Following excerpts adapted from the author’s most recent book, The Use of Confessionary Evidence under the Counter-Terrorism Laws of Sri Lanka
by Visakesa Chandrasekaram
( February 14, 2017, Canberra, Sri Lanka Guardian) The Liberation Tigers of Tamil Eelam (LTTE), also known as the ‘Tamil Tigers’, had been engaged in war with the Government of Sri Lanka for nearly three decades. During this time, the government has been fighting a legal battle using counter-terrorism laws to punish the Tigers in the courts. Among other unprecedented measures, these laws have allowed the prosecutors to submit as evidence in courts confessions supposedly given by the Tamil Tigers. This legal war can be defined as a mass prosecution strategy, because thousands of Tamil Tiger suspects have been prosecuted on the basis of confessionary evidence. The key elements of this mass prosecution strategy are: (a) arbitrary arrest and indefinite detention of large numbers of suspects until the conclusion of their trials, (b) the use of confessions recorded by police officers as sole evidence, and (c) the transfer of the burden of proof onto the accused to disprove the voluntariness of their confessions. By adopting these draconian measures, the state has made exceptions to ordinary law in order to combat terrorism, bureaucratising certain parts of the criminal justice system by giving discretionary powers to public officers to arrest, detain, interrogate and prosecute suspects.[i] This research presents the proposition that the elements of the mass prosecution strategy suppress the rule of law, justice, truth and human rights; therefore, this strategy substantiates the claims of the discrimination, persecution and unjust punishment of suspected terrorists in Sri Lanka.[ii] By posing the question, ‘Do Tigers confess?’, this project intends to establish the validity or otherwise of the Tigers’ confessions, by investigating them from a range of viewpoints within the broader context of the war against terrorism,[iii] posing a number of questions: What attributes of the LTTE military subculture either support or dispute the fact that Tigers have confessed en masse? Can the authenticity of these confessions be determined by linguistic and narrative analysis methods? How have the state’s agents enforced the counter-terrorism measures among the suspect population, and how do such measures impact on individual suspects? What are the possibilities and limits of a fair hearing for Tigers from the judiciary in Sri Lanka?
The civil war in Sri Lanka has often been named a ‘terrorist crisis’, such that a segment of the Tamil population is seen to be fighting the democratically elected government to compel it to yield to a separate fascist state. In contrast, others interpret the war as a rebellion of the oppressed minority Tamils against the hegemony of the Sinhalese majority.[iv] Regardless of these contradictory interpretations, we can observe two primary dimensions to this conflict: ‘the war of the terrorists’, by which a group of dissenters challenges the authority of the sovereign state; and ‘the war against terrorism’, by which the state attempts to reinforce its authority and regain control over the dissenters. While this research project is premised on these two basic perspectives on the conflict, the discussion will be extended to cover other areas: the past and present political animosity between the Tamil and Sinhalese ethnic groups, revenge rhetoric, war legends, Sri Lankan military agencies, liberationist ideologies, the influence of religion, the institutionalisation of violence, and the approach taken by the judiciary in ensuring justice. Narratives of the war—that is, the official accounts narrated both by the agents of the state and by the terrorists[v] during the course of the war—are chosen as the primary focus in exploring these themes. These ‘narratives’ are varied, but the more visible among them include: propaganda videos, war memorial speeches, victory parades, military rituals, police statements, and enactments of judicial proceedings. While considering all of these elements, this research will focus primarily on the terrorist’s ‘confession’, which carries the imprimatur of the Tamil Tigers’ culpability within the state’s narrative of the war against terrorism, and which has thus become a powerful weapon in the hands of the Sri Lankan state.
In determining the degrees of legality, truth and justice in relation to judging the confessions of Tigers, it is important to recognise the official narratives of the Tamil Tigers. This is needed in particular because the legal war against terrorism is a part of the state’s much larger military and political agenda in relation to terrorism. In response, the Tigers have constructed a range of official narratives to inform their political ideology and build the moral strength of their followers to fight the state. The Tigers’ official narratives of the war predominantly take the form of a highly aggressive and belligerent voice that is, not surprisingly, in sharp contrast to the abject voices heard in the confessions. In 1983, in the very early stages of their guerrilla warfare, the Tigers roared: ‘You cannot find and identify us, since we are everywhere, immersed with the sea of masses, or rather, we are the people’.[vi] The Tigers’ propaganda narratives have asserted their willingness to die for their goals. As their supreme leader, Mr. Velupillai Prabhakaran, avowed, ‘We will fight till we die. When I die, someone else will take over […] If my generation dies without attaining freedom, the next generation will join the struggle’.[vii]
The Government of Sri Lanka responded to this aggression with a strategy that combined military and legal measures, the latter of which included the counter-terrorism laws that allow confessionary evidence. Therefore confessions can be identified as the official narratives of the state because of the extent of the state’s authority exercised by the state agents who record and hear these confessions: the police who record the confessions, the prosecutors who file the charges and the judges who hear the cases based on confessionary evidence. Most importantly, the confession has become a powerful instrument that helps the state compensate for battleground losses and stalemates. By using confessionary evidence, the state has gained the upper hand by convicting Tamil Tigers and thereby claiming victory in the legal war.
On 26 October 1994, Sellapulle Mahendran, a 20-year-old Tamil Tiger suspect, was served with an indictment at the Colombo High Court. The charges against Sellapulle included conspiracy, receiving military training from the LTTE, taking part in military assaults against the government forces and abducting police officers. The only evidence submitted against the accused was his confession, which was typed in Sinhalese and attached to the indictment. In his confession, Sellapulle says:
While living like this the LTTE was recruiting members from my village and other adjacent villages. Later, I went to the LTTE office at Vandaramullai to join the LTTE. I met Vengan, the local leader, and gave my personal information to him. I stayed there and later went for training at Pondukalchenai camp. There were about 250 young men receiving training. First I received physical training and then training in arms and battle tactics. There, I also received training in using SLR, SMG, G3, M-70 weapons and hand grenades. At the end of this training, I was given the nickname Sujee and I was told that my membership number is 514. Also all those who have received our training were called Batticaloa 12. First of all five of us including myself were sent to the camp in Kiran village. A person called Ruban held the leadership there. Here I received an M-70 type weapon, a magazine with ammunition and a cyanide capsule. Meanwhile, in 1990 the LTTE movement captured several police stations in Batticaloa. I too participated in that event.[viii]
During the trial, the accused unsuccessfully challenged the confession on various grounds. Based on this confession, on 24 July 1995 Sellapulle was found guilty of committing all the offences outlined in the indictment and sentenced to rigorous imprisonment for life. The accused appealed to the Court of Appeal and then to the Supreme Court, the highest appellate court in Sri Lanka, where the judgement of the High Court was affirmed, resulting in a reduction of the sentence. Sellapulle was moved to a high-security division of a prison in Colombo to serve his sentence alongside many other convicted Tamil Tigers. When the author met Sellapulle in prison, Sellapulle narrated a story which was entirely different to that presented in his so-called confession:
I did not give a confession […] After I was arrested, I was taken to Kommadurei army camp and then transferred to the Criminal Investigation Department at Batticaloa, where I was tortured heavily. They typed a document in Sinhalese language and asked me to sign. I can’t write, so I placed my thumb impression on the papers. Only when they served me with the indictment, I learnt about the content of my confession. It is false. The Eravur police station was not attacked in 1990 as it was said in my confession. It was covered with bushes because it had already been abandoned by the police long ago.[ix]
Although it is not surprising to find two contradictory versions of events in an adversarial system of criminal justice, the contradictory narratives seen in the case of Tamil Tigers’ confessions constitute a problem of enough significance to invite an enquiry because of the large number of confessions involved. Under the government’s mass prosecution strategy, thousands of Tamils have been prosecuted.[x] There are several problems inherent to the mass prosecution strategy which need to be acknowledged. First, the sheer volume of confessionary evidence gathered by the Sri Lankan state in relation to this war poses questions, doubts and suspicions about the credibility, fairness, and legality of recording them. Why would someone incriminate him/herself by voluntarily confessing? What could be leading Tamils to give confessions on such a large scale? Second, except in cases where there has been a plea-bargaining arrangement, all the accused Tamils have denied having given a confession, whether voluntarily or involuntarily. Why would all the confessors retract their confessions, thus challenging their self-incriminating evidence in courts? Third, unlike Sellapulle, a majority of the accused Tamils have been successful in challenging the confessionary evidence and securing acquittals. Why would the courts reject most of these confessions?
[i] The suspension of a judicial order by removing judicial ‘oversight’ from policing results in a ‘state of exception’. On this point, Agamben says: ‘In every case, the state of exception marks a threshold at which logic and praxis blur with each other and a pure violence without logos claims to realise an enunciation without any real reference’. See Agamben, State of Exception, pp. 3, 51.
[ii] Manoharan claims that ‘Sri Lankan courts failed to check the repressive character of the country’s counter-terrorism laws’. See Manoharan, Counterterrorism Legislation in Sri Lanka, p. 42.
[iii] The term ‘validity’ in relation to confessions is used here to refer to establishing the legality, truth and justness of the processes and outcomes of using confessionary evidence.
[iv] See Ratnatunga, Politics of Terrorism; and De Silva, ‘The Solution’, p. 6. These writers argue that the conflict in Sri Lanka is purely a matter of ‘terrorism’ and Tamils have no specific grievances. Contrasting views are presented in Uyangoda, Questions of Sri Lanka’s Minority Rights, and Somasundaram, Scarred Minds.
[v] The term ‘terrorist’ is used to connote the rebel fighter who defies the authority of the state, and this term is used for the purpose of positioning the rebel against the state’s authority in the counter-terrorism discourse.
[vi] Swamy, Inside an Exclusive Mind, p. 76.
[vii] Ibid., p. 130, quoting Prabhakaran responding to pressure to take part in the Thimpu talks in 1985.
[viii] The confessions were written in Sinhalese and translated into English by the author. All confessionary statements in this research, including Sellapulle’s confession, are presented as verbatim translations from Sinhalese into English. The number of sentences in the original confession have not been changed in order to maintain the original narrative structure. Certain idiosyncratic phrases, grammatical constructions and punctuation, including those that may appear as typographical errors or spelling or grammatical mistakes, have been reproduced in these verbatim translations. The author’s comments are provided in square brackets, and the signatures or handwritten notes of the confession are provided in italic font. See the complete confessions in the Appendix.
[ix] Field interviews, Colombo (June 2007).
[x] There are no statistics available on the exact number of Tamils who have been arrested since the adoption of the Prevention of Terrorism (Temporary Provisions) Act 1979 or on the number of suspects who have been prosecuted on the basis of confessionary evidence. During the field observations (conducted in 2007), it was noted that approximately 1000 Tamil Tiger suspects were held in detention (Kalutara prison, Colombo remand prison, Colombo Magazine prison, Boosa detention centre) while being prosecuted or pending prosecution at any given time, except during long-term ceasefire agreements. This calculation was affirmed by the Tamil newspapers, which from time to time have reported that around 1000 suspects were officially held in detention pending trials. This calculation was further affirmed in a study conducted by the Movement for International Racial Justice and Equity in Sri Lanka. See Bastiampillai et al., Prevention of Terrorism Act, p. 291. According to the archival research and field interviews that the author has conducted, less than 10 per cent of suspects have been convicted using confessionary evidence. According to some news reports, including by the British Broadcasting Corporation (BBC), when the Tigers were defeated in May 2009, the security forces arrested approximately 10,000 Tamils. The Minister of Justice announced that as of October 2015, approximately 270 detainees were held in prison pending trial while 12,000 were released after ‘rehabilitating. See Rubathesan, ‘Govt. assures fasting prisoners justice’.