Report
D. Jayawickrema (Commissioner)
Retired Judge of the Court of Appeal
S. M. J. Senaratne
Secretary to the Commission}Bandaranaike Memorial International Conference Hall, Colombo 7
November, 2003
Asked whether the raid and arrest of the Army men led to the disclosure of a ‘Top State secret", Mr. Marapana replied, well, I would not say this is such a secret. Certainly our enemy would have known of the existence of the LRRP. Nor is the raid on the location. These people used to come and leave their equipment. Nothing else happened there. It was only a so-called Safe House that could have been shifted anywhere.
But as far as the personnel involved, the fact that their identities have been revealed will create a problem not only for them but their families too. More serious than anything else, I feel the harsh treatment that has been meted out to them is very bad. Having done their duty and when they find that they are arrested, detained and ill treated in this way, they are completely demoralized. That is the aspect I am more worried about than anything else."
Minister has further stated in the same interview:
"Asked whether the wide publicity generated soon after the raid, even before the investigations had commenced, was the beginning of the matter being publicized, Mr. Marapana said, "This is the most objectionable part of the whole episode. They (Police) went with the media to raid this house. This implies that their main target was to get some publicity out of this whole episode.
Bona fides
That is what makes me suspect the bona fides of the Police team to some extent. If they had the national interest at heart and if they really thought that there is a place frequented by Army people with this type of deadly weapons, then one would not have expected them to take the media, go and make a big show of it. They would have in the first place mounted surveillance and gathered information about the house. That is to find out what exactly these people are up to. The raid should have been the last step.
Instead, the moment they received information, they run to the nearest ‘Camera Shop’ and bring all those media personnel. You cannot blame them. This is just a publicity stunt and nothing more than that."
The above quotation was taken from "The Sunday Times" article which was marked as P103D when it was tendered by Iqbal Athas who was a witness before this Commission.
On the evidence led before this Commission it was absolutely clear that the officer and the men who were arrested by Assistant Superintendent of Police, Udugampola have been authorized by the Army to carry out covert operations against the LTTE using the weapons recovered. No less a person than the Army Commander, Lt. Gen. Balagalle himself informed the Inspector General of Police and Assistant Superintendent of Police, Udugampola on the night of the raid that this house was a legally maintained Safe House by the Army. For whatever action the Police took thereafter, the Police are to be blamed.
According to "The Sunday Leader" report dated 3rd February 2002, the Interior Minister, John Amaratunga has said that he initiated the Police investigation into the Athurugiriya raid, but left the matter in the hands of the Defence Ministry (P86). In the same article the Minister of Interior said that if the Defence Ministry and its Minister, Tilak Marapana, is satisfied that the house at Athurugiriya is a bona fide safe house for the Army, there is nothing more that he nor the Police can do and that is the end of the story. He has further stated that there would be little or no point in telling any Police Officer to proceed in such an instance (P86).
Initial publicity
When one considers the initial publicity given by the media to the raid of the house at Athurugiriya and the differences of opinion between two senior Ministers of the same (Cabinet as stated above, Her Excellency the President was well within: her rights in appointing a Commission to resolve this controversy and find out what exactly has happened. She being the Commander-in-Chief of the Army and Head of the Cabinet of Ministers, under the provisions of the Constitution, she has acted correctly in this regard.
At this stage it would be appropriate to quote the opinion of the present Speaker of Parliament, Joseph Michael Perera, who was a witness in the Presidential Commission appointed to inquire into the establishment and maintenance of places of unlawful detention and torture chambers at the Batalanda Housing Scheme. Joseph Michael Perera giving evidence as a Member of Parliament at that time, on 5th September 1997, at the end of his evidence when the Commission asked him whether he has anything further to say, he highly commended the appointment of that Commission. In his own words he stated as follows (page Nos. 6719, 6720 and 6721):
The above is an appropriate reply to the allegations made by Ministers and MPs about appointment of Presidential Commissions and about bias and ‘ "mud, slinging".
ii. The Law Relating to Commissions.
The Commissions of Inquiry Act was enacted in 1948 and is incorporated as No. 17 of 1948, and is found in Volume I, Chapter 8 in the Legislative Enactments. This Act has been subsequently amended by Acts Nos. 8 of 1950; 40 of 1953; 8 of 1955 and 29 of 1955. This Act therefore is still a part of our Law.
Section 2(1), of the Commissions of Inquiry Act empowers the Commission "to inquire into and report upon such administration, conduct or matter" which the President considers that an inquiry should be held and information obtained.
Such a Commission has powers to summon witnesses to procure and receive all such evidence, written or oral and to examine all such witnesses, as the Commission may think it necessary (Sections 7, 8 and 11).
Every person whose conduct is the subject matter of inquiry or who is in any way implicated or concened in the matter under inquiry, is entitled to be represented by one or more Attorneys-at-Law at the whole of the inquiry; and any other person who may consider it desirable that he should be so represented may, by leave of the Commission be represented in the manner aforesaid (Section 16).
Unlike Section 16 of the Special Presidential Commissions of Inquiry Law which was enacted in 1978 (Law No. 7 of 1978; Act No.4 of 1978 Chapter 9, Volume 1:, Legislative Enactments), a Commission appointed under the Commissions of Inquiry Act No. 17 of 1948, has no power to inform such persons who are implicated or concerned in the matter under inquiry.
Under Section 16 of the Special Presidential Commissions of Inquiry Law No. 7 of 1978, every person who is specified in a Warrant issued under this Law as a person whose conduct is the subject of an inquiry under this Law or as a person who in any way implicated or concerned in the matter under inquiry and any person who, in the opinion of the Commission, is a person whose conduct should be the subject matter of inquiry or in the opinion of the Commission is in any way implicated or concerned in the matter under inquiry shall be informed by the Commission and shall, after he is so informed, be entitled to be represented by one or more Attorneys-at-Law at such stage of the inquiry as is relevant thereto,, and any other person who may consider it desirable that he should be so represented may, by leave of the Commission, be represented in the manner aforesaid.
Thus it is very clear that Section 16 of the Special Presidential Commissions of Inquiry Law No. 7 of 1978 is different from Section 16 of the Commissions of Inquiry Act No. 17 of 1948.
On a reading of the above provisions it seems that according to Section 16 of the Commissions of Inquiry Act No. 17 of 1948 a person who is implicated or concerned in, the matter under inquiry if he so wishes as of right is entitled to be represented by Counsel at the inquiry. Any other person could appear only after obtaining leave of the Commission for that purpose. Under this provision a person who is implicated or concerned himself has the discretion to be represented by an Attorney-at-Law. There is no provision for that person to be so informed by the Commission. The Commission has power only to summon and examine as witnesses and not as persons concerned or implicated.
Under Section 16 of the Special Presidential Commissions of Inquiry Law No. 7 of 1978, the duty is cast on the Commission itself to inform such person and the discretion to summon or not is with the Commission.
No power or jurisdiction
A Commission appointed under the Commissions of Inquiry Act No. 17 of 1948 has no power or jurisdiction to find a person "guilty" of any act or to recommend the imposition of civic disabilities on any person. Such powers given to a Special Presidential Commission under Section 9 of the Special Presidential Commissions of Inquiry Law No. 7 of 1978, are not conferred on a Commission appointed under the Commissions of Inquiry Act No. 17 of 1948.
In any case the Commissions appointed under the above laws have no punitive powers. The Commissions are empowered only to inquire into and report upon matters referred to in the Warrant of Appointment. Section 7(d) of the Commissions of Inquiry Act empowers the Commission to admit any evidence whether written or oral, which might be inadmissible in civil or criminal proceedings notwithstanding any of the provisions of the Evidence Ordinance.
Thus the comments and criticisms made by the general public and the media that nothing results from the appointment of Commissions is a matter not within the purview or jurisdiction of a Commission. The power of implementing the recommendations of a Commission is somewhere else. The Commissions an therefore not to be blamed for not implementing such recommendations. Once the report of a Commission is published as a Sessional Paper the relevant government agencies should take over and take appropriate action.
Unfortunate
Generally when a Commission is appointed all the government agencies should assist such a Commission to carry out its functions, but it is very unfortunate that in respect of this Commission none of the government agencies readily assisted this Commission even when assistance was requested.
An inquiry under the Commissions of Inquiry Act being judicial proceedings, assistance of the Police is absolutely necessary. When such assistance was requested by this Commission from the Inspector General of Police and the Chairman of the Police Commission, there was no response at all. There was not even an acknowledgement of the receipt of the letters requesting such assistance. Without responding to the request for assistance the Inspector General of Police has sought legal advice from the Attomey General. To say the least, the behaviour of the Inspector General of Police was very strange in this respect. The Hon. Attorney General has replied to the Inspector General of Police stating that there is no legal impediment in releasing Police Officers to assist the Commission. The Hon. Attorney General has further advised that if the Inspector General of Police has any objection he should make his submissions before the Commission itself in this respect.
The Commissioner of this Commission has earlier been a Member of a Special Presidential Commission and Chairman of two other Presidential Commissions. In the above mentioned Commissions the then Inspector General of Police appointed very senior officers of the Police in the rank of DIGs and SSPs to assist those Commissions. In fact the present Chairman of the Police Commission was the Senior Counsel assisting the Special Presidential Commission appointed to inquire into the assassination of Vijaya Kumaratunga. In that Commission he was assisted in the investigation by a DIG and a SSP. It is regrettable that even the Chairman of the Police Commission has not responded to our request for assistance. Even the Inspector General of Police in spite of the advice of the Hon Attorney General failed to release any Police Officers to assist this Commission until the 10th of March 2003. Even then the officers who were released to this Commission were very junior officers. When the Commission has to investigate the conduct of high ranking Army Officers, Police Officers, Ministers it is absolutely necessary that such investigation should be made by high ranking Police Officers. But for whatever reasons the Inspector General of Police has failed in his duty in not appointing suitable Investigating Officers to this Commission. It may be due to the fact that his own Police Officers were involved in this raid and as the Head of the Police he was not able to prevent it.
The Members of a Commission appointed under the Commissions of Inquiry Act shall, so long as they are acting as such Members, be deemed to be public servants within the meaning of the Penal Code and every inquiry under this Act shall be deemed to be a judicial proceeding within the meaning of that Act (Section 9).
Judicial proceedings mean any proceeding in the course of which evidence is or may be legally taken (Section 2, Criminal Procedure Code).
All offences under the Penal Code have to be investigated by the Police, summons have to be served and Warrants have to be executed by the Police under the provisions of the Criminal Procedure Code. Every process issued by a Commission appointed under this Act shall be served and executed by the Fiscal (Section 21). The Fiscal is appointed under Section 52 (1) of the Judicature Act for the purpose of service of process and execution of decrees and other orders enforceable under any written law. Fiscal means a fiscal of a court and includes any person authorized either generally or specially by a Judge to exercise, perform or discharge any powers, duty or functions of the Fiscal under the Criminal Procedure Code (Section 2, Criminal Procedure Code).
Under Section 107 of the Criminal Procedure Code Peace Officers are empowered to prevent cognizable offences. Peace Officer includes Police Officers and Grama Seva Niladharis appointed by a Government Agent in writing to perform police duties (Section 2, Criminal Procedure Code).
The summons shall ordinarily be served by the Fiscal provided that where the summons cannot otherwise be served, such summons shall be served by a Police Officer (Section 45(1), Criminal Procedure Code).
Every offence of contempt committed against or in disrespect of the authority of a Commission appointed shall be punishable by the Court of Appeal under Article 105(3) of the Constitution. Every Police Officer is duty bound promptly to obey and execute all orders and warrants lawfully issued and directed to him by any competent authority under Section 56 (f) of the Police Ordinance.
The Inspector General of Police should have been aware of the above provisions as the Head of the Police Department. In view of the above provisions he is legally and morally bound to assist a Presidential Commission when requested for such assistance. The Inspector General of Police, T. E. Anandarajah, in this instance has miserably failed to do so.
iii. Media Behaviour
The raid on the Athurugiriya Safe House was exposed by the media within hours of the raid. Telephone messages were given immediately after the raid by the Minister of Interior to the Secretary of Mass Communication, Secretary to the Ministry of Defence to get their assistance to give the widest publicity as if it was the greatest event of the decade. The unsuspecting media unaware of the reality, gave wide publicity about a plot to eliminate leaders of the United National Front. The nation and the outside world were informed of a heinous conspiracy.
Thereafter the media took over for themselves the investigation and published articles, news reports etc. praising Assistant Superintendent of Police, Udugampola and accusing the Army Commander, Lt. Gen. Balagalle, DMI, Brig Hendawitharana, Capt. Nilam and his team for betraying their trust as Army men and making them almost criminals.
"The Sunday Leader" of 24th February 2002 in an article written by Ms. Frederica Jansz under the heading "A New Twist in the ‘safe house’ controversy" stated:
"An investigation by the "Sunday Leader" has discovered that a group of five soldiers found in a house at Millennium City, Athurugiriya have falsely claimed credit for specialized operations carried out against the LTTE by the Army’s Special Forces teams.
That is not all. Our findings disclose that neither the Defence Ministry including the former Defence Secretary, Chandrananda de Silva, nor the Joint Operations Headquarters (JOH) were aware of such a unit at Athurugiriya....
"The group of soldiers found at Athurugiriya never ever stepped even a kilometre into the jungle territory. In fact, Nilam has been medically categorized by the Army as being unable to perform any form of ex field duties." - (P98)
"The Sunday Leader" on 14th July 2002, in an article under the heading "New Twist to Athurugiriya Saga" stated:
"Despite a valiant effort to clear the house of an Army officer at Athurugiriya, Millennium City of being an authentic fully fledged "safe house" for the Sri Lanka Army, a continuing Police investigation and court case has proved otherwise... "It has been proved beyond all reasonable doubt that the "Army officers" who were arrested at the Athurugiriya house were never part of the LRRP teams, which constitute of elite fighting units within the Sri Lanka Army."
The above opinion was expressed by Ms. Frederica Jansz who has written that article and she has given evidence before this Commission and this article has been marked in evidence as P100.
In an article in "The Sunday Leader" dated 10th February 2002 under the heading "Athurugiriya Arsenal - intensive probe necessary" D. B. S. Jeyaraj in his column "Cross Currents" has stated:
"The diligent Superintendent of Police responsible for the arrest has been the target of vicious and vituperative campaign by interested parties as a result of this ................... While Udugampola was being unjustly crucified in the press over the arrest much was being done to obstruct and stifle the investigation." - (P120B)
Both Ms. Jansz and D. B. S. Jeyaraj refers to a letter dated 28th January 2002 written by Assistant Superintendent of Police, Udugampola to the Minister of Interior, John Arnaratunga explaining his actions, according to which the said journalists reveals "the mind set and motivation of Udugampola in undertaking this investigation and rationale for consequent action in this connection."
Ms. Frederica Jansz in an article in "The Sunday Leader" dated 3rd February 2002, under the heading "Fall-out of a safe house" has stated:
"Vilified and humiliated over his raid on this house at Millennium City, Athurugiriya, Udugampola has written a full explanation and complained to Interior Minister John Amaratunga". - (P86)
But Udugampola giving evidence before this Commission has denied writing such a letter to the Minister of Interior, Minister John Amaratunga giving evidence before this Commission said that he could not remember whether he received such a letter.
Contradicted
When one considers the above articles which appeared in the newspapers it seems, that the media has found the Army Commander, Lt. Gen. Balagalle, DMI, Brig. Hendawitharana, Capt. Nilam and his team guilty of a heinous crime. If one is to accept the views expressed in the media then a court has only to pass sentence and sign their death warrants. But unfortunately for these media personnel their views and opinions have been contradicted by some other media personnel and official witnesses who have given evidence before this Commission.
On 27.4.2003 "The Sunday Leader" in its column "Inside Politics" by Suranimala countering the assertion of Ms. Jansz and D. B. S. Jeyaraj states:
"In fact, at the Hakone peace talks, Balasingham on more than one occasion accused sections of the security forces of trying to sabotage the peace process and made a pointed allegation that Balagalle’s Deep Penetration Unit of the Army involved in the Athurugiriya episode had attempted to assassinate LTTE leader Velupillai Prabhakaran while the peace talks were under way. On that occasion, Defence Secretary, Austin Fernando and Minister Moragoda dismissed the allegation but promised to look into it, but the LTTE delegation was not appeased."
Austin Fernando, the Defence Secretary, giving evidence before this Commission admitted that such a statement was made by Balasingham.
This clearly shows that whatever the media tried to say about the legality of the Army team who was operating from the Safe House in Athurugiriya, even Balasingham the spokesman for the LTTE has accepted the position of the DMI that this house at Athurugiriya which was raided by Udugampola was legally maintained as a safe house for covert operations against the LTTE.
D. B. S. Jeyaraj contradicting himself on what he expressed in his earlier articles in his column "Cross Currents" in "The Sunday Leader" dated 11th August 2002, under the heading "Deep penetration hit squads: deep probe essential" clearly accepts that:
"The LRRP was a top secret project launched covertly by military intelligence. But Defence Ministry circles say that Lionel Balagalle was personally supervising the programme from its inception. Specially trained Commandos and from the Special Forces were deployed. Also inducted were Tamil and Muslim exmilitants from the North-East. They brought in the intelligence input and knowledge of terrain required...............
The discovery of an arms cache, thermobaric weapons at Athurugiriya along with 66 LTTE uniforms and cyanide capsules was a further revelation and confirmation of the LRRP phenomenon... The LRRP was not put to much use as the December 5 elections saw Ranil Wickremesinghe becoming Premier, leading to a transfommation of the political climate." - (P120C)
Thus the trial by the media of the persons arrested from the Athurugiriya Safe House was ended by accepting the position of the DMI that the Athurugiriya house was a Safe House maintained by the Army for the purpose of covert operations against the LTTE.
In this respect it would be very appropriate to quote at length the views expressed by Iqbal Athas who is a veteran journalist who gave evidence before this Commission. In the course of his evidence he tendered some of his articles which were also marked in evidence. In his "Situation Report" published in "The Sunday Times" on 20th January 2002, under the heading "The Great Betrayal" (marked P103C), he expressed his views regarding this matter in the following terms:
"The saga of the Army’s Athurugiriya Safe House, and the humiliating ordeal of an officer and five soldiers - national heroes who were treated as traitors - has at last ended.
Enormous damage
But the enormous damage to national security, humiliation to officers and men in the Sri Lanka Army, distress in the minds of conscientious policemen and above all, colossal embarrassment to the United Front Government continues.
The anger and bewilderment of the vast majority of Sri Lankans, here and abroad, following this tragi-comedy not only highlighted the disgust it had caused but also underscored the hatred against those who caused it. A host of emails to military Spokesman, veteran infantryman Brig. Sarath Karunaratna summed it up.
If it is ironic that one gazetted officer of the Sri Lanka Police could single handedly cause all this, it is tragic that his conclusions came even before his own inquiries could begin. Superintendent of Police, Kulasiri Udugampola, brought the full glare of the media, both print and electronic, to publicize all his actions, just two hours after the raid on the Safe House at Millennium Park on January 2.
To a wholly unsuspecting media, unaware of the realities, what he executed as startling finds- a cache of weapons including landmines, light anti-tank weapons (LAW), assault rifles and thermobaric shells among others - were an arsenal used by the Sri Lanka Army not to kill tiger guerillas but to be used in a sinister plot to eliminate leaders of the United National Party. The nation and the outside world were told about the great catastrophe portended by a so-called conspiracy.
As the news spread, both in Sri Lanka and abroad officers and men in the Army writhed in deep anger. That wide publicity, repeated locally on TV many times, seemed the beginning of a media trial. Morale reached a low ebb. Conscientious policemen, who were in the know of what was going on, were ashamed at what was happening. ‘This kind of thing has never happened in police history’, declared a retired police chief who wished to remain anonymous.
The Commission wishes to observe at this stage that the media which was so vociferous initially completely ignored the proceedings of this Commission later. For whatever reason the media became mum and did not publish the proceedings of this Commission, even though the media was kept informed of the dates of the public sittings of this Commission.
Kumar Abeysinghe, the Secretary to the Ministry of Mass Communication, a senior bureaucrat giving evidence before this Commission, expressed his helplessness when he stated that "For the news people any crisis is news even if it creates chaos in the country and it is so sad some times." He stated so in reference to a complaint by the Sirasa TV crew to him on the night of the Athurugiriya raid that the Army is preventing them from filming this incident. Kumar Abeysingha further stated that he immediately contacted Austin Fernando, Defence Secretary, and obtained his permission to film it in the presence of the Army. None of the senior officers took into account the fact that at that stage this type of publicity would affect national security.
"The Sunday Leader" of 13th January 2002, in an article by Amantha Perera, under the heading "Arms Bust - More questions than answers" (marked as P120A), in an inset under the heading "PM stops quizzing of journalists", reports:
"Last week Prime Minister, Ranil Wickremesinghe intervened and prevented Police from questioning a journalist regarding the ongoing investigation into the Athurugiriya discovery. The Police had wanted to question the journalists on an article that appeared last - weekend which had detail information on the arrest made at Athurugiriya and the Army operations that were connected. Police were to question him on how he obtained the details and the theory of the place being a safe house. When Wickremesighe got to know of the development he quickly called police and requested them not to go ahead."
The Commission wishes to state that although some Ministers and MPs aired their views and theories about the raid on the Athurugiriya house none of them appeared before this Commission to give evidence, although wide publicity was given by publishing notifications in the daily newspapers in all three languages inviting representation and information from persons who wished to do so.
As regards the behaviour of the media as stated above, it would be very appropriate to quote the comments of some of their own tribe. In "The Sunday Leader" dated 21st September 2003, under the heading "Spin-doctors and wild asses", Amantha Perera reporting from San Francisco states:
"The New York Times’ is the leak bureau for the hardliners. Such a pronouncement would be anathema to a lot of senior scribes in Colombo. The type who would quote off the "New York Times" as if reciting divine words carved in stone.
But these were the exact words by Peter Hayes, an expert on North Korea during a recent talk at the Graduate School of Journalism at the University of California, Berkeley, San Francisco.
What Hayes was arguing was that journalists were being used by hardliners in the Bush administration to propagate a certain view point. In so doing, they make sure that the public image of the North Korean situation is just what they would want to be........
"However Scribes hailing from Colombo should be the last to complain of spin-doctors. Colombo is like a stable for such kinds. So the next time some guy quotes from one of the so-called bibles, take a step back, it just might be an ass running for a master."
"The Island" newspaper of 3.11.2003 editorially commented:
"That the tragedy of Sri Lankan journalism is that scavengers are a plenty whose priority is garbage and seeking employment over truth."
Hence the Commission does not wish to add anything more to it other than emphasizing the fact that the role of the media is to divulge the TRUTH for. fostering LOVE and PEACE, and not HATE and DISSENSION.
iv. "Slinging Mud"
It was alleged by some that the purpose of the appointment of this Commission was to sling mud at certain politicians and the Government.
"Slinging mud" (Ipsissima Verba) is a trait of our society from time immemorial. This was done in the olden days by means of scurrilous letters kele pattara, caricatures or drawings and exhibiting them at public places. In the present day it is done by means of the media, print as well as electronic and by posters. Some tabloid papers and newspapers do it in a very crude form and the national media do it in a refined form by means of caricatures and gossip columns and cartoons. ..
Even in the Courts of Law, specially in family disputes, members of the same family, husband against wife or vise versa, children against parents, brothers against the other brothers and sisters do their very best to discredit each other by digging up their past and exposing their pedigrees to tarnish their images and to show what a disreputable person the other person is. This is a human weakness without a remedy. That is the reason the Law in its wisdom has laid down procedure to be followed in recording evidence and coming to their conclusions. An experienced Judge will know how to apply the rules and regulations and to sift evidence and allow what is relevant to the matters under investigation and reject what is not relevant.
In the present day it is not only politicians, even judges and religious dignitaries, are being openly criticized and slandered by the media exercising the right of free media.~ Every one is helpless, because the freedom of the media is said to be sacred under a democratic set up.
In recent times, civil rights movements here and abroad have expressed grave concern about such instances of discussing the conduct of (including derogatory comments) judges being made in various fora quite independent of the laid down removal procedure of judges. This is contrary to the convention that the conduct of judges should not be discussed except in a substantive motion at the proper forum for their removal. The most unfortunate aspect of this allegation is that the judges have no way of publicly countering such allegations. Thus the judges who have to decide on human rights and fundamental rights violations of others, have themselves no fora to alleviate the violations of their own human and fundamental rights.
This Commission is quite conscious of the practices, the niceties and the decorum of court procedure and wish to state fiat justitia ruat coelum - let justice be done though the heavens should fall.
The findings and recommendations in this Report are based only on admissible.! evidence which is relevant to the matters in issue according to the terms of the Law.
(http://www.island.lk/2003/12/16/featur03.html)
