panagoda, although on the evidence of Mr Lal Mendis there was persistent questioning of the 1st Accused. Thangathurai is then taken to the salubrious climate of Elephant Pass and wonders of wonders and lo and behold the 'voluntary statement' flowers out of the Thangathurai's mouth on the 19 April 1981.


What was it in the salubrious climate of Elephant Pass which made the Accused give birth to statements on 18 and 19 April 1981?

What was it, Sir, in the salubrious climate of Elephant Pass which made all these Accused give birth to these statements on the 18th and 19th of April 1981?

These Accused have got into the witness box and related to this Court as to what happened on the 18th and 19th April at Elephant Pass. They have said they were hung up from fan hooks. They have said they were strung up naked. They have said that chilli powder smoke was held up to them through gunny bags. They have said that they were assaulted whilst they were so hung. In the light of that evidence the changing climate and the birth of these statements and the signatures can be understood.

But what does the Prosecution say? What is the Prosecution's explanation for this sudden change of attitude. After all, it is the Prosecution evidence that the 2nd Accused Yogachandran had nothing new to say after the 12th. It is the Prosecution evidence that the 1st Accused Thangathurai had nothing to say at Panagoda which was worthy of recording. Any court concerned with justice will ask itself that question: What happened when these Accused were taken to Elephant Pass?

Yet again the Court will test the testimony of the police witnesses by the seemingly trivial things which assume a truly great significance. I asked the experienced ASP Jurampathy, "Why was this decision taken to go to Elephant Pass?"

That question was asked of the God fearing Mr Jurampathy who had affirmed to speak the truth. It was a question which was asked of a man who was described by ASP Gunasinghe as the Chief of the Investigation team at Elephant Pass. When I asked "Why, Mr Jurampathy, was the decision taken to go to Elephant Pass?", the innocent Mr Jurampathy said, "I do not know". He said, "This was a decision taken by my superior. I do not know why these Accused were taken to Elephant Pass". Once again Mr Jurampathy in that witness box when faced with a question that he had not anticipated, was unable to invent an answer quickly enough.

But the unreasonableness of the answer that Mr Jurampathy, who played such a lead role in the investigation, did not know the reason for the shift to Elephant Pass must have bothered Mr Jurampathy and his advisers. Because a few days later when Mr Jurampathy's assistant Mr Hemachandra was asked what was the reason, the assistant knew the reason which the superior did not know. Mr Hemachandra was a gentleman whose evidence was that he had been directed to assist Mr Jurampathy. Would any court seriously believe that a person who was in charge of the investigation in the way that Mr Jurampathy was, did not know the reason for this shift to Elephant Pass? It is the submission for the Defence that at the time that Mr Jurampathy was questioned on that matter, Mr Jurampathy well knew the reason but he could not state that reason to Court.

But what is the reason that Mr Jurampathy's able assistant Mr Hemachandra gives? Let us look at it. He says that since the alleged robbery took place in Jaffna district, it would facilitate the operations part of searching and so on if the Accused were held in Elephant Pass. Let us examine that reason again coldly in the light of reason.


Carefully planned shift to Elephant Pass was made on the basis that statements would be forthcoming once the climate changed

So far as the 3rd Accused Devan was concerned, he, according to the Prosecution evidence, had made a statement, had been taken on the 12th evening to Jaffna and the police were satisfied that Devan was speaking the truth. So far as the 2nd Accused Yogachandran was concerned he was not willing to say anything more, despite the persistent questioning of the able Mr Kanagasingam. The 1st Accused Thangathurai had not made any statement at all.

Why did the Prosecution believe that statements would be forthcoming in Elephant Pass which would necessitate an operation to search houses. How did they know that the salubrious climate at Elephant Pass would bring forth these statements on the 18th of April before any search operations whatever had been taken at all.

No, Sir, the planned shift to Elephant Pass was taken on the basis that statements would be forthcoming once the climate changed. The alterations were made to that infamous rest house at Elephant Pass with a view to securing and facilitating that climate. It is the Defence submission that that is the reason why ASP Jurampathy says he does not know the reason which his assistant knew. Mr Jurampathy would have this Court believe that he does not know the reason for his superior's decision but his assistant knows the reason for his superior's decision.

Mr Jurampathy looms large in this investigation. He was sometimes modest. He was the man who said he did not like to speak about himself. The Defence submission is that he had every reason for such reservation.

He was questioned about the chilli powder treatment meted out to prisoners by the police. He was questioned about Inspector Egodapitiya. He was questioned whether he knew of the incident relating to Inspector Egodapitiya and the use of chilli powder to extract confessions.

It is the Defence submission that Mr Jurampathy was no lily white police officer. In the Defence submission Mr Jurampathy was a gentleman whose affidavit about assault and torture at the Elephant Pass camp was disbelieved by the Court of Appeal of this country.

Mr Jurampathy was no ordinary man. The Court of Appeal held that violence had been used on one of the suspects at Elephant Pass during this period - April/May 1981. That is the Elephant Pass camp about which I am making submissions today. That is the Elephant Pass camp about which Major Dharmaratne would have this Court believe that no violence could have taken place without his knowing it. Clearly that which Major Dharmaratne did not know has come to the knowledge of the Court of Appeal of this country. That is the extent to which one can place reliance on Major Dharmaratne's knowledge. It is to this Elephant Pass camp that the Accused were taken on the 17th of April 1981.

Of course there are other matters also on which Major Dharmaratne's knowledge is somewhat shaky. There are occasions when his memory also tends to fail. For example, he was asked about the suspects he had seen being questioned. He was unable to say who questioned, who was questioned and when the questioning was. On other occasions, of course, he sought refuge in 'national security'.

Fortunately, so far as the fan hooks were concerned there was no question of national security. But there his memory failed him. He could not remember that which he had said in the earlier Sivanesan case in this High Court. It was put to him that he had said in the Sivanesan case that at the time that he went to the Elephant Pass camp in April 1981 he saw the fansbeing removed from the hooks. One can of course understand his reluctance to admit to this in this Court, because fans and fan hooks had become rather sensitive issues in this case.

The Court will recall that I put a specific question from the Tamil record in the Sivanesan case, the portion marked 1D1 to Major Dharmaratne. In 1D1 the matter was set out in question and answer form. In 1D1 Major Dharmaratne does not merely state that when he went there the fans were being removed. But he went on to say that apart from the wires being removed the switches were also being removed.

It is the submission for the Defence that when Major Dharmaratne states in this witness box here that he did not see the fans being removed that he is not speaking the truth. It is the submission for the Defence that the reluctance of Major Dharmaratne to speak about the removal of the fans is because Major Dharmaratne knew fully well the use to which those hooks were put at Elephant Pass.


Chilli powder smoke

It is this same reluctance which one sees in the testimony of ASP Jurampathy when he was questioned about Inspector Egodapitiya.

It was a very simple question that I asked Mr Jurampathy: Whether the knew about Inspector Egodapitiya's conduct which had been brought to the notice of the Supreme Court. In that case the then Chief Justice said that the Court could not escape the conclusion that the police administration had degraded itself by crude methods. It was a case where the Supreme Court held that the police had hung the suspect up by his legs and held chilli powder smoke at his face.

But ASP Jurampathy would have this Court believe that although he was in the service of the police at that time he did not hear of this matter at all from any of his brother officers. It is evidence which if tested by the norms of behaviour of reasonable men, must be rejected out of hand. In fact it appears that none of the police officers had heard of Inspector Egodapitiya and the chilli powder treatment at all. It is a secret hidden from the police administration of this country.

It is the submission for the Defence that on the evidence led before this Court the chilli powder treatment appears to be a tried and tested method of police investigation. It was a tried and tested method to handle difficult situations and clearly the police were in a difficult situation without having found the money and the weapons in April 1981. Eight point three million rupees of cash had been lost. It was feared that this would fall into the hands of the liberation movement. The weapons that had been used had not been found and it was feared that they would be used again. But despite all efforts at Panagoda the money and the cash were not forthcoming.


Specially prepared Elephant Pass torture camp

So it was that the scene of action was shifted to the specially prepared Elephant Pass detention camp, specially prepared with fan hooks and wall hooks. At that detention camp, on the evidence of the Prosecution itself, at least 20 persons were kept in custody.

That building had two floors: three rooms and a veranda on the upstairsand one hall and two rooms in the downstairs. The hall in the downstairs was about 15' x 20' or so. The two small rooms downstairs were about 10' x 10' each. The upstair three rooms were about the same size as the small rooms downstairs and it is in this detention camp that Major Dharmaratne would have us believe that these high risk, high security prisoners were kept without handcuffs in rooms with open doors.

It must have been a crowded detention camp with 20 persons in these rooms - specially since Major Dharmaratne would have us believe that the three rooms upstairs had been specially reserved for the 1st, 2nd and 3rd Accused in this case.

On that matter the Court has the evidence of the Accused. The evidence that they were manacled to bars fixed to the wall. This Court will need to look at the evidence given by each one of the Accused in this witness box here. The Court will bear in mind that these Accused on the very first day of this trial told this Court that this Court had no jurisdiction to hear this inquiry.

In fact one of them has stated from the witness box that he does not expect justice from any court in Sri Lanka. Each one of these Accused admitted in this witness box that they are committed to the establishment of a separate Tamil Eelam State. They have also stated that they are a prepared to commit their life to that cause. A man, Sir, who has committed his life to the liberation of his people and who has said that this Court has no jurisdiction to hear, in my submission, is also speaking the truth when he says, "I do not see the need to lie in this witness box".

I have submitted before and I submit again: these are no ordinary Accused. This case cannot be separated from the commitment of these Accused to the liberation of the Tamil Eelam. It is only in the light of that commitment that the steps taken by the army and the police in this case can be properly understood. The evidence of the police officers and the army officers cannot be considered in vacuo without considering it in the context of the liberation struggle of people of Tamil Eelam and the role of the police and army in suppressing that struggle. It is the submission for the defence that Mr Juramapathy's evidence that the case was not concerned with national security or the Tamil Eelam movement, is clearly false.

It is the duty of this Court to evaluate the testimony of each of these Accused and say: Are these Accused speaking the truth or not? This Court would not adopt the approach suggested in the cross-examination of these Accused that because you are members of the Tamil Eelam Liberation movement you will come here and say anything to embarrass the Government of this country and therefore you cannot be believed. These Accused have got into that witness box, affirmed that they will speak the truth and said that they are speaking the truth. If this Court takes the view that it has jurisdiction then it shall treat these Accused in the witness box in the same way as any other witness in the witness box who has taken the affirmation to speak the truth. When the evidence of each of these Accused is examined, this Court will have to ask itself a rather important question and that is whether each of these Accused when they got into this witness box displayed a certain literary genius for fiction.


Hung upside down from a fan hook

When the 3rd Accused Devan stated in this witness box that Inspector Sritharan assaulted him in Jaffna was that a fiction? When Devan said that at the time of the assault when he complained that his body was in pain, he was asked to do dips, was that also an exercise in fiction? When Devan affirmed that at Panagoda he was kept in a cell with white ceramic tiles and that there was light from four lamps which made him so warm that he could not sleep, was that also fiction? When Devan spoke of being hung from that fan hook in Elephant Pass and he spoke in this witness box of the froth that came out of his mouth was that also fiction? When he said that he cried but he could not cry any more because the froth was coming out, was that also an exercise in clever fabrication? When Devan said that on the 20th of April he was taken down unconscious and that when he recovered consciousness a rice meal was brought to him by a constable, was that also fiction? Was the police constable and the rice meal figments of the imagination of the 3rd Accused? And when he said that when he tried to eat his hands were moving backwards and would not move forwards, was that also a fiction? And when he demonstrated in this Court how he held the right hand with his left hand and somehow got the rice into his mouth was that also an exercise in acting and drama?

This Court will look at the detailed testimony elicited during the cross-examination of Devan and ask itself whether this was some clever fabrication set out in such a wealth of detail and that it came out of the imagination of the 3rd Accused. Is it that Devan is a great literary figure and also to boot a great dramatic actor? No Sir, any court with a conscience will hesitate, to accept the position that this Accused got into the witness box and fabricated this story to further his case in this Court. What happened at Panagoda and at Elephant Pass during this period will remain a blot on all those concerned with the administration of this country, a blot that will remain for many years to come.


Six yards of bandage from Nadusedasan's leg wound

The Prosecution will have this Court believe that it was not only Devan who was the great dramatist and novelist but also that the 6th Accused Nadesudasan was no less a dramatist and novelist. When Nadesudasan said that at the time that he was arrested, Army Officer Mayadunne took the wrist watch from his hand and put it in his pocket, was that a figment of the Nadesudasan's imagination? When Nadesudasan speaks of six yards of bandage which were taken out of his wound, was that also a product of his fertile imagination? When Nadesudasan pointed out the protuberances on his right leg in open Court was that some drama that he enacted here? And when he spoke of that which happened to him on the 7th of August and the 8th of August at Palaly, of the assaults that led him to pass faeces involuntarily, was that too something that he had imagined? Is that the position of the Prosecution?

Was it because it was such a clear case of 'imagination' that although the Prosecution called ASP Gunasinghe, they did not place before this Court any evidence from ASP Gunasinghe about the happenings on the 8th and the 9th at the Palaly camp. ASP Gunasinghe it is said was the person to whom Nadesudasan was handed over - that is the evidence of Major Zahir. And it was the evidence of Major Zahir that Nadesudasan was questioned by the police thereafter on the 7th, 8th and 9th but strangely ASP Gunasinghe gives no evidence about that questioning.

Who is Mr. Gunasinghe? Mr Gunasinghe admitted in this witness box that the Wimalaratne Commission found that his shooting of a university student some years ago was unwarranted. Despite the fact that a life had been lost as a result of his unwarranted act, ASP Henry Perera recommended Mr Gunasinghe's promotion. Mr Gunasinghe must have been suitably grateful to Mr Henry Perera. And it is not surprising therefore that for this investigation team of which Mr Henry Perera was one, that Mr Gunasinghe should have been brought in to head operations.

We have Mr Gunasinghe's frank evidence about getting together a select team which would do what he said and keep their mouths shut thereafter. And it is to this Mr Gunasinghe that Nadesudasan was handed over in August 1981 at the Palaly army camp. Perhaps, after all, it is not strange that the Prosecution chose not to lead the evidence of Mr Gunasinghe as to what he did on the 7th, 8th and 9th of August 1981 at the Palaly army camp.

Again, when the 2nd Accused Yogachandran says that his moustache was pulled, was that also something that he thought would make a good story to tell this Court? The Court will look at the intrinsic content of the many and varied details of the Accused's evidence in this case. On the night of the 6th of April, Yogachandran says that he was manacled to the bed at the army hospital. Is there any contra evidence on that matter led by the Prosecution? And if there is no other evidence would the Court accept unchallenged evidence of the 2nd Accused Yogachandran? Again when the Court looks Yogachandran's evidence that his bed was shaken in the night, and there is no evidence to the contrary in the Prosecution testimony, would the Court accept that evidence of the 2nd Accused? Or is it that nothing that the Accused say in this Court is acceptable to this Court and will not be accepted?

When the 1st Accused Thangathurai speaks of the room that he occupied at Panagoda would this Court accept this evidence or not? When Thangathurai spoke of lights in that room, will the Court accept that evidence or not? Again, when Thangathurai spoke of the visit of one of the army officers to that cell and the statement of that officer that he could not stay there for more than 10 minutes because it was too warm, was that also a fabrication? Again when Thangathurai spoke of the 20th of April when he had been hung up from the fan hook, brought down and manacled to the room, a police constable came there, took sympathy and put the manacles onto a lower bar so that he could lie on the floor, was that also a fabrication?

Or is it the position that whilst the accused were in custody and held incommunicado they had been tutored to say all this? Or is it the prosecution case that the only persons who were permitted to visit the accused, the lawyers, had tutored the accused? Is that the position?

The Court will have to decide on this matter in one of three ways. Either it was a figment of the Accused's imagination and a fabrication. Or they have been tutored to do this by their lawyers. Or that they are speaking the truth. It is the submission for the Defence that when the Accused say all this happened to them they are speaking the truth and nothing but the truth. The Accused have said that they cried in custody. If the cry of these Accused from this witness box is not heard by this Court then it is the cause of justice in this country that will suffer.


Brutalisation and cover up

The Court will look at what each of these Accused has said and ask itself the question whether the evidence given by each of these Accused could possibly have been fabricated, could possibly have been manufactured and could possibly have been tutored. No, Sir, it would have required much more skills than any human could have had to have manufactured each of these stories which the Accused have related in this witness box. The hearing of that evidence itself may brutalise those who hear it. The allegation and the charge against the police administration of this country is that they have so brutalised their procedure and further that they have got into this witness box and sought to lie and hide what they had done.

The words of Lord Sanky which is quoted in the Miranda case at page 708 are apposite.

"It is not admissible to do even a great right by doing a little wrong. It is not sufficient to do justice by obtaining a proper result by irregular or improper means".

One cannot salve one's conscience by saying the result is all right therefore we can turn a blind eye on the procedure. And a voire dire inquiry is concerned with procedure. A court if it fails to face up to that issue would be surrendering the role which justifies its existence.

"Third degree brutalises the police. It hardens the prisoner against society and lowers the esteem in which the administration of justice is held by the public".

Indeed if such conduct is permitted those in power in this country will be standing on that steep and slippery slope not knowing where or how to stop.


Unconstitutional

The conduct of the police in this case, apart from being brutal, was also a contravention of the provisions of the Constitution.

The Court will recall the evidence of each one of these Accused that at the time they were arrested they were not told why they were arrested. There was no cross-examination whatever directed to that question as to whether they were told or not told the reason for their arrest. What is more, there was not a scrap of evidence led by the Prosecution in this case in respect of the question whether these Accused had been given the reasons for their arrest at any time.

Section 13 of the Constitution expressly provides that any person arrested shall be informed of the reasons for his arrest. Section 13 further provides that no person shall be arrested except according to procedure established by law. All these Accused have been arrested in contravention of article 13 of the Constitution of this country.

Further not only was the arrest illegal but none of these police officers had any right to even interrogate any of these Accused. The Court will recall that I asked several of the police witnesses time and again under what section of the law they interrogated these Accused. And they all ended up by saying that it was under section 7(3) of the Prevention of Terrorism Act. Unless the Legislature in its wisdom seeks to amend this section now, my submission is that section 7(3) has no application whatever to these Accused.

What does section 7(3) say? A police officer conducting an investigation under this Act in respect of any person arrested under sub-section 1 of section 6 or remanded under section 7, sub-section 1 or 2 of the Act may interrogate such person. Section 7(3) does not apply to the 1st, 2nd and 3rd Accused because they were not arrested under section 6(1) of the Prevention of Terrorism Act nor were they kept in remand under section 7.

My submission is that under section 6(1) the only person who is authorised to arrest is a police officer. The 1st, 2nd and 3rd Accused were not arrested by any police officer, they were arrested by the navy and that is common ground. The 1st, 2nd and 3rd Accused were not remanded under section 7 at any time. And section 7(3) only authorises the interrogation of a person arrested under section 6(1) or remanded under section 7. So in the result we have an arrest which is unlawful and an interrogation which is unlawful.

Perhaps it was because the Prosecution recognised this difficulty that when it came to the arrest of the 6th Accused we had the delightful evidence of Capt. Mayadunne. The Court will recall the evidence of the 6th Accused that the man who caught him and arrested him was the Army Capt. Mayadunne and not the police. But of course it was realised that if it was an arrest by the army, section 6(1) would not operate and accordingly section 7(3) also would not operate. So of course on the 7th of August 1981 we had Capt. Mayadunne sprinting after the 6th Accused hotly pursued by Sub-Inspector Udugampola. But perhaps that is a story which can be reserved for another day.


The drama with Captain Mayadunne...who sometimes forgot his lines

Yesterday I was addressing Court on the arrest of the 6th Accused. That was a matter on which learned State Counsel led that evidence of Lieutenant now Captain Mayadunne. At the time that evidence was led learned State Counsel asked Capt. Mayadunne the leading question whether the Sri Lanka police and the army had joined together in this exercise. And to that leading question the witness answered, "Yes". Then Capt. Mayadunne stated that when he went to the compound of Murugiah's house he saw somebody running away and he gave chase to that person. The learned State Counsel specifically questioned Capt. Mayadunne whether it was only he who chased after the person who had run away. Capt. Mayadunne replied that it was he who gave chase to the person who was running away but other persons came in search of Capt. Mayadunne. Capt. Mayadunne thereafter said that the chase was for about 400 yards or so.

And then came yet another leading question from State Counsel in the course of examination-in-chief. It was a leading question directed to ascertaining the purpose for which Capt. Mayadunne chased after the Nadesudasan. It is the Defence submission that that leading question suggested to Mr Mayadunne the answer he should give as to the purpose for which he gave chase. The question was, "At that time you wanted to stop the man who ran away?" And Capt. Mayadunne's reply was a simple yes. Capt. Mayadunne stated that later on he got closer to Nadesudasan, jumped and there was a struggle and he was able to capture Nadesudasan. Capt. Mayadunne said all this took some time and further in answer to a question from learned State Counsel whether at that time anybody else was there, he answered that nobody else was there.

It is thereafter that Capt. Mayadunne would have the Court believe that a little drama took place out in the open in this little village in Jaffna. One can almost picture the scene which Capt. Mayadunne seeks to paint. There is Capt. Mayadunne having captured Nadesudasan and presumably with the gun in his hand that Capt. Mayadunne says he fired in the air.

Capt. Mayadunne asks this person whom he has captured, "What is your name?". Because it is Capt. Mayadunne's evidence that whenever he sees anybody running he chases after him and then asks him, his name.

And at this moment, in this little village in Jaffna, as Capt. Mayadunne asks this question there is the dramatic entry of Sub-Inspector Udugampola on the scene. The timing is perfect. It was, Sir, fortunate for Capt. Mayadunne that Udugampola came with such perfect timing because otherwise, according to Capt. Mayadunne, he would not have known what to do with Nadesudasan after he stopped him. Because Capt. Mayadunne in the witness box has come prepared to state one fact: "I did not arrest Mr Nadesuthasan". "It is true that I struggled with him, it is true that I captured him, it is true that I took him into custody but I did not arrest him".

Capt. Mayadunne has shown a certain knowledge of the law. One would have thought that a military officer like Capt. Mayadunne having done all that he had done would have had no problem in saying, "Yes, I arrested him". But Capt Mayadunne says that in that little village there was the 6th Accused who had been captured by him, and Sub-Inspector Udugampola comes there and we have this little scene in the drama being enacted. He says Sub-Inspector Udugampola told me, "Arrest him!"

Of course on Mr Mayadunne's own evidence when Sub- Inspector Udugampola told him, Mayadunne had already captured Nadesudasan. And that he had done not on the instructions of Mr Udgampola at all. Because Capt Mayadunne would have this Court believe, and he was specifically questioned on this, that at the time that he went to Murugiah's house on the 26th of August1981 he did not even know that he had to make an arrest, let alone arrest of Nadesudasan.

Learned State Counsel than asked him another question and the series of questions asked by learned State Counsel in the examination-in-chief of Capt Mayadunne as recorded in this case is itself a self-revealing matter. Clearly learned State Counsel in asking the question was seeking to fill in another little facet of this drama at this little village in Jaffna on that day. He asked Capt Mayadunne did Sub-Inspector Udugampola say why or the reason for the arrest of the 6th Accused. And although the horse had been brought to the water it was not wanting to drink. And poor Capt Mayadunne said, "I do not remember what was said."

Sometimes, Sir, even an army officer forgets his lines in a drama. But of course the Prosecution did not call Sub-Inspector Udugampola into the witness box to render his own lines. And it is the evidence of the 6th Accused Nadesudasan that he was not told at any time why he was arrested. When the Court comes to consider the testimony of Capt Mayadunne the Court will also recall the evidence that Capt Mayadunne gave that Murugiah's house was a house that was known to him before. He said that it was a house to which he had gone with Jegan in search of Nadesuthasan in April 1981. He said that as an army officer in Jaffna he had a chart of the houses where suspects live and this was one of the houses in respect of which he had a chart.

But of course, Mr Mayadunne would have this Court believe that although the August 1981 exercise was a joint exercise he somehow did not know what the whole exercise was about. It is the submission for the Defence, Sir, that Capt Mayadunne's denial that he did not know that the operation was to look for Nadesudasan is false and is deliberately false. It is a difficulty that Capt Mayadunne got into because he had come prepared to enter the witness box and say that he did not arrest the 6th Accused and that he did not even know that the operation was for the arrest of the 6th Accused. The fact is that the 6th Accused was arrested by the army, and taken to the army Palaly camp.

The truth is that the arrest was by the army and the custody at the Palaly camp was also in the army. In the same way as Capt Mayadunne seemed to have some legal knowledge about custody and capture, Major Zahir also seemed to have some legal knowledge about custody and keeping people for security.

But whatever the knowledge of the law that Major Zaheer may or may not have acquired the factual position was that the 6th Accused was in the army camp and secured by the army guards and held in custody by them. It is the submission for the Defence that the custody was unlawful. It is the submission for the Defence that the reason given that they were keeping Nadesudasan in custody until they received a detention order which they would get is also unlawful.

In the result insofar as the 1st, 2nd, 3rd and the 6th Accused are concerned, it is the submission for the Defence that each one of them was arrested not by the police but by the army or by the navy. And on that ground alone the arrest is not an arrest under section 6(1) of the Prevention of Terrorism Act.


No reasons given for arrest

There is a further submission. It is the unchallenged testimony in this case that none of these Accused were given reasons for their arrest. It is a matter in respect of which there is a total absence of evidence on the part of the Prosecution in this case. It is a matter in respect of which the testimony of each of these Accused has been untouched by cross-examination in this case. It is the submission for the Defence that such an arrest where the Accused, where the person arrested is not informed of the reason for his arrest, is a violate of article 13 of the Constitution of this country.

It would be a very peculiar and strange Constitution where an officer of the State can act in contravention of a person's fundamental rights and then say that statements which are obtained afterwards from such an accused can be used in judicial proceedings to deprive the accused of this liberty.

The 1978 Constitution on the face of it did go far and set out rights which were not enacted in any Constitution before that. There is a Tamil proverb that you cannot make a curry from a vegetable that appears only on an ola leaf. It is not enough for those rights to be some paper exercise in some document. There is a prime need to translate constitutional rights from thin paper and give them the thick edge of action. It is my respectful submission that this Court will give those rights that appear on the thin paper of the 1978 Constitution, the thick edge of action.

It is the submission for the Defence that the arrest of these Accused in contravention of article 13 has the result that the arrest is a nullity, and because that arrest is a nullity in law, it is for that reason as well not an arrest under section 6(1) of the Prevention of Terrorism Act.

So for two reasons therefore the Defence submits that the arrest of these Accused is not an arrest under section 6(1) of the Prevention of Terrorism Act.

And since these Accused had not been arrested under section 6(1) it is the submission for the Defence that no police officer had the right of access to these Accused under section 7. It is the submission for the Defence that since these arrests were not an arrest under section 6(1) the police officers did not have the right to take these Accused anywhere for the purpose of interrogation or investigation. And the submission for the Defence is that since these Accused had not been arrested under section 6(1) and had not been remanded under section 7, section 7(3) of the Prevention of Terrorism Act has no application whatever to these Accused.

It is the further submission for the Defence that the police were not entitled in law to interrogate the Accused under any purported authorisation by the Minister of Internal Security. Section 9 of the Prevention of Terrorism Act authorises the Minister to do only one thing and one thing alone. He is authorised to make a detention order. He is not permitted to authorise anybody to interrogate suspects. The only power that has been conferred by the Legislature on the Minister is to issue the detention orders. The power to issue a detention order does not include a power for the Minister to either interrogate or to authorise anybody else to interrogate.

It was perhaps because of the recognition of this fact that Mr Jurampathy when he was questioned said, "Yes, I questioned him under section 7(3) of the Act and not under any authority of the Minister." The subsequent police officers who gave testimony after Mr Jurampathy persevered with that section until ASP Henry Perera got into the witness box.

The Court will recall however that I cross-examined each of the police officers as to the various sections under which they were interrogating the suspects. It would seem that the questioning and the cross-examination had caused some concern. Because the Court will recall another strange circumstance in this case, i.e. that the Prosecution did not seek to produce the detention orders during the entirety of its case. It is the submission for the Defence that the Prosecution showed a certain coyness about the detention orders and I shall now demonstrate why.

It was after my cross-examination of the police witness about the detention orders, that eventually in the re-examination of Mr Henry Perera the document X4 was marked by the Prosecution. And finally, it was at the concluding stages of the voire dire inquiry that the document X11 was also marked. What does X4 say? It is dated the 8th of April 1981 and is a letter from the Minister of Internal Security.

It says, "Further to the detention orders issued by me on the 6th of April 1981 ordering the detention of Yogachandran, Thangavelu and Subramaniam, (the 1st, 2nd and 3rd Accused) I hereby authorise the police officers indicated in the schedule to interrogate the above named suspects either at the place of detention or any other place as is necessary". I have a very simple and short submission to make on the document X4. The Minister under the Prevention of Terrorism Act has no authority whatever to authorise anybody to interrogate the suspects. He has no power to institute an inquisition of persons he has had detained in custody. The power under section 9 is only a power to issue a detention order.

In the result it is the submission for the Defence that neither X4 nor section 7(3) of the Prevention of Terrorism Act could have been used by the police officers to interrogate any of these Accused. And insofar as X4 purports to so authorise, it is nullity in law and made in excess of the Minister's jurisdiction.


Detention orders are a nullity

And that, Sir, leads me on to a consideration of the detention orders themselves. In essence it is a short and simple straightforward submission. It is a submission which now finds support in the judgement of the learned Chief Justice in the Vijaya Kumaratunge case. That was a case in which the learned Additional Solicitor-General appeared on behalf of the State whilst the proceedings in the present case were going on. It is a case which examines the impact of a detention order in the context of article 13 sub-article 4 of the Constitution of this country.

I specifically invite the Court's attention to the first detention orders served on each one of these Accused because it is during the period of these detention orders that these Accused were questioned and interrogated. These are the detention orders 1D2, 2D2, 3D1 and 6D1. In each of those detention orders the Minister has ex facie stated the reason for the detention. In 1D2 the Minister states that he has reason to suspect that Nadarajah Thangavelu is connected with or concerned in the murder of several police officers, bank robberies in the North. Each of the other detention orders are substantially so far as my submission to Court are concerned in the same form.

That is to say each of the other orders give as the reason for the detention that the Minister suspected that each of the Accused was connected with or was concerned in specified offences which had already taken place. Each of these detention orders seek to imprison these Accused on the basis that the Minister has reason to suspect that the Accused were connected with or concerned in an offence that has already been committed.

The detention orders on the face of it do not say that the Minister was concerned with the prevention of any offence whatever. Preventive detention for the maintenance of order is a matter for the executive of the country. But a detention of a person on the basis that he has done something or is suspected to have done something is a punishment which only the judiciary of a country can order. No Minister merely because he suspects a person of an offence can order that he put into prison. The Constitution of this country does not permit it and once again, Sir, it is my respectful submission that this Court will give the thick edge of action to the provisions of the Constitution.


Detention orders contravene the mandatory provisions of article 13(4) of the Constitution...

In the Vijaya Kumaratunge case the learned Chief Justice held that the Minister is bound by what he had himself ex facie said in the order. One cannot go outside the order in search of reasons which the Minister may or may not have had but which he has not said in the order. And it is for that reason Sir, that it is the submission for the Defence that the detention orders issued in respect of each of these Accused contravenes the mandatory provisions of article 13(4) of the Constitution which enacts that no person shall be punished by death or imprisonment except by order of a competent court.

It is my submission that the orders that the Minister in fact made and which have now been placed by the Defence in this case in the voire dire inquiry, each one of these orders is on the face of it a punishment meted out by the Executive and therefore a contravention of the Constitution and is a nullity in law.

So what then, Sir, is the picture that now emerges. Persons are arrested, they are not told why. They are arrested in contravention of the provisions of the Constitution. They are taken into custody but no detention order is served on them. They are not told how long that custody will last and they do not know how long they will be kept in custody. They are not told under what law they are being kept in custody.

The detention orders that were in fact issued was a judicial act by the Executive and therefore a contravention of the Constitution and the submission for the Defence is that they are a nullity. They are questioned by officers who have no authority in law to question them. The officers said that they questioned under section 7(3) and section 7(3) has no application to these Accused. Faced with this situation ASP Henry Perera sought refuge in X4 but X4 was not a document that the Minister had any authority to issue anyway.

And then a select team is let loose upon these Accused at Panagoda and at Elephant Pass to interrogate these Accused who had been unlawfully arrested and who were in unlawful custody. And we have the Jeff and Mutt act. Interrogation with a view to elicit material about a crime from persons who are admittedly suspects of the alleged crime. It was an investigative custodial interrogation of persons held incommunicado.

It is here, Sir, that I would once again with respect commend the Court's attention to the judgement of the US supreme Court in Miranda. An understanding of the nature and setting of any custodial interrogation is essential to our decisions today.

"It is obvious that such an interrogational environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation". And the next sentence, Sir, I would very specially request The Court to consider when The Court comes to write your orders in the voire dire inquiry. It comes from a judgement of the Supreme Court of the United States which judgement has found acceptance throughout the civilised world. The Miranda judgement, Sir, is a landmark judgement in the field of civil liberty. And this is what the US Supreme Court said:

"Unless adequate protection devices are employed to dispel the compulsion inherent in custodial surroundings no statement obtained from a defendant can truly be the product of his free choice".

"The current practice of incommunicado interrogation is at odds with one of our nation's most cherished principles - that the individual may not be compelled to incriminate himself. We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervour with which it was defended. Its roots go back into ancient times and in the trial of John Lilburn, the Accused resisted the Star Chamber oath and declaimed stating:

"Another fundamental right I then contended for, was, than no man's conscience ought to be racked by oath imposed, to answer to questions concerning himself in matters criminal or pretended to be so". Those who framed our Constitution and the bill of rights were ever aware of subtle encroachments on individual liberty. They know that illegitimate and unconstitutional practices get their first footing by silent approaches and silent deviations from legal modes of procedure. Thus we may view the historical development of the privilege against self-incrimination as one which groped for the proper scope of governmental power over the citizens.

The constitutional foundation underlined the privilege for the respect the Government must accord to the dignity and integrity of its citizens. To maintain a fair state - individual balance - to require the Government to shoulder the entire load of proving the case against the Accused, to respect the inviolability of the human personality, our accusatory system of criminal justice demands that a Government seeking to punish an individual you must produce the evidence against him by its independent labours, rather than by the cruel, simple expedient of compelling it from his own mouth. In sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he choose to speak in the unfettered exercise of his own will."

In sum the privilege is fulfilled, and this is important, in sum the privilege is fulfilled only when the person is guaranteed the right to remain silent, unless he chooses to speak on the unfettered exercise of his own will. The crucial test of voluntariness is that the person who is questioned must be told that he is not compelled to answer. That is the test which Miranda applied and that is the only test which stands up in common-sense to determine voluntariness.


What sort of voluntariness is this...

What sort of voluntariness is it if the Accused are led to believe that they must answer the questions that are asked of them? What sort of voluntariness is it where confidence is gradually built up in order that the Accused may unsuspectingly answer the questions that they are asked without being told that they have the right to be silent? The single most important step which both the Judge's Rules in England as well as in the Miranda vs Arizona case emphasised was that the interrogator must tell the questioned person clearly and unambiguously that he has the right to be silent. It is only then that, when the man speaks thereafter, that he speaks voluntarily because he had the choice to be silent.

Voluntariness means freedom to choose whether to make a statement or not to make a statement. An answer in an investigative interrogation can be said to be voluntary only if the Accused was told that he has the right to be silent. The Court will recall that I carefully and systematically cross-examined each of these police witnesses as to what it was that they told these Accused at the time of the questioning. Not one of them said that they told any one of these Accused that they had the right to be silent. And this was in a case of investigative custodial interrogation, in a police and army dominated atmosphere where the overwhelming presumption would be that the Accused felt compelled to answer the questions that they were asked.

The right to silence is the concrete and feasible assertion of the fundamental principle that the Prosecution must prove their case and that no obligation lies upon the Accused to prove their innocence. And it is this which finds expression in article 13(5) of our Constitution which enacts as a fundamental right that every person shall be presumed innocent unless he is proved guilty.

The vital point for vigilance in a free society is the moment when the individual gets into the hands of the police or of a State official whether he be a navy officer or an army officer. At that moment that individual will be alone, he will be faced by a person wielding extensive powers given by the State, with knowledge how best and to what extent they may be exercised. The only protection afforded to the individual at that point is his right to say, "No, I will not be questioned; I will not be bullied; I will not incriminate myself or my family or friends as you desire me to do".

It is the submission for the Defence that even apart from everything else in this case, which is admittedly a case of custodial interrogation, the absence of this procedural first step vitiates the entirety of the statements thereafter. The Accused were not informed that they had the right to be silent and on that ground alone, the statements are not admissible in law.


Our government is the potent omnipresent teacher.. for good or for ill, it teaches the whole people by example...

I have, Sir, almost done, I commenced Sir, with a reference to something which Lord McDermott said. I would like to read now something which Mr Justice Brandeis said in the Olmstead case in 1928:

"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law and the end justifies the means - to declare that the government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face".

It is my respectful submission to this High Court of Colombo in the year 1983 that it will set its face resolutely against the pernicious doctrine that in the administration of criminal law the end justifies the means.

It is my submission that this Court will hold that in a government of laws, the existence of the government itself will be imperilled if it fails to observe the law scrupulously because it is the government which is the potent omnipresent teacher and it teaches a whole people by example. Perhaps in the years to come, much more than the Miranda case, the Neervely Bank Case will be regarded as a landmark case in the area of civil liberties.

I have submitted to the Court before and I submit again that this is no ordinary bank robbery case and these Accused are not bank robbers. They have stated in this witness box that they are Tamils and that they have committed their lives to the liberation of their people.

It was Aurobindo Gosh who said that the aspiration towards liberty cannot be estimated in terms of concrete power. It cannot be suppressed or repressed by so many army police and so many guns. Such aspirations and thoughts are more powerful than fighting men and guns and prisons.

When the Court comes to consider the evidence of the Prosecution witnesses in this case, the evidence given by police and army officers who served in Jaffna, it is my respectful submission that the Court will have all this in mind. An idea has a strength and as it grows, it spreads and gathers adherents and it creates its own preachers and workers and the attempt to work out the idea brings persons into conflict with established power and the State and out of this conflict the idea creates it martyrs and it is the blood of martyrs that fertilises the idea until there is no peace or rest for the land or its rulers, until the idea militant becomes the idea triumphant. This, Sir, is the lesson of history and those who do not learn by it are condemned to relive it.

I would like to say one thing more. In relation to my clients I will state this publicly and for the record. I have felt humbled in the presence of persons from my own community, who have been willing to give that which is the most precious thing that humans can give - their lives - for the liberation of their people.


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