Differential treatment for Tamil and Sinhala terrorists


There was quite a flutter last week about possible plans by certain elements in the north to commemorate the LTTE ‘Heroes Day’ which used to be marked on November 26 every year. The government’s stand was that no commemoration of LTTE terrorists could be allowed in Sri Lanka. We have to admit that there is an inherent contradiction when the Tamil terrorists are not allowed to commemorate their dead while the Sinhala terrorists are free to do so. The JVP has been commemorating their dead not just once, but twice a year in April and November and nobody opposes that. This kind of contradiction makes it easy to portray Sri Lanka as a Sinhala-centric nation where Tamils are treated differently. But we all know that this is not so. The armed forces of Sri Lanka wiped out Sinhala terrorism in much the same way that Tamil terrorism was dealt with, and to the military a terrorist is a terrorist whatever his ethnicity.

Some time ago, the Colombo Telegraph put forward the argument that the JVP leader Rohana Wijeweera’s family was still alive while Prabhakaran’s family was dead because the former was a Sinhalese while the latter was a Tamil. That may not be a fair portrayal of the situation. Rohana Wijeweera was not arrested in a battlefield, he was arrested while he was at home with his family living under an assumed name. Prabhakaran however was never arrested and he died fighting and his two elder children were terrorists just like himself.  Prebhakaran and his family died in a battlefield the likes of which even a Hollywood movie would be hard put to recreate - a battlefield truly befitting the final moments of the organization designated by the FBI in 2008, as the world’s deadliest terrorist organization.

So it is not fair to draw any conclusion from the fact that Wijeweera’s family is still alive while Prabhakaran’s family is dead. Kumaran Pathmanathan, who was arrested in similar circumstances to Wijeweera, is alive and well. To this day Wijeweera’s family is being cared for by the Navy. Everything that the Navy gets, they get. Many years ago, Dr Chandra Fernando, Wijeweera’s brother in law, wanted to take his sister to England; but she refused to go and continued to stay with the Navy.  Next to Osama Bin Laden, Wijeweera was the most fecund terrorist leader in recent history, fathering six children – adding to the population while his cadres were busy reducing it – and bringing up six children in Britain would have been no easy task. In Sri Lanka however, the Wijeweera family does not have to buy even a pillow case – all that is provided by the Navy. In the future when Mrs Wijeweera is old and feeble, even her diapers will be provided by the Navy. We have to be grateful that Prabhakaran did not allow his family to surrender otherwise they too would have become a burden on the state!

The Sinhala terrorists were no less terrorists than the Tamil terrorists. In fact the Sinhala terrorists killed in 30 months more Sinhala civilians than the Tamil terrorists killed in 30 years. While Tamil terrorists did kill Sinhala civilians in many massacres, they killed more soldiers than Sinhala civilians. Despite this, the Sinhala terrorists are free to commemorate their fallen comrades and even to portray these terrorists as ‘innocent victims’ of state repression. Why then aren’t the Tamil terrorists allowed to do the same? The only argument that can be proffered in this regard is that in the case of the JVP, what was objectionable was the terrorism and not their political goal. The political goal of the JVP was to build a socialist state. What they did wrong was to use terrorism to achieve that goal. In contrast, both the political goal as well as the terrorism of the LTTE was objectionable. Their political goal was a separate Tamil state which is not acceptable even if peaceful means are used to achieve it. On that basis perhaps one could argue that the Tamils should not be allowed to commemorate the LTTE dead because that would amount to a promotion of separatist sentiments.

The JVP had to lie low after the 1971 insurgency until the SLFP government changed in 1977 after which they commemorated their heroes on an annual basis. Similarly, after their second insurrection in the late 1980s, the JVP lay low till the UNP government was voted out of power in 1994 and they have been commemorating their fallen terrorists comrades since then. On this basis, one may argue that that the LTTE remnants will have to wait until the Rajapaksa government is voted out of power to start commemorating fallen Tamil terrorists. But it is unlikely that even a different government will allow the fallen LTTE terrorists to be commemorated. If a UNP government is elected to power a few years hence and the TNA along with the LTTE remnants start commemorating their dead, that will cause a crisis of public confidence for the new UNP government and they may be compelled to suppress attempts to commemorate the LTTE dead even more assiduously than the Rajapaksa government.

But every year in November, this issue of commemorating fallen Tamil terrorists will become a political issue in the backdrop where the JVP will be seen commemorating Wijeweera without any obstruction in the same month.   Moreover, the commemoration may take place despite the government ban, in subtle ways. This year, according to the Lankadeepa, the Northern Province chief minister had a tree planting campaign to coincide with heroes day. So with each passing year, banning the commemoration of the LTTE is going to become an increasingly difficult task.

What the UNP taught the Govt.

But the government can use a powerful new political tool that the main opposition party, the UNP, introduced to the Sri Lankan public just last week. For quite some time, this writer has (as have many others) watched with alarm the constitutional manipulation going on within the UNP.  Last week, the UNP stepped outside the bounds of the party constitution and ventured into the manipulation of the general law of the land to suit their political purposes. This is the pre-emptive use of section 81 of the Criminal Procedure Code to stop what they don’t like before it happens. Section 81 of the Code of Criminal Procedure Act No: 15 of 1979 goes as follows.

"81. Whenever a Magistrate receives information that any person is likely to commit a breach of the peace or to do any wrongful act that may probably occasion a breach of the peace within the local limits of the jurisdiction of the court of such Magistrate, or that there is within such limits a person who is likely to commit a breach of the peace or do any wrongful act as aforesaid in any place beyond such limits the Magistrate may in manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period not exceeding two years as the court thinks fit to fix."

The UNP has invoked this provision to prevent certain things that they don’t like from being said by a private media organization. By invoking this provision, they have opened up a whole new Pandora’s Box. One never knows how things will work out in the future. If the UNP can use this to prevent things from being said about them, the government also can use it for the same purpose. Even though no magistrate has yet given the UNP a ruling under this provision, by the mere initiation of court proceedings under Section 81, a precedent has been set and the die is cast. We will have to live with the consequences whichever way they play out at the end.  The misuse of the criminal defamation law during the Chandrika Kumaratunga years, led to calls for the abolishing of that law. The criminal defamation law was easy to abolish. What everybody referred to as the criminal defamation law was just Section 118 of the Penal Code which went as follows:

"118. Whoever by means of any contumacious, insulting or disparaging words whether spoken or intended to be read or by signs or visible representations shall attempt to bring the state into contempt, shall be punishable with simple imprisonment for a period which may extend to two years, and shall also be liable to a fine."

Section 15 of the Sri Lanka Press Council Act No: 5 of 1973 had similar provisions and this together with Section 118 of the Penal Code mentioned above, made up the feared ‘criminal defamation law’. The UNP abolished this piece of legislation which had been misused by the Chandrika Kumaratunga government.  However, it is not possible to repeal Section 81 of the Criminal Procedure Code without striking at the very heart of a magistrate’s powers to take pre-emptive action to prevent a breach of the peace. The judiciary, the police and indeed any government in power will never allow section 81 of the Criminal Procedure Code to be done away with.  So it’s here to stay and the new use that the UNP has seen fit to put it to, is also here to stay. We in the media should realize that the old criminal defamation law could be used only if what was said was defamatory.  Moreover it could be applied only after something was said.

But section 81 of the Criminal Procedure Code can be used to suppress something that is perfectly true and non-defamatory, but inconvenient to somebody. Moreover it can be used to pre-emptively blackout an issue before it happens, or just as the first incident happens – on the argument that any further coverage would lead to a disturbance of the peace. Thanks to the UNP, this country now no longer needs censorship. The OIC of a police station appearing before a magistrate will be for example, able to effectively ban the screening of a film like ‘Flying Fish’ island wide on the grounds that it would lead to a breach of the peace. One difference between the old criminal defamation law and Section 81 of the Criminal Procedure Code is that the former can apply even to an individual whereas the latter would always have to involve large numbers of people so as to be able to make the possible breach of the peace a valid argument. But in all political issues there are large numbers of people involved so section 81 will be a very versatile political tool.

If a government uses this precedent set by the UNP judiciously, using Section 81 only when absolutely necessary, without leaving room for anyone to be able to claim that it was being used for all and sundry, it can be a powerful tool to prevent the opposition from making any headway at all. Sooner rather than later, the UNP is going to realize the enormity of what they have done. Now that the precedent has already been set, the government perhaps should look at using Section 81 of the Criminal Procedure Code to deal with this issue of commemorating fallen LTTE terrorists. Rather than using the police and other instruments of the state to suppress the commemoration of LTTE terrorists, strategic individuals such as politicians and media men in the north can be individually bound over by a magistrate to keep the peace (by not commemorating dead separatist terrorists and provoking a reaction among the wider public opposed to separatism).

It will not be difficult to convince any magistrate that the commemoration of fallen LTTE cadres on Sri Lankan soil could lead to a serious breach of the peace.  The government should realize that Article 81 of the Criminal Procedure Code has the potential to become the Sri Lankan equivalent of the Sixteenth Amendment to the Indian constitution which suppressed separatism in that country. This amendment to the Indian constitution sought to suppress separatism by playing on the fear of politicians of losing their seats if they were caught uttering a word in favour of separatism. Likewise in Sri Lanka, once a magistrate binds over an individual to keep the peace, it is unlikely that he would defy the court and risk criminal proceedings against himself which could lead to his unseating.

What the Indian example shows us is that all politicians love their seats, and once a politician is unseated, someone else is going to take their place and getting back in will be a problem. One should remember that in the 1980s the TULF vacated their seats in parliament only because they were sure that no one else was going to occupy those seats. Furthermore, under Section 81 the bond would remain in place for two years after which it can be renewed. It will be difficult for the TNA to object to this, because it is their political ally the UNP, which first started using this provision in the Criminal Procedure Code to control the conduct of their opponents.

animated gif
Processing Request
Please Wait...