Ajit Kanagasundram

Crime And Punishment

I have taken as my title a famous novel by Fyodor Dostoyessky, which is about the mental torment of an individual murderer, and not related to the subject of this article, but I have chosen it as it is a catchy title. My article is about how the state treats crime and existential threats to its survival, as in the case of the JVP and even more the LTTE rebellions. This says a great deal about our attitude to law and order and reflects our fundamental moral values as a society. I am not a lawyer but an individual who has followed closely the events in my Motherland over the past turbulent fifty years.

Ceylon started with an excellent judicial system and Police force and traditions of law and order bequeathed by the British – tough but fair. The Ceylonese also had an affinity for law and all the leaders pre and post- independence had a legal training and respect for English Common law and its traditions. How did this system deteriorate over fifty years such that the international community now demands that we bring in foreign prosecutors and judges to judge crimes committed by agents of the state on our own soil? The UN special rapporteur for torture gave a speech reported in all the newspapers on July 15, 2107 saying that the anti-terror law, widespread use of torture and treatment of prisoners held for years without trial were the “worst in the world.’ What an indictment on a country that rightly prides itself on being guided by the Buddha Dhamma – that most compassionate ethical system in the world!

Let me elaborate.

Up to 1977 the Judicial system and Police in Sri Lanka retained the high standards set up by the British – democratic and respectful of due process but effective. This was so even during the first JVP rebellion in 1971 – I remember an army officer who paraded a former beauty queen naked along the streets of Kataragama and then shot her was court martialed, cashiered and jailed. The rot really started after JR Jayawardane assumed power in 1977 with a four fifths majority, the undated letter of resignation of all UNP MPs and no effective restraint on power. This has continued since then for varying degrees until the present government came in and stopped the process but has still to bring it back to the old standards.

JR appointed judges and lower order magistrates according to political loyalty, ignoring the Judicial Services Commission and then interfered with their work. He encouraged thugs to stone the house of the Chief Justice, even though he was a puppet, but failed to do His Master’s bidding in one Fundamental Rights case. The Police were equally corrupted and I know of one case where a police officer convicted of bribery had his conviction squashed and reinstated with his seniority restored. Torture became routine. The message to all others was clear – anything goes if you have the right political connections!  Seven years of this and the damage was incalculable and as the present decent government is finding out irreversible.

The situation became worse with the LTTE rebellion – not only were draconian laws passed but all semblance of due process and justice was set aside. Tiger cadres or suspects were routinely tortured to permanent physical incapacity or death. The women in particular suffered inhuman torment such that the Tigers were the first guerilla group in the world to issue cyanide capsules to their cadres to save them from the torment. The JVP insurgents from 1988 to 1993 suffered similarly but at least the armed forces had the excuse that they were going after their families – something the Tigers never did.

Now let me contrast this to what Singapore did for routine law enforcement and when faced with an extensional threat to the state. Let me make it clear that the Singapore authorities are not bleeding heart liberals but tough and determined to safeguard the state and society at all costs. If required, enhanced methods of interrogation, like sleep deprivation and being doused with icy water and then subjected to extreme cold with air conditioning are used where the situation warrants it – but always under medical supervision and not a single suspect in Singapore has ever been incapacitated let alone killed. Techniques like waterboarding, routinely used by the CIA in the US, have not been introduced as they are deemed too dangerous. These techniques have proved extremely effective in getting suspects to co-operate and even turn state evidence against their colleagues – something with all the torture we never achieved in Sri Lanka with the Tiger cadres. Singapore also use caning for drug offences, gang membership and most sexual offences, especially against minors. This has been described by hardened gang members as the most painful possible and was introduced by the British against communists. But a doctor has to certify that the convict is medically fit to undergo this and it is done under medical supervision with pads placed to protect the kidneys and other vital organs. The doctor has the authority to stop the process at any time if he feels that it will cause permanent injury. All done under due legal process. The saddest thing is the mandatory death sentence for bringing in or possessing drugs more than a stipulated amount. The majority of those convicted under this draconian law are mules – usually young shop girls from Hong Kong or China – convinced by their “boyfriends” to do them a favour by carrying a parcel to their friends in Singapore. Heartbreaking, but the judges have no discretion in this matter – convict or let them go free! The result is that Singapore is largely drug free in a region that is awash with heroin thus saving many more young lives. When faced with an extensional threat to the state the Singapore authorities, unlike us, did not forego their adherence to civilized moral values. The communists in the 1950s and 1960s nearly succeeded in overthrowing the legally elected democratic state but the authorities never lost their adherence to civilized values. The present existential threat is from Islamic terrorists home grown (despite the government bending over backwards to help the backward Malays) and from neighboring Malaysia and Indonesia for the past 15 years – no torture no executions but superb intelligence gathering helped by the fact that most captured terrorists co-operate with the investigating authorities – terrorists like these or the Tigers are more susceptible to firm but gentle treatment. We never got a single Tiger cadre male or female to co-operate and they rather faced inhuman tortures. Much of this torture was done for no purpose but for the gratification, often sexual, of the sadists who gravitate to this line of work.

Let me give instances of our inhuman treatment, not of criminals, but idealistic youth, our own Sinhala sons and daughters. At the height of the JVP troubles in 1989 the DIG for Peradeniya executed 24 JVP suspects, both male and female, cut off their heads and paced it around the campus as a warning to other undergraduates- he was well known and had help but there was no investigation as the excuse was that the JVP had threatened Police families. The treatment was even worse for Tiger suspects and I will give five examples later in this article.

Another example is egregious as it involves the scion of a Colombo elite family and well known TV newscaster. Richard de Soyza was abducted from his home by police in plain clothes and the next day his dead body with burn marks was found on Dehiwela beach. His crime was that he was passing information on atrocities against the JVP to a Swiss NGO. No investigation of his murder despite his mother positively identifying the abductor as the head of the Police detachment guarding the President, who she recognized from the TV giving bana and Sil at Temple Trees, the official residence of the Prime Minister!

I will now move on to the sorry saga of how the Tamils suffered at the hands of the agents of the state. I will not dwell on the periodic massacres of civilians and combatants especially in the closing stages. These have been well documented both at home and abroad and led the UN Council on Human Rights to call for a judicial investigation with foreign judges participating. I do not support  this demand as it is an infringement on our sovereignty and as these regrettable incidents  tend to happen with an ill-disciplined armed force during the fog and strife of war. Now, I will describe a few instances of deliberate criminal activity by agents of the state that would not be tolerated in any civilized country.

In 1983 just after the Colombo pogroms started there were 96 Tamil prisoners at Welikada jail – not Tiger suspects but largely misguided do-gooders responsible for settling displaced Indian workers from the plantations illegally on government land in Vavuniya. The prison authorities let in hardened criminals with hatchets into their section and half were hacked to death, and one Kuttimani, a smuggler who had once said that he would give his “eyes for Ealam” had his eyes gouged out before being hacked. The next night the authorities let them in again to complete the task – there were no survivors despite some being lawyers and middle-class normally treated reasonably well by Prison guards.. No investigation as the whole incident was dismissed as “prison riot.” The second similar  incident was when the Tiger cadres in Kekirawa went on hunger strike to demand better food and living conditions and the army guards let the nearby villagers in to hack them to death – put down again to a “prison riot”.

The next incident was even worse. in the East in 2006,  seventeen Tamil aid workers working for the French medical charity Action Contre Faim (ACF) were shot in cold blood by navy commandos and police. There were witnesses and the evidence was clear. Here was a chance for the government to show that we adhered to the civilized codes of war. But what happened? A judicial enquiry was commenced after French and EU pressure, but the autopsy that was required before the trial could commence was then delayed inordinately. An autopsy was to be performed in Trinco but was inexplicably moved to the hill country. The whole process was delayed till the corpses were no longer fit for an autopsy and the matter was quietly dropped. The ACF quit Sri Lanka in disgust. Is this the so called independent judiciary that will deliver justice to the Tamils?

According to International Human Rights Watch:

The nongovernmental University Teachers for Human Rights (Jaffna) published detailed findings on the Muttur killings based on accounts from witnesses and weapons analysis that implicate government security forces present in the area. The group alleges that two police constables and Sri Lankan naval special forces commandos were directly responsible, and that senior police and justice officials were linked to a cover-up.

One final incident is in my opinion the worst. Shortly before the end of the war six Tamil youth went out to celebrate the completion of their A level examinations, They were kidnapped in a white van (later traced to the Navy) and a ransom was demanded from the parents who were reasonably well of middle-class. The ransom was paid but two days late the bullet riddled bodies of the six youth was found dumped on the outskirts of Trincomalee town. There was an outcry by the Tamil politicians, and an enquiry was promised. This time an energetic young CID officer soon identified the Navy personnel involved and their commander and was about to make arrests when he was “transferred” out and the case became dormant for “lack of evidence!” After the present government came in the TNA raised the same issue and the original CID officer was reassigned to the case and again as he was about to make arrests he was “transferred out:” by a different IGP ! Of all the cases I have heard this is the one that causes me the most pain and heartache as these youths were on the cusp of life and one had been admitted to study medicine at the University of London. I cannot bear to even think of the anguish of the parents. This is not an isolated incident, perhaps the worst, but by no means an exception. The Island paper of July 16,2017 carried a news item that the DIG in charge of the North was being charged with protecting twelve Tamil gang members who had been charged with the gang rape and murder of a fifteen year old school girl in Jaffna (allegedly for a “snuff movie – what unspeakable depravity) -– once again think of the anguish of the parents. What his motives were we can only guess.  With his protection, the ring leader had left the North, come to Colombo and then was apprehended just before escaped to Switzerland. No doubt this case will also soon be dropped for “lack of evidence”. What a judiciary and Police force and no wonder the Tamil people have consistently demanded control of the Police force in the North and East. This utter cruelty and indifference to the people by the police only started after JR Jayawardane came to power in 1977.

I have always been puzzled as to how this could have happened. I lived my early life in Sri Lanka and worked for ten years in the Central bank before emigrating to Singapore. I have always found the Sinhala people to be generous, friendly and kind hearted (largely due to  the influence of the Buddha Dhamma), much more congenial than my fellow Tamils, and to this day most of my close friends are Sinhala. How could they have behaved like this? The answer came when I read a recent book on Nazism by a Jewish professor from Harvard called Goldhagen – the book was called Hitler’s willing Executioners. The book described in graphic and horrific detail the behavior of the German army in Eastern Europe and especially in Russia. Unlike the Gestapo and SS Regiments, who consisted of the dregs of society and sadistic thugs and misfits, the German Army was proud of its traditions in upholding the rules of war and treatment of prisoners of war and captured civilians, and were led by an officer corps of Prussian aristocrats proud of their traditions, who despised the Nazis as low class rabble. Yet this same army raped, tortured and murdered millions of people – why? The answer lies in the racial theories propagated by the Nazis. The Slavs and Jews were “unter menschen” -sub-humans- to the treatment of whom the normal rules of war did not apply. In fact Hitler issue a directive to that effect on the eve of Barbrossa, the code name for the invasion of Russia. This resulted in inhumanity, utterly at variance with a cultured people who produced philosophers like Martin Luther and Goethe and musicians like Mozart, Beethoven and Brahms, and  the world still has not come to terms with the consequences.

 It is the same in our case – From Primary one the school children are taught that the Sinhala people are Aryan descendants of a Hela Sinhala race and the Damila are subhuman Dravidians. Where all the books related tales of wars with Dravidian sub-humans. This despite a recent Harvard University study that found conclusively no difference in the genetic composition between the Sinhala and Tamil population in Sri Lanka and also with South India.! I learnt this at first hand when I studied my Sinhala for my Central Bank Sinhala proficiency examination and all the books Primary and secondary school books related stories of Sinhala victory against the evil Demala and even a story taken from the Mahawamsa when one king noted for his piety was asked why he massacred thousands of  Demala after a victory over them – his answer was that they are not humans but like animals so he had committed no sin! Faced with this type of brainwashing from childhood, no wonder the armed forces behaved the way they did – one can hardly blame them and this is the main reason I oppose an international court to bring them to justice (except the white van murders which were a purely criminal activity). They were merely behaving the way they had been taught since childhood and did not know better! It was necessary to deny Tamils their humanity to justify then atrocities despite our Buddhist heritage.

I  have chosen just six incidents in a litany of crimes committed by the agents of the state against our sons and daughters in the Sinhala and Tamil communities. The Singapore case shows the action of a tough minded but civilized approach – I will leave it to the reader to choose an appropriate adjective for our actions! But we are all collectively guilty not just the perpetrators. We are especially guilty as this happened within our lifetime in a Buddhist country – that most gentle and compassionate of all religions.

Protecting minority rights are meaningless when the previous weak safeguards were never implemented. Take all the paraphernalia of our signing the UN Convention against torture and disappearances and the safeguards to be incorporated in the new constitution. All this would have been unnecessary if we had allowed consistently the right of Habeas Corpus, the right of a man’s family or lawyer to demand that when he is taken by the Police or Army, for him to be produced in court the following day. This simple law from Anglo Saxon times had preserved individual liberty in England down the ages and would have done so for us if we are a law abiding society.

 The right of Habeas Corpus was handed down to us as part of the English common law we inherited. This simple device would have prevented all these abuses but starting with the JR regime in 1977 was not only statutorily restricted but essentially made dormant by the simple expedient of the Police and Army ignoring it.

The new government has made a start to restoring the rule of law. They deserve our support. But first we have to change in our hearts. Even more so I admire the efforts of the courageous NGOs and individuals like Radhika Coomaraswamy and my own Cousin Sakuntala Kadirgamar who give up comfortable and lucrative UN jobs and Law Professorships in New York to work to improve the situation at home. I admire and respect them. But we should also wonder why our institutions, especially the much vaunted  judiciary we seem so proud of, has behaved so supinely when faced with such massive violations of  human rights. Just in the past six months the heads of state of Brazil and Korea have been removed from office and indicted for mere corruption ( a lesser evil than violation of human rights) and last  year the powerful Prime Minister of Pakistan Nawaz Sharif, all by the Supreme Courts of these countries. Indeed the international community now demands that justice will only be done if there are foreign prosecutors and judges – an infringement on our sovereignty that we should oppose, but we should also realize that we brought this ignominy on ourselves.

 Why does our judiciary seem so helpless in the face of massive violations of human rights and corruption-or do they not care? The latin phrase I used last week seems even more appropriate here:

Quis custodiet ipsos custodes?

Meaning “who will guard us from our guardians” – in other words the police and  agents of the state?

Certainly not our judiciary!