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The Strains On Judicial Integrity !


Dr. Rajan Hoole

Antecedents Of July 1983 & The Foundations Of Impunity – Part XI

Former Chief Justice M.C. Sansoni was clearly a man acting under pressure. The Commission itself became a forum for organised perjury against Tamil leaders, while the Report avoids any mention of the activities of the Sinhalese leaders.

A number of witnesses trooped in and claimed that Mrs. Amirthalingam had said at several meetings that she would make slippers out of the skins of Sinhalese and she cannot rest until she swims in the blood of the Sinhalese. One such witness was the Ven. Nandarama Thero, the chief priest of the Naga Vihare, Jaffna, who claimed that the statement was made at an election meeting close to his temple on 4th July 1977. The police report of that meeting was called, and it showed that Mrs. Amirthalingam did not speak at the meeting. Pointing out that not in a single meeting has this charge against Mrs. Amirthalingam been backed up by a police report, Sansoni dismissed these charges as a ‘dangerous and evil conspiracy’.

Former Chief Justice Milliani Claude Sansoni

Yet, time and again excerpts from these allegations have been reproduced in the Press, without mentioning that Sansoni convincingly refuted and dismissed them. The impression that is sought to be conveyed is that the Tamils are fond of leaders who make gory, threatening speeches.

These claims about speakers wanting to swim in Sinhalese blood and make shoes out of Sinhalese skins have been repeated by T.D.S.A. Dissanayaka in his War or Peace in Sri Lanka (p. 20). He says that these speeches were made by ‘callow youth’ from TULF platforms, but rumour attributed them to Mrs. Amirthalingam, and such reports triggered off the violence. He does not mention his source, but not a single police report has been cited in the Sansoni Report to show that such statements were at all made by anyone.

This is one of those instances where Sansoni showed the competent judge in him. He resisted attempts to frame and character-assassinate individuals and was sympathetic to individual victims. Another instance concerned Dr. J.T. Xavier, then surgeon at Trincomalee Hospital. His case illustrates the general vulnerability of Tamils in this system.

Dr. Xavier who was at Gampaha Hospital was interdicted on an allegation of bribery shortly after Mrs. Bandaranaike’s government assumed power in 1970. No charges were served for 1 1/2 years. Then N.L. Jansz, retired judge- advocate of the Army went into the matter and acquitted him. Even so, W.P.G. Ariyadasa, who was minister of health, sent him a letter saying that he was guilty. He was reinstated after 2 1/2 years. During his interdiction he read widely and later published a book on the common origins of Tamil and Sinhalese. This plea for national unity was interpreted as racism by several Sinhalese ideologues.

On 21st August 1977, three members of the family of Pushpa Jayanthi, a Sinhalese resident of Trincomalee, were shot dead by Tamil hoodlums. At Trincomalee hospital Dr. Xavier had Pushpa Jayanthi X-rayed and found that she had a compound fracture in the right upper arm where a pellet was lodged. There were no other pellets found that could cause injury to internal
organs. While she was under treatment, the Police without informing Dr. Xavier transferred her to Kandy hospital. There she was treated by the surgeon Dr. Douglas Wickremasinghe.

Later, some interested group prevailed on her to say that she was deliberately neglected by Dr. Xavier, and also got several other witnesses to say so. Dr. Xavier’s earlier incident at Gampaha was also brought up and he was charged by lawyers of the interested party with being an active Tamil racist and even a Tiger agent. Dr. Wickremasinghe too first stated before the Commission that he had removed two pellets from Pushpa Jayanthy distinct from the one embedded in the fracture, which Dr. Xavier was emphatic, were not there.

Later under cross-examination by Siva Rajaratnam, Dr. Wickremasinghe admitted that the hospital records he subsequently examined showed no evidence of the presence of other pellets. He also admitted that, this being a judicial case, Pushpa Jayanthy could not have come into possession of the pellets which she said were removed from her body. Sansoni dismissed the charges and exonerated Dr. Xavier. The case also illustrates the role played by cross-examination.

Those who defend Sansoni point out that the Commission and Sansoni himself were handicapped in many ways. The powerful team of Tamil lawyers led by Sam Kadirgamar QC and P. Navaratnarajah QC who appeared at the beginning of the sittings in Jaffna then dropped off, leaving the Tamil side weak on cross- examination. The State decided to intervene when it thought that things might get out of hand. Deputy Solicitor General G.P.S. de Silva who appeared for the State at the beginning, later dropped out citing personal reasons. He was considered a person who would have been uncomfortable about lowering his ethical standing. His place was taken by State Counsel A.D.T.M.P. Tennekoon.

Sansoni who earlier did not want to prolong commission sittings into 1979, unaccountably changed his mind. It was then that a host of Sinhalese groups and police officers came into the witness box to testify against Tamils and Tamil leaders. Many of them were persons whose record does not stand up to scrutiny. Their testimony could be found in the last 3000 or so pages of the record running into about 15,000 pages. Sansoni in effect reopened issues like the IATR conference of 1974 which he earlier said did not lie within his mandate.

There were also occasions on which the Commission received threats. We also learn that GA Vavuniya who had seen a good deal of mob activity sought a private audience with Sansoni. He pleaded on grounds of his safety to be exempted from testifying. Sansoni acceded to his request. A particular defence of Sansoni maintains that he was after all a judge who had to go by the evidence placed and supported before him. One of those close to him put it in this vein, “As a judge Sansoni may be guilty before the court of the people, but not before the court of the Law”. Another instance illustrates the strain he was under.

At the close of the first chapter, Sansoni had already suggested that the cry for Eelam was the main cause of the August 1977 violence. He adverted to this again at the very beginning of Chapter VI on ‘Measures Necessary to Ensure the Safety of the Public and to Prevent the Recurrence of Such Incidents’. As though feeling uncomfortable that the case had not been argued adequately, he opened the chapter with the following:

I have already expressed my views on the cry for Eelam raised by the TULF. The Ven. Madihe Pannasiha, Fr. Caspersz and many other persons have stated that it was the main cause of the disturbances. Therefore, the first measure I would recommend, to prevent a recurrence of the disturbances, is that this claim be abandoned.

This extract was given wide publicity and has ever since been cited with much satisfaction (e.g. V.P. Vittachi’s Sri Lanka, what went wrong, p. 63).

What is almost unknown is the fact that on 8th November 1980, Fr. Paul Caspersz said in a letter to Sansoni: “…I am disturbed at being made to appear that I ever took up the position that the cry for Eelam raised by the TULF was the main cause of the disturbances. This is not, and has never been, my view.” Fr. Caspersz also attached to the letter the relevant extract from the official verbatim record of his evidence before the Commission.

The correction was neither implemented nor publicly acknowledged and Sansoni’s claim above went into history with the name of Fr. Caspersz as a supporting authority.

Sansoni did acknowledge that in many instances the Police had failed to discharge its functions of protecting the victims and preventing incidents. Sansoni Report also called upon the Government to discuss with the TULF the areas of conflict it identified viz., education, employment and colonisation. This was lost as against the propaganda value of the Report.

Among the other positive recommendations of the Report was payment of compensation to the victims. Where matters stand to this day, is described in an article by S. Thambyrajah in the Weekend Express of 8th August 1998:

From 1977 onwards, I along with several other victims, jointly and severally, have made several appeals to the government for payment of compensation for loss and damage to private properties in accordance with the commendation of the Sansoni Commission, without success. Separately, I have been writing letters to the press regularly which the media has so kindly published. (Sun 12.9.77, 18.2.82, 5.3.82, 4.6.82; Observer 26.1.81; Sunday Times 18.3.90 with a full investigation report; Island 19.8.94, 1.6.95; Sunday Observer 11.2.96; The Weekend Express 27.2.96, 8.8.97; Daily News 15.2.96, 4.8.97).

“In spite of all these governmental authorities have conveniently forgotten this subject of compensation to the 1977 victims.

Enough was conceded in the Sansoni Report for the TULF to call for a debate in Parliament and place its case on record. But they instead became paranoid over the strictures passed on them and ignored the entire report. The question of compensation too, was not pursued by them. Compensation for the victims was after all an important purpose of the Commission, and it was on a request by the TULF that the Commission was appointed. By washing its hands off the matter merely because of strictures passed on them, the TULF let down the victims badly. By ignoring the report, the TULF allowed the UNP government to bury the truth about the 1977 violence and plan for something more severe. This was unpardonable in a party elected to guide the destiny of the Tamil people.

Former Chief Justice Miliani Claude Sansoni was a man fighting a battle within himself. During the latter stages of the Commission hearings he remarked to a confidante gravely, “I have never before headed a political commission.”

In judging Sansoni’s report we must go beyond the individual and take into consideration the milieu in which he was working. In a context where the politics of the nation is wayward, and the executive both too powerful and thoroughly unscrupulous, to expect a good commission report on a matter involving high stakes, is to expect too much from individuals.

The strains on the judiciary have been evident for a long time – we have already mentioned in Chapter 1 the Supreme Court judgement on the Citizenship Bill.

*To be continued..

(From Rajan Hoole‘s “Sri Lanka: Arrogance of Power – Myth, Decadence and Murder” published in Jan. 2001. Thanks to Rajan for giving us permission to republish. To read earlier parts click here.)


By Dr. Rajan Hoole

courtesy - Colombo Telegraph

- Melani




2016-07-17
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