Prasanna Dahanayake was the security adviser to SLFP’s Presidential candidate Hector Kobbekaduwa in 1982. Mr. Dahanayake hailed from one of the most illustrious families in the South, and was a nephew of the great Wijayananda Dahanayake. Soon after the defeat of Mr. Kobbekaduwa, Prasanna Dahanayake went to Galle to discuss certain matters with important political personalities now in the opposition. Later he was arrested by the CID for plotting to overthrow the J.R. Jayewardene government. CID chief Tyrrel Gunathillake himself personally instructed one of the senior officers to arrest Mr. Prasanna Dahanayake.
Mr. Dahanayake was brought to the CID. He was surrounded by the most experienced interrogators and detectives of this country. He was senior in rank to most of the police officers who were getting ready to grill him. The officers knew that Mr. Dahanayake was a respected soldier and had been commended several times for gallantry and bravery. But he refused to even sit on the chair that was provided by the CID. Instead he sat on the floor and said “in the eyes of you gentleman I am a criminal or a suspect or even a terrorist, therefore I will sit on the ground and you can ask me questions seated around me. “
Then every one started firing questions and questions. He told them “I will not make any statement or even open my mouth to answer your questions unless you tell me the charges against me. He said “I want to know who has implicated me and what statements have those witnesses made to the CID.” The CID was nonplussed. They knew that they had met their Waterloo. As usual the CID has arrested him on some bogus information supplied to them by one of his detractors.
Various officers tried various methods, but Prasanna Dahanayake refused to answer. Someone told them that his nephew was the singer Morris Dahanayake who was in the forefront of the artistes guild that went round the country in support of J.R. Jayewardene’s Dharmista regime. He was very close to the President himself. They convinced Morris Dahanayake that if Prasanna made a statement, he would be released without any delay. They impressed upon Morris Dahanayake that there was some evidence against Prasanna Dahanayake which may not be true, but that it was extremely necessary for the CID to investigate what he was doing on a particular day at a particular place and other circumstances in the past as the chief security adviser of Mr. Kobbekaduwa.
Morris Dahanayake was brought to the CID. He tried to convince Mr. Dahanayake on the importance of making a statement. He refused to talk to him. Then they brought his brother Ranjith Dahanayake and finally the Great Old Man from Galle Wijayananda Dahanayake. Wijayananda Dahanayake told Prasanna, “Dear son, I was brought manacled from Bibile to the highest court of the land without any evidence against me but still I made a statement.”
He told the wise old man “That may be during your time uncle, but now I have been arrested by the J.R’s government under the Emergency Regulations; Even Jack the Ripper is entitled to know what the charges are against him,” and smiled at him.
Since the promulgation of the Public Security Act and the dreaded Emergency Regulations, the CID has interrogated thousands of suspects, kept them under detention and later released them when they found no evidence.
But in the history of the CID it has never come across a suspect like Prasanna Dahanayake, who stood his guns without even the advice of lawyers and refused to answer or make a statement unless he was informed without any ambiguity what the charges were and the statements that buttressed such charges. It has been the experience of the CID that the suspects sometimes make long statements unnecessarily implicating their associates, or talking of their association with others, and then the others are arrested and the Police use the method of using a statement alleged to have been made by a close friend of his, implicating the suspect. Though there is no statement like that in existence, the suspects under intense interrogation sometimes make statements angrily against those who had falsely implicating them.
Prasanna Dahanayake was perhaps the first person to defy the CID, and he refused to make a statement as he knew very well that he was not involved in the alleged Naxalite coup or any other attempt to assassinate the President or to overthrow the Government illegally. His only offence was to be the chief security adviser to the losing Presidential candidate. If the Presidential candidate had won, he would have been the Secretary to the Ministry of Defence or the Deputy Minister of Defence. He loyally served his master. He helped his master to democratically fight the regime of J.R. Jayewardene, but fate decreed that Hector Kobbekaduwa should lose. If he made any statement without a charge or any material against him even Hector Kobbekaduwa would have been arrested and kept under detention.
The CID, and its head Tyrrel Gunathillake, were so upset that they consulted the then Attorney General, Sunil de Silva. Mr. de Silva knew that there was no way in which he or his department could justify the detention of Mr. Dahanayake. He was released unconditionally.
Sirisena Cooray was arrested on the June 16, 1997. Mr. Cooray though not a lawyer immediately asked the detectives why they were trying to arrest him, and what the charges against him are.
SSP Sisira Mendis who has been in charge of the LTTE terrorist activities, and other officers said they did not know or they could not explain to Mr. Cooray what the charges were. They were sent to Lake Road merely to carry out the instructions of the Secretary, Defence, i.e. to take Mr. Cooray into custody and place him on detention at Keppetipola Mawatha.
It is known from various statements that appeared in the newspapers up to the time of writing this article that the state has failed to give reasons for his arrest, the charges on which he was arrested or the evidence against him for such an arrest.
One Vijayam Wimalenthiran was arrested on February 8, 1994 and it was alleged that he was kept in a house which belonged to the Army Intelligence Unit situated behind the British High Commission, close to the sea beach. He was like Mr. Cooray detained under Regulation 17 (1) of the Emergency Regulations. The State contended that
(1) he was one of the members of a suicide squad directed by the LTTE to assassinate President Ranasinghe Premadasa,
(2) he was closely associated with three groups of persons who had been entrusted with the task of assassinating the President, (3) he had collected and supplied information relating to the movements of President Premadasa,
(4) he had been introduced to other LTTE cadres including Babu who has been assigned the task of assassinating the President.
To any ordinary person, the reasons attributed for the detention of Wimalenthiran by the CID would seem to be more than justified. Here was a person who had been directly linked with the assassination of the President of this country. Having interrogated him the CID found sufficient information to link him to the heinous crime that took place after his arrest. He was not only a member of the most ruthless terrorist organisation in the world, but he has also been a close associate of Babu, the suicide bomber.
Emergency Regulations have been promulgated to detain such terrorists and to protect the State and the innocent people of this country.
No one ever wrote a single column about the detention of Wimalenthiran, saying that he was arrested and remanded for purely political reasons. The majority of the Sinhalese people could not be bothered whether his detention was just or not.
Perhaps only one indefatigable lawyer called Appadurai Vinayagamoorthy raised a voice. Mr. Vinayagamoorthy was one of those lawyers dedicated to the protection of the fundamental rights of Tamil detenues. He has filed hundreds of cases in respect of Tamils who had been detained at various detention camps on suspicion of terrorist activities. Mr. Vinayagamoorthy visited almost all detenation camps at his own expense, met the detenues and filed applications on their behalf.
Mr. Vinayagamoorthy received some information about Wimalenthiran but did not know where he had been detained. His search was of no avail. Later he filed a petition under his own name on behalf of Wimalenthiran and got at another tireless fighter for the protection of human rights in Sri Lanka, R.K.W. Goonasekera. He was the counsel who appeared for and on behalf of Vinayagamoorthy. The Supreme Court directed that the Human Rights Task Force created and commissioned by the late Ranasinghe Premadasa himself, should inquire and report on the arrest and detention of Wimalenthiran. The Human Rights Task Force stated that the Army Intelligence Unit has not been able to give a plausible explanation for the arrest and detention of the suspect.
The Supreme Court bench comprising Justice A.R.B. Amerasinghe, Justice Wijetunga and Justice Ananda Coomaraswamy said Article 13 (1) of the Constitution provided that no person shall be arrested except according to procedure established by law. It also held that in deciding whether the arrest was in accordance with procedure established by law, the matter in issue is not what subsequent investigations may have revealed, but whether at the time of the arrest the person was committing an offence, or that there were reasonable grounds for suspecting that the person arrested was concerned or in or had committed an offence.
When Sgt. Gunadasa of the Army arrested Wimalenthiran at a checkpoint he had no notion or evidence or other material that he was either committing an offence or had any information that the person he was arresting had committed any offence. Sgt. Gunadasa may have taken this person into custody because he could not give a reasonable explanation to the satisfaction of the Sgt., or like in other arrests, the arresting officer may not have liked the face of the suspect, or like in the case of Prasanna Dahanayake, they must have received some information which on paper may have shown that he was a person who may have had some previous connections with a political party, or like in the case of Vijaya Kumaratunga the Government may have taken pains to record statements of the kith and kin of the Bandaranaikes of involvement in an imaginary Naxalite plot which was hatched in the minds of some politicians who wanted to keep Vijaya Kumaratunga in custody.
Vijaya Kumaratunga was a pain to the feudal aristocracy and the families that ruled Sri Lanka. Unlike President Premadasa he made no attempt to conceal his humble beginnings. He was proud to be associated with a non-Govigama caste and he spoke with a feeling for the masses of this country, who had been continuously suppressed and oppressed by the rulers, so that it was more than necessary to restrain a person who was a junior and a novice to politics and took upon himself to challenge the might of the UNP and one of its great statesmen J.R. Jayewardene.
Hector Kobbekaduwa was only a figure head, Vijaya Kumaratunga was the life and blood and spirit of the political campaign. The entire UNP ganged up against him from entering Parliament. In the Mahara by-election he narrowly escaped an assassination because a loyal supporter intervened and got himself killed. The Naxalite plot was hatched by the UNP, SLFP and some members of his own political party to keep him detained for absolutely no reason. J.R. Jayewardene’s most trusted Senior DIG Tyrrel Gunathillake was entrusted to look into the Naxalite plot. He was advised by no less a person than Daya Perera, President’s Counsel. Those who were closely connected to Vijaya made statements running into thirty, forty pages. Detention under Regulation 17 was made only after the UNP Government recorded more than 100 statements implicating Vijaya Kumaratunga with the conspiracy to overthrow the legally elected Government now known as the Naxalite Coup.
But in the case of Wimalenthiran like many Tamil people who had been arrested by groups of armed men in military or civilian dress blindfolded and taken to secret places of detention. It was later admitted that Wimalenthiran was detained at Army Camp, Panagoda in pursuance of a Detention Order issued under Regulation 17 (1).
Justice Amerasinghe in his landmark judgement states, that detention orders issued under Regulation 17 on the 29th of October, 1993 and the 8th of April, 1994 failed to give reasons for the detention: they merely state that ‘being of opinion and with a view to preventing a person specified and residing at the place mentioned in Column one of the schedule to this order acting in any manner prejudicial to the National security or to the maintenance of public order, it is necessary so to do’ the person concerned.... whether a person is arrested under Regulation 18 (1) or ordered to be detained under Regulation 17 (1) he or she must be given grounds; the material facts and particulars for his arrest and detention is only when a person has such information that he or she will have the opportunity to rebut the suspicion entertained by the person making the arrest. It is only when a person has such information that he or she will have the opportunity to rebut the suspicion entertained by the person making the arrest or show that there was some mistake as to identity. In failing to state the grounds of arrest and detention Wimalenthiran’s fundamental rights guaranteed by Article 13 of the Constitution were violated.
Justice Amerasinghe further issued a word of caution to the Secretary to the Ministry of Defence ‘The Supreme Court has on more than one occasion reminded The Secretary to the Ministry of Defence that he should be able to state that he himself came to form the opinion, and that the Secretary should not be acting in conformity to the requirements of Regulation 17 (1) by acting mechanically as a rubber stamp at the behest of the Police and signing detention orders without exercising his personal judgement in each case. I am of the view that in the absence of material to establish that the Secretary was ‘satisfied’ and in the absence of even a statement to the effect that he was satisfied set out in an affidavit, that the Secretary was not in fact ‘satisfied’ and that he had acted mechanically in issuing the detention orders.
Another important aspect in Justice Amerasinghe’s judgement is whether the State can invoke the powers vested in the Secretary Defence by taking any person against whom there is no allegation of any offence being committed and detain him and investigate him on real or imaginary offences he may have committed or intending committing in the future. “In deciding whether the arrest was in accordance with ‘procedure established by law’, the matter in issue is not what subsequent investigations may have revealed but whether at the time of arrest the person was committing an offence, or that there were reasonable grounds for suspecting that the person arrested was concerned in or had committed an offence.” ‘The suspicion of Sgt. Gunadasa and his fervent hope, and or even confident and honest assumption that some evidence may eventually turn up to make his suspicions appear to be reasonable was not sufficient’.
One of the most important and salient observations made by Justice Amerasinghe in his judgement in protecting the fundamental freedoms of you and me so that you and me will not be detained at the whims and fancies of Police Officers, Army Officers and now politicians is amply demonstrated in this judgement. ‘In order to prevent or minimise ‘disappearances or abuses’ it is of paramount importance that the requirements laid down by the regulations should be strictly observed. They were not intended for merely cosmetic purposes, but for the sake of fulfilling the basic obligations of the state to ensure the personal security and liberty of all persons.’
Mr. Choksy in his submissions in Mr. Sirisena Cooray’s case, stated that the detention order issued by the Secretary Defence is ab-initio void as Regulation 17 of the Emergency Regulation has been amended and has now included additional safeguards to prevent abuse by the Executive that the Secretary Defence must satisfy on the material available to him for the detention of the suspect has been made after having considered the material before him and being satisfied that the detention is necessary.
We have repeatedly stated in our columns that the Supreme Court is the only institution that guarantees our freedom from the misuse and abuse of executive power. The Supreme Court was not overawed by the fact that Wimalenthiran was one of the close associates of Babu who was the assassin of President Premadasa. The Supreme Court found that the detention of Wimalenthiran was a violation of his fundamental rights. We have lawyers of the calibre of Vinayagamoorty who would move from one place of detention to another and file papers in order to obtain the release of Tamils who are detained illegally for allegations that they are involved with the LTTE. Then we have lawyers of the calibre of Mr. R.K.W. Goonasekera who would support these applications for an unattractive fee or no fee for the preservation of the dignity of the human being.
Like in Singapore and in Korea all politicians would love to see their political opponents in detention. But it has been proved in Sri Lanka and in the world that prosecution and persecution make martyrs and heroes of them. D.S. Senanayake, Dr. N.M. Perera, Dr. Colvin R. De Silva, Vijaya Kumaratunga, Mahatma Gandhi, and Nelson Mandela are some of the names that come to my mind. It is the detention of a politician even without a cause, and the abuse of executive power that make such a person a hero in the eyes of the public.
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