Commissions that come to nought

The following is an abridged version of Kishali Pinto Jayewardena’s Sunday Times column titled ‘After the sensationalism, what next? Commissions that come to nought’. It was published on January 11, 1998:

Out of the rash of commission reports that have inundated the public in recent times, the Athulathmudali assassination commission report could perhaps be classed in a category quite of its own. Stories of treachery and betrayal, truly horrific accounts of underworld doings and grisly details of killings, rapes and murders all jostle each other in the colourful language of a gripping John Le Carre.

One has to forcibly remind oneself of the fact that it relates to actual events, that Lalith Athulathmudali was really murdered, and that this report is an investigation into that murder.

The Kirulapone meeting site where the assassin fatally wounded Mr. Athualathmudali

The report, comprising all of 453 pages, was handed over to President Chandrika Kumaratunga in October 1997. Former President Ranasinghe Premadasa was implicated in the assassination, the imposition of civic disabilities was recommended on his ‘political confidant’, former UNP Minister Sirisena Cooray. An assortment of strange characters with stranger names were recommended indictment under the Penal Code for carrying out the act. A number of senior police officers were also put on the mat and the IGP was asked to investigate their conduct in handling the murder investigation.

Reading the actual report in full, the reasoning behind these conclusions would run something like this. In a separate section that is subtitled ‘President Ranasinghe Premadasa’ (coming rather ironically after a heading termed ‘ Miscellaneous Matters’), the Commission consisting of former Supreme Court judge Tissa Bandaranayake and High Court judge G.W. Edirisuriya discusses the former president’s culpability.

He had the strongest ‘motive’ to eliminate Athulathmudali. He was badly insulted by the Impeachment motion, his place as head of state was publicly ridiculed and a popular movement against him spearheaded by Athulathmudali was developing. A number of senior policemen had been implicated in both the assassination and the following cover-up by blaming it on the LTTE, with the convenient discovery of a dead body said to be a Tiger in Mugalan Road the day after the murder.

Those engaged in the act of the assassination were infamous members of the underworld, as identified by the Commission. Before that, Athulathmudali was hunted, assaulted and humiliated during his election campaign. The killing was elaborately planned, the need for deception being of paramount importance. The Commission questions as to who could enlist the support of so many all over the country if not Premadasa.

“Without his command, no one would have dared to do something that would rebound on him: but this is something he would be capable of and inclined to repel with all the powers of his office and support of his men if he himself had ordered it,’  the Commission states.

“…all the facts and circumstances taken together point to his guilt and are inconsistent with his innocence… we make no recommendation as he is deceased,” the Commission concludes after examining President Premadasa’s personal and political ‘motives’ for eliminating Athulathmudali.

This is the totality of the evidence implicating the former President. But analysing the above, could these ‘motives’ be taken as circumstantial ‘evidence’ to infer the fact that Premadasa had himself masterminded the killing or that his ‘confidant’ Sirisena Cooray was involved?

Certainly, in terms of strict legal principles, the answer appears to be in the negative. There are dangers in this kind of thinking. This in effect continues to be the main problem with Commissions of Inquiry appointed under the SPC Act. It becomes obvious that radical revision of this law has to take place. The gap between findings that the commissions come to in terms of the Act and the actual law of the land appears to be wide.

Many things that could not be permitted under the latter are allowed under the former, one example of which is the way in which third party statements are believed without those persons themselves coming to testify. All these were reasons why the UN-based Human Rights Committee informed the Government in 1995 that the SPC Act violated international obligations.

B. Sirisena Cooray V. Tissa Dias Bandaranayake and two others 

(1999, 1 Sri LR, 1, Per Dheeraratne, Gunawardana and Weerasekara JJ)

The Supreme Court held inter alia, that the recommendation or the decision of the Special Presidential Commission has the effect of potentially jeopardising the rights of persons. As such, the Commission report is amenable to judicial review.

Per Dheeraratne, J:  “In a democracy, the Commissions cannot be permitted to be a law unto themselves and operate outside the ambit of the Rule of Law. As observed by G.P.S. de Silva. CJ, in Premachandra v. Major Montague Jayawickreme at 102 ‘. . . our Constitution and the system of Government are founded on the Rule of Law; and to prevent the erosion of that foundation is the primary function of an independent judiciary’.

“…The determinations and recommendations of the Commission are flawed firstly as being unreasonable in that the Commissioners did not call their own attention to the relevant matters; secondly, as they are not based on evidence of any probative value; and thirdly because those determinations and recommendations have been reached without giving the petitioner a right of hearing in breach of the principles of natural justice.”Sirisena Cooray V. Tissa Dias Bandaranayake and two others.

Independent lawyers’ report says Scotland Yard merely confirmed predetermined conclusion

The lawyer team was headed by former Ambassador to the UN Daya Perera, PC, former Bar Association President Ranjit Abeysuriya PC, Lakshman Kadirgamar PC and S.L. Gunasekera MP.

Extracts of their report.

The alleged assassin's body was found at Mugalan Road. Eyewitnesses said he was shot in the chest by Mr. Athulathmudali's guards, but there were no gunshot wounds

Mr. Athulathmudali was shot by an unknown assassin at about 8.45 pm and he died 1 1/2 hours later. It is clear that the New Scotland Yard (NSY) was commissioned because of the political implications of the murder. The NSY report itself refers to an immediate backlash to the murder by anti-Government supporters accusing President Premadasa, his supporters and the Police of complicity and a cover-up.

The NSY report starts off on the wrong footing stating that it was summoned to dispel the popular suspicion that the Government was involved in the murder rather than to find out the truth.

President Premadasa had withdrawn Mr. Athulathmudali’s security despite him being a former National Security Minister. During the political meeting which was addressed by Mr. Athulathmudali, the town of Kirulaponne had street lights but there were no lights in the vicinity of the grounds where the meeting was held. The OIC of the Kirulaponne police station has told the press that he had orders from a senior officer not to provide security for the meeting. The OIC was transferred soon after he made that comment to the press. The OIC denied such orders had been given, but later a police spokesman admitted that an investigation is underway into the OIC’s remarks.

Eyewitnesses had seen the assassin shoot Mr. Athulathmudali and receive gunshot injuries from Mr. Athulathmudali’s personal bodyguard. The assassin had fallen down but got up again and run into the darkness. The following morning, the Kirulaponne Police reported the body of a youth found on Mugalan Road, a road just 200years from the scene of the murder (despite a police search party immediately after the shooting not finding such a body the previous night).

At the inquest that followed, Police referred to an Identity Card that was found near the body. But this evidence was produced before the magistrate later. The NSY report says the ID was a “valuable clue”. Examination of this ID card later in London proved it to be a forgery. Furthermore, the NSY report says nothing about three discrepancies in the Police evidence regarding a set of keys, firearms and the type of grenade found next to the body.

The experts ask why the NSY took seriously the ‘rumour’ that they had been hired ten days before Mr. Athulathmudali was murdered, so much as to contradict such rumour as being “unfounded”. It says the ‘background information’ on Mr. Athulathmudali in the NSY report was seriously flawed.

It questions the NSY report finding dismissing the eyewitnesses to the shooting saying that the assassin was shot in the chest and bleeding from the chest, while the body found down Mugalan Road had no such injuries and confirming that Ragunathan alias Appiah Balasingham was the assassin and rejects as rumour that it was somebody else’s body that was left down Mugalan Road.

There is a contradiction in the NSY report that refers to eyewitness reports given to the Police after the shooting – it says “fairly accurate” on page 6 of the report, and on page 7 it says they were “misleading”.

The experts say that the NSY report infers the LTTE was behind the murder, but does not provide any evidence to provide a link between the assassin they claim to be the assassin and the LTTE.

In a parting shot at the NSY, the experts say that the New Scotland Yard is not what it used to be, and their report on the assassination of Mr. Athulathmudali “leaves us none the wiser about the murder”

Scotland Yard Report on the Lalith Athulathmudali Assassination

Scotland Yard reported to the then-appointed D.B. Wijethunga government that they had found a minute trace of cyanide in Ragunathan’s blood sample which they had taken at a second postmortem examination of the youth. Concluding their investigation, detective superintendent Alec Edwards of the Investigation and Crime Branch of New Scotland Yard forwarded an updated report to the government.

The findings of Scotland Yard included the following:

• The person now known to be Ragunathan, alias Appaiah Balakrishnan, shot and killed Athulathmudali and was later found dead at scene 2.
• Seriously injured and fearing imminent capture, he undoubtedly took his life by way of cyanide poisoning.
• There was no evidence, direct or circumstantial, to support the allegation that this tragedy was orchestrated by or in any way linked to the Sri Lankan Government, UNP members or other official agencies, including the police.
• An analytical study of the LTTE’s modus operandi showed that this act was in total concert with their current subversive activities.

An article titled EXPORT OR PERISH on the former Minister’s vision sent in by the Lalith Athulathmudali Trust appears