UNIVERSITY TEACHERS – Special Report No: 33





Special Report No: 33

Date of release: 4th August 2009

Third Anniversary of the ACF Massacre

A Travestied Investigation, Erosion of the Rule of Law and Indicators for the Future of Minorities in Lanka

Three years ago, on the 4th of August 2006 at around 4.15pm , one Muslim and 16 Tamil ACF aid workers were forced to their knees, begging for their lives, and shot execution style at point blank range in their office compound in Mutur , Sri Lanka .

The victims of this crime were not caught in cross fire, killed accidently or mistaken for combatants in the midst of an encounter. They were sought out and murdered. Available evidence points to the responsibility of police officers and Muslim home guard members who have acted in the presence of Sri Lankan Army commandos.

In this, or any premeditated crime of this nature, the State has a responsibility to independently determine the facts of the case and the identity of the perpetrators. The Government has not only failed to fulfil this duty, it has obstructed efforts to do so through the Presidential Commission of Inquiry (CoI).

Currently, turning the scales of justice completely upside-down, the Government is pointing the finger at the organisation for which the victims worked, the ACF, and accusing it of negligence. This can only be an effort to divert attention from its own responsibility, since the ACF’s actions, although important for the organisation to look into, are utterly irrelevant to a determination of responsibility for the premeditated murder of the ACF employees.

In light of the Government’s recent claim that the CoI has found the LTTE to be fully responsible for this crime and attempts by the CoI to debunk our findings, we present a thorough review of our earlier reports, with new evidence gathered and assessed. This effort has affirmed our earlier findings that the 17 aid workers were killed by at least one member of the Muslim home guard (Jehangir) and two police constables (Susantha and Nilantha) in the presence of military commandos

Even before the Commission of Inquiry was constituted, several arms of the state including the Judicial Service Commission undermined a proper inquiry, including by replacing the sitting Magistrate (a Tamil, who was replaced by a Sinhalese) just prior to his announcing the findings of his inquest. After the CoI was formed, the AG’s office along with the defence lawyers continued to work as a team to discredit any information which might point towards the real culprit. The role of AG’s office was questioned by the IIEGP (International Independent Group of Eminent Persons, mandated to observe the work of the CoI) but their concern was discarded.

The report stands by its earlier concerns regarding the cover up of bullet types used by the assailants and unprofessional nature of the Australian expert’s decision to retract his earlier identification of a 5.56 mm bullet.

This report also critically examines the CoI proceedings and actions by the Government in the context of the CoI’s efforts. In addition to favouring witness testimonies at the CoI that were sympathetic to the Government’s position, the Government of Sri Lanka and its proxies have engaged in systematic intimidation and harassment of witnesses and families that have refused to support the Government’ s patently false position.

A representative list of these actions includes the following, carried out, prior to, during and after CoI proceedings:

·         threats carried out by telephone and in person;

·         public questioning and temporary restriction on movement by police;

·         forced reporting to police stations and a TMVP office;

·         abduction and assault;

·         intimidation, ffic light junctiono placethe Commission.ived after the situation was relatively calm. ficers. ave sent Jehangir as parbribery and threats by the CoI’s police investigation unit;

·         ongoing surveillance by police;

·         illegal arrest and temporary detention by the security forces;

·         house searches;

·         threatening letters signed by TMVP;

·         intimidation while giving testimony at the CoI and while in the witness protection room of the CoI; and denial of witness protection to those seeking it.

The government made sure there was no proper witness protection in place, and any support by a commissioner for a witness facing fear and isolation was used to discredit both. The police investigation unit of the CoI came to function as an intimidation unit towards the witnesses, making sure that the truth was suppressed.  The presidential order to stop video conferencing of testimony by witnesses who had to flee the country was another blatant move to suppress the truth.

Family members of victims were harassed and threatened to such a level that their lives in Trincomalee became unbearable; some were forced to flee the country. Two family members have died: Kanapathy, the guardian of ACF driver Koneswaran, died consequent to being beaten by a naval officer in an unrelated incident and Niranjala, wife of ACF worker Muralitharan, from a brain haemorrhage resulting from high blood pressure a day after she received a letter summoning her to appear before the CoI, following months of official harassment. Several families and witnesses have been forced to leave Sri Lanka and others are forced to live underground to escape attempts by the Government and its proxies to silence those who may point the finger at the Government for the killings. Perhaps the best thing the witness protection unit of the CoI has done is to tell witnesses frankly the unit cannot provide any protection.

In an attempt to debunk evidence that consistently points to State responsibility for the ACF murders, the Government has carried out a series of actions through the CoI including:

–          attempts to provide or assert alibis for certain persons we named as the killers in our report in April 2008;

–          attempts to advance the time of the killings to make the LTTE’s guilt more plausible;

–          attempts to post date by two days the Police’s knowledge of the killings;

–          attempts to discredit the finding that commandos were involved by denying the commandos ever went out with the Muslim home guard.

The Government’s control of the CoI through the role played by Deputy Solicitor General Kodagoda and the complicity of some of the Commissioners, has allowed the extraordinary attempts at cover up described above to take place as well as an obvious and deliberate failure to pursue questioning and investigation that could implicate the Government.

The conduct of the CoI further degenerated after Dr. Nesiah, then a Commissioner, was forced out by the President supported by the Counsel for the Army Gomin Dayasiri for a perceived conflict of interests. No attention was given to the manifest conflict of interests of other Commissioners:

–          Javid Yusuf with his long term association with the ruling SLFP;

–          Mr. Douglas Premaratne, a former additional solicitor general having close associations with the extremist party, the JHU; or

–          Chairman Udalagama who as a member of the Judicial Services Commission had improperly removed the ACF inquest from the Tamil Mutur Magistrate.

The CoI ceased with a whimper in mid 2009. According to the Chairman, the culprits in the ACF case were not identified because he ‘ran out of funds’. However this admission has not prevented the Government from coercing the family members to sign documents stating that they “agree with the findings of the Commission that the deaths were caused by the LTTE”. Thus it would seem that someone in the Presidential Secretariat has been able to wind up the investigation and attribute responsibility on behalf of the CoI.

The course of the ACF inquiry traces growing state hostility to legal norms, arbitrariness in the use of police powers, and the politicisation of the Attorney General’s office to the point of complicity in crime. Extra judicial methods of dealing with inconvenient witnesses on occasion to the point of murder have become the norm as several witnesses in the ACF and Five Students cases came to know. These developments are not just about the fate of the 17 ACF victims, but about developing attitudes and practices that will determine the fate of the minorities and no doubt, sooner rather than later, that of the Sinhalese population as well. There is no excuse for leaders so obtuse and arrogant as to forget within a generation the bitter lessons of the 1980s.

The case reveals the mindset behind the repression. The State consequently makes itself far more venal than what its ideology attributes to the minorities, as evident during rounds of communal violence. If the trend continues, in the end there will be no standards or laws the citizen and communities could appeal to. Anarchy is complete where truth loses all meaning and the state itself incapable of rationality and foresight.

Rather than marking a return to normality, the end of war appears as just another milestone for those in power. For them, the war and its aftermath remain an opportunity for a return to an ideological agenda that sought the debilitation of minorities, treating them as permanent enemies, purposefully uprooted from lands that had been their home for centuries. Their existence may be tolerated only under the jackboot of the State. The human rights abuses so abundant during the decades of conflict will not simply be forgotten. While those in power continue to suppress the truth, the tragedy continues for those who have suffered these harms. Without public recognition of the truth, including the brutalities inflicted by the LTTE, it will never be possible to build a new course for the Island based on principles of equality, justice and peace. A proper inquiry, revealing the truth behind the ACF killings and the multitude of other human rights abuses is necessary to avoid the further entrenchment of ethnic politics. There is a need for an honest evaluation of the past that can provide a basis for a common future for all Lankans.

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