‘Inadmissible evidence’ — the truth about Sri Lanka

March 17, 2018
— Links International Journal of Socialist RenewalIn recent years many people have fled Sri Lanka by boat and sought political asylum in Australia. Most are members of the island's Tamil minority. They are survivors of the war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam, who fought for an independent Tamil state but were defeated in 2009. The Australian government has begun sending back asylum seekers to Sri Lanka, claiming that Sri Lanka is now peaceful and democratic. The Department of Foreign Affairs and Trade has produced two “country reports” on Sri Lanka, which purport to show that it is now safe to send people back. A group of people who disagree with this conclusion came together and produced a counter-report (see below). This document was launched on March 3 in Melbourne. Michael Cooke, one of the authors of the counter-report, gave the following speech at the launch. * * * * * Let me start my talk with a quote from the novelist Milan Kundera, which can serve as a motif of the talk: “The struggle of man against power is the struggle of memory against forgetting.” (The Book of Laughter and Forgetting) What I want to present at this talk is what I term “Inadmissible Evidence” when it comes to Sri Lanka. Evidence that the authorities determining the fate of refugees refuse to countenance, ignore (sometimes wilfully), or disparage — like the testimony of human rights and trade union activists, historians, politicians and other actors in civic society who have had the temerity to put their heads above the parapets of historical and political consensus. Many have been ‘made to disappear’, forced into exile or harassed out of history. It is to their vigilance and courage in telling the truth to the powerful that this talk is heavily indebted. In particular, I owe much to the recently deceased and much missed A. Sivanandan — essayist, tireless human rights campaigner, director of the Institute of Race Relations in London, editor of Race and Class and novelist. His novel When Memory Dies is probably the best book of any sort on modern Sri Lankan history. I offer in tribute one of Siva’s many pithy observations, in this case on the passing of the Sinhala Only Bill 1956:
Sri Lanka must be the only country in the world where such affirmative action is used to safeguard the interests of the majority on the grounds they are a minority in the world; but, then so are the Chinese. (“Sri Lanka: Racism and the Politics of Underdevelopment”, Race and Class, Vol XXVI, Summer 1984, No: 1 Institute of Race Relations 24).
The image the country presents to itself and the world is of a democratic country that has come out successfully out of a 30-year “terrorist war” (i.e. civil war), as evidenced by the current stunning growth rates, a rising standard of living and the generosity of the majority community to the vanquished. Its impeccable democratic credentials are illustrated by the ceaseless debates on democracy, constitutional change, and the rule of law in parliament debates, in newspapers, on international forums and on the internet. Packaging this beguiling brew are the vistas, sounds and smells of a verdant island paradise whose beauty nobody can deny — least of all me. What I want to bring to the fore is a different story, churning mostly in the background and sometimes taking centre stage, one that is much uglier, more fractious and more violent — i.e. inadmissible evidence. In doing so I want to highlight violence perpetuated by or with the connivance of the Sri Lankan state. In the aftermath of each bout of violence the state institutions of law and order have not been reformed. They have become increasingly deformed and the perpetrators of state violence have been acting and are still acting with impunity. The victims have borne the brunt of the violence and public condemnation. One can start in 1948, 1953, 1958, but let’s start with 1971 and the insurrection of the Janatha Vimukthi Peramuna (People’s Liberation Front) or JVP.

1971 Insurrection in the south

An insurrection of dissatisfied young Sinhalese, mostly rural and predominantly male, erupts in the South. At the time Neville Jayaweera was the Government Agent (the highest ranking public servant in the region) in Vavuniya, a mostly Tamil area in the North with some Sinhalese villages. The police in Vavuniya came under sustained attack by the JVP, who were repulsed. The army then came to “mop up”. The government had offered an amnesty to those who gave themselves up and Jayaweera was instrumental in brokering a deal for a young married man who was in the periphery of the JVP (he had attended a couple of their classes). The young man was handed over to the Sandhurst-educated captain in charge and was never seen again. He had been “shot trying to escape”, and under emergency regulations in force at the time his body was burnt and disposed of without a coronial enquiry. This very same captain was responsible for the killing of around 30 unarmed males in a neighbouring village and torturing others — torture that involved drilling holes into their palms to extract a confession (one of the victims was only 10 years old). Neville assiduously reported all this to his superiors, but no action was taken and when he pushed for a response he was met with a wall of hostility and silence from the military. He resigned from a promising career partly from disgust but also because of the pressure of powerful political thugs like Felix Dias Bandaranayke. (See The Vavuniya Diaries: Recollecting the first JVP uprising 1971, by Neville Jayaweera, Ravaya Publishers, 2017.) How many more reports and individual testimonies were buried? Eyewitness reports of government atrocities were coming out at the time from newspapers like Le Monde, The Guardian and international human rights organisations like Amnesty International and local human rights activists and organisations. There is credible evidence that what Jayaweera reported happened to hundreds of villages across the south, yet nobody from the security forces was brought to justice. In response the government passed the Criminal Justice Commission Bill (CJC). This bill allowed the government to set up special courts dispensing with common law safeguards that ensured a fair trial. All these extra-judicial innovations were passed a year after the insurrection had been crushed. The main features of the bill were these: there was no right of appeal, except when the death penalty was pronounced; the CJC was given enormous discretion to decide on the procedure best suited to uncover the truth; and a special law was passed stating that any confession given to the police would be classified as valid evidence. The methods by which the evidence was obtained were not subject to scrutiny; they were brutal, to put it mildly, and sometimes verged on the psychotic. (Criminal Justice Commissions Act, No 14 of 1972.) Presiding over the cases were five judges from the Supreme Court and leading the prosecution was the Solicitor General. None of them when looking at the transcripts of the trial were unduly concerned with the trampling of the principle of habeas corpus or the legitimacy of the use of torture to obtain confessions. (Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.) The JVP, according to the government of the day, were responsible for: 41 civilian deaths, the killing of 63 members of the armed forces and the wounding of 305 members of the armed forces. (The Government of Sri Lanka Criminal Justice Commission.) The estimates of how many young Sinhalese people were killed by the security forces ranged from a few hundred to over a thousand — 1500, 5000 or (more probably) 10,000; Jayaweera estimates 20,000. Yet this is a period that many middle-class Sri Lankans are nostalgic about.

1977 UNP landslide election

The United National Party or UNP (satirically called the Uncle and Nephew Party) was elected in a “landslide” (it in fact got only 51% of the vote). Many Tamils voted for the UNP, especially in the South, but how was their optimism rewarded? By a riot which also targeted Plantation Tamil workers. Countless hundreds lost their lives and many thousands were forced to flee. We have an eyewitness account from the Medical Superintendent at the time for Anuradhapura hospital, Dr K.N.K. Wijayawardana. It makes disturbing reading. He reports bodies being stacked up almost roof level at the mortuary, while the “fact finding mission (two cabinet ministers) confined their investigation to sitting in the police station” and left soon after by helicopter. Dr Wijayawardana and his staff, which consisted of both Tamil and Sinhalese medical staff, did their collective duty in the face of police inaction and political indifference. He reported what he had seen and yet no action was taken (see The Sri Lankan Guardian, “Anti Tamil riots of August 1977” and Michelle De Krester’s novel The Life to Come.) How did the guardians of the law act? They set up a Commission and then nullified its findings by the Indemnity Act of 1982, which gave anybody from Ministers down to security personnel immunity for their actions during the disturbances.

Late 1970s to early 1980s

The military, led by a relative of the then President (Brigadier Weeratunga), was sent to stamp out a low-level insurgency of Tamil youth, consisting of bank robberies, harassment and the killing of a police officers and a popular Mayor of Jaffna. The army promiscuously targeted the whole Tamil community. They arrested, shot and tortured anybody who was critical of the government: young student activists, teachers, academics artists, priests, social workers (bearing in mind that the majority of population had elected a party that supported separation). It came as no surprise that the violence escalated, and it was during this period that the repository of Tamil culture, the Jaffna Library, was burnt by the police. The draconian Prevention of Terrorism Act (PTA) was enacted. What do you get by eliminating, jailing or silencing civil society activists? Young men with guns. Prisoners were subjected to cigarette burnings; chilli and red ants were placed on ‘sensitive parts’ of their bodies; they were hung upside down by their feet; pins were driven into their toes and fingers; and that old standby being beaten repeatedly. The techniques of torture are similar to ones currently being related by Tamil refugees. Yet none of this is deemed admissible or spoken off. (See Nancy Murray, ‘The War Against the Tamils,’ in Race and Class, Vol XXVI, Summer 1984, No. 1, Institute of Race Relations) Down south, trade unionists, the media, sections of the judiciary and political parties were also subject to harassment and abuse, with individuals occasionally made to “disappear”. The above was reported in detail by University Teachers for Human Rights (Jaffna), Amnesty International, the Council for Communal Harmony through Media, the International Commission of Jurists, the Movement for Inter-Racial Justice and Equality and others.

1983 Black July and the week-long pogrom against Tamil civilians

The level of efficiency was new, though not the barbarity. The catalyst was the ambush of a patrol of Sinhalese troops by the LTTE (Tamil Tigers), resulting in 13 deaths. The army retaliated by killing around sixty civilians (never mentioned or investigated by the authorities), and the dead bodies of the Sinhalese soldiers were publically displayed in Colombo, resulting in rioting. The next day, with the guardians of the law being strangely absent, mobs of armed men, ferried frequently by government lorries and sometimes accompanied by monks resplendent in saffron and equipped with voting lists, went systematically to the households and shops of Tamils in Colombo (many of whom had voted for the government in power), stealing their possessions, money and jewellery and then burning their houses and many cases also incinerating or beating to death the inhabitants of the household. How many died and how many fled this holocaust we do not know. The government claims around 300; other estimates range from 1000 to 2000 or 3000. Two thousand seems the most credible figure. Around 150,000 fled from the South to the North and Tamil Nadu. While this was going on, between 300 and 400 armed Sinhala prisoners massacred 37 Tamil political prisoners who were being held under the PTA in Welikade prison (situated in Colombo). Two days later this horror was repeated, with another 18 Tamil prisoners being butchered. What was the government’s reaction? Before the massacre, President Jayewardene, in an interview in the Daily Telegraph, had this to say:
I have tried to be effective for some time but cannot. I am not worried about the opinion of the Jaffna people now… Now we cannot think of them, not about their lives or their opinion…
While the memory of the riots was still raw, the government, in the form of the Minister of State, stated that all property affected by the pogrom would be vested in the state. In an explanatory speech, he made it known that as the government had spent so much on reconstruction, it would be unjust to hand back the property to its previous owners! Parliament passed the sixth amendment of the Constitution; by doing so the government deprived the Tamils of their elected representatives. The Tamil United Liberation Front (TULF) refused to take an oath against secession. By this action the Sri Lankan state handed the leadership of the Tamil struggle to the ‘boys’ in the North and East with the guns. Meanwhile the UNP government blamed a number of other political parties, like the JVP and the Trotskyist NSSP (Nava Sama Samaja Pakshaya or New Equal Society Party), for the pogrom that the UNP itself had largely instigated. Dr Lionel Bopage (General Secretary of the JVP at the time) provided an eyewitness record. He was trying to find out what happened to JVP’s Tamil cadres. (See Dr Bopage, “Testimony of the Holocaust”, in Rajan Hoole, The Arrogance of Power: Myths, Decadence and Murder.) He was summarily arrested while out shopping, put into solitary confinement, psychologically tortured but not charged with any offence; and then released after six months of detention. Dr Rajan Hoole, in his meticulous account (The Arrogance of Power: Myths, Decadence and Murder) of who was behind the pogrom, singles out a number of UNP luminaries. Foremost amongst them was Cyril Mathew. The trucks used to ferry the goons and the petrol used to ignite Tamil businesses came from the public corporations under the jurisdiction of his Ministry. Others who either participated or turned a blind eye to the use of government property and employees under their control were: • R. Premadasa, who was Prime Minister at the time; he probably was not physically involved, but his power base was the lumpen elements in Pettah and its environs; • Siresena Cooray, Mayor of Colombo and a protégé of Premadasa who filled the Ceylon Transport Board with his thugs; and • Ranil Wickremasinghe, the Minister of Education and Youth Affairs. In his guise as Prime Minister he recently invited all refugees back. While there is no direct evidence of his involvement, his right-hand man Gonewela Sunil and members of Sunil’s gang did participate.

1986-1989 The second JVP insurrection

When a peace deal was brokered by the Indian government, stipulating that Indian peacekeeping forces would be placed in the North, the JVP saw this as a means to whip up anti-Tamil and anti-Indian feelings and gain political power. They initiated a number of hartals (strikes) in the South; they were also responsible for the assassination of countless individuals of other political tendencies, trade unionists, student leaders, security personnel and human rights activists. The government, led by Premadasa, made a deal with the LTTE and armed them against the Indian peacekeeping forces. Premadasa now felt free to turn his attention to the JVP and unleased the full might of the security forces on them. The security forces showed no mercy. They killed human rights activists, left-wing figures, ordinary citizens and JVP politburo members, cadres and sympathisers, in large numbers and with impunity. Suspects, once captured, were usually tortured in the most brutal manner and then killed. The authorities recorded these extra-judicial executions as KIA (killed in action). Bodies were dumped in rivers or buried in the jungle; sometimes the charred remains of a body burnt in a tyre were found. Some of the bodies were left hacked, often decapitated or with their faces mutilated. Professor Romesh Gunaratna in The Long Revolution alleges that this was done to prevent identification. This may be true, but it also reflects a certain sadism and shows how far the state and the guardians of law and order had descended into barbarity. The executions seem eerily similar to the credible allegations made against the Sri Lankan army in the last phrase of the civil war — an inadmissible connection… Around 40,000 to 60,000 were killed. One of the planners and leaders of this operation was the then Brigadier Janaka Perera; he retired as a major-general and became High Commissioner to Australia in the 1990s. Another notable personage involved was Sarath Fonseka — inadmissible evidence.


The Rajapaksa clan, riding high on the coattails of victory in the civil war, nobbles the media and political opponents and offers no reconciliation to the Tamils. People are made to disappear; many others are arbitrarily arrested in the ubiquitous ‘white vans’. In 2015 the Rajapaksa government is kicked out of office by an electorate who yearn for change. Our report deals with the paralysis of the current government’s reform program. More importantly, we point out that the structures of power, manifested in parliament, the legal system and the security forces, have not been reformed or questioned and have carried on their activities with impunity. This should be admissible evidence. The challenge for us is how we make the inadmissible admissible. As our report bluntly puts it:
Who do we believe — the unreformed and unaccountable organs of the state of Sri Lanka that perpetuate these human rights abuses or those escaping their pernicious reach? To characterise them as ‘economic refugees’ is grossly unfair and to deport them is manifestly unjust.
The key issue, as A. Sivanandan argued and as my narrative shows, is the refusal of the institutions of power to evolve into something that is accountable, transparent, multi-religious and multicultural. In recording human rights abuses it is just as important to record why these abuses took place and who not only committed them but also who benefits from them. This requires a focus on the social, ideological and economic system that produces and replicates these “deformities”. In Sri Lanka’s case it is an inedible stew of Sinhala exceptionalism, corruption, casteism, patronage and free market theology. Let me illustrate this as follows. The top 20% of the population enjoy 42% of the island’s income while the bottom 40% make do with 17.8%. Compounding this is the undeniable fact that too many (including the wealthy) pay little or no tax. For example, around 80% of young people working are in the informal sector and I am not sure if they fill out a tax return. The budget for defence, eight years or so after hostilities have ceased, still swallows the largest chunk of government revenue, while spending on vital areas like health and education is miniscule. If the government was serious about reconciliation and reforming its judiciary and security apparatus (it is not), this would require a reallocation of resources from the military and of course a fairer taxation system. At the moment it cannot even deal with the backlog its criminal justice system generates — 3 to 4 years of incarceration before a case is heard. There is also a backlog of cases requiring police investigation, as evidenced in our report on the small number of rape and assault cases being brought to the courts, and the unacceptable fact that many members of parliament have not been investigated, let alone prosecuted, for their criminal acts. An aside: Let us not forget the endemic corruption, 100 odd ministries (most of them superfluous in a small country) and the attendant perks. Human rights activists should not be in the business of maintaining the status quo, as evidenced in the Australian government’s harsh and illogical refugee policy or the erroneous platitudes voiced by the representatives of the so-called Democratic Socialist Republic of Sri Lanka. We should resist, cajole, persuade, agitate, object and in all instances try to make the inadmissible admissible. How we do this should be the key political and moral issue facing us — not conforming to the rules of the game that are stacked against refugees.