Hulftsdorp Hill

5th April 1998

Justice vs commissioners, Jain and others

By Mudliyar

A.G. Noorani, a columnist writing to the Frontline magazine, castigates the Jain Commission, which was appointed to probe the death of Rajiv Gandhi, for having come perilously close to wrecking the Rajiv Gandhi Assassination Trial. Justice M.C. Jain is accused of being used by Sonia Gandhi to malign Rajiv's political opponents.

Commissions of Inquiry are universally condemned by people today, as they have been used by the governments in power as a quasi judicial tool to rebuke political opponents under the cover of a judicial veil.

It is tragic that judges who inspire people as absolutely honourable, independent officers, have come to be viewed differently as commissioners reverse their role and have even unwittingly and unconsciously permitted their political leanings to prevail over truth and justice. Very few judges as commissioners have come unscathed, as the public shred the reports they publish to pieces, and unearth insurmountable evidence, which shows a nexus between the judge and the government appointing authority. This may be the reason that Justice Alles, a retired Supreme Court judge maintains that no Supreme Court judge should become a commissioner.

Justice Milap Chand Jain was a respected chief justice of the Delhi High Court till he was appointed to inquire into the death of Rajiv Gandhi. The prestige and honour the Judge earned as the chief justice suffered when he endeavoured to find whether one person, persons or agencies were responsible for conceiving, preparing and planning the assassination of Rajiv Gandhi, and whether there was any conspiracy in this behalf and, if so, all its ramifications.

He was blinded by the belief that there were others beside the LTTE responsible for the death of Rajiv Gandhi, so that he put forward a conspiracy theory without evidence. The accusers say that this was done in order to politically ruin all those who were responsible for attacking Gandhi when he was living. Mr. Gandhi projected an image of being beyond corruption and was called 'Mr. Clean'.

But his image was somewhat tarnished by the multi-million dollar 'Bofors' scandal.

Mr. Gandhi's mother, Indira Gandhi, planned the invasion of Sri Lanka while the Indian Army's Chief of Staff reckoned that it would take only eight minutes to capture Sri Lanka.

Ms. Gandhi paid dearly with her life for attacking the most sacred place of the Sikh's, the Golden Temple. Mr. Gandhi was not deterred by what his mother did, and wanted Sri Lanka to be a subject race of India until the Tamil question was settled in the manner that he thought was most appropriate for the benefit of India.

Political observers of the time believe that Gandhi was neither interested in the Tamil question nor was he interested in settling it peacefully. The Indian Peace Keeping Force would have had a permanent refuge in Sri Lanka if his Government was not defeated.

Therefore, with this adverse publicity and the fortunes of the Congress Party in the balance it was necessary in the guise of looking into real or imaginary conspirators for the killing of Rajiv Gandhi, to remove the mud and blood that had stuck to Rajiv's image.

It is alleged Justice Jain abdicated the reputation he earned as a former Chief Justice of the Delhi High Court by becoming a political tool of the Congress. He was alleged to have been manoeuvred, like a puppet on a string, by Sonia, the Italian widow of Rajiv Gandhi.

The resultant position was that the LTTE, the prime suspect, and Prabhakaran, the first accused, in the criminal trial nearly escaped being convicted for the murder of Gandhi.

To spread the web of political mud slinging to engulf all enemies of Mr. Gandhi, Justice Jain called a number of witnesses who absolved the LTTE of blame. Several self-seeking conniving witnesses extolled the virtues of the LTTE and strove to prove the innocence of Prabhakaran. The defence who appeared for the LTTE wanted the diary and the investigation records of the 'S.I.T'. and the 'C.B.I'.(the investigating authorities) which were solely responsible for the arraignment of the accused, to be sent to the Jain Commission, and the witnesses who falsely absolved the LTTE to give evidence at the trial.

This is what Mr. Noorani wrote in the Frontline magazine of 20th February, 1998:

"One wonders how many people realise that the successful conclusion of the trial before the designated Court of 26 of persons accused of complicity in the conspiracy to assassinate Rajiv Gandhi was accomplished despite the persistent obstructions of Justice Milap Chand Jain and that politically motivated attempts by the Jain Commission came perilously close to wrecking the trial. Sadly, neither the Supreme Court nor the Delhi High Court cared to intervene. The triumph of justice was due entirely to the integrity and independent spirit of Judges S.M. Siddikk and V. Navaneetham and to the devoted labours of the Special Investigations Team of the Central Bureau of Investigation headed by its Joint Director D.R. Karthikeyan, who showed courage and honesty. Lest this seem exaggerated, just read what Jain said in an order on July 2, 1993 apropos the trial: 'Inquiry by the Commission carried with it greater confidence in the public mind.'

"The wide public satisfaction at the court's verdict, in contrast to the ridicule which the Jain Report aroused, provides sufficient refutation of these remarks. The remarks were however, worse than cheap in their boastfulness. They were dangerous in their implications. For the next sentence read: 'In ordinary criminal investigations, the possibility that it may be one-sided, tainted, biased and unfair, may even be based on concocted evidence , cannot be ruled out. Wrong persons may be prosecuted, and real culprits may be shielded. Even at the trial after the filing of the charge-sheet, there may be cases when witnesses may be won over, they may be bribed, they may be terrorized...'

"These sweeping remarks were made by the former Chief Justice of the Delhi High Court, not at a seminar while dilating on generalities, but as a Commission of Inquiry, to establish his primacy over a regular criminal trial before a court of law which he knew was in progress. This mindset explains his later conduct.''

At the time the President issued a warrant establishing a Commission to investigate the assassination of the late Lalith Athulathmudali, the C.D.B. had caught one of the most important suspects wanted in connection with the assassination.

He was one Kandasamy Lingeswaran. He was arrested quite accidentally by a Navy officer who found a pistol with him. After he was arrested, the C.I.D. and then the C.D.B. questioned him thoroughly and found hand bombs, grenades and live cartridges. He confessed to the Police that he was an LTTE agent with Ragunathan belonging to the Black Tiger suicide Squad, trained by Pottu Amman in weapons and sent to find out about buildings and Petroleum Corporation and the Katunayake Airport etc.

The statement of K. Lingeswaran recorded by a gazetted officer under the Prevention of Terrorism Act and recovery of productions was sufficient to indict him before the High Court for conspiracy to assassinate the late Athulathmudali.

But on the instructions of a state counsel, the C.D.B. took the most unusual but extremely precautionary method and produced Lingeswaran before the Chief Magistrate, Colombo. The evidence of complicity of Lingeswaran with the murder of the late Lalith Athulathmudali, unearthed by the CDB was overwhelming. This may have been the reason why President Chandrika Kumaratunga personally signed the detention order.

At that time Sarath Ambepitiya, the present District Judge, Colombo, was the Chief Magistrate, Colombo. Mr. Ambepitiya having spoken to the suspect and satisfied himself about the voluntariness of the statement recorded the same under Section 127 of the Criminal Procedure Code which is not a confession. In the ordinary course of nature a confession recorded by a officer would be sufficient to indict the accused but a statement recorded by a Judicial Officer would be more than sufficient to convict Lingeswaran for murder of late Lalith Athulathmudali.

But the commission rejected the statement recorded by Mr. Ambepitiya and stated, 'again, even though State Counsel had made the request, the Magistrate if in a dilemma as to what he should do, should have consulted, if need be, with another Judicial Officer and not the Attorney-General — clearly the Magistrate dutie's were judicial duties. It is only in the exceptional case where judicial safeguards have been observed, that the confession can be admitted in evidence after initial appropriate Voir dire proceedings''

Then the Report refers to the Judges institute functioning at Colombo at that time and states that its functions are to guide and train judges. Then it makes a very caustic remark about the involvement of the C.D.B. and the judiciary to prove their false case. "Thus we see an attempt by the C.D.B. to involve the Judiciary in their quest to prove their false case. Of what use is this statement recorded from Lingeswaran? It cannot in any circumstances be used against him in a Court of Law. Was it done to prolong his detention? We do not know. Section 127(3) does not provide for confessional statements to be recorded in this fashion."

Sarath Ambepitiya, the present District Judge of Colombo is one of those Judges against whom there was not even a breath of scandal being politically motivated. The Bar knows their Judges. If there were any reflections on Mr. Ambepitiya's conduct as a Judge they may have come from a very minor section of the Bar who have been disgruntled by his refusal to grant postponements to their cases on flimsy grounds.

It must be stated that Mr. Ambepitiya would be the last person to compromise his position to supplement the desire of the C.D.B. or anyone else to forge ahead with a false case implicating the LTTE with the killing of Lalith Athulathmudali.

Mr. Ambepitiya and Lalith Athulathmudali studied at Royal College and Mr. Athulathmudali was one of the most loved lecturers at Law College who made the most boring subject of Jurisprudence the most interesting by his witty remarks If Mr. Ambepitiya entertained any doubts at all of the voluntariness of the long statement made by K. Lingeswaran implicating himself in the complicity with the murder of Lalith Athulathmudali, he would be the last person to record it.

The indictment which was ready to be forwarded to the High Court by the Attorney-General was stalled. The Commission called Lingeswaran to give evidence. He pleaded, lamented, moaned and bewailed his innocence in the witness box. His performance surpassed that of the best tragi-comedian in a soap opera. He described how a Police Officer called I.P. Nilabdeen tortured him by putting him in a box and forced him to make a false statement implicating the LTTE and himself with the assassination of Lalith Athulathmudali.

I.P. Nilabdeen had been decorated, not for his heroic efforts, in the war front, but for the indefatigable interest he has shown in investigating LTTE activities. This Government gave I.P. Nilabdeen a double promotion when he detected a large cache of arms, explosives and ammunitions which would have been sufficient to blow up half of Colombo.

He unearthed the plans of the LTTE to send a large contingent of LTTE Black Tigers to attack Temple Trees and kill the President.

I.P. Nilabdeen was undeterred by the evidence that was unfolding before the Commission to whitewash the LTTE of this dastardly act. He continued with the same zeal and determination to arrest other suspects who were connected with the killing of Lalith Athulathmudali. After years of surveillance and information gathering, I.P. Nilabdeen was able to arrest Pedurupulle Kavseelan, the accomplice of Ragunathan, the alleged killer of Lalith Athulathmudali.

The arrest of Ragunathan and the subsequent statements made by him to the C.D.B., then to the C.I.D. and to the S.I.B. and finally to the N.I.B., made sensational news. A report relating to the confession of Kavseelan was published first in the provincial edition of the Daily News as the lead story, and later the story was removed from the other editions on the instructions of a Tamil associate editor. It was unbelievable how Kavseelan was able to recount minute details of his training as an LTTE agent, and his conduct and the assistance he gave to the assassin of Lalith Athulathmudali.

What baffled the N.I.B. was the fact that the Commission had already arrested suspects allegedly involved in the killing of Lalith Athulathmudali. Sotthi Upali was the main architect according to the evidence revealed before the Commission.

It was possible, as Kavseelan's involvement with the killing was known to the C.D.B. almost immediately after the death of Athulathmudali and his photograph and description appeared in the newspapers at that time, that the C.D.B. would extract a confession which would be false. .

But the N.I.B. was least interested in recording a statement from Kavseelan to show that evidence so far unearthed by the Commission was diametrically opposed to the revelations made to them by Kavseelan. But the N.I.B. was not interested in recording a false statement from Kavseelan. When the statements of Kavseelan made to the four agencies were compared they fitted like a jigsaw puzzle.

The Commission immediately summoned Kavseelan who recanted the confession. He cried like a baby and said how he was assaulted by the Police Officers at the C.D.B. and that he was an innocent fisherman who had come to Colombo to go abroad.

I.P. Nilabdeen, one of the saviors of the Sinhala people from unfathomable atrocities committed on them by the LTTE, was interdicted. I.P. Nilabdeen left Colombo and led the life of a recluse; his family and his parents were constantly threatened by the LTTE.

The Report of the findings of the Commission was sent to the Attorney-General to file charges against I.P. Nilabdeen. A high powered Police team drawn from the C.I.D. and other sources inquired into the allegations of Kavseelan mainly about the manner in which I.P. Nilabdeen extracted the confession.

After intense investigations, the select Police Officers found that Kavseelan had lied before the Commission and his deposition that he was assaulted was palpably false and the involvement of I.P. Nilabdeen to falsify a case against Kavseelan was untenable. The Attorney-General would have to issue a statement that I.P. Nilabdeen and S.I. Jayaratnam are exonerated from all allegations directed against them by the Commission.

Kandiah Lingeswaran and Pedurupulle Jebanesan alias Kavseelan are still detained under the PTA. The character certificate given by the Commission absolving these two terrorists of any wrong doing has not made the Attorney-General discharge them on the allegation that they are involved in the murder of the late Lalith Athulathmudali.

It is up to the Attorney-General's Department to now employ the C.I.D. and investigate the confession made by these two terrorists to I.P. Nilabdeen and if there is sufficient evidence to indict them in the High Court.

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